State Bar of Wisconsin

Milwaukee County
Circuit Court Rules
(First Judicial District)

PART 3. RULES FOR THE CIVIL DIVISION

3.1       Case Processing Goals

A.       Large Claims: Ninety percent (90%) of all cases classified as personal injury/property damage should be resolved within 540 days.  Eighty percent (80%) of all cases classified as contracts/real estate or other civil cases should be resolved within 360 days.

B. Small Claims: Except as otherwise provided by statute, eighty percent (80%) of all contested small claims cases should be resolved within ninety (90) days of the return date or, when trial de novo is requested, within ninety (90) days of the request.

3.2       Assignment of Cases

Subject to Rule 1.3 (plenary authority of Chief Judge), all civil actions shall be assigned electronically by lot among the large claims branches, except that small claims, replevin and eviction actions shall be assigned to the small claims calendar. 

3.3       Consolidation of Cases

A. Cases pending in a single branch that satisfy the prerequisites of Wis. Stat. § 803.04 may be consolidated by the court on its own motion.

B. Subject to Rule 1.3 (plenary power of Chief Judge over case assignment), cases pending in more than one branch that satisfy the prerequisites of Wis. Stat. § 803.04 may be consolidated in the branch to which the case with the lowest case number is assigned:

1.. upon the motion of that branch with the written consent of the other branch or branches;

2.. upon stipulation of all parties and the written consent of each branch; or

3.. if contested, upon a motion filed in the case with the lowest case number; the only relief the court may grant is consolidation in the branch to which the case with the lowest case number is assigned.

C. Upon consolidation, all further proceedings shall take place in the branch in which the cases have been consolidated regardless of when any of the cases is resolved.

3.4       Dismissal Calendar

In cases which are not being diligently prosecuted, including without limitation (1) cases in which no party has been served with process within the applicable period and (2) cases in which no timely answer has been filed and no motion for default judgment has been filed within a reasonable time, the court shall give notice that the case will be dismissed unless cause is shown why dismissal is not appropriate.  If good cause is not shown, the case shall be dismissed without further notice.

 3.5       Daytime Duty Judge

A. For one week on a rotating basis, each judge assigned to the family and civil divisions shall serve as daytime duty judge.  The duty judge schedule may be obtained from the Calendar Clerk’s office or the Chief Judge's Office.

B. The following proceedings are assigned to the duty judge:

1. Petitions for writs of habeas corpus;
2. De novo appeals from proceedings before court commissioners concerning injunctions and restraining orders under Wis. Stat. Chapter 813;
3. Small claims cases, if the judge assigned to the small claims branch is unavailable;
4. Petitions for change to vital records;
5. Matters concerning the issuance of marriage licenses; and
6. Proof of age applications under Wis. Stat. § 889.28.

C. The daytime duty judge shall preside in proceedings in which immediate judicial review is necessary and the branch to which the case is assigned is not available, including the small claims branch, nor is a pair judge available. In the absence of the duty judge, the next available judge, in the order listed on the duty judge schedule, shall preside.

D. Upon substitution or recusal of the duty judge, the proceedings shall be transferred to the next available judge on the duty judge schedule.

3.6       Filing Papers

A. In addition to the general rules governing format and filing stated in Rules 1.10 through 1.13, the following rules govern filings made in the civil division:

B. The summons and complaint and all papers filed contemporaneously with them, and all papers the filing of which requires the payment of a fee, shall be filed in Room 104.  All other papers shall be filed with the deputy court clerk of the branch to which the case is assigned, unless the courtroom is closed, in which case the papers may be filed with the Calendar Clerk’s office.

C. The first page of the summons and complaint shall state the case classification type and code number, as designated by the Director of State Courts (available at http://wicourts.gov/about/filing/circuitcodes.htm); subsequent filings need not.

D. Notice of appeal shall be filed with the Civil Appeals Division in Room G-8. The appropriate fees should be included with the notice of appeal.

E. Unless the court grants permission in writing and in advance, the clerk shall not accept for filing any affidavit, including exhibits, which exceeds 250 pages in length, except affidavits in actions contesting insurance coverage to which the attached exhibits consist only of insurance policy documents.

3.7       Filing of Garnishment Actions

A. Each action for garnishment on property other than earnings shall be commenced as a separate action and be assigned a separate case number.  Regarding actions for garnishment on earnings, however, each notice issued to the same garnishee shall bear the number of the case in which the judgment was entered.

B.        The Clerk’s office may issue earnings Garnishment forms upon payment of the appropriate fee and prior to the filing of the earnings garnishment notice provided that the earnings garnishment notice is filed with the Clerk’s office no later than 5 business days after the date the garnishee is served.

3.8       Scheduling Conferences and Scheduling Orders

A. Within a reasonable time after the case is filed, the court shall conduct a scheduling conference pursuant to Wis. Stat. § 802.10(3).

B. Before the scheduling conference, the parties shall submit a written description of the factual background and issues presented by the case on a form prescribed by the court.

C. The court may issue a scheduling order in a standard form prescribed by the chief judge.

D. Before issuing a scheduling order governing deadlines for the filing of dispositive motions, the court shall ask the parties whether they agree to be bound by the local rules governing briefing deadlines under Rule 3.15.

3.9       Payment of Jury Fee

Unless the court orders otherwise, the jury fee shall be paid within 30 days after the court issues the scheduling order pursuant to Rule 3.8.  Payment of the jury fee by any party preserves the right to a jury for all parties, consisting of the number of jurors for which the fee has been paid.  If no party pays the jury fee, the right to a jury is waived by all parties.

3.10    Hearing Dates

Subject to the provisions of Rule 1.19 (obtaining hearing dates), motion hearings shall be scheduled on Monday mornings, except as otherwise provided by law or scheduled at the discretion of the court.

3.11    Non-dispositive Motions

A. Except for motions to dismiss, for judgment on the pleadings and for summary judgment or partial summary judgment (see Rules 3.14 and 3.15) and motions for temporary restraining orders (see Rule 3.13), all motions and supporting papers shall be filed not less than 15 days before the hearing date.

B. All papers filed in opposition to such motions shall be filed no later than 7 calendar days (including Saturdays, Sundays and holidays) before the hearing date.

C. No reply briefs shall be considered without the permission of the court.

D. The court may modify these deadlines upon a showing of good cause.

E. Briefs in support or in opposition to such motions shall not exceed 10 pages in length, except that briefs filed in support or opposition to a motion for class certification shall not exceed 25 pages. Briefs in excess of the permitted length may be disregarded by the court.  The court may modify these limitations upon a showing of good cause.

3.12    Venue Motions

Rulings upon motions for change of venue under Wis. Stat. §§ 801.51 or 801.52 shall employ Supreme Court Form GF-120 “Order for Change of Venue.”

3.13    Motions for Temporary Injunctions and
   . Restraining Orders

A. Any ex parte motion for temporary injunction or restraining order shall be accompanied by the certification required by Rule 1.19 and a written, signed certification that:

1.. a good faith effort was made before filing the motion to contact the party against whom relief is sought (or counsel for the party, if known) to inform the party of the time and place of the anticipated hearing; or 

2.. good cause exists for excusing the party from the requirement in paragraph A.1.

B. Before issuing an ex parte temporary injunction or restraining order, the court shall attempt to contact by telephone the party against whom relief is sought (or counsel for the party, if known), unless the court finds good cause for not doing so.

C. This rule does not apply to petitions filed under Wis. Stat. §§ 813.12, 813.122, 813.123 and 813.125.

D. Briefs in support or in opposition to motions for temporary injunctions or restraining orders shall not exceed 10 pages in length.  Briefs in excess of the permitted length may be disregarded by the court.  The court may modify these limitations upon a showing of good cause.

3.14    Motions to Dismiss or for Judgment on the Pleadings

A. Motions to dismiss or for judgment on the pleadings shall be filed not less than 45 days before the hearing date, except as provided in paragraph D.

B. Briefs or other papers in response to such motions shall be filed not less than 25 days before the hearing date.

C. Reply briefs or other papers in support of such motions shall be filed not less than 15 days before the hearing date.

D. In actions which allege the failure to pay a debt and in which the answer does not deny the debt, a motion for judgment on the pleadings shall be filed not less than 15 days before the hearing date.  All papers filed in opposition to such a motion shall be filed no later than 7 calendar days (including Saturdays, Sundays and holidays) before the hearing date.

E. The court may modify these deadlines upon a showing of good cause.

F.. Briefs in support or in opposition to such motions shall not exceed 20 pages in length and reply briefs shall not exceed 10 pages in length, exclusive of exhibits.  Briefs in excess of the permitted length may be disregarded by the court.  The court may modify these limitations upon a showing of good cause.

3.15    Summary Judgment Motions

A. The Civil Division Scheduling Order shall designate whether the parties agree to comply with the briefing deadlines set forth in this rule in place of the briefing deadlines set forth in Wis. Stat. § 802.08(2).

B. Motions for summary judgment shall be filed not less than 45 days before the hearing date.

C. Briefs or other papers in response to such motions shall be filed not less than 25 days before the hearing date.

D. Reply briefs or other papers in support of such motions shall be filed not less than 15 days before the hearing date.

E. The court may modify these deadlines upon a showing of good cause.

F.. Briefs in support of or in opposition to such motions shall not exceed 25 pages in length and reply briefs shall not exceed 10 pages in length, exclusive of affidavits and exhibits.  Briefs in excess of the permitted length may be disregarded by the court. The court may modify these limitations upon a showing of good cause.

G. Briefs in support shall state plainly and succinctly the material undisputed facts which support judgment, together with specific references to the record.  Failure to comply with this rule may result in denial of the motion.

H. Briefs in opposition shall plainly and succinctly state, together with specific references to the record, which facts stated in the brief in support, if any, are disputed.  Failure to comply with this rule may result in granting of the motion.

I. . Affidavits in support of or opposition to a motion for summary judgments shall comply with the page limitations stated in Rule 3.6.E.

3.16    Default Judgments

A. A party entitled to judgment by default due to the failure of an adverse party to answer the complaint may submit a motion for default judgment under Rule 1.21 (the five-day rule). 

B. If the action in which judgment is sought is subject to service of a summons pursuant to Wis. Stat. § 801.11, proof of service shall be made as follows:

1.. If the party against whom judgment is sought is a natural person and is served personally within the State of Wisconsin, the motion shall be supported by a Form CV 1 Affidavit of Personal Service, or its substantial equivalent, printed on green paper.

2.. If the party against whom judgment is sought is a natural person and is served by substitute service within the State of Wisconsin, the motion shall be supported by a Form CV 2 Affidavit of Substitute Service, or its substantial equivalent, printed on blue paper.

3.. If the party against whom judgment is sought is a corporation or limited liability company and is served personally within the State of Wisconsin, the motion shall be supported by a Form CV 3 Affidavit of Personal Service on Corporation or Limited Liability Company, or its substantial equivalent, printed on green paper.

4.. This rule does not apply to proof of service furnished by a county sheriff’s department located in Wisconsin or to service that is effected outside Wisconsin.

5.. If the party against whom judgment is sought is served by publication, within or outside Wisconsin, the motion shall be supported by a Form CV 4 Affidavit of Reasonable Diligence, or its substantial equivalent, printed on yellow paper, and proof of publication and mailing of the publication summons.

6.. The court will accept an original affidavit printed on paper whose color does not conform with these rules if the affidavit is accompanied by a photocopy of the affidavit on the paper of the required color.

C. In tort actions subject to Wis. Stat. § 802.02(1m), the motion for default judgment shall itemize the damages and shall be supported by documentary evidence of the damages sought.  If the damages cannot be documented (e.g., pain and suffering damages), the party seeking judgment shall request a hearing.

3.17    Briefing of Habeas Petitions and Certiorari Petitions in Criminal Matters

Briefs in support or opposition to petitions for habeas corpus or certiorari in cases arising from or related to criminal convictions shall not exceed 20 double-spaced pages in length and shall comply with Rule 1.10 (format).  Reply briefs shall not exceed 10 pages.  Motions and briefs exceeding these page limits shall be disregarded.  The court may modify these limitations upon a showing of good cause.

3.18    Citation to Non-Wisconsin Legal Authorities

Unless the court orders otherwise, if a brief contains a citation to an authority other than the Wisconsin Statutes or a decision of the Wisconsin Supreme Court or the Wisconsin Court of Appeals, a copy of the authority shall be appended to the brief.  Copies of such authorities shall not be made part of the record on appeal.

3.19    Form of Discovery Responses

Responses to interrogatories, requests for production of documents and requests to admit, including responses consisting solely of objections, shall restate the interrogatory or request to which the response or objection refers.

3.20    Limitations on Interrogatories

A. Except as provided in paragraph B., no party may serve more than a total of 35 interrogatories in any one case.

1. Each sub-part of an interrogatory shall be counted as 1 interrogatory.

2. Parties represented by the same attorney or law firm shall be regarded as 1 party.

3. Interrogatories inquiring about the names and location of parties, expert witnesses, and other persons having knowledge of discoverable information, or about the existence, location, or custodian of documents or physical evidence shall not be counted toward the limit.

B. Parties may agree to permit additional interrogatories to be served.  Upon compliance with Rule 3.22 (meeting and conferring before bringing a discovery motion), a party may request permission from the court to serve additional interrogatories.

3.21    Timely Completion of Discovery

Except for good cause, the court shall not compel a party to respond to an interrogatory, document request or request to admit that is served less than 30 days before a discovery deadline set forth in the scheduling order.

3.22    Meeting and Conferring before Filing Discovery Motions

A. Before a party may move to compel discovery, or for permission to serve interrogatories in excess of the limitation stated in Rule 3.20 (limitations on interrogatories), the party shall confer in person or by telephone with the party against whom relief is sought and make a sincere attempt to resolve the issue. 

B. No motion to compel or for permission to serve interrogatories in excess of the limitation stated in Rule 3.20 will be heard unless the motion demonstrates compliance with this rule, including a statement of the date and place of the conference and the names of all parties participating therein.

3.23    Trial Depositions

A deposition taken for the purpose of preserving testimony for use at trial pursuant to Wis. Stat. §  804.07(1)(c) may be taken after the deadline for completion of discovery set forth in the scheduling order, but not later than 10 days before the commencement of trial.  Such depositions may be taken at any time upon stipulation of the parties or upon leave of the court.

3.24    Filing of Learned Treatises

A party giving notice of the intended use of a learned treatise under Wis. Stat. § 908.03(18) shall append a copy of the document to the notice served on other parties but shall not append a copy to the notice filed with the court.  A copy of the document offered in evidence shall be filed only if the document is offered in evidence during trial or if the party’s right to offer the document is contested before trial. 

3.25    Argument and Examination of Witnesses by Multiple Attorneys

Only one attorney for a party may argue motions or objections or examine a witness, unless permitted by the court.

3.26    Presence of Counsel and Parties during Deliberations and upon Return of Jury Verdict

If the court permits counsel, or any party not represented by counsel, to leave the courtroom during deliberations and specifies a time within which the parties or counsel must return to the courtroom upon receipt of a verdict, a question from the jury or a request for further instructions, such counsel or party shall leave with the deputy court clerk the telephone number where he or she can be reached.  A failure to return within the prescribed time period may be deemed a waiver of the party’s right to be present.

3.27    Appearances by Telephone in Non-Evidentiary Proceedings

A. The court, in its discretion, may conduct non-evidentiary proceedings by telephone.  The court may assign responsibility to one party for arranging the conference call, notifying all parties, and the costs of the call.  The court may permit some parties to appear in person.

B. In proceedings involving scheduling in cases in which a party is represented by an attorney whose office is located outside Milwaukee County, and unless the court deems the matter too complex or unmanageable for teleconferencing, the court may permit all parties to appear by telephone, provided that the attorney whose office is located outside Milwaukee County arranges the call, notifies all parties, and bears the cost of the call.   

3.28    Appearances by Telephone and Videoconference in Evidentiary Proceedings

The court shall permit oral testimony to be communicated to the court by telephone or videoconference if (a) a request is made at least 1 day before the scheduled testimony (exclusive of weekends and holidays); (b) the court finds that the equipment available to the court will enable the court to make a sufficient record; and (c)(1) all parties agree or (c)(2) the court grants the request after considering the objection of any party unwilling to agree.

3.29    Petitions for Approval of Minor Settlements

A. A petition for approval of a minor settlement shall concisely state the age of the minor, the nature and extent of the injury giving rise to the claim and whether the injury is permanent, the cause of the injury and the circumstances in which the injury was suffered, and the proposed distribution of the settlement funds.

B. The court shall presume that sums distributed for the payment of attorney fees will not exceed 25% of the settlement but may approve a larger portion if extraordinary circumstances so justify. 

C. Unless the court orders otherwise, the minor, his or her attorney, and at least one of the parents or guardians shall attend in person the hearing on the petition.

D. Proceeds of a minor settlement to be deposited or invested for the benefit of the minor shall be paid into a restricted account that will not permit any withdrawal from the account until the minor’s 18th birthday or upon further order of the court.  The court shall not approve a settlement that proposes to deposit the settlement funds into a bank account that does not bear interest. 

E.        No guardian ad litem may be relieved of responsibility on any case until he or she files with the court written confirmation that the funds have been deposited or invested as provided in the court’s order.

Rules Applicable to the Probate Branches of the Civil Division

3.50    Assignment of Cases to Civil/Probate Branches

A. Two branches of the civil division shall be assigned probate and mental health proceedings, including proceedings concerning trusts, guardianship, protective services, protective placement, adoption of adults and individuals at risk.

1.. The children’s division shall have jurisdiction of all petitions concerning the appointment and removal of a guardian of the person of a child under Wis. Stat. Chapter 54, and proceedings there from, except that if such a petition is uncontested and a petition for guardianship of the estate of the child is filed, the proceedings shall be assigned to one of the civil/probate branches.  If a petition concerning the appointment and removal of a guardian of the person of a child is disputed but the dispute is resolved, proceedings concerning the guardianship of the person and the estate of the child shall be transferred to the civil/probate branches.

2.. The civil/probate branches shall be assigned petitions for restraining orders and injunctions concerning individuals at risk.

B. Odd-numbered cases shall be assigned to the civil/probate branch located in Room 206. Even-numbered cases shall be assigned to the civil/probate branch located in Room 208. 

3.51  Nonresident Personal Representative

A. A person who is not a resident of Wisconsin may be appointed as personal representative with bond if a resident agent is appointed to accept service of process.

B. A person who is not a resident of Wisconsin who is nominated by a will to serve as personal representative without bond may be appointed as a co-personal representative without bond if an otherwise eligible Wisconsin resident (1) is appointed as co-personal representative and (2) retains control and possession of all assets within Wisconsin until final distribution.

3.52    Appointment of Guardians ad Litem, Advocate Counsel and Successor Fiduciaries

A. The court or probate registrar may dispense with appointment of a guardian ad litem:

1.. if, upon a petition, the court or probate registrar is satisfied that a party fulfills the requirements of Wis. Stat. § 879.23(5); or

2.. for a minor whose interest is limited to that of a contingent beneficiary of a revocable inter vivos trust.

B. Attorneys appointed as guardian ad litem shall have training and experience deemed sufficient by the appointing judge.  The court may select from a list of qualified candidates maintained as follows:

1.. Attorneys may apply to the Register in Probate for inclusion on the list.  The application shall state the attorney’s relevant experience and whether the attorney meets the qualifications stated in paragraph B.3.  An application shall be approved if either of the two judges assigned to the civil/probate branches determines that the applicant has sufficient experience and qualifications to serve as a guardian ad litem.

2.. The list shall designate whether the attorney listed will accept assignments in the following categories:

a.. estate and trust proceedings generally;
b.. guardianship and protective placement proceedings;
c.. annual reviews of protective placement; and
d.. individual at risk injunction proceedings.

3.. Attorneys named on an appointment list shall maintain the following qualifications:

a.. Attorneys seeking appointments in estate and trust proceedings shall have attended continuing legal education relating to estate or trust proceedings, in courses approved for credit by the Board of Bar Examiners.  Attendance shall consist of at least (i) 30 hours of credit earned at any time, or (ii) 6 hours of credit earned during the current or most recent preceding reporting period.

b.. Attorneys seeking appointments in guardianship or protective placement proceedings shall have attended continuing legal education relating to guardianship and protective placement proceedings, in courses approved for credit by the Board of Bar Examiners consisting of at least  (i) 30 hours of guardian ad litem education approved under SCR 36.03, or (ii) 6 hours of guardian ad litem education approved under SCR 36.03 during the combined current reporting periods specified in SCR 31.01 (7) (consisting of the period during which the appointment is accepted and the immediately preceding period).

3.53    Signing Fiduciary Bonds

An attorney, employee or associate of an attorney shall not sign a corporate surety bond as “attorney in fact” when the attorney is acting as personal representative, attorney for the personal representative or as other fiduciary or attorney for the fiduciary.

3.54    Uncontested Proceedings

All proceedings may be scheduled for hearing and disposition by the circuit court commissioner assigned to assist with probate matters unless an objection or cross-petition is filed.

3.55    Contested Proceedings

A. Proceedings are contested when an interested person files an objection or cross-petition.  Objections may not be raised by filing a motion.

B. All objections and cross-petitions shall comply with these rules:

1.. All objections and cross-petitions shall be filed in the Register in Probate Office, Room 207 of the Courthouse.

2.. Any objection or cross-petition filed in an estate being administered informally shall be accompanied by a demand for formal proceedings.

3.. All required fees shall be paid before or at the time of filing.

4.. Objections and cross-petitions shall be accompanied by proof that the objection has been served upon the attorney of record for each party who has appeared in the proceeding (for example, the petitioner, guardian, trustee, claimant or personal representative) or upon the party if not represented by an attorney. 

5.. Service may be accomplished by any method authorized under Rule 1.13 (methods of service).

C. Upon filing, all objections and cross-petitions shall be reviewed by a deputy register in probate and assigned to either Track I or Track II. Track I contests are assigned for pretrial before a deputy register in probate/acting circuit court commissioner. Track II contests are assigned to a circuit judge.

D. Contested proceedings assigned to Track II are scheduled by the deputy court clerk in the civil/probate branch to which the case is assigned.

E. Upon securing a date and time for a hearing in a contested proceeding, the party who filed the objection or cross-petition shall serve written notice of the scheduled proceeding upon all interested parties.  Service may be accomplished by any method authorized under Rule 1.13 (methods of service).  The original notice and proof of service of the notice shall be filed before the scheduled hearing in the civil/probate branch to which the case is assigned.

3.56    Continuances

A. A request for a continuance in a contest assigned to Track I shall be filed with the assigned deputy register in probate/acting circuit court commissioner.

B. A request for a continuance in a contest assigned to Track II shall be filed in the civil/probate branch to which the case is assigned.

C. Requests for continuance shall be filed within 10 days after service of notice of a scheduled proceeding.  If a request for continuance is filed more than 10 days after service of notice of a scheduled proceeding, the request may be granted only upon a personal appearance before the judge or circuit court commissioner and a showing of good cause.  Agreement of counsel shall not, of itself, be considered good cause for a continuance.

3.57    Proposed Orders (Thirty Day Rule)

A. All orders, certificates, and judgments, other than final judgments, shall be submitted to the judge or circuit court commissioner for signature not later than 30 days after the date on which the subject of the order is heard or was to be heard by the court.  A proposed order embodying a ruling by the court shall be prepared and filed by the prevailing party.

B. Attorneys shall promptly notify the deputy clerk of the assigned court or the acting circuit court commissioner of a settlement or dismissal of a contest and shall file a stipulation and order not later than 30 days after the scheduled hearing date.

C. If a proposed order has not been filed as required by this rule, the objection and/or the case may be dismissed without further notice.  Further proceedings may not be held in contested proceedings unless the dismissal is vacated. 

D. Orders submitted under this rule are subject to review and objection under Rule 1.21 (the five-day rule).

3.58    Timeliness of Claims against Estates

A. For purposes of determining the claims filing deadline in cases where the order limiting time for filing claims does not specify a day but merely specifies a month (e.g., the third or fourth month from the date of the order), the deadline is the last date in the specified month (e.g., February 28 or 29, April 30, June 30, September 30 or November 30).   

B. When a claim is filed after the deadline for filing claims but within one year after the decedent’s death, a receipt for payment of the claim, a release of the claim or an objection to the claim shall be filed.

3.59    Proof of Ownership

Evidence of assets is required in the verification of guardianship accounts. The following evidence of title is satisfactory evidence of ownership:

A. Real estate: original or certified copy of deed.

B. Registered stocks, bonds, certificates of deposit: original or photocopy of certificates or letters from transfer agent or financial institution.

C. Bearer securities: physical possession.

D. Bank accounts: original or photocopy of account statement or passbook, or letter from financial institution.

E. Refunds, cash items, and miscellaneous intangibles: original or photocopy of check, letter, or other documentary evidence.

F.. Automobiles, boats, snowmobiles, and other licensed vehicles: original or photocopy of registration.

G. Unregistered tangible personal property: testimony as to ownership and physical possession.

3.60    Summary Assignment Where Decedent Executes an Apparently Valid Will

An order for summary assignment may assign assets according to an apparently valid will where the will contains a valid attestation clause.  

3.61    Closing Estates

A. Estates in which no claims are filed or where no objection to any claim has been filed shall not be closed until at least 14 days after the deadline for creditors to file claims.

B. Estates shall be closed within a reasonable time without unnecessary delay and within 18 months from filing the petition or application unless the court extends the time for closing the estate.  A petition for extension of time shall be filed before the end of the 18-month period, and shall be supported by an affidavit setting forth reasons why the estate cannot be closed. The petition for an extension of time may be executed by the person having knowledge of the reasons for delay, including the personal representative or attorney.  The petition may be reviewed without notice or testimony.

C. If an estate is not closed on a timely basis or an inventory is not filed on a timely basis, and if an attorney representing the estate or the personal representative fails to respond to notice issued by the court, the court may remove the attorney or personal representative and may appoint a successor attorney or personal representative.  The pendency of a contest does not stay the court from issuing such a notice or an order to show cause. 

D. An attorney found by the court to repeatedly have been delinquent in closing estates may be barred from filing any new proceedings in probate, including applications for informal administration, until all delinquencies have been remedied.  The court or register in probate may refer the matter to the Office of Lawyer Regulation. 

3.62    Review Prior to Hearing on Estate Final Account

Before the hearing on a petition for approval of a final account in administration of an estate proceeding, the petition and the proposed final account shall be reviewed by a deputy register in probate for compliance with procedural requirements and as to form and content.

Rules Applicable to the Small Claims Branches of the Civil Division

3.75    Assignment of Small Claims Cases; Recusal; Substitution; Duty Coverage of the Small Claims Branch

A. One branch of the civil division shall be assigned all cases governed by Wis. Stat. § 799.01, which cases are referred to generally by these rules as “small claims.”

B. Upon a valid recusal or valid request for substitution of the judge assigned to the small claims branch, all proceedings over which a judge must preside shall be assigned to another judge in the civil division pursuant to Rule 1.4.E. (reassignment of cases), except that eviction proceedings shall be transferred to the duty judge.

C. The duty judge shall preside in cases in which immediate judicial review is necessary and the judge assigned to the small claims branch is not available. 

1.. In the absence of the duty judge, the next available judge, in the order listed on the duty judge schedule, shall preside.

2.. The duty judge shall hear all cases calendared for hearing before the small claims judge, including any trials, and any emergency cases assigned to the small claims judge.

3.. During a planned absence, the judge assigned to the small claims branch will calendar matters in consideration of the duty judge.  In anticipation of a planned absence, the judge assigned to the small claims calendar will give the duty judge and the presiding judge of the division as much notice as possible.

4.. The duty judge shall calendar matters in consideration of the need to hear cases in the small claims branch.

3.76    Issuance, Filing and Service of Small Claims Summons and Complaint

A. An action shall be commenced by the issuance by the Clerk of Circuit Court, upon payment of the filing fee, of a summons form or payment seal for use on a summons form approved by the court.

B. After the summons form is completed, the original shall be filed with the Clerk of Circuit Court.  An authenticated copy of the original shall be served on the defendant.

C. The Clerk of Courts shall not accept the summons for filing unless

1.. the pertinent portions of the form appear complete, and

2.. the summons is verified.

D. Service shall be made pursuant to Sec. 799.12, Wis. Stats., except that service by mail is not authorized.

E. An affidavit of service of the summons shall be filed on the return date.

3.77    Answering the Small Claims Complaint

A. A defendant who resides in Milwaukee County shall appear in person or by an attorney on the return date specified in the summons.  Answering or appearing by mail, by facsimile or by telephone is not permitted. 

B. A defendant who does not reside in Milwaukee County may

1.. appear in person or by an attorney on the return date specified in the summons, or

2.. on or before the return date, serve a written answer on the attorney who represents the plaintiff, or on the plaintiff if the plaintiff is not represented by an attorney.   A copy of the answer shall be filed on or before the return date.

3.78    Order in which Small Claims Cases are Called

The judicial court commissioner presiding in the small claims branch shall have discretion to determine, based upon efficiency and fairness, in what order the cases should be called, subject to the supervision of the judge assigned to the small claims branch and the presiding judge of the civil division.

3.79    Procedure upon Calling Cases on the Return Date
 
A. If the plaintiff fails to appear on the return date or any adjourned date, the case shall be dismissed.

B. If the defendant fails to appear on the return date or any adjourned date, default judgment shall be entered in favor of the plaintiff.

C. If both parties appear, the court may accept from them a written stipulation disposing of the case if the stipulation is signed by each party.  The stipulation of the tenant in an eviction action is not binding unless approved by a judicial court commissioner.

D. In the absence of a stipulation, and unless the action is subject to immediate dismissal, the judicial court commissioner shall personally inquire of the defendant whether the defendant claims any defense.  If no defense is claimed, the court may accept a written stipulation under paragraph C.

E. If it appears to the commissioner that the defendant claims a defense to the action, the commissioner shall attempt to resolve the dispute through informal mediation.

F.. If the dispute cannot be resolved through informal mediation, the commissioner shall schedule a hearing before a judicial court commissioner of all contested issues, except that eviction and replevin cases shall be transferred to the judge assigned to the small claims branch.  Eviction cases shall be called on the next available date on the afternoon docket of the small claims branch, unless the parties and the court agree to a later date.

3.80    All Contested Small Claims Proceedings Conducted Initially before Judicial Court Commissioners

Except as required by Wis. Stat. Ch. 799 or by these rules, all contested small claims proceedings shall be heard before a judicial court commissioner. 

3.81    Motions for Summary Judgment and to Reopen

Motions for summary judgment and motions to reopen shall be heard in the first instance by the judge assigned to the small claims branch, except that if it is plain on the face of a motion to reopen, without need for response, that the motion lacks merit, the motion may be denied by a judicial court commissioner.

3.82    Civil Contempt and Civil Bench Warrants

Requests for civil contempt and civil bench warrants shall be heard initially by a judicial court commissioner assigned to the small claims branch.  If the commissioner recommends a finding of contempt and the issuance of a civil bench warrant, the recommendation shall be heard forthwith by the judge assigned to the small claims branch.  Civil bench warrants issued in small claims cases shall be returned to the small claims branch.

3.83    Jury Trial of Small Claims Cases 

Upon a timely, proper demand for a jury trial under Wis. Stat. § 799.21 and upon payment of the fee, the case shall be transferred by tab to a civil division branch to which large claims civil actions are assigned, except that evictions actions shall be transferred to the duty judge for expedited scheduling.

3.84    Effective Date of Notices Terminating Tenancy for Failure to Pay Rent or for Other Breach

A. The court cannot issue a writ of restitution in an eviction action for failure to pay rent or other breach unless the landlord provides at least 5 days or 14 days (whichever is applicable by statute) after the date the notice is given to cure the breach or vacate the premises.  The notice period must have concluded no later than the day before the eviction action is filed.  (For example, if a 5-day notice is given on September 2, the tenant may pay rent or otherwise cure the breach at anytime until the end of the day on September 7; the first date on which the eviction action may be filed is September 8.)

B. If the 5-day or 14-day notice is served by certified or registered mail to an address within Wisconsin, the notice is considered by the court to have been given on the second day after the day of mailing.  (For example, if a landlord sends a five-day notice by certified mail on September 2, then the notice is considered by the court to have been given on September 4 and the tenant may pay rent or otherwise cure the breach at anytime until the end of the day on September 9; the first date on which the eviction action may be filed is September 10.)