806.02 Default judgment.

(1) A default judgment may be rendered in favor of any party as provided in subs. (1) to (4) if no issue of law or fact has been joined on any claim asserted in a complaint, counterclaim, or cross claim and if the time for joining issue has expired. Any defendant appearing in an action shall be entitled to notice of motion for judgment.

(2) After filing the complaint, counterclaim, or cross claim and proof of service thereof and after filing an affidavit that the party against whom judgment is sought is in default for failure to join issue, a party may move for judgment according to the demand of the complaint, counterclaim, or cross claim. If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02 (1m), the court shall require the moving party to specify the amount of money claimed and provide that information to the court and to the other parties appearing in the action prior to the court rendering judgment. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

(3) If a defendant fails to appear in an action within the time fixed in s. 801.09 the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by s. 801.10 and, in addition, shall require further proof as follows:

(a) Where a personal claim is made against the defendant, the court shall require proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by the complaint which is needed to establish grounds for personal jurisdiction over the defendant. The court may require such additional proof as the interests of justice require.

(b) Where no personal claim is made against the defendant, the court shall require such proofs, by affidavit or otherwise, as are necessary to show the court's jurisdiction has been invoked over the status, property or thing which is the subject of the action. The court may require such additional proof as the interests of justice require.

(4) In an action on express contract for recovery of a liquidated amount of money only, the plaintiff may file with the clerk proof of personal service of the summons on one or more of the defendants and an affidavit that the defendant is in default for failure to join issue. The clerk shall render and enter judgment against the defendants who are in default for the amount demanded in the complaint. Leaving the summons at the abode of a defendant is not personal service within the meaning of this subsection.

(5) A default judgment may be rendered against any party who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

History: Sup. Ct. Order, 67 Wis. 2d 585, 716 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 101 Wis. 2d xi (1981); Sup. Ct. Order, 109 Wis. 2d xiii (1982); 1987 a. 256; Sup. Ct. Order No. 18-03, 2018 WI 102, 384 Wis. 2d xiii.

Cross-reference: See s. 801.15 (4) for time required for notice under sub. (2).

Cross-reference: See s. 802.06 (1) for provision giving the state 45 days to respond to a complaint or counterclaim.

Judicial Council Committee's Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]

Judicial Council Committee's Note, 1977: Sub. (5) has been modified to allow a judge in a default judgment matter to receive rather than mandatorily hear the proof of any fact necessary for a court to render judgment. This change allows a judge the option of in-chamber consideration of affidavits presented by attorneys. Under the present language the time of the judge may be taken up in open court hearing proof presented by the attorney orally whereas proof submitted by the attorney in the form of affidavits may be just as competent and trustworthy. Under the new language, the judge still retains the option of hearing proof in open court of any fact necessary to render a default judgment. [Re Order effective July 1, 1978]

Judicial Council Note, 1981: Sub. (2) is amended to allow the court to receive proof of facts necessary for default judgment by affidavit rather than hearing. An analogous change was made in sub. (5) in 1977 for the same reasons. [Re Order effective July 1, 1981]

Judicial Council Note, 1982: Sub. (4) is amended by eliminating the requirement that the plaintiff file the complaint in order to receive a default judgment. The complaint will already have been filed with the court when the action was commenced, prior to service of the summons. Section 801.02 (1). [Re Order effective Jan. 1, 1983]

NOTE: Sup. Ct. Order No. 18-03 states: “The Judicial Council Committee Note to Wis. Stat. § 806.02 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

Judicial Council Committee Note, 2018: Wis. Stat. s. 802.06 (1) currently requires defendants to file an answer to the complaint. It also requires parties served with a counterclaim or a cross complaint to serve a reply to the counterclaim or an answer to the cross-claim. Wis. Stat. s. 806.02 currently permits a plaintiff to obtain a default judgment against a defendant who fails to comply with s. 802.06 (1), but it does not permit any other party to obtain a default judgment when an opposing party fails to comply with s. 802.06 (1) by filing a response to a counterclaim or cross claim. The Council could find no logical basis for this disparity in treatment. Furthermore, the Council noted that Rule 55 of the Federal Rules of Civil Procedure allows any party to obtain judgment against another party who has failed to plead or otherwise defend against a complaint, counterclaim, or cross claim.

A default judgment entered under sub. (4) that is based on an erroneous determination that the claim was on an express contract for a liquidated sum of money was not necessarily void. Wisconsin Public Service Corporation v. Krist, 104 Wis. 2d 381, 311 N.W.2d 624 (1981).

The trial court properly granted default judgment against a party who failed to appear at the scheduling conference, but the damage amount was not supported by the record. Gaertner v. 880 Corp. 131 Wis. 2d 492, 389 N.W.2d 59 (Ct. App. 1986).

This section provides that the plaintiff may move for default judgment according to the demand of the complaint. Section 802.07 gives no indication that the appellations “plaintiff" and “defendant" may be reversed for purposes of a counterclaim. Pollack v. Calimag, 157 Wis. 2d 222, 458 N.W.2d 591 (Ct. App. 1990).

Only the damages demanded may be awarded in a default judgment. Because the complaint did not contain a specific damage claim in accordance with s. 802.02 (1m), the plaintiff's failure to serve an affidavit setting forth the amount of its claimed damages was grounds for reversing a default judgment. Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775, 535 N.W.2d 101 (Ct. App. 1995).

A default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827.

A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), 97-0353.

If proof of damages is necessary, the trial court may hold a hearing, and the defendant has the right to participate and present evidence. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.

An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering on the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478, 596 N.W.2d 358 (1999), 97-1490.

A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc. 227 Wis. 2d 592, 596 N.W.2d 365 (1999), 96-3436.

The decision to grant default judgment is within the sound discretion of the circuit court. The court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of s. 806.07 (1) to apply, the court must find that the party opposing the default judgment must have a meritorious defense to the underlying action. Shirk v. Bowling, Inc. 2001 WI 36, 242 Wis. 2d 153, 624 N.W.2d 375, 98-3634.

That a party may be in default cannot confer a right to judgment upon a claim not recognized by law. The failure of an averment to state a valid claim for relief is fatal to a motion for default judgment. It follows that the failure to aver a claim for relief at all is fatal to a motion for default judgment. Tridle v. Horn, 2002 WI App 215, 257 Wis. 2d. 529, 652 N.W.2d 418, 01-3372.

Because an amended complaint that makes no reference to the original complaint and incorporates no part of the original complaint by reference supplants the original, any previous joining of issue resulting from answering the original complaint is nullified. To join issue, an answer to the amended complaint is required and absent an answer the action is subject to default judgment under sub. (1). Schuett v. Hanson, 2007 WI App 226, 305 Wis. 2d 729, 741 N.W.2d 292, 06-3014.

If a motion to enlarge time to serve is properly denied, a responsive pleading is not joined and effectively is stricken from the record. A motion for default judgment under sub. (2) is properly granted when the court effectively erases any responsive pleading either by granting a motion to strike or by denying a motion to enlarge time. Keene v. Sippel, 2007 WI App 261, 306 Wis. 2d 643, 743 N.W.2d 838, 06-2580.

The timely answer of the codefendant insureds denying the liability of all defendants did not preclude a judgment by default against the insurer on the issue of liability and damages upon the insurer's acknowledged default. Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc. 2008 WI 78, 311 Wis. 2d 84, 751 N.W.2d 805, 06-1566.

It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under Art. I, s. 5 when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc. 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813.

As a result of its failure to timely answer, for purposes of a default judgment motion, the defendant surety admitted the allegations necessary for it to be held liable, including the allegations of its principal's liability. Although the defendant argued its liability was solely derivative of the principal's liability, as a matter of law, the defendant's surety status did not save it from default judgment. Backus Electric, Inc. v. Petro Chemical Systems, Inc. 2013 WI App 35, 346 Wis. 2d 668, 829 N.W.2d 516, 11-3004.

Too Late? Interests of Justice Trump Default Judgments. Nelson. Wis. Law. Nov. 2012.

Cross-reference: See also notes to s. 806.07 for decisions relating to the vacation of default judgments.