By Joe Forward, Legal Writer, State Bar of Wisconsin

March 3, 2011 – A party may not appeal non-final orders without seeking leave to appeal. Recently, a Wisconsin court of appeals clarified what happens when a party seeks to “piggyback” a non-final order against a party not named in a notice of appeal.

The Commerce Bluff Condominium Association (Commerce Bluff plaintiffs) sued Cornerstone Property Development LLC and its owner and managing member, Timothy Dixon, seeking damages for alleged faulty construction of the Commerce Bluff Condominiums.

In turn, Cornerstone and Dixon (Cornerstone) moved to amend the pleadings to assert cross-claims for negligence, contribution, and indemnification against the construction, architecture, and engineering firms that worked on the project, which was denied.

Subsequently, the circuit court issued a final order granting summary judgment to the construction, architecture, and engineering firms and dismissed those parties from the suit.

The circuit court also denied Cornerstone’s motion for summary judgment relating to faulty construction claims asserted by the Commerce Bluff plaintiffs, but those rulings were not final. That is, those orders did not dispose of the entire matter in the litigation.

Cornerstone did not seek leave to appeal the non-final orders relating to claims by the Commerce Bluff plaintiffs, as required by Wis. Stat. 808.03(2).

However, Cornerstone filed a notice of appeal to challenge the circuit court’s final order relating to the construction, architecture, and engineering firms who were dismissed from the case, and challenging the court’s non-final orders relating to the Commerce Bluff plaintiffs.

Non-final order out 

In Dixon v. Commerce Bluff One Condominium Assoc., 2009AP1953 (March 1, 2011), the District I Court of Appeals ruled the Cornerstone could not attempt to seek review of the non-final orders relating to the Commerce Bluff plaintiffs because the Commerce Bluff plaintiffs were not named as respondents in the notice of appeal.

Cornerstone seeks to “circumvent the final-order rule by piggybacking the non-final orders on an appeal of orders and rulings that are final but do not involve the Commerce Bluff plaintiffs,” Judge Ralph Fine wrote. “They may not.”

Section 809.10(4) provides that “[a]n appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action not previously appealed and ruled upon.”

The appeals court ruled that Cornerstone could not obtain review of the nonfinal orders relating to the Commerce Bluff plaintiffs because they were not named in the notice of appeal as “respondents” pursuant to section 809.10(4).

Cornerstone “may not evade the non-final order barrier by the expedient of appealing final orders against those named in the notice of appeal in order to get review of non-final orders and rulings favorable to parties who are still active in the litigation,” Judge Fine explained.

The appeals court rejected Cornerstone’s claim that the Commerce Bluff plaintiffs interjected themselves as “respondents” by requesting to be named as a respondent in the notice of appeal and thus waived a right to challenge the court’s jurisdiction.

Commerce Bluff’s request specifically noted that it did not intend to waive arguments that Cornerstone did not initially name them as respondents in the notice of appeal, the court explained.

The court also flatly rejected Cornerstone’s claim that Commerce Bluff was imputed as a party to the appeal under Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963), because it obtained liability in contribution or indemnification by settling with the engineering firm.

Finally, Judge Fine ruled that it was not error for the circuit court to deny Cornerstone’s request for leave to amend the pleadings because it did not show excusable neglect in delaying the motion after learning the facts necessary to form the basis for the request.