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Appellate Procedure: “Waiver,” Distinguished from “Forfeiture” – Civil Case Necessity of Post-Trial Motion

J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity

Appellate Procedure – “Waiver,” Distinguished from “Forfeiture” 

¶1 n. 1:

In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.”  See id., ¶29 (“Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably, the two words embody very different legal concepts.  ‘Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.’”) (citation omitted).  Although forfeiture may be applicable in this context, we use waiver to be consistent with the cases cited.

Appellate Procedure – Civil Cases – Necessity of Post-Trial Motion 

In civil cases, the rule that a post-trial motion is necessary to preserve for appellate review all issues other than sufficiency of the evidence applies to bench as well as jury trials :

¶25      We held in Ford Motor Company v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987), that “failure to include alleged errors in the motions after verdict constitutes a waiver of the errors.”  Id. at 417.  As such, we noted that “‘[m]otions after verdict must state with particularity the alleged error so as to apprise the trial court of the alleged error and give it an opportunity to correct it, thereby avoiding a costly and time consuming appeal.’”  Id. (citation omitted).  The rule applies even “where a proper objection is made during the course of trial.”  Id.  We recently reiterated that holding in Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, ¶10, 288 Wis. 2d 188, 708 N.W.2d 13.

¶26      Peters admits that he failed to raise his evidentiary claims in a post-trial motion, but argues that Ford Motor and Suchomel are inapplicable because both Ford Motor and Suchomel involved trials to a jury, and, here, the trial was before the court.  See Ford Motor, 137 Wis. 2d at 415 (referencing the jury’s verdict); Suchomel, 288 Wis. 2d 188, ¶1 (same).  Peters goes on to cite Wis. Stat. § 805.17(4) (2009-10)[3] in support of his assertion that the rules applying to jury trials and court trials are fundamentally different, thereby exempting him from the explicit requirements of Ford Motor.  We do not find Peters’ arguments to be persuasive.

Now that ch. 980 cases have been placed within Rule 809.30, it’s hard to imagine this problem arising in the SPD context. But the holding has obvious (and recurrent) importance, so the civil practitioner will want to keep it in mind. Just to round off the distinction, the parallel rule in SPD cases is found in § 809.30(2)(h): “The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.” Emphasis supplied. By contrast, the plain text of § 805.17(4) allows post-trial motions in civil bench trials to be pretermitted only where sufficiency of the evidence is raised on appeal.

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