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Appellate Jurisdiction – Final Order

Admiral Insurance Company v. Paper Converting Machine Co., 2012 WI 30; case activity

¶3   If we conclude that there is any ambiguity in an order or judgment about whether it disposes of the entire matter in litigation as to one or more of the parties, we will construe the ambiguity so as to preserve the right to appeal. …

¶26  We recently addressed what it means for a judgment or order to be final in Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670.  In that case, we discussed the difference between deciding an issue in a written memorandum decision and disposing of a matter in litigation.

¶27  We explained that a memorandum decision that decided all the substantive legal issues, but did not explicitly dispose of the entire matter in litigation, was not final for purposes of appeal.  To constitute a final order or judgment, the document must explicitly dismiss or adjudge the entire matter in litigation as to one or more parties.  Id., ¶35.  If the language of the document only arguably disposes of the entire matter in litigation, that is, if there is some ambiguity as to whether the language of the order or judgment disposes of the entire matter in litigation as to one or more of the parties, then we will construe the ambiguity to preserve the right of appeal.  Id., ¶46.

¶28  In Wambolt, we acknowledged that the question of what constitutes a final order or final judgment “continue[d] to arise despite our past efforts to provide certainty,” and that uncertainty was “unacceptable in our system where the determination of finality is the lynchpin for jurisdiction on appeal.”  Id., ¶41.  Therefore, going forward, we required that final orders and final judgments state that they are final for purposes of appeal.  Id., ¶44.  We instructed appellate courts to construe any ambiguities in the order or judgment to preserve the right of appeal.  Id., ¶46.

¶29  The focus of the ambiguity inquiry is on the language of the order or judgment, not on the finality statement.  The absence of a finality statement cannot be used to create ambiguity when it is unambiguous that the order or judgment disposed of the entire matter in litigation as to one or more of the parties.  The Wambolt court’s purpose in requiring a statement of finality was to increase clarity and the efficient administration of justice.  However, if the lack of a finality statement created an ambiguity, the time for appeal of judgments and orders that explicitly dispose of the entire matter in litigation would be indefinitely extended, and the efficient administration of justice would be frustrated.

Nothing new in this discussion, really, but the stakes are so high – a blown civil-, unlike criminal-, appeal deadline can’t be extended – that the occasional reminder of applicable principles can’t do any harm. It is assumed that SPD practice isn’t entirely immune from Wambolt analysis; the interested reader is referred to this post for further discussion. Feel free to use the Comment box below, if you have any insights to share.

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