Orlando Residence, Ltd. v. Nelson

• Decision Date: 22 May 2013
• Docket Number: No. 2012AP1528.,2012AP1528.
• Citation: 348 Wis.2d 565,834 N.W.2d 416,2013 WI App 81
• Court: Wisconsin Court of Appeals
• Parties: ORLANDO RESIDENCE, LTD., Plaintiff–Respondent, v. Kenneth E. NELSON, Nashville Lodging Company and Susan B. Nelson, Defendants–Appellants, Nashville Residence Corporation, Defendant, Robert W. Baird & Co., Inc. and U.S. Bank National Association, Garnishees.

348 Wis.2d 565

834 N.W.2d 416

2013 WI App 81

ORLANDO RESIDENCE, LTD., Plaintiff–Respondent,

v. Kenneth E. NELSON, Nashville Lodging Company and Susan B. Nelson, Defendants–Appellants, ^†Nashville Residence Corporation, Defendant,Robert W. Baird & Co., Inc. and U.S. Bank National Association, Garnishees.

No. 2012AP1528.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 5, 2013.

Opinion Filed May 22, 2013.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Gary A. Ahrens of Michael Best & Friedrich, LLP, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jacques C. Condon of Hale & Wagner, S.C., Milwaukee.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

REILLY, J.

[348 Wis.2d 569]¶ 1 We are called upon in this appeal to decide whether various circuit court orders in aid of execution of a judgment are final in their own right or whether the appeal of those various orders is ripe only after an order is entered declaring that the original judgment has been satisfied in full. This question arises in the context of a decades-long legal fight spanning several states and court systems—state and federal, trial and appellate. Although the first judgment related to this matter was issued in 1990, a series of appeals, new trials, and collection efforts finally culminated in April 2012 in Wisconsin with the entry of a stipulated order pronouncing that the obligation arising from that 1990 judgment had been “SATISFIED IN FULL.” Or so we thought. Following the stipulated satisfaction of judgment, Kenneth E. Nelson, Nashville Lodging Company, and Susan B. Nelson (collectively, the “Nelsons”) moved for one more order, which they claimed was needed to relieve them from restrictions placed on their assets and to provide them a means to appeal earlier orders of the court. The circuit court denied their request; the Nelsons appealed.

¶ 2 The Nelsons argue that under Wisconsin law they may appeal an order as a matter of right only when all issues brought before the court have been decided and the court has issued an order declaring it to be final for purpose of appeal. They claim that the circuit court erred when it refused to issue their requested “final” order and found instead that it already had issued a series of final orders subject to immediate review over the course of the proceedings. We agree with and affirm the circuit court.

BACKGROUND

¶ 3 This case entered Wisconsin in 2007 with the filing of a foreign judgment obtained in Tennessee. Following supplementary proceedings, the circuit court determined the undisputed amount owed on the judgment to be $1,218,512.40 and ordered a turnover of assets owned by the Nelsons. The circuit court order, which was issued on November 18, 2008, contained no statement that it was final for purpose of appeal, although it stayed execution pending appeal under a number of terms and conditions. The Nelsons lost their appeal of that order before this court. Orlando Residence Ltd. v. Nelson, Nos. 2008AP2989/2009AP856, 2009 WL 5126598, unpublished slip op. ¶ 1 (WI App Dec. 30, 2009).

¶ 4 After remittitur for execution on the judgment, the battle reignited. Among the issues that the court was called upon to decide in a series of orders were:

• whether the Nelsons could reduce the amount of the judgment with a different interest calculation,

• whether Orlando was entitled to immediate possession of the Nelsons' real property following purchase at a sheriff's sale,

• whether to end enforcement of the judgment due to time limitations,

• whether to set aside the sheriff's sale of the Nelsons' real property,

• whether Kenneth and Susan Nelson were entitled to homestead rights,

• whether to turn over certain property to Orlando,

• whether to stay the turnover of certain property to Orlando,

• whether to reconsider, clarify, or supplement previous orders,

• whether to extend the period of time for the Nelsons to redeem their real property, and

• whether to vest ownership in Orlando of certain property as a credit against the judgment.

¶ 5 Upon a joint stipulation of the Nelsons and Orlando, a satisfaction of judgment was filed on April 12, 2012, which declared that Orlando's judgment had been satisfied in full. The Nelsons thereafter moved for a “final order that disposes of the entire matter in litigation as to all parties.” The Nelsons argued such an order was necessary to relieve them from the terms of the November 2008 execution order. The court denied the Nelsons' motion on June 22, 2012, determining that the satisfaction of Orlando's judgment relieved the Nelsons from the terms of the execution order and that a final order was not necessary as “[a] series of ‘final orders' are already in place.” The Nelsons, without surprise, filed a notice of appeal on July 2, 2012.

STANDARD OF REVIEW

¶ 6 This appeal raises questions of law regarding (1) whether, following the full satisfaction of a judgment, a court must issue an order removing temporary restrictions imposed to aid in satisfaction of that judgment and (2) whether postjudgment proceedings in aid of execution involve only one final order or a series of final orders from which an appeal as a matter of right may be had. We independently review such questions of law. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶¶ 13–14, 299 Wis.2d 723, 728 N.W.2d 670.

DISCUSSION

A. No Final Order Is Necessary Following a Satisfaction of Judgment

¶ 7 As a threshold matter, we consider whether the Nelsons need an order to relieve them from the restrictions placed upon them by the November 2008 execution order. We conclude that they do not. The only restrictions identified by the Nelsons in the execution order that they would need relief from were terminated by the very terms of that order. The restrictions were aimed at preventing the Nelsons from disbursing assets that could be applied toward Orlando's judgment. To the extent that any subsequent orders extended the restrictions postremittitur, those temporary restrictions ended with the April 2012 satisfaction of judgment.

¶ 8 Thus, the only remaining reason why the Nelsons might need such an order is for an appeal. Such an order is also unnecessary. The Nelsons had an appealable order that brought before this court all prior nonfinal rulings adverse to the Nelsons: the April 2012 stipulated order. See Haeuser v. Haeuser, 200 Wis.2d 750, 757 n. 3, 548 N.W.2d 535 (Ct.App.1996), overruled in part on other grounds by Kruckenberg v. Harvey, 2005 WI 43, ¶ 60 n. 59, 279 Wis.2d 520, 694 N.W.2d 879;Wis. Stat. RuleE 809.10(4) (2011–12).¹ Accordingly, we review whether any of the prior postremittitur orders are available for appeal at this time. We find that they are not.

B. The Nelsons May Not Now Appeal the Previous Orders

¶ 9 Wisconsin Stat. § 808.03 provides that a party may appeal a final judgment or order of the circuit court as a matter of right unless otherwise 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.” Sec. 808.03(1). To limit confusion over what documents constitute final orders for purpose of appeal, our supreme court required circuit courts starting in September 2007 to include on the face of such an order “a statement ... that it is final for the purpose of appeal.” Wambolt, 299 Wis.2d 723, ¶ 50, 728 N.W.2d 670. The court also has stated that the absence of a statement should not create nonfinality in an otherwise appealable order. Admiral Ins. Co. v. Paper Converting Mach. Co., 2012 WI 30, ¶ 29, 339 Wis.2d 291, 811 N.W.2d 351. While such a statement may be helpful to litigants in advising them of their right to appeal, it remains our duty to determine whether an order of the circuit court is appealable or not. Yaeger v. Fenske, 15 Wis.2d 572, 573, 113 N.W.2d 411 (1962).

¶ 10 None of the postjudgment orders presented in this appeal include the finality statement required by Wambolt. Nor did the language of the orders unambiguously establish that they “disposed of the entire matter in litigation as to one or more of the parties.” Admiral Ins. Co., 339 Wis.2d 291, ¶ 29, 811 N.W.2d 351. The problem in applying such standards to this case is that neither Wambolt nor Admiral Insurance involved—or even contemplated—orders issued in aid of execution following a final judgment. Postjudgment orders are appealable so long as they could not have been reviewed on an appeal from the judgment itself. Ver Hagen v. Gibbons, 55 Wis.2d 21, 24, 197 N.W.2d 752 (1972). Yet, in postjudgment proceedings, the meaning of what constitutes a “final order for purpose of appeal” is less clear than in the prejudgment context. Mayer v. Wall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir.2012) (per curiam). Our courts have heard appeals from postjudgment orders that do not necessarily end the entire litigation between the parties, including “[a]n order granting an extension of the period of redemption from a judgment of foreclosure; an order extending the time to settle a bill of exceptions; an order denying the motion to offset the judgment; [and] an order refusing to set aside a cognovit judgment....” Ver Hagen, 55 Wis.2d at 24, 197 N.W.2d 752 (footnotes omitted). Plainly, a standard other than whether the language of an order “disposed of the entire matter in litigation as to one or more of the parties” decides whether a postjudgment order may be appealed as a matter of right.

¶ 11 We find help from federal case law, where appellate jurisdiction also rests on a finding of finality. Federal appellate courts treat postjudgment proceedings as free-standing litigation where the final judgment is the first order in the case and finality is dependent upon resolution of the issues raised in the motion that kicked off the postjudgment proceedings. Mayer, 672 F.3d at 1224....