Finally, ‘Finality’ for Purposes of Appeal

WDC Journal Edition: Spring 2007
By: Beth Hanan - Gass Weber Mullins LLC

On March 21, 2007, the Wisconsin Supreme Court issued two decisions clarifying how to determine what is the final order or judgment that triggers the deadline for an appeal as of right.[1] The court also created a new, prospective requirement for language to be incorporated into the final document. Life just got simpler.

The supreme court thought it had fully clarified things in 2004, when it issued Harder v. Pfitzinger.[2] In that case, the court held that “when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.”[3] In Harder, the circuit court had granted motions for summary judgment. The court entered an “order for judgment” that explicitly dismissed each cause of action against each defendant, and that also stated that “the entire action is hereby dismissed with prejudice.”[4] A notice of entry of order was served, and almost two months later, a document labeled “judgment” was entered. The parties disputed whether the “order for judgment” or the “judgment” was the final document triggering the deadline to file a notice of appeal.

Harder analyzed Wis. Stat. § 808.03(1), the statute creating appellate jurisdiction for appeals as of right. The operative provision states: “A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties....” Harder derived two inquiries for the determination of finality for purposes of appeal: 1) is the document final as a matter of substantive law insofar as it disposes of the entire matter in litigation as to one or more parties; and 2) as to the phrase “disposes of,” is the document final because it is the last document in the litigation, and the circuit court did not contemplate entering a subsequent document from which an appeal could be taken.[5]

Harder’s contribution, essentially, was to inquire as to the intent of the circuit court. If there was evidence that the court intended to enter an additional document from which an appeal could be taken, then the document was not the final document for purposes of appeal. On the other hand, when the document constituted an unequivocal order to dismiss all of the claims against each party and the only task remaining after issuance of the order for judgment was the determination of the amount of costs, the court intended the order for judgment to be the final document for purposes of appeal.[6]

Yet all was not clear. Less than three years later, in Wamboldt v. West Bend Mutual Insurance Company, the supreme court acknowledged that practitioners and circuit courts have continued to disagree as to when a particular document is the final order or judgment for purposes of appeal. The Harder court’s earlier exhortation to practitioners to draft their documents with an express indication of finality had gone unheeded, at least in some cases.

The dispute in Wamboldt centered on whether a memorandum decision granting an insurer summary judgment was the final, appealable order. If it was, appellants were out of luck, as they filed their notice of appeal more than 45 days after the notice of entry of the memorandum decision. If, instead, a later order expressly dismissing the defendant insurer was the final order, their appeal was timely. The court of appeals concluded that the memorandum decision was the final appealable order, and dismissed the appeal.

On review, the Wamboldts urged that a mere memorandum decision can never be a final appealable order or judgment under Wis. Stat. § 808.03(1).[7] The supreme court canvassed the case law, finding precedent on both sides of the issue. The court agreed that memorandum decisions usually only explain the court’s reasoning.[8] But under the right circumstances, such a decision could suffice to trigger the appeal clock.

The court then focused on the statutorily-defined character of a final order or judgment – one which “disposes of the entire matter in litigation as to one or more of the parties . . . .” The court of appeals had determined that because the memorandum decision “decided” that the insurer was entitled to summary judgment, it had disposed of the entire matter in litigation as to the insurer. But the supreme court perceived a material difference between “deciding” a motion and “disposing” of an entire matter in litigation.[9] As the Wamboldt court saw it, “disposing” of a case or claim requires an explicit statement dismissing or adjudging an entire matter in litigation as to one or more parties.[10] In short, the difference is between an analytical function (reasoning or deciding) standing alone, and a conclusive procedural act (dismissing or adjudging). After determining that the memorandum decision only decided the claims against the insurer but did not expressly dismiss or adjudge them, the Wamboldt court reinstated the appeal.

Pragmatically, the court recognized that there will be other circumstances where the finality question will arise. To substantially reduce future confusion, the court leaped beyond simply encouraging parties to identify their draft orders or judgments as final, and adopted a new rule. Effective September 1, 2007, an appealable order or judgment must include a statement that it is the final document from which appeal may follow as a matter of right under Wis. Stat. § 808.03(1).[11] Orders or judgments which arguably dispose of the entire matter in litigation but do not contain a clear statement of finality or appealability will be liberally construed in favor of timely appeals.[12]

The same day that Wamboldt issued, the court also decided Tyler v. The Riverbank.[13] Those parties disputed whether an order denying post-verdict motions or a later judgment expressly dismissing plaintiff’s claims with prejudice, was the final document for purposes of appeal. Plaintiff filed his notice of appeal more than 90 days after the order was entered, but less than 90 days after entry of judgment.

The court of appeals brought up the question of appellate jurisdiction based on timeliness. The court concluded that the order was the final document because there were no additional substantive issues to be disposed after the post-verdict motions were denied.[14] On that basis, the appeal was dismissed. On review, the supreme court graciously took some responsibility for the court of appeal’s analysis, noting “because of our lack of precision in defining “dispose” previously, the court of appeals focused on whether the (circuit) court decided the substantive issues.”[15] Understandably then, the court of appeals had focused on Tyler’s chances of prevailing on his claims after denial of the post-verdict motions, instead of focusing on whether the court actually disposed of Tyler’s claim. The supreme court pointed out, however, that it was the judgment which undoubtedly disposed of the entire matter because it “dismissed with prejudice” all of Tyler’s claims.[16]

So, start now. Go to your word processing system and pull up those forms for orders and judgments. Then add this language just before the signature block:

“This Order/Judgment is the Final Document for Purposes of Appeal Under Wis. Stat. § 808.03(1).”

Now you (and the courts) will have more time to worry about the merits of your appeal.

[1] Wamboldt v. West Bend Mut. Ins. Co., 2007 WI 35, ___ Wis. 2d ___, 728 N.W.2d 670; Tyler v. The Riverbank, 2007 WI 33, ___ Wis. 2d ___, 728 N.W.2d 686.

[2] 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398.

[3] Id., ¶ 2.

[4] Id., ¶ 6.

[5] Id., ¶ 12.

[6] Id., ¶¶ 2, 19. Yet the Wamboldt court, in a cumbersome footnote, characterizes Harder differently,stating that Harder effectively dispensed with the “intent” part of the finality test. See 2007 WI 35 ¶ 30 n.9. In any event, the Wamboldt court not only clarified Harder, but strictly limited its analysis (“our decision here moves away from the language in Harder that focuses on whether a document has disposed of all of the ‘substantive issues’ in litigation”). Id., ¶ 33 n.10.

[7] Wamboldt, 2007 WI 35, ¶ 17.

[8] Id., ¶ 24.

[9] Id., ¶ 32.

[10] Id., 35, n.13.

[11] Id., ¶¶ 44-45.

[12] Id., ¶ 46.

[13] 2007 WI 33.

[14] Id., ¶ 11.

[15] Id., ¶ 20.

[16] Id., ¶ 22.