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Appellate Procedure – Finality and Appealability; § 806.07 Motion to Vacate

Evelyn Werner v. Kenneth Hendree, 2011 WI 10, reversing 2009 WI App 103; case activity

Appellate Procedure – Finality and Appealability

A circuit court order rejecting state indemnification of an employee being sued was non-final and thus absorbed in the final judgment later entered as to liability and damages.

¶62  An appeal may be taken as a matter of right only from a final judgment or a final order.  Wis. Stat. § 808.03(1).  “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, whether rendered in an action or special proceeding . . . .”  Id.  This court has previously held that a document must meet three conditions in order to be considered a final judgment or order for purposes of appeal: the document must (1) be entered by the circuit court, (2) dispose of the entire matter in litigation as to one or more parties, and (3) state on its face that it is the final document for purposes of appeal.  Tyler, 299 Wis. 2d 751, ¶26.

¶63  In this case, the order ruling that Hendree was ineligible for indemnification met only two of those three conditions and thus could not be considered final.  While the order was entered by the circuit court on April 2, 2008, and stated on its face that it was “a final order for the purpose of filing an appeal,” the order did not dispose of the entire matter in litigation as to either Werner or Hendree.[17]  By that point in litigation, Honeck had been dismissed on the grounds of governmental immunity.  Moreover, the State was not a named party and chose not to intervene in the lawsuit.  The order ruling that Hendree was ineligible for indemnification did not dispose of the entire matter in litigation as to either Werner or Hendree because the circuit court had not yet resolved any issue as to Hendree’s liability or Werner’s damages.  See Kenosha Prof’l Firefighters v. City of Kenosha, 2009 WI 52, ¶38, 317 Wis. 2d 628, 766 N.W.2d 577 (concluding that a peremptory writ of mandamus did not constitute a final order under Wis. Stat. § 808.03(1) because it left at least one matter in litigation unresolved).  In this case, the relevant final document was the default judgment against Hendree entered on July 11, 2008, because only that document disposed of the entire matter in litigation between Werner and Hendree.  See Sanders, 310 Wis. 2d 175, ¶40.

Any relevance to SPD practice? Little, because the crushing majority of those appeals come within § 809.30, with the remainder under § 974.06, but that doesn’t eliminate all possibilities. Example: summary contempt arising within a criminal case becomes in effect its own separate, special proceeding and falls outside 809.30 procedure, McGee v. Racine Co. Circuit Court, 150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989). A contempt order, in other words, is final and appealable in its own right, under civil rules. Same can be said for sanction orders imposed against counsel in any given case. Limited number of potential cases aside, it’s probably best to have some familiarity with the finality principle. As for the present case, the matter in issue – indemnification by the State of one of its employees – related to a “special proceeding” but the circuit court determination of non-indemnification wasn’t final because it didn’t resolve the underlying question of the employee’s liability, ¶63 n. 17.

Even within the necessarily small SPD-universe of potential situations, the blockquote above may be some consequence. The court appears to hold that finality is a 3-legged stool; take one leg away and the thing is no longer supported. But Tyler itself admits of some wiggle room,  id., ¶26: “In the (hopefully) rare cases where a document would otherwise constitute the final document, but for not including a finality statement, courts will construe the document liberally in favor of preserving the right to appeal.” No longer true? Or just that the court had no need to discuss the “liberality” doctrine in this instance? It’d be odd, but not inconceivable, that the point would be overruled sub silentio.

 § 806.07 Motion to Vacate

Mistaken entry of judgment by the circuit court, in contravention of express agreement and without notice to the parties, should have impelled the circuit court on subsequent motion to vacate and reenter the judgment so the aggrieved party could file a timely notice of appeal.  The one-year limitation period in § 806.07(1)(a) doesn’t control the timing of the motion, which instead need only be brought within the broader, “reasonable time” limitation of  § 806.07(1)(h).

¶70  However, contrary to the circuit court’s conclusion, the circuit court had the power under Wis. Stat. § 806.07 to vacate and reenter the orders, even though Werner did not file her motion within the one-year time limit prescribed in § 806.07(2).  This court has expressly held that even if the movant’s claim sounds in § 806.07(1)(a) and is brought outside of the one-year time limit, the motion can still be granted under the broader subsection (1)(h).  M.L.B., 122 Wis. 2d at 552-53.[20]

¶71  Wisconsin Stat. § 806.07(1)(h) grants the circuit court broad discretionary authority to relieve a party from a judgment, order, or stipulation for “[a]ny [] reason[] justifying relief from the operation of the judgment.” … Thus, § 806.07(1)(h) should be applied only in those cases in which “the sanctity of the final judgment is outweighed by ‘the incessant command of the court’s conscience that justice be done in light of all the facts.'”  M.L.B., 122 Wis. 2d at 550 (quoting Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)).  In such “extraordinary circumstances,” relief is justified.  Id. at 552.

¶72  Accordingly, the proper test under Wis. Stat. § 806.07(1)(h) for a motion that in part sounds in subsection (1)(a) but is brought outside the one-year time limit is “whether there are extraordinary circumstances justifying relief in the interest of justice.”  Id. at 553.

¶73  In this case, extraordinary circumstances justify relief under Wis. Stat. § 806.07(1)(h).  Specifically, despite the circuit court both orally and in writing stating that it would hold the orders so that one appeal could later be taken after trial, it did not so hold the orders.  Here, Werner’s counsel’s reliance on the court’s representation to hold the orders provides a basis for extending Werner’s time to appeal under § 806.07.  Werner’s counsel had no reason to be on guard that the court would sign and file the orders before trial.

Keep in mind that § 806.07 is simply unavailable in a criminal case, State v. Henley, 2010 WI 97, ¶5 (“We hold that neither Wis. Stat. § 805.15(1) nor § 806.07(1)(g) or (h) are available procedural mechanisms for a convicted criminal defendant to challenge his or her conviction or sentence.” Post, here.) That said, the thematic thread tying this to prior such cases: mistaken entry of judgment by the circuit court without notifying the aggrieved party, leading to expiration of the appeal deadline. If nothing else, that sort of fact pattern establishes sufficient equitable heft to outweigh finality. Whether and to what extent the court would deem equally compelling some or another variation remains to be seen.

¶80  At its core, Edland recognizes that when the circuit court’s clear and acknowledged mistake deprives a party of its right to appeal, Wis. Stat. § 806.07 may provide a basis for vacating and reentering the order or judgment.  See 210 Wis. 2d at 648.  In this case, rather than vacating and reentering the orders in accordance with Edland, the circuit court admonished Werner’s counsel for not bringing the motion within the one-year time limit prescribed in § 806.07(2).[21]  The circuit court acknowledged its mistake but then refused to remedy it within the confines of § 806.07, effectively penalizing Werner’s counsel for not discovering the mistake soon enough.  In so ruling, the circuit court missed the mark.  When the circuit court made multiple assurances on the record that it would not sign and file the orders until the case was resolved as to Hendree, Werner’s counsel was entitled to rely on those assurances.  A conclusion otherwise places the onus on parties to constantly confirm that the circuit court has lived up to its statements on the record or second-guess the court.  The circuit court should exercise its authority to right its own wrong particularly when it deprives a party of the opportunity to appeal.

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