Monday, February 21, 2011

Summary Judgment Procedure in Wisconsin

By John DiMotto
When a person files a civil lawsuit to seek redress from what he/she perceives to be an injustice, that person is usually entitled to a trial on the merits. I say "usually" because there is a circumstance where a person is denied the right to a trial. That "circumstance" is when there is no genuine issue of material fact a person is NOT entitled to a trial. Whether this "circumstance" is present is determined by Summary Judgment.
Chapter 802 of the Wisconsin Statutes addresses "Pleadings, Motions and Pretrial Practice." One of the motions that Chapter 802 addresses is the Motion for Summary Judgment.
802.08(1) sets forth that a party:
"...may move for summary judgment on any claim, counterclaim, cross claim or 3rd party claim which is asserted by or against the party".
802.08(2) sets forth that:
"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue to the amount of damages."
802.08(3) sets forth that:
"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence."
802.08(5) sets forth that:
"Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees."
Finally, 802.08(6) sets forth that:
"If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor."
In order to ensure that summary judgment is not abused, appellate courts have set forth principles to be embraced by the trial court.
Summary judgment is only available when "there is nothing to try." When brought by a defendant, it is akin to a motion for dismissal at the end of the plaintiff's case if there is not credible evidence in support of the elements the plaintiff must prove. see Transportation Ins. Co. v. Hunzinger, 179 Wis.2d 281 (Ct. App. 1993)
The party with the burden of proof at trial in connection with a claim has the burden to show that there is a genuine issue of material fact that requires a trial on that claim. This burden can be met by reasonable inferences drawn from circumstantial evidence. Submissions are to be examined in the light most favorable to the nonmoving party. see Tomson v. American Family Ins. Co., 321 Wis.2d 492 (Ct. App. 2009).
An issue of fact is genuine if a reasonable jury could find for the nonmoving part. A material fact is such a fact that would influence the outcome of the controversy. see Marine Bank v. Taz's Trucking Inc., 281 Wis.2d 275 (2005).
A case founded only on hunches and speculation rather than evidence will not justify a trial. see Dyer v. Blackhawk Leather, LLC, 313 Wis.2d 863 (Ct. App. 2008).
Courts do not make findings at the summary judgment stage. Summary judgment methodology prohibits the trial court from making findings of fact. The trial court does not weigh the evidence or determine credibility of evidence. see Continental Casualty v. Milwaukee Metropolitan Sewerage District, 175 Wis.2d 527 (Ct. App. 1993).
While summary judgment is considered a drastic remedy which should not be granted when material facts are in dispute, without a doubt a trial court can and should grant summary judgment in those instances where the controlling material facts are not in dispute and the application of the law to the facts is not doubtful. see Town Bank v. City Real Estate Development LLC, ___Wis.2d___, 2010 WI 134.
Summary judgment should not be granted unless material facts are not in dispute, no competing inferences can arise and the law that resolves the issue is clear. see Tele-Port v. Ameritech Mobile Communications, 248 Wis.2d 846 (Ct. App. 2001).
When a motion for summary judgment is brought, the adverse party may not rest on mere allegations or denial in the pleadings but must set forth evidence. The opponent to summary judgment does not have the luxury of resting upon allegations or denials but must advance specific facts showing the presence of a genuine issue of material fact. see Schreiner v. Wieser Concrete Products, Inc. 294 Wis.2d 832 (Ct. App. 2006).
Any reasonable doubt as to the existence of disputed material fact is resolved against the moving party. see In rel Paternity of Taylor R. T., 199 Wis.2d 500 (Ct. App. 1996).
A question of law is suitable for summary judgment. see Public Service Corporation v. Heritage Mutual Ins. Co., 200 Wis.2d 821 (Ct. App. 1996).
Summary judgment can resolve legal issues and contract construction. see Meyer v. City of Amery, 185 Wis.2d 537 (Ct. App. 1994).
As you can see from the the declarations of appellate courts, if there is a dispute of material fact or if a contract is ambiguous, a trial court should never grant summary judgment. If there is a question of credibility, summary judgment cannot be granted. If there is evidence "to be weighed," summary judgment cannot be granted. Summary judgment is not a substitute for a trial but a mechanism to resolve a lawsuit where there is not dispute of fact or law.


  1. And here's where we're likely to see the impact of the new expert evidence rules. Section 802.08(3) is predicated on "admissible" evidence, as we see above. In appropriate cases, opposing counsel is well advised to pair motions for summary judgment with motions challening the admissibility of her opponent's expert's opinion testimony. If the judge excludes the opinion as insufficiently reliable, summary judgment may follow based on the absence of a disputed issue of (admissible) fact. Note that all three of the Supreme Court's Daubert trilogy were summary judgment cases.

    Dan Blinka

  2. Why don't trial judges use summary judgment to whittle down to more manageable size the number of claims presented by a plaintiff or the number of defenses raised by the defendant? It is not worth all the time and effort that goes into a summary judgment motion to bring them when the motions are denied so regularly.

  3. Am I, as defendant in a monetary civil case, required to appear in person for a summary judgement? The fact I owe money is not in dispute only the amount, which I argued in my reply.