Harder v. Pfitzinger, 03-1817.

Decision Date07 July 2004
Docket NumberNo. 03-1817.,03-1817.
Citation682 NW 2d 398,2004 WI 102
PartiesDerek J. Harder and Jill M. Harder, Plaintiffs-Appellants-Petitioners, v. Carol L. Pfitzinger, Defendant-Respondent, Shorewest Realtors, Inc., ABC Insurance Company, XYZ Insurance Company, Mary Kay Sheridan, Ronald Novak, and EFG Insurance Company, Third-Party Defendants, Shorewest Realtors, Inc., Mary Kay Sheridan, David J. Pfitzinger, Revere, Ltd., d/b/a Revere Realty, Ltd. and Chicago Insurance Company, Fourth-Party Defendants.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners there was a brief by Daniel W. Stevens and Stevens & Kroening, LLC, Brookfield, and oral argument by Daniel W. Stevens.

For the defendant-respondent there was a brief by Paul M. Erspamer and Lisko & Erspamer, S.C., Waukesha, and oral argument by Paul M. Erspamer.

¶1. PATIENCE D. ROGGENSACK, J.

Derek Harder and Jill Harder have sought review of an order of the court of appeals dismissing their appeal for lack of jurisdiction because it was not filed within the statutorily prescribed time from the entry of the order for judgment. The Harders assert that the order for judgment was not the final order because a judgment was entered subsequently.

¶2. To make a timely appeal of right, a litigant must appeal from a final judgment or a final order. Wis. Stat. § 808.03(1) (2001-02).1 We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court. Because the order for judgment meets this criterion, it is a final order, and the time for appeal ran from February 28, 2003, when it was entered. Therefore, the Harders' July 8, 2003 notice of appeal, filed 130 days after the entry of the order, was untimely. Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶3. In 1997, Derek J. and Jill M. Harder bought a house in Oconomowoc from Carol L. Pfitzinger. Pfitzinger, a real estate agent, had purchased the house from an estate. She made some cosmetic changes and repairs, including replacing the roof, and placed it on the market. The Harders made an offer on the house, subject to a physical inspection of the property by an inspector of their choice.

¶4. During the inspection to which the offer to purchase was subject, the inspector discovered a number of problems, including some potential structural problems. The Harders were present during the inspection, and the inspector also discussed his findings and report with them. The Harders and Pfitzinger then amended the offer to purchase, whereby the Harders waived the inspection contingency in exchange for Pfitzinger's agreement to make specified repairs. Pfitzinger did so and the sale closed.

¶5. Four years after their purchase of the house, the Harders listed it for sale with Shorewest Realtors, Inc. They completed the required real estate condition disclosure form indicating the house had no major problems except for some moisture and a crack in a basement wall. The Harders received an offer; however, the buyers chose not to proceed with the transaction when a subsequent inspection revealed structural problems. The Harders then sued Pfitzinger, claiming she had been aware of various defects and had failed to disclose them.

¶6. Pfitzinger sued Shorewest Realtors, Inc., Mary Kay Sheridan, Ronald Novak,2 and three insurance companies.3 Shorewest Realtors and Sheridan then sued David J. Pfitzinger, Revere, Ltd., and Chicago Insurance Co. All defendants brought motions seeking summary judgment of dismissal. The circuit court granted the motions and signed a document labeled, "Order for Judgment" on February 28, 2003. The order was entered the same day. The order dismissed all claims against all defendants with prejudice and with costs and also stated that "the entire action is hereby dismissed with prejudice."

¶7. On March 26, 2003, the attorneys for Shorewest and Sheridan served a notice of entry of order on the attorneys for all other parties. The notice had attached to it the February 28, 2003 order dismissing the action. By a letter dated April 8, 2003, the attorney for Pfitzinger sent a document captioned "Judgment" to the clerk for her signature and filing, together with a bill of costs. The judgment was signed and entered by the clerk on April 22, 2003, when costs were taxed. The judgment addressed no substantive issues. The Harders filed a notice of appeal on July 8, 2003, 130 days after the February 28, 2003 order, 104 days after being served with the notice of entry of order and 77 days after the April 22, 2003 judgment taxing costs was entered. Pfitzinger moved to dismiss the appeal as untimely. The court of appeals granted the motion, and the Harders petitioned for review, which we granted.

II. DISCUSSION
A. Standard of Review

¶8. Deciding whether the Harders' appeal was timely involves the application of Wis. Stat. § 808.03(1). This is a question of law that we review independently of the court of appeals. See Randy A.J. v. Norma I.J., 2004 WI 41, ¶12, ___ Wis. 2d ___, 677 N.W.2d 630.

B. The Final Wis. Stat. § 808.03(1) Document

¶9. The outcome of this case turns on our determination of which of two documents constitutes the final document in the circuit court litigation: (1) the February 28, 2003 order for judgment or (2) the April 22, 2003 judgment. Because the Harders filed their appeal July 8, 2003, 130 days after entry of the order4 for judgment and 77 days after the entry of the judgment,5 if the order is the final order under Wis. Stat. § 808.03(1), then the Harders' appeal is untimely filed; if the judgment is the final § 808.03(1) document, then it was timely.6

¶10. Wisconsin Stat. § 808.03(1) provides in relevant part:

Appeals as of right. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. 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 . . .

The dispositive phrase in § 808.03(1) is that which defines a final order or judgment as one that "disposes of the entire matter in litigation as to one or more of the parties." Therefore, we must set forth the meaning of this phrase and apply it to answer the question presented by this appeal.

¶11. The Harders claim Wis. Stat. § 808.03(1) is ambiguous because it reasonably permits more than one interpretation. They contend that under § 808.03(1) a reasonable person could conclude that the time for appeal begins to run either from when an order is entered or from when a judgment is entered. Pfitzinger does not argue statutory construction principles, but instead, goes directly into a review of prior cases that have interpreted specific orders or judgments when applying § 808.03(1). We conclude that Pfitzinger's approach is the correct one for at least two reasons: First, the focus of § 808.03(1) is not on the label a document bears, but rather it is on what the document does; and second, we already have interpreted the phrase, "disposes of the entire matter in litigation," in numerous cases, such that if it ever were ambiguous, it can no longer be construed as such. See State v. Tuescher, 226 Wis. 2d 465, 471, 595 N.W.2d 443 (Ct. App. 1999). Therefore, the final decision in this case does not require us to determine anew what § 808.03(1) means. Rather, our decision turns on the application of § 808.03(1) to the two documents in question.

¶12. Our past decisions show that in evaluating a given document, we have interpreted the phrase, "disposes of the entire matter in litigation" set out in Wis. Stat. § 808.03(1), as having two components: (1) whether the document is final in the sense of substantive law in that it disposes of all of the claims brought in the litigation as to one or more of the parties; and (2) whether the document is final in the sense that it is the last document that the circuit court intended to issue in the litigation. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 494, 326 N.W.2d 240 (1982). We have also concluded that an order may be final and appealable notwithstanding subsequent actions taken in the circuit court. Id. at 493; Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979). As we have explained:

The test of finality is not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered. This must be established by looking at the document itself, not to subsequent events.

Fredrick, 92 Wis. 2d at 688.

¶13. Furthermore, the label given a document by either the circuit court or the parties is not dispositive of the question of whether the document is a final order or judgment under Wis. Stat. § 808.03(1). Thomas/Van Dyken Joint Venture v. Van Dyken, 90 Wis. 2d 236, 241, 279 N.W.2d 459 (1979). Rather, it is the text of the document that we must examine. Radoff, 109 Wis. 2d at 493; see also Town of Fitchburg v. City of Madison, 98 Wis. 2d 635, 647-48, 299 N.W.2d 199 (1980); Fredrick, 92 Wis. 2d at 688. "[I]t makes little difference whether an appeal is from an order or judgment . . . . It is essential, however, that the document being appealed has been entered . . . and is final." Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, § 4.1, 4-2 (3d ed. 2003) [hereinafter Appellate Practice].

¶14. It can be argued, as the Harders do, that traditionally there has been a distinction between a judgment and an order. A judgment can be seen as that document that determines an action, whereas an order usually determines a special...

To continue reading

Request your trial
12 cases
  • In re Commitment of Schulpius
    • United States
    • Wisconsin Supreme Court
    • January 10, 2006
    ...so indicated in a letter to the parties on December 1, 2000, stating that it would not enter any further order.5 As we explained in Harder v. Pfitzinger: We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or mo......
  • Wambolt v. West Bend Mut. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • March 21, 2007
    ...constitutes a final order or judgment for the purposes of appeal is a question of law subject to independent appellate review. Harder v. Pfitzinger, 2004 WI 102, ¶ 8, 274 Wis.2d 324, 682 N.W.2d ¶ 15 Appeals pursuant to Wis. Stat. § 808.03(1) are a fundamental aspect of litigation in this......
  • Kenosha Prof'L Firefighters, 414 v. Kenosha
    • United States
    • Wisconsin Supreme Court
    • June 17, 2009
    ...299 Wis.2d 751, 728 N.W.2d 686; Wambolt v. W. Bend Mut. Ins. Co., 2007 WI 35, 299 Wis.2d 723, 728 N.W.2d 670; Harder v. Pfitzinger, 2004 WI 102, 274 Wis.2d 324, 682 N.W.2d 398. Notwithstanding all of our efforts, the petitions for review that turn on the issue of finality keep ¶ 48 Today we......
  • Scobie v. Scobie (In re 2015 Voting Tr. Agreement for Certain Shareholders of Mason Cos.)
    • United States
    • Wisconsin Court of Appeals
    • February 14, 2023
    ...disposes of the matter in litigation."); Leske v. Leske, 185 Wis.2d 628, 633, 517 N.W.2d 538 (Ct. App. 1994) (same); see also Harder v. Pfitzinger, 2004 WI 102, & n.8, 274 Wis.2d 324, 682 N.W.2d 398. ¶58 Nancy and Tim argue that they should not have had to bring a second, separate appeal af......
  • Request a trial to view additional results
1 books & journal articles
  • Wis. Supreme Court issues two decisions clarifying when a final judgment is entered.
    • United States
    • Wisconsin Law Journal No. 2007, November 2007
    • March 26, 2007
    ...by Justice Ann Walsh Bradley. The court began by setting forth the previous governing standard, set forth in Harder v. Pfitzinger, 2004 WI 102, 274 Wis.2d 324, 682 N.W.2d 398: "when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT