Attorneys Beware: Notice Not Always Required

WDC Journal Edition: Summer/Fall 2007
By: Aaron R. Berndt - Borgelt, Powell, Peterson & Frauen, S.C.

If ever you have a free moment and curiosity overcomes you, crack open the Wisconsin Statutes or run a Wisconsin case law search on Westlaw and try counting the number of instances and contexts the word “notice” is found. If you are not already quite informed of an attorney’s obligations, you will discover that attorneys must provide notice of most everything to most everyone when it comes to litigation. From service of the Summons and Complaint, to the taxation of costs, and everything in between, attorneys are often required to provide notice to persons and parties of these goings-on. This is for good reason; notice is fair and just, and not to mention that notions of due process and equal protection come into play as well. However, when it comes to certain circumstances, specifically appeals of worker’s compensation decisions to circuit courts, Wisconsin law is void of any rule indicating that a circuit court must notify even one of the parties that it has rendered a final judgment. I’ll be the first to tell you that when you wish to pursue an appeal in such a case, disaster may be right around the corner for those who anticipate notice.

My office represented an employer and its worker’s compensation carrier in a worker’s compensation case.[1] We received adverse decisions from both the administrative law judge and then from the Wisconsin Labor and Industry Review Commission (LIRC). The decision was made to appeal LIRC’s decision to the Waukesha County Circuit Court. As is often the case with worker’s compensation appeals to circuit courts, the circuit court set-up a briefing schedule for the parties and decided the appeal on the briefs alone and without any hearing. An initial brief was submitted by our clients, followed by the opposition’s response brief and then followed-by a reply brief from our clients. Briefing was completed on June 9, 2005. There were two entries dated June 9, 2005 and found in the “Record Events” of the Wisconsin Circuit Court Access web page. The first stated that the Plaintiff’s reply brief had been filed. The second simply stated, “Under advisement.” On September 6, nearly three months later, a “Decision on Administrative Review” was signed and filed by the Waukesha County Circuit Court judge. The decision affirmed LIRC’s decision and thus, was again adverse to our client’s interests. Again, this decision was a written decision rendered after reviewing briefs only. It was not rendered after or at a hearing. However, neither our clients nor any other party ever received a copy of the decision or any notice from the circuit court that a decision had been rendered and filed. Herein lies the problem when it comes to an appeal.

Finally, on or about January 30, 2006, over four months after the circuit court had rendered and filed its decision, the assistant attorney general representing LIRC filed a proposed final order with the circuit court. The attorney had discovered that a decision had been filed, not because he received a copy of the decision or received any notice from the court, but because there was record of it in the worker’s compensation file returned by the court after the decision was rendered. On February 14, 2006, the circuit court signed the final order which indicated: “IT IS ORDERED AND ADJUDGED that the order of the Labor and Industry Review Commission, dated January 14, 2005, be, and the same hereby is, in all respects confirmed.” On or about February 17, 2006, LIRC’s attorney served a “Notice of Entry of Final Decision and Order” upon all parties, reducing the time during which our clients could file an appeal to 45 days after the final order of February, 2006….or so one would think.

On March 29, 2006, our clients filed an appeal with the Wisconsin Court of Appeals, District II. However, the court of appeals, sua sponte, issued an order to the parties raising its concerns that the appeal was untimely and that therefore, the court may not have jurisdiction. Upon receipt of this, I pushed…no, slammed my proverbial “panic button”, jumped out of my chair, scoured the files, talked to everyone I could think of to talk to and reached one simple conclusion: there is no way that the court of appeals can boot this case on jurisdictional grounds when not only did we not receive a copy of the decision or any notice that a decision had been reached, but counsel for the other parties indicated that they too had no idea. Unfortunately, I was wrong. Fortunately, I pulled myself together, filed a legal memo with the court of appeals and basked in the glory (i.e. finally exhaled) when the court of appeals found in our favor and permitted the appeal to proceed. How was I wrong, you ask? And how did things still turn out right in this case? Read on for some of the law behind the notice issue, and for what I can only hope is a significant “word to the wise.”

Before discussing notice, let me reiterate Wisconsin’s stringent law regarding what constitutes a “final judgment or order” for the triggering of an appeal deadline. The Wisconsin Supreme Court has ruled that,

when a circuit court enters an order or a judgment that decides all substantive issues as to one or more parties, as a matter of law, the circuit court intended that to be the final document for purposes of appeal, notwithstanding subsequent actions by the circuit court or the label the document bears.[2]

In our case, in its order granting jurisdiction and permitting the appeal to continue, the court of appeals made it clear that it was not doing so because the circuit court’s decision was something other than the “final judgment or order.” To the contrary. The court of appeals determined that the written decision in our case “decided all the substantive issues and was the final judgment.” This was even in the face of our arguments that the decision did not once mention the words “order” or “judgment.” In fact, the decision was titled only “Decision on Administrative Review.” However, these arguments were dismissed.

As for notice, Section 808.04 of the Wisconsin Statutes states:

An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in s. 806.06(5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law.[3]

This Section says nothing about notice being required before the time begins to tick away on an appeal. Furthermore, Section 808.04 provides for a different appellate deadline depending on whether written notice of the final judgment or order was given or whether no notice was given. If a court was always required to provide notice of a final order or judgment to the parties, then distinguishing between the deadline when notice is given and the deadline when notice is not given would seem entirely unnecessary. Thus, Section 808.04 suggests that a court is not required to give notice of a final judgment or order for it to be valid.

Regardless, our arguments to the court of appeals positing that notice was necessary included everything and the kitchen sink. Generally speaking, we argued that sound policy dictates that notice was required in our case. First, we reiterated that our case was specifically unique in that it was an administrative appeal, one where the court inviting briefing without inviting any oral arguments and reached a decision without any hearing. Second, we pointed out that the other parties even agreed that they never received notice and had not put up much of a fight regarding this appeal moving forward. Next, we reiterated that when a party files suit against another, or files a motion with the circuit court or submits an order for judgment or judgment, service and notice is provided on and to the other parties. Finally, we even cited to a Wisconsin Court of Appeals decision regarding Chapter 32 of the Wisconsin Statutes entitled “Eminent Domain”, wherein the court held,

[W]e conclude that Wis. Stat. § 32.05(10)(a) must be read in conjunction with Wis. Stat. § 32.08(6)(b), requiring the clerk of the circuit court to mail a copy of the condemnation commission’s award to each party in interest. Because the Commission’s award was not mailed to Dairyland until sixty-six days after the Commission issued its award, the sixty-day deadline for filing an appeal in § 32.05(10)(a) was extended by the length of the delay of the mailing. Accordingly, Dairyland’s appeal was timely filed.

. . .

In viewing these condemnation appeals provisions it appears that the legislature has good reason for requiring the Clerk to mail the notice which is to alert the parties to the appeal time, although it does not set the start of the appeal time. If the Clerk does not do its duty the parties are being denied what the legislature obviously intended.

. . .

As the circuit court pointed out, the court clerk could simply sit on the award until after the appeal deadline has passed without any consequence to the court or to the State. If this scenario were permitted, an appellant could lose its right to appeal without even knowing an appeal was to be commenced where the court, not the party, bore the responsibility for the lack of notice.[4]

We conceded that there was no “duty to mail” section that would apply neatly to our case. However, we concluded by asking a question: how can the legislature be permitted to rule that one person’s interests and rights are worthy of a statutorily-created duty imposed on a court to provide notice of the entry of a decision and rule that another person’s interests and rights are not worthy of that same statutorily-created protection? We suggested that this seemed “patently unjust, undoubtedly inconsistent and perhaps a violation of one’s rights to due process and/or equal protection under the laws.”

After all of this, my best guess is these arguments went nowhere with the court of appeals as they were not addressed whatsoever. Moreover, the absence of any Wisconsin law on point was our early indicator that our notice argument may be doomed.

But alas, we come to the needle in the haystack, the argument that saved the day and was cited by the court of appeals in its decision permitting the appeal to continue… the circuit court made a “mistake.”

Section 806.07(1) of the Wisconsin Statutes indicates that a court “may relieve a party or legal representative from a judgment, order or stipulation for the following reasons: (a) Mistake, inadvertence, surprise, or excusable neglect . . . .”[5] Furthermore, in a case that was similar to our case, the Wisconsin Supreme Court held, “We conclude that when the record demonstrates the circuit court’s intention to send notice of an order to the parties, and the court subsequently acknowledges its mistake in failing to send such notice, it may effectively extend the time to appeal by vacating and reinstating its unnoticed order.”[6] It was left to us to tie in the holding of the Edland case to the facts of our case.

Fortunately, there was evidence in our case that the circuit court wished to send notice to the parties but failed to follow-through. Let’s back up though. My office first became aware in mid to late January of 2006 that a decision had been reached. We drafted a letter to the circuit court requesting a copy of the decision and any information on file at the court regarding whether any parties or attorneys were notified of the decision. After receiving notice from the court of appeals of the timeliness issue, we again contacted the circuit court and asked for copies of any file documents referencing notice of the decision. Thankfully, the clerk was very friendly and forthright. She sent a copy of letter that was in the file dated January 30, 2006 that was initially sent to the court by the assistant attorney general representing LIRC and regarding the proposed order related to the September, 2005 decision. This letter contained handwriting on it stating, “who rec’d copies of the decision back in Sept?” The initials of the judge were next to the handwriting. There was also a date next to the writing that would suggest that the judge was inquiring after receiving our initial request for the copy of the decision and for any information as to notice. Below that handwritten question were the handwritten names of the attorneys for the parties. The judge’s clerk told us that this was the calendar clerk’s handwritten response to his question. We included this copy of the letter with my affidavit describing these circumstances. We felt this evidence provided powerful support for the argument that the circuit court had “mistakenly” not mailed copies of the decision to the parties as it had intended. We also again pointed out that not one attorney could say that he ever received a copy of the decision from the circuit court. This evidence ended up saving the day.

The court of appeals rendered an order finding, “When the record demonstrates the circuit court’s intention to send notice of an order to the parties and the circuit court mistakenly fails to do so, the circuit court may effectively extend the time to appeal by vacating and reinstating its unnoticed order under Wis. Stat. § 806.07(1)(a).” The court of appeals cited to the Edland decision in support of this proposition. The court of appeals did point out that we had not filed a formal motion for relief under the section with the circuit court. However, we pointed out in our memo to the court of appeals that we’d be happy to do so, as Section 808.07 provided that such a maneuver may be carried out even though the appeal had been initiated.[7] The court of appeals apparently decided that this would be unnecessary, holding that “the circuit court’s entry of the February 14, 2006 order affirming the LIRC decision based on the written decision demonstrates the circuit court’s intent to remedy the failure of notice. Thus, the February 14, 2006 order became the final and appealable document. The appellants notice of appeal was timely filed.” Most importantly, jurisdiction was confirmed.

Thus, as it was in the beginning…Attorneys Beware! You cannot simply sit back, wait and expect to receive notice by mail that the court has made an important decision. Under certain circumstances, certain critical circumstances, the courts are not obligated to notify you whatsoever that it has made a finding. In our case, the circuit court was not obligated to notify anyone that it had rendered and filed a “final judgment or order”, the very document that initially triggers the appeal deadline. The moral of the story: incorporate ticklers, Post-It notes, “honey do” lists or whatever else it takes to remind you to regularly monitor and follow-up on the status of all of your cases, no matter the stage of the matter. Otherwise, your notice that a final judgment has been rendered and filed may come at about the same time as the medics responding to your first-degree “jurisdiction denied” heart attack.

[1] Emmpak Foods, Inc. v. LIRC, 2007 WI App 164 (case ordered to be published as of July 25, 2007) (the decision does not reference the notice issue whatsoever as the issue was decided before briefing and a decision on the merits).

[2] Harder v. Pfitzinger, 2004 WI 102, ¶ 15, 274 Wis. 2d 324, 682 N.W.2d 398.

[3] wis. stat. § 808.04(1) (2005-2006).

[4] Dairyland Fuels, Inc. v. State of Wis., 2000 WI App 129, ¶¶ 2, 11, 14, 237 Wis. 2d 467, 614 N.W.2d 829.

[5] Wis. Stat. § 806.07(1).

[6] Edland v. Wis. Physicians Serv. Ins. Corp., 210 Wis. 2d 638, 640-641 563 N.W.2d 519 (1997).

[7]Wis. Stat. § 808.07(2)(a)(3)(am).