Kenosha Prof'L Firefighters, 414 v. Kenosha

• Decision Date: 17 June 2009
• Docket Number: No. 2007AP1198.,2007AP1198.
• Parties: KENOSHA PROFESSIONAL FIREFIGHTERS, LOCAL 414, IAFF, AFL-CIO and Alan M. Horgen, Petitioners-Appellants-Petitioners, v. CITY OF KENOSHA and Steve Stanczak, in his capacity as Personnel Director of the City of Kenosha and custodian of its personnel records, Respondents-Respondents.
• Court: Wisconsin Supreme Court

766 N.W.2d 577

2009 WI 52

KENOSHA PROFESSIONAL FIREFIGHTERS, LOCAL 414, IAFF, AFL-CIO and Alan M. Horgen, Petitioners-Appellants-Petitioners, v. CITY OF KENOSHA and Steve Stanczak, in his capacity as Personnel Director of the City of Kenosha and custodian of its personnel records, Respondents-Respondents.

No. 2007AP1198.

Supreme Court of Wisconsin.

Argued February 3, 2009.

Decided June 17, 2009.

For the petitioners-appellants-petitioners there were briefs by Jeffrey P. Sweetland and Hawks Quindel Ehlke & Perry, S.C., Milwaukee, and oral argument by Jeffrey P. Sweetland.

For the respondents-respondents there was a brief by Matthew A. Knight, assistant city attorney and the City of Kenosha, Kenosha, and oral argument by Matthew A. Knight.

¶ 1 SHIRLEY S. ABRAHAMSON, Chief Justice

We review an unpublished decision of the court of appeals dismissing for lack of jurisdiction an appeal from two decisions of the Circuit Court for Kenosha County, Wilbur W. Warren, III, Judge.¹ Kenosha Professional Firefighters, Local 414, IAFF, AFL-CIO, and Alan M. Horgen (collectively "the firefighters") appealed to the court of appeals from a January 19, 2007, decision of the circuit court denying the firefighters' application for attorney fees, statutory damages, and costs, as well as from an April 26, 2007, decision of the circuit court denying the firefighters' motion to reconsider the January 19, 2007, decision. The firefighters brought their appeal to the court of appeals pursuant to Wis. Stat. § 808.03(1) (2005-06),² governing appeals as of right from final judgments or orders of the circuit court.³

¶ 2 The court of appeals determined (1) that the circuit court's January 19, 2007, decision represented its final order denying the firefighters' application for attorney fees, statutory damages, and costs; (2) that the firefighters failed to appeal timely from that final order; and (3) that the court of appeals therefore lacked jurisdiction to review the January 19, 2007, decision and the issues decided therein.⁴ The court of appeals also concluded that under Ver Hagen v. Gibbons, 55 Wis.2d 21, 197 N.W.2d 752 (1972), the firefighters have no right of appeal from the circuit court's April 26, 2007, decision denying the firefighters' motion for reconsideration.⁵

¶ 3 The City of Kenosha agrees with the court of appeals and argues that the firefighters' appeal to the court of appeals was tardy. The City urges that the circuit court's January 19, 2007, decision was a final order and that the appeal from that decision was too late. It also argues that pursuant to the Ver Hagen case, the circuit court's April 26, 2007, decision did not extend the time for appeal.

¶ 4 The firefighters agree with the City that the court of appeals should have dismissed the appeal. The firefighters argue, however, that the dismissal should be without prejudice. Consistent with their position in the court of appeals, the firefighters contend that the two circuit court decisions from which they appealed to the court of appeals are not final judgments or final orders for purposes of appeal. They reason that the circuit court's two decisions relating to attorney fees, statutory damages, and costs cannot be final because the circuit court has not yet entered a final, appealable judgment or final order disposing of the firefighters' underlying litigation against the City relating to the release of public records. Under the firefighters' reasoning, their appeal should be dismissed without prejudice so that the firefighters may appeal again upon entry of final judgments or orders disposing of the underlying litigation and the firefighters' request for fees, damages, and costs. According to the firefighters, although their appeal was properly dismissed, the court of appeals erred in dismissing their appeal with prejudice.

¶ 5 We therefore state the issue on review as follows: Should the firefighters' appeal be dismissed as tardy or as premature? In other words, should the firefighters' appeal be dismissed with prejudice or without prejudice?

¶ 6 In response to the issue on review, we conclude for two related reasons that the January 19, 2007, and April 26, 2007, circuit court decisions from which the firefighters appealed are not final judgments or final orders for purposes of appeal under Wis. Stat. § 808.03(1). First, the decisions do not dispose of the entire matter of attorney fees, statutory damages, and costs in litigation between the parties. Second, because the circuit court has not entered a final, appealable judgment or order disposing of the firefighters' underlying litigation against the City relating to the release of public records, the circuit court's decisions relating to attorney fees, statutory damages and costs should not be accorded the status of final judgments or final orders for purposes of appeal.

¶ 7 Accordingly, we conclude that the court of appeals erred in dismissing the firefighters' appeal with prejudice. The appeal should have been dismissed without prejudice. The firefighters may appeal under Wis. Stat. § 808.03(1) when the circuit court enters final judgments or orders disposing of the firefighters' underlying litigation against the City and the firefighters' request for fees, damages and costs. We remand the cause to the circuit court for further proceedings not inconsistent with this opinion.

I

¶ 8 We briefly state the facts relevant to the issue on review.

¶ 9 The firefighters petitioned the circuit court for a peremptory writ of mandamus compelling the City of Kenosha and Steve Stanczak, in his capacity as Personnel Director of the City of Kenosha and custodian of its personnel records (collectively "the City"), to disclose certain public records pursuant to Wis. Stat. § 19.37(1)(a).⁶ On April 27, 2006, a peremptory writ of mandamus was entered stating that "it is ordered, adjudged and decreed" that the firefighters' petition for mandamus be granted subject to limitations stated in the peremptory writ.

¶ 10 The writ compelled the City to disclose most of the records sought by the firefighters. It did not, however, grant or deny the firefighters' petition insofar as the firefighters sought disclosure of a set of "matrix scores" that, according to the City, had been destroyed by a third-party contractor in the ordinary course of business. In the peremptory writ the circuit court requested the City and the custodian of the records to file affidavits based on personal knowledge that the matrix scores were destroyed before the firefighters requested them and that the custodian has no information as to how the destroyed material can be retrieved. The peremptory writ also states that the City concedes that the matrix scores constitute public records and that the circuit court retains jurisdiction for the purpose of determining whether further discovery may be had with respect to the existence of the matrix scores.

¶ 11 After the writ was entered, the City provided affidavits on October 26, 2006, and November 9, 2006, relating to the destruction of the matrix scores. No further order or judgment was entered by the circuit court relating to the matrix scores or any other public records matter that was the substance of the peremptory writ.

¶ 12 On August 4, 2006, the firefighters applied for an award of attorney fees, statutory damages, and costs pursuant to Wis. Stat. § 19.37(2)(a).⁷ The City opposed the application, arguing among other things that the firefighters' application was untimely under Wis. Stat. § 806.06(4).⁸ The City contended that Wis. Stat. § 806.06(4) required the firefighters to file their application no more than 30 days after the entry of the April 27, 2006, writ of mandamus.

¶ 13 On January 19, 2007, the circuit court issued a decision denying the firefighters' application for attorney fees, statutory damages, and costs, agreeing with the City that the application was untimely under Wis. Stat. § 806.06(4). The circuit court's written decision relating to the costs and fees stated in relevant part: "Petitioner's application for costs and fees is denied."

¶ 14 The firefighters moved for reconsideration of the circuit court's January 19, 2007, decision. The circuit court denied the firefighters' motion for reconsideration in a written decision entered April 26, 2007. The circuit court's April 26, 2007, decision stated in relevant part that "[a]fter reconsideration, the Petitioner's application for costs and fees remains denied."

¶ 15 The firefighters appealed from the circuit court's January 19, 2007, decision denying their application for attorney fees, statutory damages, and costs, as well as from the circuit court's April 26, 2007, decision denying the firefighters' motion to reconsider the January 19, 2007, decision. The firefighters did not and could not appeal from the peremptory writ of mandamus entered on April 27, 2006, which was in their favor.⁹ A final judgment or final order pertaining to fees or costs may be appealed separately from any appeal of the merits of the underlying dispute.¹⁰

¶ 16 In their docketing statement to the court of appeals, the firefighters represented that the appeal was taken from two final judgments or final orders. The court of appeals ordered the parties to submit memoranda addressing the jurisdictional issue of whether either of the two circuit court decisions from which the firefighters appealed is "final" within the meaning of Wis. Stat. § 808.03(1). It also ordered the parties to address whether the April 27, 2006, peremptory writ of mandamus is final.

¶ 17 Notwithstanding their representation in the docketing statement, the firefighters argued in their memorandum to the court of appeals that "[n]o final judgment or order has been filed in this case[.]" The firefighters contended that neither the circuit court's January 19, 2007, decision nor its April 26, 2007, decision is final for purposes of appeal. The firefighters therefore urged the court of...