Leavitt v. Beverly Enter.S Inc

Decision Date08 July 2010
Docket NumberNo. 2008AP2440-LV.,2008AP2440-LV.
Citation2010 WI 71,326 Wis.2d 421,784 N.W.2d 683
PartiesMichael LEAVITT, Secretary, Department of Health and Human Services, Involuntary-Plaintiff,Estate of Robert C. Parker by Special Administrator Elizabeth Parker and Elizabeth Parker, Plaintiffs-Petitioners-Appellants,v.BEVERLY ENTERPRISES, INC., ABC Insurance Company, Beverly Enterprises-Wisconsin, Inc. d/b/a Golden Age Nursing Home, DEF Insurance Company, Beverly Health and Rehabilitation Services, Inc., GHI Insurance Company, GGNSC Tomahawk Golden Age, LLC d/b/a Golden Living Center-Golden Age, JKL Insurance Company, Beverly Indemnity, LTD. and American Home Assurance Company, Defendants-Respondents.
CourtWisconsin Supreme Court

For the plaintiffs-petitioners-appellants there were briefs by Jeffrey A. Pitman, Lisa L. Kritske, and Pitman, Kyle & Sicula, Milwaukee, and oral argument by Jeffrey A. Pitman.

For the defendants-respondents there were briefs by Robert F. Johnson, Colleen M. Fleming, and Cook & Franke, S.C., Milwaukee, and oral argument by Robert F. Johnson.

An amicus curiae brief filed by William C. Gleisner, III and the Law Offices of William Gleisner, Milwaukee, and Rhonda L. Lanford and Habush, Habush & Rottier Milwaukee, on behalf of the Wisconsin Association for Justice.

¶ 1 ANN WALSH BRADLEY, J.

This case is before the court in an unusual procedural posture. Elizabeth Parker and the Estate of Robert Parker (collectively, “ Parker”) filed a petition for review of two orders of the court of appeals, which dismissed and denied Parker's appeals of a circuit court order compelling arbitration.1 In response, Beverly Enterprises-Wisconsin, Inc. d/b/a Golden Age Nursing Home and other defendants (collectively Beverly Enterprises) filed a motion to dismiss the petition for review. We address here the motion to dismiss the petition.

¶ 2 The decision to accept or deny a petition for review is within the discretion of this court. Wis. Stat. (Rule) § 809.62(1r). Normally, questions raised prior to our issuance of an order granting or denying a petition for review would not merit a published opinion. However, the questions raised by Beverly Enterprises' motion to dismiss presented important and unresolved issues of Wisconsin law that warranted supplementary briefing and oral arguments. We publish this order to provide needed guidance to litigants and to the court of appeals.

¶ 3 Beverly Enterprises' primary argument is that under Teamsters Union Local No. 695 v. County of Waukesha, 57 Wis.2d 62, 203 N.W.2d 707 (1973) Worthington v. Farmers Ins. Exch., 64 Wis.2d 108, 218 N.W.2d 373 (1974), and Wis. Stat. § 788.15,2 this court lacks jurisdiction to consider the petition for review because orders compelling arbitration are not appealable. It further claims that when the court of appeals denies permission to file an appeal, this court is not permitted to review the court of appeals' discretionary decision.

¶ 4 Because the reasoning underlying the Teamsters and Worthington decisions no longer reflects Wisconsin's approach to appellate jurisdiction, the interpretation of Wis. Stat. § 788.15 advanced by those cases no longer comports with Wisconsin law. Further, although we have repeatedly stated that we will not review the court of appeals' decision to deny leave to appeal, our refusal is not based on lack of jurisdiction. Rather, it is based on practice, rooted in concerns for judicial administration and respect for the court of appeals' exercise of discretion.

¶ 5 We need not decide here whether appeal of a circuit court order compelling arbitration is a permissive appeal or an appeal as of right.3 Under either circumstance, Article VII, § 3 of the Wisconsin Constitution provides that this court has jurisdiction to review an order issued by the court of appeals. Accordingly, we deny Beverly Enterprises' motion to dismiss the petition for review.4

I

¶ 6 On June 18, 2004, Robert Parker was admitted to the Golden Age Nursing Home in Tomah, Wisconsin. As his durable power of attorney, his wife Elizabeth signed various documents for the purposes of his admission. One of these documents was a “Resident and Facility Arbitration Agreement.”

¶ 7 Robert Parker died six months after his admission. Elizabeth Parker and the Estate of Robert Parker filed a complaint in the Circuit Court of Lincoln County. The complaint alleged various breach of contract and tort claims against Beverly Enterprises.

¶ 8 In its answer, Beverly Enterprises raised the arbitration agreement as an affirmative defense. It then filed a notice of motion and motion to stay the judicial proceedings and compel arbitration pursuant to the arbitration agreement.

¶ 9 In an oral ruling, the circuit court determined that the arbitration agreement was valid under Wis. Stat. § 788.01.5 It also determined that the agreement was neither procedurally nor substantively unconscionable. Having determined that the arbitration agreement was valid and enforceable, the court granted Beverly Enterprises' motion to stay proceedings and compel arbitration pursuant to Wis. Stat. § 788.02.6

¶ 10 Parker filed a petition for leave to appeal. When a party wishes to appeal a judgment or order that is not appealable as a matter of right, it is necessary to request leave to appeal pursuant to Wis. Stat. § 808.03(2) and § 809.50.

¶ 11 Shortly thereafter, Parker also filed a notice of appeal. A notice of appeal, filed pursuant to Wis. Stat. § 808.03(1) and § 809.10, indicates an appeal of a final judgment or a final order which may be appealed as a matter of right.

¶ 12 In an unpublished order, the court of appeals stated: “To the extent the appellants/petitioners believe the subject order is appealable as of right, our supreme court has held that an ‘order compelling submission of a dispute to arbitration is not appealable’ under Wis. Stat. § 788.15.” (Citing Teamsters, 57 Wis.2d at 67, 203 N.W.2d 707.) The court of appeals' order dismissed the notice of appeal “for lack of jurisdiction.”

¶ 13 The court of appeals also addressed Parker's petition for leave to appeal. It concluded: [T]he petition fails to establish that granting interlocutory appeal would accomplish any of the purposes set out in Wis. Stat. § 808.03(2).” Thus, the court of appeals denied Parker's petition.

¶ 14 Parker filed a petition for review in this court. In response, Beverly Enterprises filed a motion to dismiss the petition for review, stating that this court lacks jurisdiction to review a circuit court order compelling arbitration. Parker replied, asserting that this court has limited jurisdiction to address whether an arbitration agreement is valid under Wis. Stat. §§ 788.01 and 788.02 prior to arbitration.7 We ordered supplemental briefs and oral arguments on the question of this court's jurisdiction to consider the petition for review.

¶ 15 In an order dated March 4, 2010, we further clarified that oral argument would be limited to the question of jurisdiction: This court must decide whether it has jurisdiction to consider the petition for review filed on December 12, 2008. The arguments addressed to the court on April 16 are to be limited to whether the court has jurisdiction to accept the pending petition. The merits of the petition for review will not be considered at this time.”

II

¶ 16 Because this case is before the court in an unusual procedural posture, it is important to clarify the issues before the court. Both parties agree that the circuit court had jurisdiction over Parker's complaint. They also agree that the circuit court had jurisdiction to evaluate the validity of the arbitration agreement under Wis. Stat. § 788.01 and to stay the proceedings and compel arbitration under Wis. Stat. § 788.02.

¶ 17 The parties disagree, however, about whether the circuit court's order staying the proceedings and compelling arbitration was appealable. In this court, the question has been phrased by the parties as one of jurisdiction-that is, whether this court has jurisdiction to consider the petition for review.

¶ 18 Beverly Enterprises argues that the question of this court's jurisdiction has already been resolved. It asserts that under Wis. Stat. § 788.15 and longstanding case law, orders compelling arbitration are not appealable.

¶ 19 Wisconsin Stat. § 788.15 provides: “An appeal may be taken from an order confirming, modifying, correcting or vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action.” In the mid-1970s Teamsters and Worthington interpreted this language to mean that the supreme court had no jurisdiction to review an order compelling arbitration.

¶ 20 Beverly Enterprises argues that the legislature's failure to amend the language of Wis. Stat. § 788.15 demonstrates the legislature's agreement with the Teamsters and Worthington decisions. In its memorandum in support of the motion to dismiss, it explained:

Had the Wisconsin Legislature taken issue with the interpretation this Court gave to Wis. Stat. § 788.15 or its predecessor, Wis. Stat. § 298.15, it could have taken action. It could have added the phrase “orders compelling arbitration” to the types of orders appealable under Wis. Stat. § 788.15. It has not done so. Thus, its silence with regard to the Court's Teamsters and Worthington decisions demonstrates legislative acquiescence therein.

¶ 21 In addition, Beverly Enterprises argues that no review of the court of appeals' denial of leave to appeal is permitted. We address these arguments in turn.

A

¶ 22 We begin by discussing whether this court has jurisdiction to consider a petition for review involving an order of the circuit court compelling arbitration. In the 1973 case Teamsters Union Local No. 695 v. County of Waukesha, 57 Wis.2d 62, 203 N.W.2d 707, this court concluded that an order compelling arbitration was not appealable.

¶ 23 Teamsters involved a dispute under a collective bargaining agreement, which provided that...

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    • June 6, 2018
    ...and Kelly, JJ, concurring) ("I would go further and hold that Washington forfeited his right to be present at trial."); Leavitt v. Beverly Enters., 2010 WI 71, ¶¶ 59-62, 326 Wis. 2d 421, 784 N.W.2d 683 (Ziegler, J., concurring) ("I write separately because I would go further and decide that......
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    ...of discretion the court of appeals’ denial of the State's petition for interlocutory appeal. See Wis. Stat. § 808.03(2) ; Leavitt v. Beverly Enters., Inc., 2010 WI 71, ¶42, 326 Wis. 2d 421, 784 N.W.2d 683. The court of appeals erroneously exercises its discretion when it applies the wrong l......
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