Jan. 4, 2010 – Confronted with two circuit court orders, both purportedly “final” for purposes of appeal in the same case, the Wisconsin Court of Appeals recognized the order that would ensure the timeliness of the appeal.
But in Black v. City of Kenosha Housing Authority, 2009AP2368, the court stated that this dilemma could be resolved with the simple inclusion of a statement identifying an order as a “final judgment” or a “final order” for purposes of appeal.
Dual orders
On April 21, 2009, the Kenosha Circuit Court entered a “Decision and Order” that acknowledged the cross-motions for summary judgment and concluded by stating, “Accordingly, the defendants’ motion is granted, and the action is dismissed on its merits.”
But on June 11, 2009, the court entered a “Final Order” that referred to the earlier order and stated that “It is hereby ordered: 1. The complaint is dismissed on its merits. 2. This is a final order for purposes of appeal.” Black filed a notice of appeal within the 90 days of the second order, but the appeal would be untimely if the first order were determined to be the actual final order.
Ambiguity resolved
In a per curiam opinion, the court of appeals noted that the Wisconsin Supreme Court directed in Wambolt v. West Bend Mutual Ins. Co., 2007 WI 35, that circuit courts must include an express statement identifying their final judgments or final orders entered after Sept. 1, 2007.
Although this requirement is more than two years old, the court of appeals commented that it is “frequently … presented with appeals from final judgments and final orders that do not include the final statement.” To resolve the problem, the court said that it will ignore the noncompliance in favor of preserving the appeal. In this case, that means finding that the time for appeal began to run with the June 21 order.
The court cited Wambolt as authority for its action, quoting language in which the justices anticipated that an order may still dispose of the entire matter in litigation without a statement of finality, despite the new requirement. “In such cases, the appropriate course is to liberally construe documents in favor of timely appeals,” the Wambolt court said.
Besides reminding circuit courts of the need to comply with Wambolt, the court of appeals said that litigants should also seek greater clarity in their final orders. The court of appeals quoted the Wambolt opinion in which the justices explained that a prevailing party should act to prevent an ambiguous order extending the time for appeal. Likewise, an aggrieved party does not want the time for an appeal to run out because of a prolonged fight over the uncertainty of when the time to appeal began.
