In Plato’s Phaedo, Socrates postulates how learning and knowledge result from people’s act of recollecting. According to Socrates, there is no learning and knowledge if we are unable to remember what we already know. The same can be said regarding Wisconsin’s summary judgment methodology.
A motion for summary judgment is one of the most common dispositive motions filed in civil cases, and Wisconsin’s summary judgment methodology is well established. Nonetheless, this article focuses on two of the fundamental principles underlying Wisconsin’s summary judgment methodology. At times, lawyers and judges overlook these principles. Remembering these fundamental principles will assist each in fulfilling their respective duties in cases involving summary judgment methodology.
Summary Judgment Methodology: The Basics
In civil cases, a party may file a motion for summary judgment.1 The procedure governing motions for summary judgment is set forth in Wis. Stat. chapter 802. Within certain statutory time frames, or within the time set by a circuit court in a scheduling order, any party to the case may “move for summary judgment on any claim, counterclaim, cross claim, or 3rd-party claim which is asserted by or against the party.”2
The summary judgment statute states that the court “shall” grant judgment “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 a judgment as a matter of law.”3 Additionally, under the statute, “a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”4
Wisconsin courts have established a basic methodology to decide motions for summary judgment. First, a court must review “the complaint to determine whether, on its face, it states a claim for relief.”5 “Under the second step of this methodology, ‘[i]f a claim for relief has been stated, the inquiry then shifts to whether any factual issues exist.’”6 “If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party’s … affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment….”7
Finally, if the moving party establishes a prima facie case for summary judgment, the court then must “review the opposing party’s affidavits [or other proof] to determine whether there are any material facts in dispute, or inferences from undisputed material facts, that would entitle the opposing party to a trial.”8
Principle 1: Summary Judgment Not Available Unless “Complaint” and “Answer” Join Issues of Material Fact
The first principle this article focuses on is well established: Summary judgment is not available unless the “complaint” and “answer”9 join issues of material fact. However, many cases involving review of motions for summary judgment do not recite this fundamental principle and, in fact, only provide a highly abbreviated version of Wisconsin’s summary judgment methodology. As a few Wisconsin cases from the past two decades illustrate, this fundamental principle can be outcome determinative in a given case, a result that is particularly likely if the case is a forfeiture action.
For example, in State v. Schneck, the Wisconsin Court of Appeals addressed whether summary judgment is available “in a traffic forfeiture prosecution under Wis. Stat. ch. 345.”10 Reviewing Wisconsin’s summary judgment procedure, the court noted that the summary judgment statute “contemplates a summons and complaint” filed by the plaintiff and, likewise, the filing of an answer or other responsive pleading asserting “every defense in law or fact” by the defendant.11 “Armed with these pleadings, particularly the defendant’s answer, the trial court can then perform the threshold steps of summary judgment methodology – determine whether the plaintiff’s complaint states a claim and, if so, whether the defendant’s answer has joined material issues of fact….”12
In contrast, under Wis. Stat. chapter 345, a traffic forfeiture prosecution may be initiated by the issuance of a uniform traffic citation and the defendant may enter one of three pleas: guilty, no contest, or not guilty.13 As a result, “a trial court cannot perform even the rudimentary initial steps of summary judgment methodology because the responses contemplated by [Wis. Stat. ch. 345] are not the equivalent of an answer in a conventional civil action.”14 Thus, the court concluded that Wisconsin’s “[s]ummary judgment procedure is inconsistent with, and unworkable in, a Wis. Stat. ch. 345 forfeiture proceeding.”15
Cross-motions for summary judgment should be treated as agreement for the court to decide the case upon the legal issues presented only when the court independently determines there is no genuine issue of material fact with regard to each party’s separate motion.
Almost 10 years later, in State v. Ryan, the Wisconsin Supreme Court addressed whether summary judgment is available “in forfeiture actions for violations of Wis. Stat. ch. 30.”16 The court noted that such a forfeiture action can be initiated by either the issuance of a citation or the filing of a complaint and summons.17 However, the court also observed that a defendant can only plead guilty, no contest, or not guilty.18 Because this type of forfeiture action can be initiated by the issuance of a citation (as opposed to only the filing of a summons and complaint), and the defendant must enter a plea (rather than filing an answer or other responsive pleading asserting every defense in law or fact), the court held that summary judgment is unavailable.19
More recently, in Olson v. City of Stoughton, the Dane County Circuit Court addressed “whether the summary judgment procedure in Wis. Stat. § 802.08 is available in an appeal from a municipal court judgment when either of the parties to such an appeal requests [under Wis. Stat. § 800.14(4)] a new trial to be conducted in the circuit court.”20 The court noted that forfeiture actions in municipal court can be initiated by the filing of either a citation or a complaint and that, whether through an in-person appearance or written response, the defendant must ultimately enter one of three pleas.21
Relying on the reasoning in Schneck and Ryan, the circuit court determined that Wisconsin’s summary judgment procedure is unavailable in an appeal from a municipal court judgment because it “is incompatible with Wisconsin’s municipal court procedure – including a subsequent appeal and request for a new trial to be conducted in the circuit court under Wis. Stat. § 800.14(4).”22
Principle 2: Court Must Construe Factual Inferences in Favor of Nonmoving Party
The second principle of Wisconsin’s summary judgment methodology is also well established: When reviewing a motion for summary judgment, the court must construe all factual inferences in favor of the nonmoving party.23 However, Wisconsin courts have not always applied this fundamental principle consistently in certain cases: that is, when both parties move for summary judgment – at times referred to as “reciprocal,” “bilateral,” or “cross-motions” for summary judgment.24
In Wiegand v. Gissal, the Wisconsin Supreme Court held that when “both sides moved for summary judgment” and “it would appear that there were no factual issues in dispute,” “the practical effect of the bilateral summary judgment motions was the equivalent of a stipulation as to the facts.”25 Then in Powalka v. State Mutual Life Assurance Co., the court held that “the reciprocal motions for summary judgment by the defendant and by the plaintiff constituted a waiver of any right to jury trial that might have theretofore existed” because the factfinder could reasonably only make one inference or conclusion based on the undisputed historical facts.26
Since Powalka was decided, two primary lines of cases in Wisconsin have emerged in the context of cross-motions for summary judgment. One line of cases misconstrues those two cases’ respective holdings – reflexively treating all cross-motions for summary judgment as a stipulation to all factual issues by the parties and as an agreement for the court to decide the case upon the legal issues presented by the parties.27
Relatedly, some post-Powalka cases construe the two cases and their progeny as establishing a general rule that cross-motions for summary judgment constitute a stipulation to all factual issues by the parties and as an agreement for the court to decide the case on the legal issues presented.28 This “general” rule appears to hinge on the supposition that when both parties move for summary judgment, neither party usually is arguing that factual disputes bar the other’s motion for summary judgment.29
But even assuming this supposition was empirically supported, the so-called general rule is unhelpful in individual cases – as “the existence of a genuine issue of material fact is a question of law for the court, not for the parties” and “both parties might erroneously conclude that no factual dispute exists when in reality one does.”30
In contrast, a different line of Wisconsin cases correctly recognizes the import of those two cases’ respective holdings – cross-motions for summary judgment should be treated as a stipulation to all factual issues by the parties, and as an agreement for the court to decide the case upon the legal issues presented, only when the court independently determines there is no genuine issue of material fact with regard to each party’s separate motion for summary judgment.31
However, until the state supreme court provides more definitive guidance on this issue, lawyers and judges should follow the latter line of cases when addressing cross-motions for summary judgment in Wisconsin. First, this approach comports with the plain meaning of Wisconsin’s summary judgment statute.32 Second, this approach is more faithful to the respective holdings in Wiegand and Powalka.33 Third, this approach is consistent with the one taken by most federal courts when deciding cross-motions for summary judgment.34 Finally, this approach is consistent with the one advocated for by the relevant academic literature, including federal and state practice manuals.35
Although a motion for summary judgment is one of the most common dispositive motions filed in civil cases, lawyers and judges sometimes overlook two of the fundamental principles that underlie Wisconsin’s summary judgment methodology. Remembering these principles will assist each in fulfilling their respective duties in cases involving summary judgment methodology.
1 See Wis. Stat. §§ 801.01(2), 802.08.
2 Wis. Stat. § 802.08(1).
3 Wis. Stat. § 802.08(2).
5 Hoida Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 16, 291 Wis. 2d 283, 717 N.W.2d 17 (citation omitted).
6 Tikalsky v. Friedman, 2019 WI 56, ¶ 12, 386 Wis. 2d 757, 928 N.W.2d 502 (quoting Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987)).
7 Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).
8 Hoida, 2006 WI 69, ¶ 16, 291 Wis. 2d 283 (citation omitted).
9 A party need not necessarily file an “answer” joining issues of material fact, as long as that party files a “responsive pleading” that does so. See, e.g., Schuster v. Altenberg, 144 Wis. 2d 223, 228, 424 N.W.2d 159 (1988).
10 State v. Schneck, 2002 WI App 239, ¶ 1, 257 Wis. 2d 704, 652 N.W.2d 434.
11 Id. ¶ 9.
12 Id. (citation omitted).
13 Id. ¶ 10.
15 Id. ¶ 16.
16 State v. Ryan, 2012 WI 16, ¶ 4, 338 Wis. 2d 695, 809 N.W.2d 37.
17 See id. ¶¶ 45, 55.
18 See id. ¶¶ 58, 66 & n.18
19 See id. ¶¶ 67-69.
20 Olson v. City of Stoughton, No. 2019CV54, slip op. at 4 (Dane Cty. Cir. Ct. June 13, 2019) (Hyland, J). While a notice of appeal has been filed in the case, it addresses a separate and distinct legal issue.
21 See id. at 7.
23 See, e.g., Kraemer Bros. Inc. v. United States Fire Ins. Co., 89 Wis. 2d 555, 567, 278 N.W.2d 857 (1979) (observing that “[t]he inferences to be drawn from the underlying facts” are required to “be viewed in the light most favorable to the party opposing the motion”).
24 See Grotelueschen v. American Family Mut. Ins. Co., 171 Wis. 2d 437, 455-56, 459, 492 N.W.2d 131 (1992) (Abrahamson, J., dissenting).
25 Wiegand v. Gissal, 28 Wis. 2d 488, 495a-95b, 137 N.W.2d 740 (1965).
26 Powalka v. State Mutual Life Assurance Co., 53 Wis. 2d 513, 518, 520, 192 N.W.2d 852 (1972); accord Grotelueschen, 171 Wis. 2d at 461 (Abrahamson, J., dissenting) (“Considered within its factual context, Powalka stands for the widely accepted general rule that a party is not deprived of a jury trial when, as a matter of law, no triable issue exists for the factfinder.”).
27 See, e.g., Streiff v. American Family Mut.Ins., 114 Wis. 2d 63, 64-65, 337 N.W.2d 186 (Ct. App. 1983), rev’d on other grounds, 118 Wis. 2d 602, 348 N.W.2d 505 (1984); State ex rel. Grand Bazaar v. Milwaukee, 102 Wis. 2d 208, 221, 306 N.W.2d 255 (Ct. App. 1981); accord Grotelueschen, 171 Wis. 2d at 463 (Abrahamson, J., dissenting) (arguing that “it is error to read Powalka, as some cases do, to hold that when parties file reciprocal motions for summary judgment, the motions are necessarily equivalent to a stipulation of all factual issues” and constitute “an agreement that the case may be disposed of by the circuit court on summary judgment”).
28 See, e.g., BMO Harris Bank N.A. v. European Motor Works, 2016 WI App 91, ¶ 15, 372 Wis. 2d 656, 889 N.W.2d 165.
29 Cf. Hussey v. Outagamie Cty., 201 Wis. 2d 14, 18, 548 N.W.2d 848 (Ct. App. 1996); Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1990).
30 Grotelueschen, 171 Wis. 2d at 462 (Abrahamson, J., dissenting).
31 See, e.g., Ziegler Co. v. Rexnord Inc., 139 Wis. 2d 593, 595 n.1, 407 N.W.2d 873(1987); Capitol Sand & Gravel Co. v. Waffenschmidt, 71 Wis. 2d 227, 235-36, 237 N.W.2d 745 (1975); Apple Valley Gardens Ass’n v. MacHutta, 2007 WI App 270, ¶ 10, 306 Wis. 2d 780, 743 N.W.2d 483, rev’d on other grounds, 2009 WI 28, 316 Wis. 2d 85, 763 N.W.2d 126; Millen v. Thomas, 201 Wis. 2d 675, 682-83 & n.2, 550 N.W.2d 134 (Ct. App. 1996), id. at 689-90 (Brown, J., concurring); Godfrey v. Schroeckenthaler, 177 Wis. 2d 1, 7, 501 N.W.2d 812 (Ct. App. 1993); City of Edgerton v. General Cas. Co. of Wis., 172 Wis. 2d 518, 529, 493 N.W.2d 768 (Ct. App. 1992), rev’d on other grounds, 184 Wis. 2d 750, 517 N.W.2d 463 (1994); Larsen v. Munz Corp., 166 Wis. 2d 751, 756, n.4, 480 N.W.2d 800 (Ct. App.), rev’d on other grounds, 167 Wis. 2d 583, 482 N.W.2d 332 (1992) (per curiam); Stone v. Seeber, 155 Wis. 2d 275, 278, 455 N.W.2d 627 (Ct. App. 1990).
32 See Wis. Stat. § 802.08(2), (6).
33 See supra notes 25-26 & 31 and accompanying text.
34 See, e.g., Matusevich v. Middlesex Mut. Assurance Co., 782 F.3d 56, 59 (1st Cir. 2015); In re United Air Lines,Inc., 453 F.3d 463, 468 (7th Cir. 2006); Shaw Constructors v. ICF Kaiser Engineers Inc., 395 F.3d 533, 539 (5th Cir. 2004); Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003); Wojcik v. City of Romulus, 257 F.3d 600, 608 (6th Cir. 2001); Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000); Lincoln Benefit Life Co. v. Bowman, 221 F. Supp. 3d 617, 632 (E.D. Pa. 2016); Estate of Bleck v. City of Alamosa, 105 F. Supp. 3d 1222, 1225-26 & n.2 (D. Colo. 2015).
35 See, e.g., 73 Am. Jur. 2d Summary Judgment § 45 (2012 & Supp. 2019); 49 C.J.S. Judgments § 318 (2009 & Supp. 2019); 27A Fed. Proc. L., Ed. § 62:599 (2017); Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin app. C (State Bar of Wis. 8th ed. 2020) (citing Millen, 201 Wis. 2d at 689-90 (Brown, J., concurring)); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (4th. ed. 2016 & Supp. 2019).