Kalal v. American Family Ins.
Decision Date | 18 September 1985 |
Citation | 376 N.W.2d 869,126 Wis.2d 515 |
Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. TED T. KALAL, Plaintiff-Appellant, and Cross-Respondent, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Respondent. and Cross-Appellant. 85-108. |
Court | Wisconsin Court of Appeals |
Circuit Court, Milwaukee County
Affirmed
Appeal and Cross-Appeal from a judgment of the circuit court for Milwaukee county: Thomas P. Doherty, Judge.
Before MOSER, P.J., WEDEMEYER and SULLIVAN, JJ.
Ted T. Kalal appeals from a judgment entered on a jury verdict finding Henry Narr, the insured of American Family Insurance Company (American Family), free of negligence. Kalal claims the verdict was perverse and that Narr, as a matter of law, was at least 50% negligent. Kalal further argues that the trial court erred by failing to submit a camouflage instruction. On cross-appeal American Family challenges the jurisdiction of both the trial court and this court to review claims of error that Kalal did not properly preserve by timely filing of postverdict motions. We conclude that Kalal's violation of mandatory procedural statutes divested the trial court of its continued competency to exercise jurisdiction, but that this court retains discretionary review power pursuant to sec. 752.35, Stats. We decline, however, to grant a discretionary reversal because the real controversy was fully tried and there was no probable miscarriage of justice. Judgment on the jury verdict is therefore affirmed.
Kalal injured his right arm when he crashed through the glass panels of Narr's garage door while playing basketball in the alley behind Narr's garage. At trial, a jury found that neither Narr nor Kalal were negligent. The jury returned its verdict on September 20, 1984, but Kalal waited until October 15 to file his motions requesting the trial court to change the special verdict's answers or, in the alternative, to grant a new trial. Although American Family objected that the motions were untimely and that the trial court was therefore without jurisdiction to decide them, the trial court nevertheless heard and denied the motions. The court subsequently entered judgment on the verdict. American Family claims error by the trial court in entertaining these untimely motions, and we agree.
Amendments to secs. 805.14(5)(a) and 805.16, Stats., became effective on July 1, 1984. See S.Ct. Order, 118 Wis. 2d xiii (1984). As amended, these statutes provide in part:
805.14(5)(a) Motion for judgment. . . . If no motion after verdict is filed within the time period specified in s. 805.16, judgment shall be entered on the verdict at the expiration thereof . . ..
. . . .
805.16 Time for motions after verdict. Motions after verdict shall be filed and served within 20 days after the verdict is rendered . . .. [Emphasis added.]
The prior version of sec. 805.16 gave the trial judge discretion to set dates f or filing and hearing motions after verdict. As a judicial Council Note explai ned, the new version established a mandatory twenty-day time period because '[t]he prior rule encouraged frivolous motions and caused unnecessary hearings.' 118 Wis. 2d at xiv.
Here, the trial court advised Kalal's counsel immediately after the jury verdict that new rules governed the filing of motions after verdict and that counsel should consult the 'advance sheets.' This directive notwithstanding, the motions were not filed until twenty-five days later.
Kalal argues that the statutory changes delineated above relate only to cases filed after July 1, 1984. Admittedly, the general rule is that statutes are to be construed as relating to future and not to past acts. Gutter v. Seamandel, 103 Wis. 2d 1, 17, 308 N.W.2d 403, 411 (1981). The exception is that procedural and remedial statutes are generally given retroactive effect. Id.; see Hathaway v. Joint School District No. 1, 116 Wis. 2d 388, 400 n.4, 342 N.W.2d 682, 688 n.4 (1984). Because these statutes are procedural, and therefore retroactive, they apply to this case.
Kalal next asserts that the trial court had the power to disregard his failure to file in a timely manner pursuant to the 'excusable neglect' standard cited in sec. 801.15(2)(a), Stats. This assertion, however, is clearly contradicted by subsection (c) of the same statute, which mandates that '[t]he time . . . for motions after verdict under s. 805.16 . . . may not be enlarged.' As the Judicial Council Note to this subsection explains, the granting of 'enlargements of time' for motions after verdict 'would substantially impair the finality of judgments.' See S.Ct. Order, 73 Wis. 2d xxxi, xxxv (1977).
The supreme court, in Jos. P. Jansen Co. v. Milwaukee Area District Board, 105 Wis. 2d 1, 10, 312 N.W.2d 813, 817 (1981), held that it is error for the trial court to enter an order after the expiration of the time limit of sec. 805.16, Stats., because the court has 'lost competency to exercise its jurisdiction.' In the instant case the trial court lost competency on October 11, 1984, to exercise its discretion in regard to Kalal's motions after verdict. We conclude, therefore, that judgment on the jury verdict was mandatory as of that date pursuant to sec. 805.14(5)(a).
We do not concur, however, with American Family's erroneous claim that the trial court's loss of jurisdiction extends to this court. On procedural grounds, we hold that Kalal's appeal was timely filed and that this court obtained jurisdiction pursuant to Rule 809.10(1)(b). On substantive grounds, we reaffirm that an appellate court has the power to...
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