Republic Capital Bank, S.S.B. v. Luchini, 89-1907

Decision Date13 December 1989
Docket NumberNo. 89-1907,89-1907
Citation451 N.W.2d 474,153 Wis.2d 656
PartiesREPUBLIC CAPITAL BANK, S.S.B., Plaintiff-Respondent, v. Wayne G. LUCHINI, a/k/a Wayne Luchini, d/b/a Luchini Shelters and Luchini Construction, and Mary G. Luchini, husband and wife, Defendants-Third Party d Plaintiffs- Appellants, Roberta J. Sommers, n/k/a Roberta J. Fero, University of Wisconsin Credit Union, Dennis L. Matteson, State of Wisconsin, Lycon, Inc., Lisa Thompson, Joanne Storves, Kathy Weitala, Dana Dragic, Gerald Oberie, and Marjorie Oberie, Defendants, Ronald D. Fero, Robert B. Fero, Ray Walton and Ruth Walton, husband and wife, d/b/a Century 21-Walton Realty, Sue White, John Does and Jane Does, d/b/a American Home, Joseph J. Pollack, Dennis M. Bush, individually and as Vice President of Republic Capital Group, Inc., Kerry Larsen, individually and as Senior Vice President of Republic Capital Bank, S.S.B., Republic Capital Group, Inc., Republic Capital Bank, S.S.B., John Does and Jane Does, d/b/a American Home Improvement, John Does and Jane Does, d/b/a Contracting by Craftsmen, Third Party Defendants.
CourtWisconsin Court of Appeals

Wayne and Mary Luchini, pro se.

Ross A. Anderson and Brian G. Cahill of Fisch Dudek, Ltd., Milwaukee, for plaintiff-respondent.



The appellants, pro se, have appealed a foreclosure judgment ordering a property sale on December 15, 1989. They also seek relief pending appeal staying the sale. The respondent has filed a motion to dismiss the appeal on the ground that the judgment is a nonfinal judgment because a counterclaim is still pending before the circuit court. We determine that the judgment appealed from is nonfinal and therefore we have no jurisdiction of the appeal. The motion to dismiss is granted. Accordingly, the motion for relief pending appeal is also denied.

On September 14, 1989, summary judgment for foreclosure was entered in favor of the respondent. This judgment was appealed by a notice of appeal filed on October 31, 1989.

On October 9, 1989, the counterclaim and third-party complaint filed by the appellants against the respondent was dismissed. However, the appellants were granted leave to replead their counterclaim against the respondent and they did so by filing an amended counterclaim on November 8, 1989. The counterclaim seeks a "judgment against REPUBLIC for the actual damages to be proved at trial, as and for punitive damages, and for the costs of this action."

Section 808.03(1), Stats., provides that a final judgment, appealable as of right, is a judgment which disposes of the entire matter in litigation as to one or more of the parties. Usually a judgment of foreclosure and sale disposes of the entire matter in litigation and is a final judgment appealable as a matter of right under sec. 808.03(1). Anchor Sav. & Loan Ass'n v. Coyle, 148 Wis.2d 94, 101, 435 N.W.2d...

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2 cases
  • Nekoosa Port Edwards State Bank v. McCarthy
    • United States
    • Wisconsin Court of Appeals
    • March 1, 2012
    ...pending. Because the counterclaims remain pending, the judgment of foreclosure is not final. See Republic Capital Bank v. Luchini, 153 Wis.2d 656, 658, 451 N.W.2d 474 (Ct.App.1989) (“The judgment [of foreclosure] appealed from is not final because of the counterclaim yet to be resolved.”). ......
  • Republic Capital Bank v. Luchini, 90-0568
    • United States
    • Wisconsin Court of Appeals
    • December 26, 1990
    ...remained pending before the circuit court, the appeal was dismissed as taken from a nonfinal order. Republic Capital Bank v. Luchini, 153 Wis.2d 656, 451 N.W.2d 474 (Ct.App.1989). This appeal from the final orders dismissing the claims brings before the court the foreclosure judgment. Rule ......

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