Hartford Ins. Co. v. Wales, 85-2116

• Decision Date: 03 June 1987
• Docket Number: No. 85-2116,85-2116
• Citation: 406 N.W.2d 426,138 Wis.2d 508
• Parties: HARTFORD INSURANCE COMPANY, Kevin Marks and Mary Marks, Plaintiffs-Appellants-Petitioners, v. Jay R. WALES, Lawrence A. Wales and U.S. Fire Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 426

406 N.W.2d 426

138 Wis.2d 508

HARTFORD INSURANCE COMPANY, Kevin Marks and Mary Marks Plaintiffs-Appellants-Petitioners, v. Jay R. WALES, Lawrence A. Wales and U.S. Fire Insurance Company, Defendants-Respondents.

No. 85-2116.

Supreme Court of Wisconsin.

Argued March 3, 1987.

Decided June 3, 1987.

Charles P. Reiter, argued Milwaukee, for plaintiffs-appellants-petitioners.

Werner E. Scherr, argued and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, for defendants-respondents.

HEFFERNAN, Chief Justice.

This is a review of the order of the court of appeals which dismissed the appeal of plaintiffs, Hartford Insurance Company and Kevin Marks and Mary Marks, from a judgment of the circuit court for Milwaukee county, Clarence R. Parrish, circuit judge. We vacate the order of dismissal and remand the cause to the court of appeals for its consideration of the plaintiffs' appeal.

The question presented is whether a party's failure to file postverdict motions in the trial court within twenty days following verdict, as set forth in sec. 805.16, Stats., deprives the court of appeals of jurisdiction to consider an appeal from the judgment on the verdict which followed the trial court's determination that the motion was too late for the trial court to consider the questions raised in the tardy postverdict motions.

We conclude that the failure to present timely post-verdict motions does not deprive the court of appeals of jurisdiction to review the judgment that followed. Such failure does, however, limit the issues that may be asserted as a matter of right on the appeal. Although the issues intended to have been raised on motions after verdict may not be asserted as of right in support of the appeal, the appeals court has jurisdiction over a timely appeal and may in its discretion conclude that, in the interest of justice, the issues not assertable as a matter of right may nevertheless be reviewed.

This review arises out of the following facts. Kevin Marks (Marks) was a nurse's assistant in St. Michael's emergency room when a patient, Jay Wales (Wales), was brought in for emergency treatment for an alleged drug overdose. Wales was combative and, in the course of attempting to transfer Wales from the ambulance to a hospital table, Marks was injured. The injury allegedly required two surgical procedures, extensive therapy, and a protracted absence from work. A lawsuit followed, in which Marks, his wife, and his insurance company sued to recover damages from Wales and his household liability insurer. The cause of action for negligence resulted in a jury verdict on July 1, 1985, finding no negligence. Ten days after verdict, the defendants moved for judgment on the verdict, and a hearing was noticed by the defendants for fifty-two days following the verdict. The plaintiffs first moved for postverdict relief on August 15, 1985. On August 20, 1985, the circuit court denied the plaintiffs' motion on the grounds that it did not have jurisdiction to consider motions when filed more than twenty days following the verdict.

Judgment on the verdict dismissing the complaint was entered on September 26, 1985, and appeal from the judgment was filed on November 8, 1985. The appeal was timely. ¹ Also, it is apparent that the judgment was a final one and, as such, was appealable as of right under sec. 808.03(1), Stats. ²

Following the appeal from the judgment, the defendants moved the court of appeals to dismiss the appeal, claiming that "the Court of Appeals lacks jurisdiction by reason of the plaintiffs-appellants' waiver of all rights to appeal on any issue by reason of their failure to comply with Section 805.16, Wis.Stats." ³

The court of appeals responded to this motion by an order dismissing the appeal. That order, dated January 17, 1986, recited:

"It has been consistently held that no error of the trial court is reviewable as a matter of right on appeal without giving the trial court an opportunity to be apprised of and to correct the error and order a new trial if necessary. Herkert v. Stauber, 106 Wis.2d 545, 561, 317 N.W.2d 834, 841 (1982) (citation omitted). By failing to timely file motions after verdict, the plaintiffs deprive the trial court of an opportunity to correct its own error. Jos. P. Jansen v. Milwaukee Area Dist., Etc., 105 Wis.2d 1, 10, 312 N.W.2d 813, 817 (1981)."

It is apparent that the legal propositions stated in the court of appeals order are correct. It is nevertheless a non-sequitur to conclude that, because issues cannot be raised, the appeal must be dismissed. If the only issues that are sought to be asserted in an attack on a judgment for procedural or substantive reasons cannot be asserted, the judgment must be affirmed. The law which the court of appeals recites in its order does not in any way, however, implicate its jurisdiction to decide the appeal. The law relied on in its order merely limits the scope of the attack which may be mounted by the appellant as of right. Neither of the cases cited by the court of appeals in its order resulted in the dismissal of the appeal, nor did those opinions state that the appellate court's jurisdiction to hear and decide the appeal was vitiated. While Jos. P. Jansen v. Milwaukee Area Dist., Etc., 105 Wis.2d 1, 312 N.W.2d 813 (1981), cited in support of the court of appeals order, held that, as the consequence of the failure of an appellant to conform to the time strictures of sec. 805.16, Stats., the circuit court "lost competency to exercise its jurisdiction" (105 Wis.2d at 10, 312 N.W.2d 813), it says nothing of the kind in respect to the jurisdiction of the court of appeals. Jansen, rather, provides, "an appellate court is not foreclosed from invoking its power under secs. 751.06 and 752.36...." Thus, Jansen 's holding is diametrically opposed to the interpretation given to it by the court of appeals. In Jansen, this court pointed out that the court of appeals had jurisdiction of the appeal and could exercise its discretion to determine whether a new trial should be ordered in the interests of justice. Hence, under Jansen, the proper order in this case, depending upon the exercise of discretion, is either to affirm the judgment or to order a new trial in the interests of justice.

The other precedent relied upon for the order of dismissal, Herkert v. Stauber, 106 Wis.2d 545, 561, 317 N.W.2d 834 (1982), expresses the same holding--not that the appellate court is deprived of jurisdiction on the appeal, but that on appeal the appellant cannot assert certain objections to the judgment because the objections were waived by the failure to make the required motion which would have brought alleged errors to the attention of the circuit court and would have allowed it to correct its own errors. Such a waiver, as the cases cited by the court of appeals indicate, has nothing to do with the jurisdiction of the court of appeals to decide the appeal. All the waiver does--and it may be a significant waiver--is to eliminate grounds for the appeal that the appellant, in the absence of waiver, would be able to assert as of right.

Thus, we conclude the very cases cited in the order of the court of appeals lead inexorably to either an affirmance or a reversal of the judgment in this case, not to a dismissal of the appeal. It is possible, of course, that the court of appeals understood that it had jurisdiction to exercise discretion in the interests of justice but chose not to do so. If, however, such was the case, it failed in this instance to demonstrate the exercise of discretion. In any event, the refusal or failure to exercise discretion in the interests of justice should have resulted in an affirmance of the trial court's judgment.

Rather than merely pointing out that the court of appeals order is not supported by the authorities upon which it relied, we refer to those cases that explain the genesis and purpose of the rule that errors that are not specifically and timely called to the attention of the trial court cannot be asserted as of right as grounds for reversal on appeal. The general rule is that:

"[N]o error is reviewable on appeal as a matter of right without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that the trial court could correct by granting a new trial." G. Currie & N. Heffernan, Wisconsin Appellate Practice Procedure 35 (ATS CLE 1975).

A perusal of the record here reveals that the plaintiffs' motion was for a new trial on the ground that there was no evidence to support the verdict and on grounds that either the instructions were erroneous or that requested instructions were improperly refused. It is apparent that the type of relief sought by the plaintiffs was of the nature contemplated by motions under sec. 805.16, Stats.--relief that was required to be sought by motion within twenty days of verdict. Clearly, the motion brought on August 15, 1985, six weeks later, came too late. Section 805.16, requires all motions of this nature to be brought within twenty days. Because plaintiffs did not do so, the circuit court lacked the competency to exercise its jurisdiction to decide the motions. As Jansen, supra at 10, holds, a motion of the type contemplated by sec. 805.16 which is tardily brought cannot be heard because the court "lost competency to exercise its jurisdiction." It should be noted that sec. 805.16 does not purport to address the question of the jurisdiction or competency of the court of appeals to address issues once an appeal is taken.

Jurisdiction of an appeal is primarily determined by two STATUTES. SECTION 809.10⁴, Stats., provides that, when a notice of appeal is timely filed, the court of appeals has jurisdiction over the appeal. That this is the document that confers jurisdiction is made clear by the comments of the Judicial Council, which point out that, under the prior statute, jurisdiction was acquired upon the entry of an appealable order in the...