16 consolidation and separate trials on claims - … consolidation and separate trials on claims ......

© June 2007, State Bar of Wisconsin CLE Books 16-1

16

Consolidation and Separate Trials on Claims

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-2

Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-5

O Consolidation (Forms 16.1–.4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-5

Form 16.1 Notice and Motion for Consolidation or Joint Trial of Cases Pending in Same County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-5

Form 16.2 Order for Consolidation or Joint Trial of Cases Pending in Same County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-8

Form 16.3 Notice and Motion for Transfer and Consolidation or Joint Trial of Cases Pending in Different Counties . . . . . . . . . . . . 16-10

Form 16.4 Order for Transfer and Consolidation or Joint Trial of Cases Pending in Different Counties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-13

O Separate Trials on Claims (Form 16.5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-15

Form 16.5 Notice and Motion for Separate Determination of Claims . . . . . . . 16-15

O Bifurcation of Issues (Forms 16.6–.7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-18

Form 16.6 Notice and Motion for Sequential Determination of Issues Within the Same Trial (Bifurcation) . . . . . . . . . . . . . . . . . . . 16-18

Form 16.7 Notice and Motion for Separate Determination of Claims . . . . . . . 16-20

CONSOLIDATION AND SEPARATE TRIALS ON CLAIMS

16-2 © June 2007, State Bar of Wisconsin CLE Books

Introduction

This chapter contains forms pertaining to consolidation and severance. For furtherdiscussion of consolidation and severance, see Wisconsin Civil Procedure Before Trial chapter12 (State Bar of Wisconsin CLE Books).

Consolidation

Consolidation is the procedure allowing the court to combine separate lawsuits that ariseout of the same transaction or series of transactions and have a common question of law or fact.Wis. Stat. §§ 805.05(1), 803.04. As a general rule, all claims arising out of one transaction orfactual situation are treated as part of a single cause of action and must be litigated together.Juneau Square Corp. v. First Wisconsin Nat’l Bank, 122 Wis. 2d 673, 682, 364 N.W.2d 164 (Ct.App. 1985). When actions that might have been brought as a single action are pending beforethe court, it may order a joint hearing or trial of any or all of the claims in the actions, order allthe actions consolidated, or make such orders concerning proceedings to avoid unnecessarycosts or delay. Wis. Stat. § 805.05(1)(a). When actions that might have been brought as a singleaction are pending before different courts, any of the actions may be transferred upon motionof any party or of the court to another court where the related action is pending. Wis. Stat.§ 805.05(1)(b).

Wisconsin recognizes two forms of consolidation: (1) “true consolidation of actions,”when two or more actions are combined into a single action with a single judgment, Wis. Stat.§ 805.05(1)(a); see also Wisconsin Rules of Civil Procedure, § 805.05 Judicial Councilcommittee note, 1974, 67 Wis. 2d 693, and (2) “consolidation for trial,” when there is a jointtrial of any or all of the claims in two or more actions, but each action keeps its separateexistence and requires a separate judgment. Wis. Stat. § 805.05(1)(a). The court has thestatutory authority to consolidate to avoid unnecessary costs or delay. See Wis. Stat.§ 805.05(1)(a).

Although section 805.05(1) provides statutory authority for both forms of consolidation,the authority to consolidate cases is not dependent upon a statute for its existence. Rather, thepower to consolidate is derivative of the court’s power to administer its caseload. Biron v.Edwards, 77 Wis. 477, 485, 46 N.W. 813 (1890).

Consolidation of actions or consolidation for trial can be ordered following a request bya party. See infra Forms 16.1, .3. Consolidation is discretionary with the court. Leverence v.United States Fid. & Guar., 158 Wis. 2d 64, 94, 462 N.W.2d 218 (Ct. App. 1990), overruledon other grounds by Wenke v. Gehl, 2004 WI 103, 274 Wis. 2d 220, 682 N.W.2d 405.Accordingly, a party moving for consolidation should consider a number of factors. First, dothe claims arise out of one transaction or factual situation such that they should be required tobe litigated together? Additionally, would consolidation avoid multiple trials involving identicalor similar issues? Will it simplify the actions? What effect will it have on time and courtcongestion? What is the convenience to the parties? Is it consistent with fairness to the parties,and with joinder of claims, parties, and remedies?



If the actions are pending in the same court and can be tried as a single action withcommon questions of law and fact, then the court may order consolidation of actions orconsolidation for trial. Wis. Stat. § 805.05(1)(a). See Form 16.2, infra, for an orderconsolidating cases pending in the same county.

If the actions are pending in different courts but can be joined as a single action, then, onthe motion of a party or the court, one or more actions may be transferred to the court where therelated action is pending. Wis. Stat. § 805.05(1)(b); see infra Form 16.3. The transfer betweendifferent courts, including courts from different counties, requires a joint written order of thecourt transferring the action and the court receiving the action. Wis. Stat. § 805.05(1)(b); seeinfra Form 16.4. As is the case when the actions are pending in the same court, theconsolidation ordered may be of actions or for trial. Wis. Stat. § 805.05(1)(a).

Always consult local court rules before filing a motion to consolidate between courts. Forexample, in Milwaukee and Dane Counties, the local rules provide that consolidated actionsremain with the court assigned the lowest numbered action. See Milwaukee Cty. Cir. Ct. R. 307;Dane Cty. Cir. Ct. R. 312. In other districts, there may be no rule regarding which courttransfers and which court receives the consolidated action.

Absent local court rules, the parties may wish to consider stipulating to consolidationbefore a court the parties mutually agree upon. For basic stipulation forms, see Forms 14.1–.2,supra. If the parties cannot stipulate to consolidation, consider filing the motion before the courtyou want to hear all of the consolidated cases, secure that judge’s consent, and then file a motionwith the transferring court. The court may decide to hold a telephonic conference involvingboth judges and counsel for all parties. Wis. Stat. § 805.05(1)(b).

Statutes conferring the courts’ power to consolidate make no distinction between actionsat law and actions in equity. Wis. Stat. § 801.01(2). For the purpose of consolidation, the onlypractical difference between an action at law and an action in equity is the right to a jury trial.Accordingly, when complaints include both claims at law and in equity, consider that aconsolidated trial may result in the loss of a trial by jury.

Generally, actions that originally could not be joined may not be consolidated. If theissues are so diverse that they create confusion, or if an issue would prejudice a party notinvolved in one of the consolidated cases, the court should not order consolidation. Keplin v.Hardware Mut. Cas. Co., 24 Wis. 2d 319, 327, 129 N.W.2d 321 (1964). If consolidation wouldresult in a protracted trial and embarrassment to the parties, the court should not consolidate.Winninghoff v. Wittig, 64 Wis. 180, 183, 24 N.W. 912 (1885).

In a true consolidation (i.e., consolidation of actions), consolidation must affect all parties.The separate actions must not require different places of trial, and although the actions areseparately stated, the claims must be amenable to joinder in a single action. It is not necessaryto re-plead. However, since consolidation of actions contemplates only one action and one setof pleadings, the better practice is to draft one set of proposed amended pleadings with onecaption and include it with any proposed order for consolidation.



Separate Trials on Claims

Section 805.05(2) permits the court to separate claims and hold separate trials for claims,each of which terminates in a separate judgment. The court has the power to order separatetrials of any claim, cross-claim, counterclaim, or third-party claim, or number of claims, to avoidprejudice or for judicial economy. Wis. Stat. § 805.05(2).

Severance involves separate trials of claims; bifurcation involves separating issues for trialbefore the same jury. For example, if a party is misjoined but claims exist against that party,those claims may be separately tried. See Wis. Stat. § 803.06(1); infra Chapter 17.

Generally, severance is improper when separate trials would cause conflicting rulings inparallel cases, frustrate judicial economy, result in complexity and multiplicity rather thansimplicity, and lead to vexing litigation. United Pac. Ins. Co. v. Metropolitan SewerageComm’n, 114 Wis. 2d 258, 338 N.W.2d 298 (Ct. App. 1983). Note, also, that severance isimproper when the statute requires consolidation. See, e.g., Wis. Stat. § 895.04(3).

If severance is appropriate, determine whether the parties will stipulate to severance. Forbasic stipulation forms, see Forms 14.1–.2, supra. If not, prepare and file a motion. See infraForms 16.5, .6. It is advisable to support the request with an affidavit. For a basic affidavit-in-support-of-motion form, see Form 14.4, supra. Consider also which claims or issues should betried first, whether a trial on one claim would resolve other claims, and whether separate trialsshould be heard to the same or different juries.

Bifurcation of Issues

Courts may not order separate trials before different juries on issues of negligence anddamages arising from the same claim. Waters v. Pertzborn, 2001 WI 62, 243 Wis. 2d 703, 627N.W.2d 497. Note also that section 805.05(2) does not permit bifurcation or splitting causes ofaction, with the exception of bifurcating insurance coverage issues from negligence and damagesissues as permitted under section 803.04(2)(b). While courts may not be able to bifurcate issuesbefore different juries, courts can bifurcate distinct claims. Dahmen v. American Fam. Mut. Ins.Co., 2001 WI App 198, 247 N.W.2d 541, 635 N.W.2d 1.


1 Include captions of all actions to be consolidated, usually with caption of the lowest case numberfirst. File duplicate originals; one for each case number.

2 See sections 801.14–.16 regarding service and filing.3 Counsel may be listed here, in a referenced attachment, or in a cover letter. Any unrepresented

party must also be served.


Notice and Motion for Consolidationor Joint Trial of Cases Pending inSame County [§ 805.05(1)(a)]

Form 16.1

Form 16.1 Notice and Motion for Conslidation or Joint Trial of Cases Pending in Same County

STATE OF WISCONSIN CIRCUIT COURT COUNTYBRANCH

(Plaintiff’s name) ,

PlaintiffCase No.1

v. (Judge’s name)

(Defendant’s name) ,

Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


PlaintiffCase No.

v. (Judge’s name)


Defendant

(Movant’s name) ’S NOTICE AND MOTION FOR(CONSOLIDATION) (JOINT TRIAL)

TO:2 All Counsel of Record3

1. PLEASE TAKE NOTICE that (identity of movant, e.g., defendant, plaintiff) , (movant’s name) , moves the court pursuant to Wis. Stat. § 805.05(1)(a) for


4 If different judges are involved, local rule or practice determines which judge hears the motionand receives the case. Typically, the motion is heard by the judge who has the case with the lowest casenumber, subject to the approval of the other judges. Wis. Stat. § 805.05(1)(b).

5 If the hearing is to be by telephone, this paragraph should indicate who will initiate the conferencecall.

6 Use this alternative paragraph if it is the court’s practice to set a time and date after reviewing themotion papers. A new notice must be sent out once the time and date are set, and this new notice mustcomply with the time rule in section 801.15. Check to see whether the scheduling clerk or the movantshould send the new notice.


[Choose appropriate alternative]

an order consolidating all of the above-entitled actions pending before the court.

[or]

an order for joint trial of all claims in the above-entitled actions pending before the court.

[or]

an order for joint (trial) (hearing) of the following claims in the above-entitled actions pendingbefore the court:

a.(Describe claims)

b.


2. This motion will be heard4 [add if appropriate] (by telephone):5

BEFORE: (Assigned judge)

PLACE: County Courthouse

(Courthouse address)

DATE:

TIME:

[or]

2. This motion will be heard at a time, date, and place to be set by the court.6

[Continue]


7 Wis. Stat. § 805.05(1)(a).8 The standard applied is the same as applied in section 803.04.9 “By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading,

written motion, or other paper, an attorney or unrepresented party is certifying that to the best of theperson’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,all of the following:

(a) The paper is not being presented for any improper purpose, such as to harass or to causeunnecessary delay or needless increase in the cost of litigation.

(b) The claims, defenses, and other legal contentions stated in the paper are warranted by existinglaw or by a nonfrivolous argument for the extension, modification, or reversal of existing law or theestablishment of new law.

(c) The allegations and other factual contentions stated in the paper have evidentiary support or, ifspecifically so identified, are likely to have evidentiary support after a reasonable opportunity for furtherinvestigation or discovery.

(d) The denials of factual contentions stated in the paper are warranted on the evidence or, ifspecifically so identified, are reasonably based on a lack of information or belief.” Wis. Stat. § 802.05(2).


3. The grounds for this motion are that (1) these actions might have been brought asa single action under Wis. Stat. § 803.047; (2) these actions involve common questions of lawor fact; and (3) that the actions arise out of the same transaction or occurrence, or series oftransactions or occurrences (for the following reasons) (as set forth in the accompanyingaffidavit).8

Dated:

(Firm name)Attorneys for (identity of movant,e.g., defendant, plaintiff)

(Attorney’s name)9

State Bar No.

(Attorney’s address)(Attorney’s telephone no.)



Order for Consolidation or Joint Trial ofCases Pending in Same County [§ 805.05(1)(a)]

Form 16.2

Form 16.2 Order for Conslidation or Joint Trial of Cases Pending in Same County



PlaintiffCase No.

v. (Judge’s name)


Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


PlaintiffCase No.

v. (Judge’s name)


Defendant

ORDER FOR (CONSOLIDATION) (JOINT TRIAL)

[Choose appropriate paragraph]

[If hearing held]

(Identity of movant, e.g., plaintiff, defendant) ’s motion for (consolidation) (joint trial) washeard on (date) before Judge (judge’s name) , and decided on (date) . Appearingbefore the court on the motion were:

(State appearances)

[If hearing not held]

(Identity of movant, e.g., plaintiff, defendant) moved for (consolidation) (joint trial). Nohearing was held; the court decided the motion on (date) , based on the briefs and supportingpapers of the parties.


1 Approval is necessary only if the motion is granted and if the other case or cases beingconsolidated were assigned to another judge. Wis. Stat. § 805.05(1)(b).


[Continue]

IT IS ORDERED:

1.

2. (State provisions of order)

3.

Dated:

BY THE COURT:

(Judge’s name) Circuit Court Judge

[Add if appropriate]

Dated:

Approved:1

(Judge’s name) Circuit Court Judge


1 Include captions of all actions to be consolidated.2 See sections 801.14–.16 regarding service and filing.3 Counsel may be listed here, in a referenced attachment, or in a cover letter. Any unrepresented



Notice and Motion for Transfer andConsolidation or Joint Trial of Cases Pending in Different Counties [§ 805.05(1)(b)]

Form 16.3

Form 16.3 Notice and Motion for Transfer and Conslidation or Joint Trial of Cases Pending in Different Counties



PlaintiffCase No.1

v. (Judge’s name)

(Defendant’s name) , (Case classification) : (Code #)

Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


PlaintiffCase No.

v. (Judge’s name)

(Defendant’s name) , (Case classification) : (Code #)

Defendant

(Movant’s name) ’S NOTICE AND MOTIONFOR TRANSFER AND (CONSOLIDATION) (JOINT TRIAL)


1. PLEASE TAKE NOTICE that (identity of movant, e.g., defendant, plaintiff) , (movant’s name) , moves the court pursuant to Wis. Stat. § 805.05(1)(b) for an ordertransferring Case No. , now pending in this court, to the Circuit Court for (name ofcounty) County for the purpose of (consolidation) (joint trial) with Case No. now pendingin that court.



4 A telephone conference involving the judges and all counsel may be convened on the record asprescribed by section 807.13(3). If the hearing is to be by telephone, this paragraph should indicate whowill initiate the conference call.


6 Wis. Stat. § 805.05(1)(a).7 The standard applied is the same as applied in section 803.04.


2. This motion will be heard [add if appropriate] (by telephone):4




DATE:

TIME:

[or]


[Continue]

3. The grounds for this motion are that (1) these actions might have been brought asa single action under Wis. Stat. § 803.046; (2) these actions involve common questions of lawor fact; (3) that the actions arise out of the same transaction or occurrence, or series oftransactions or occurrences; and (4) that consolidation will reduce unnecessary costs and delay(for the following reasons) (as set forth in the accompanying affidavit).7


8 “By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading,written motion, or other paper, an attorney or unrepresented party is certifying that to the best of theperson’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,all of the following:






Dated:



State Bar No.



1 Include captions of all actions to be consolidated.


Order for Transfer and Consolidationor Joint Trial of Cases Pending in Different Counties [§ 805.05(1)(b)]

Form 16.4

Form 16.4 Order for Transfer and Consolidation or Joint Trial of Cases Pending in Different Counties



PlaintiffCase No.1

v. (Judge’s name)


Defendant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


PlaintiffCase No.

v. (Judge’s name)


Defendant

ORDER FOR TRANSFER AND (CONSOLIDATION) (JOINT TRIAL)

[Choose appropriate paragraph]

[If hearing held]

(Identity of movant, e.g., plaintiff, defendant) ’s motion for transfer and (consolidation)(joint trial) was heard on (date) before the Honorable (judge’s name) and the Honorable (judge’s name) , and decided on (date) . Appearing before the court on the motion were:

(State appearances)



[If hearing not held]

(Identity of movant, e.g., plaintiff, defendant) moved for transfer and(consolidation) (joint trial). No hearing was held; the court decided the motion on (date) ,based on the briefs and supporting papers of the parties.

[Continue]

IT IS ORDERED that Case No. , now pending in the Circuit Court of (name ofcounty) County, is transferred to the Circuit Court of (name of county) County (to be triedjointly) (to be consolidated) with Case No. . [Add if appropriate] (It is further ordered thatthe caption of the consolidated action will be (insert new caption) ).

BY THE COURT:

(Judge’s name)Dated: Circuit Court Judge, County

BY THE COURT:

(Judge’s name)Dated: Circuit Court Judge, County



party must also be served.3 Section 803.06 covers severance of claims when, for example, a party has been properly joined

but the party’s presence in the action will make the trial of all claims too complex for one proceeding.Section 803.04(4) deals with separate trials when there has been permissive joinder of parties. Section805.05(2) covers separate trials of claims for convenience, judicial economy, or prejudice; this includescross-claims, counterclaims, and third-party claims. The issues in a case may also be bifurcated. See infraForm 16.6.


Notice and Motion for Separate Determination of Claims [§§ 803.04(4), .06; 805.05(2)]

Form 16.5

Form 16.5 Notice and Motion for Separate Determination of Claims



PlaintiffCase No.

v.


Defendant

(Movant’s name) ’S NOTICE AND MOTION FOR SEPARATEDETERMINATION OF CLAIMS


1. PLEASE TAKE NOTICE that (identity of movant, e.g., defendant, plaintiff) , (movant’s name) , moves the court for an order pursuant to Wis. Stat. § [choose appropriatesection] 3 (803.04(4)) (803.06) (805.05(2)) for a separate determination of the following claims:

(State claims)

2. (Identity of movant, e.g., defendant, plaintiff) further moves that the separatedetermination of these claims be made (in separate trials) (in a single trial).










DATE:

TIME:

[or]


[Continue]

4. The grounds for this motion are that separate determinations will

[Choose appropriate ground(s)]

• be more convenient

• avoid prejudice

• be more expedient

• be more economical

[Conclude]

(for the following reasons) (as set forth in the accompanying affidavit).








Dated:



State Bar No.






Notice and Motion for SequentialDetermination of Issues Within theSame Trial (Bifurcation) [§ 906.11]

Form 16.6

Form 16.6 Notice and Motion for Separate Determination of Issues (Bifurcation)



PlaintiffCase No.

v.


Defendant

(Movant’s name) ’S NOTICE AND MOTION FORSEQUENTIAL DETERMINATION OF ISSUES WITHIN THE SAME TRIAL


1. PLEASE TAKE NOTICE that (identity of movant, e.g., defendant, plaintiff) , (movant’s name) , moves the court for an order pursuant to Wis. Stat. § 906.11 for asequential determination by the same jury of the following issues:

(State issues)

2. (Identity of movant, e.g., defendant, plaintiff) further moves that the sequentialdetermination of these issues be made in a single trial.















DATE:

TIME:

[or]


[Continue]

4. The grounds for this motion are that trying the issues sequentially will promote judicialeconomy (for the following reasons) (as set forth in the accompanying affidavit).

Dated:



State Bar No.






Notice and Motion for Separate Determination of Claims [§ 803.04(2)]

Form 16.7

Form 16.5 Notice and Motion for Separate Determination of Claims



PlaintiffCase No.

v.


Defendant

(Movant’s name) ’S NOTICE AND MOTION FOR SEPARATEDETERMINATION OF CLAIMS


1. PLEASE TAKE NOTICE that (identity of movant, e.g., defendant, plaintiff) , (movant’s name) , moves the court for an order for a separate determination of the followingissues:

(State issues)

2. (Identity of movant, e.g., defendant, plaintiff) further moves that the separatedetermination of these issues be made in a single trial.















DATE:

TIME:

[or]


[Continue]

4. The grounds for this motion are that trying the issues separately will promote judicialeconomy (for the following reasons) (as set forth in the accompanying affidavit).

Dated:



State Bar No.


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