Booth v. American States Ins. Co.

• Citation: 544 N.W.2d 921,199 Wis.2d 465
• Decision Date: 25 January 1996
• Docket Number: No. 95-1405,95-1405
• Parties: Michael W. BOOTH and Wendy L. Booth, Plaintiffs-Respondents, v. AMERICAN STATES INSURANCE COMPANY, a Foreign Corporation, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 921

544 N.W.2d 921

199 Wis.2d 465

Michael W. BOOTH and Wendy L. Booth, Plaintiffs-Respondents, v. AMERICAN STATES INSURANCE COMPANY, a Foreign Corporation,

Defendant-Appellant.

No. 95-1405.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 12, 1995.

Opinion Released Jan. 25, 1996.

Opinion Filed Jan. 25, 1996.

[199 Wis.2d 468] Appeal from a judgment of the circuit court for Green County: William D. Johnston, Judge. Affirmed.

For the defendant-appellant the cause was submitted on the briefs of Larry W. Barton of Nowlan & Mouat of Janesville.

For the plaintiffs-respondents the cause was submitted on the brief of Eugene R. Pigatti of Milwaukee.

Amicus Curiae brief was filed by Todd W. Schluesche of Ewald Law Offices, S.C. of Monroe.

Before GARTZKE, P.J., and DYKMAN and VERGERONT, JJ.

VERGERONT, Judge.

American States Insurance Company (American States) appeals from a judgment denying its motion for costs and attorney fees under §§ 814.025 and 802.05, STATS. The trial court denied the motion on the ground that it was not filed prior to the entry of judgment as required under our decision in Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis.2d 278, 528 N.W.2d 502 (Ct.App.1995). The issue on appeal is whether the trial court's decision and order granting American States' motion for summary judgment and dismissing the action filed by Michael and Wendy Booth is a judgment for purposes of §§ 814.025 and 802.05. We conclude the document is a judgment, and affirm.

BACKGROUND

The following facts are not disputed. The Booths filed their complaint against American States on February 11, 1993, alleging bad faith in processing a claim under a health insurance policy issued by American States. On March 28, 1994, American States filed a motion for summary judgment. The trial court granted American States' motion in a document titled "Decision on Defendant's On July 28, 1994, American States filed a motion requesting costs and attorney fees under § 814.025, STATS., ¹ the "frivolous action" statute, and § 802.05(1)(a), STATS., ² which requires attorneys and parties signing pleadings or other documents in an action to first determine that the documents are well grounded in fact and law.

                Motion for Summary Judgment and Order."   This was filed in the office of the clerk of court on June 17, 1994
                

Following an evidentiary hearing, the parties advised the trial court of our decision in Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis.2d 278, 528 N.W.2d 502 (Ct.App.1995). In Northwest Wholesale Lumber, we held that the language of § 814.025(1), STATS., providing that costs shall be awarded if the trial court makes a finding of frivolousness "during the proceedings or upon judgment," requires that a frivolous-action motion be filed before the trial court enters judgment in the case. Id. at 281, 528 N.W.2d at 504. We also held that, while § 802.05, STATS., is silent on the time within which motions must be filed under its terms, the statute embodies the same requirement--that the motion be filed prior to the entry of judgment. Id. at 281-82, 528 N.W.2d at 504. A judgment is entered when it is filed in the office of the clerk of court. Section 806.06(1)(b), STATS.

The trial court determined that, while the document granting American States' motion for summary judgment was titled a decision and order, it was the final determination of the action and, therefore, a judgment. Citing Northwest Wholesale Lumber, the court then dismissed American States' motion for costs and attorney fees because the motion had not been filed prior to the entry of judgment on June 17, 1994.

The application of a statute to an undisputed set of facts presents an issue of law, which we review de novo. Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).

DISCUSSION

American States contends that its motion was not untimely because, while Northwest Wholesale Lumber holds that motions brought under §§ 814.025 and 802.05, STATS., must be filed prior to the entry of judgment, the trial court did not enter a judgment on its motion for summary judgment, but rather an order. According to American States, the term "judgment" contemplates a document titled a judgment. We disagree.

The trial court document is labeled a "Decision on Defendant's Motion for Summary Judgment and Order." However, whether a written direction of a trial court constitutes a judgment is not determined by the designation the trial court uses. State v. Donohue, 11 Wis.2d 517, 520, 105 N.W.2d 844, 846 (1960). Rather, the test is the statutory definition set forth in § 806.01(1)(a) STATS. See id. (applying § 270.53, STATS., the predecessor to § 806.01(1)(a)).

"A judgment is the determination of the action." Section 806.01(1)(a), STATS. ³ The trial court document grants summary judgment to American States, dismisses the Booths' action and awards American States $50 in costs under § 814.07, STATS. ⁴ This is a determination of the action and, therefore, a judgment. See, e.g., Fredrick v. City of Janesville, 92 Wis.2d 685, 687, 285 N.W.2d 655, 656 (1979) (order granting defendants' motion to dismiss on the merits is a judgment because it determines the action); Collins v. Gee, 82 Wis.2d 376, 381, 263 N.W.2d 158, 161 (1978) (order directing new trial on damages was not a judgment for purposes of §§ 895.04 and 270.53, STATS., 1973, because it did not finally determine the rights of the parties to the action); Committee to Retain Byers v. Elections Bd., 95 Wis.2d 632, 633 n. 1, 291 N.W.2d 616, 617 (Ct.App.1980).

American States incorrectly relies on Kling v. Sommers, 252 Wis. 217, 31 N.W.2d 206 (1948), for the proposition that the determination of a motion is an order, not a judgment. In Kling, the trial court denied a motion to vacate the confirmation of a foreclosure sale and to grant the defendant an enlarged time for redeeming his mortgaged premises from the foreclosure judgment. Our supreme court held that this determination was an order, not a judgment, because it was entered in a special proceeding instituted by a motion. The court stated that "all determinations entered in special proceedings are orders and not judgments by statutory definition." Id. at 220, 31 N.W.2d at 208.

In Donohue, the court explained that Kling did not hold that the determination of a motion is an order:

[I]t is contended that Kling v. Sommers, supra, lays down the rule that any court determination entered pursuant to a motion is an order and not a judgment. We do not consider that this was what was held in the Kling case. In that case the motion was one to set aside an order confirming sale in a mortgage-foreclosure action and the court determined that the instrument which denied the motion was an order and not a judgment. The rationale of such holding was that the matter determined was a special proceeding initiated by motion and not by summons or an original writ.

Donohue, 11 Wis.2d at 522, 105 N.W.2d at 847.

Unlike in Kling, the summary judgment motion brought by American States was not a special proceeding initiated by motion. Moreover, at the time Kling and Donohue were decided, judgments and orders were separately defined by statute and different appeal time limits applied depending on whether the document appealed from was a judgment or an order. ⁵ The distinctions between judgment and order for purposes of appeal are now largely nonexistent. Under § 808.03(1), STATS., an appeal as a matter of right can be taken from a final judgment or final order which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding. Whether entered in an action or special proceeding, and whether labeled an order or judgment, the appealability of a document depends on whether it is final. See Fredrick, 92 Wis.2d at 688, 285 N.W.2d at 657.

American States next argues that the trial court document is not a "judgment" within the meaning of §§ 814.025 and 802.05, STATS., because it does not include the statutory costs to which it is entitled. We disagree.

A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment. Section 806.06(1)(c), STATS. Under § 806.06(4), a judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party has thirty days from entry within which to tax costs. Id.

In Northwest Wholesale Lumber, we held that a motion for costs and attorney fees under §§ 814.025 and 802.05, STATS., must be filed prior to the entry of judgment, whether or not costs have yet been taxed at the time of entry. Northwest Wholesale Lumber, 191 Wis.2d at 282, 528 N.W.2d at 504. We stated:

[Appellant] has not persuaded us that because general costs of the action allowable under § 814.04, STATS., ... are taxed after judgment, we must construe the "upon judgment" language of § 814.025(1), STATS., as reaching beyond the entry of judgment.... [W]e do not believe the language chosen by the legislature permits such an interpretation.

Id. at 283 n. 2, 528 N.W.2d at 504. See also Fredrick v. City of Janesville, 91 Wis.2d 572, 576, 283 N.W.2d 480, 482 (Ct.App.1979) (a judgment is final for appeal purposes whether or not costs have been taxed), rev'd on other grounds, 92 Wis.2d 685, 285 N.W.2d 655 (1979).

Thus, even if the judgment in this case did not include all of the taxable costs to which American States was entitled, American States was still required to file its motion for costs and attorney fees prior to the entry of the judgment.

American States notes that in Northwest Wholesale Lumber, a memorandum decision in the plaintiff's favor was filed over two months prior to the entry of judgment and the memorandum decision was not considered the judgment for purposes of determining the timeliness of the motion brought under §§ 814.025 and ...