Orth v. Ameritrade, Inc.

• Decision Date: 23 August 1994
• Docket Number: No. 94-0140,94-0140
• Citation: 187 Wis.2d 162,522 N.W.2d 30
• Parties: Norbert ORTH and James Orth, Plaintiffs-Respondents, v. AMERITRADE, INC., Defendant-Appellant, d American Wallstreet Securities, Eric J. Walloga and Kevin D. Ward, Defendants.
• Court: Wisconsin Court of Appeals

Page 30

522 N.W.2d 30

187 Wis.2d 162

Norbert ORTH and James Orth, Plaintiffs-Respondents, v. AMERITRADE, INC., Defendant-Appellant, ^d American Wallstreet Securities, Eric J. Walloga and Kevin D Ward, Defendants.

No. 94-0140.

Court of Appeals of Wisconsin.

Submitted on Memorandums April 8, 1994.

Opinion Released Aug. 23, 1994.

Opinion Filed Aug. 23, 1994.

Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.

PER CURIAM.

Ameritrade, Inc., appeals from a trial court judgment entered in favor of Norbert and James Orth. Prior to filing its notice of appeal, Ameritrade moved the trial court to reconsider its decision pursuant to § 805.17(3), STATS. The trial court sent the parties a letter informing them that the motion for reconsideration was denied and that an order should be prepared to that effect. A written order was entered December 1, 1993, and Ameritrade filed its notice of appeal on January 12, 1994. This court asked the parties to submit memoranda addressing whether the appeal was timely filed and whether this court had jurisdiction over the appeal.

This case requires the interpretation and application of a procedural statute to determine whether Ameritrade's appeal was filed timely. We conclude that the trial court's letter was a denial of the motion "on the record" within the meaning of § 805.17(3), STATS., so that the time for filing a notice of appeal commenced on that date. Because the appeal was not filed timely, we dismiss it for lack of jurisdiction. See RULE 809.10(1)(b), STATS. (timely filing of a notice of appeal is necessary to give this court jurisdiction over an appeal).

BACKGROUND

Norbert and James Orth sued Ameritrade, Inc., and other defendants alleging violation of Wisconsin securities laws. After a trial to the court, judgment was entered in favor of the Orths. Judgment was entered August 25, 1993, and the Orths served notice of entry of judgment on Ameritrade on August 26, 1993. Thus, the deadline for filing a notice of appeal was shortened to forty-five days. See § 808.04(1), STATS.

Ameritrade filed a timely motion for reconsideration in the trial court pursuant to § 805.17(3), STATS. Section 805.17(3) provides that when a motion for reconsideration is filed in the trial court, "the time for initiating an appeal from the judgment commences when the court denies the motion on the record or when an order denying the motion is entered, whichever occurs first." In addition, the statute provides that if no order is entered within ninety days after entry of judgment, "the motion is considered denied." If the motion is "considered denied" under this provision, then the time for filing a notice of appeal commences ninety days after entry of judgment.

Under Salzman v. DNR, 168 Wis.2d 523, 531, 484 N.W.2d 337, 340 (Ct.App.1992), a notice of entry of judgment given as to the initial judgment "still operates to reduce [the] appeal time to forty-five days" after a motion for reconsideration is filed in the trial court. "The measurement of the forty-five day period, however, begins upon disposal of the motion for reconsideration as set forth under sec. 805.17(3), STATS." Id.

By letter dated October 19, 1993, the trial court responded to the motion for reconsideration. The entire letter, addressed to both attorneys involved in the case, reads:

I have received both your briefs re the motion for reconsideration in the above-captioned case. Please consider this letter my Decision on the motion. Nothing in the defendants' brief impels me to modify anything I have written or said in the past on this case. The Findings of Fact and Conclusions of Law previously filed will stand, unaltered. The motion must be denied, with statutory costs to the plaintiff. Counsel for the plaintiff shall prepare the appropriate order under the local rules. (Emphasis in original).

The letter was filed and listed in the trial court docket entries as a "written decision denying" Ameritrade's reconsideration motion. A written order denying reconsideration was entered on December 1, 1993, and Ameritrade filed its notice of appeal on January 12, 1994.

Ameritrade argues that its notice of appeal was timely filed because it was filed within forty-five days after entry of the order denying reconsideration. It claims that the October 19th letter did not initiate the time for filing an appeal, because the trial court's decision did not dispose of the reconsideration motion. In support of this contention, Ameritrade argues first that the trial court anticipated that a written order would subsequently be prepared and entered and therefore the order was not "final." Secondly, Ameritrade contends that the letter was not "on the record" so that the time for filing the appeal commenced to run. We reject each of these arguments.

ANALYSIS

In support of its first argument, Ameritrade contends that the court should apply the standard finality analysis by which we determine whether an order or judgment appealed from is final and therefore the appropriate document from which to appeal. See, e.g., Radoff v. Red Owl Stores, Inc., 109 Wis.2d 490, 493-94, 326 N.W.2d 240, 241 (1982) (order contemplating later entry of an actual judgment is not a final order for purposes of appeal).

Ameritrade's reliance on this court's jurisdictional case law is misplaced. Their appeal is not taken from the denial of their motion for reconsideration, but from the judgment entered August 25, 1993. See Ver Hagen v. Gibbons, 55 Wis.2d 21, 25-26, 197 N.W.2d 752, 754-55 (1972) (no right to appeal exists from an order denying reconsideration which presents the same issues as those determined in the judgment sought to be reconsidered). In addition, there is no requirement in § 805.17(3), STATS., that a written order on a reconsideration motion be entered before an appeal can be commenced even if the trial court anticipates entering a written order at a later date. The statute simply provides that the time...