Wambolt v. West Bend Mut. Ins. Co., No. 2005AP1874.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtAnn Walsh Bradley
Citation728 N.W.2d 670,2007 WI 35
Decision Date21 March 2007
Docket NumberNo. 2005AP1874.
PartiesKimberly WAMBOLT and Wade Wambolt, Plaintiffs-Appellants-Petitioners, v. WEST BEND MUTUAL INSURANCE CO., Chong Ae Jones and American Family Mutual Insurance Co., Defendants, Illinois Farmers Insurance Co., Defendant-Respondent.
728 N.W.2d 670
2007 WI 35
Kimberly WAMBOLT and Wade Wambolt, Plaintiffs-Appellants-Petitioners,
v.
WEST BEND MUTUAL INSURANCE CO., Chong Ae Jones and American Family Mutual Insurance Co., Defendants,

[728 N.W.2d 671]

Illinois Farmers Insurance Co., Defendant-Respondent.
No. 2005AP1874.
Supreme Court of Wisconsin.
Argued October 31, 2006.
Decided March 21, 2007.

[728 N.W.2d 672]

For the plaintiffs-appellants-petitioners there were briefs by Martha H. Heidt, Mondovi; Ardell W. Skow; Doar, Drill & Skow, S.C., Baldwin, and Bye, Goff, Rohde & Skow, Ltd., River Falls, and oral argument by Martha H. Heidt.

For the defendant-respondent there was a brief by Timothy J. Eiden, Trisha A. Vicario, and Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., Menomonie, and oral argument by Timothy J. Eiden.

An amicus curiae brief was filed by G. Michael Halfenger, Michael S. Heffernan, and Foley & Lardner LLP, Madison and Milwaukee, on behalf of the Appellate Practice Section of the State Bar of Wisconsin.

¶ 1 ANN WALSH BRADLEY, J.


This is a review of an unpublished court of appeals' decision and order dismissing for lack of jurisdiction an appeal of a June 6, 2005, order of the Circuit Court for

728 N.W.2d 673

Burnett County.1 The court of appeals determined that the June 6 order was not an appealable order pursuant to Wis. Stat. § 808.03(1) (2003-04).2 Rather, it concluded that a "Memorandum Decision" entered by the circuit court on April 25, 2005, granting Illinois Farmers' motion for summary judgment was the final document for purposes of appeal. Because the Wambolts' notice of appeal was filed 79 days after the April 25 Memorandum Decision, the court of appeals dismissed the appeal for lack of jurisdiction because it was untimely.

¶ 2 The Wambolts contend that the court of appeals erred in determining that the Memorandum Decision entered by the circuit court constitutes a "final order" or "final judgment" within the meaning of § 808.03(1). They assert that their notice of appeal was timely filed, and that the court of appeals therefore has jurisdiction over their appeal.

¶ 3 We determine that because the circuit court's Memorandum Decision did not contain an explicit statement either dismissing the entire matter in litigation or adjudging the entire matter in litigation as to one or more parties, it did not constitute a final order or judgment from which an appeal may follow under § 808.03(1). Thus, we conclude that the Wambolts' appeal was timely filed, and that the court of appeals has jurisdiction. We therefore reverse the court of appeals.

¶ 4 In order to further limit the confusion regarding what documents are final orders or judgments for the purpose of appeal, we will, commencing September 1, 2007, require a statement on the face of a document that it is final for the purpose of appeal.3 Absent such a statement, appellate courts should liberally construe ambiguities to preserve the right of appeal.

I

¶ 5 The procedural facts of this case are not in dispute. The case arises out of the Wambolts' claim for underinsured motorist coverage against three insurance companies: Illinois Farmers, American Family Mutual Insurance Company ("American Family"), and West Bend Mutual Insurance Company ("West Bend"). In March 2004, Illinois Farmers moved for summary judgment or, in the alternative, for a declaration that its coverage obligation is subordinate to the obligations of American Family and West Bend. In response, the Wambolts filed a memorandum of law opposing Illinois Farmers' motion.

¶ 6 In August 2004, the circuit court filed a Memorandum Decision on Motions for Summary Judgment in which it denied Illinois Farmers' motion for summary judgment.4 Illinois Farmers moved the

728 N.W.2d 674

circuit court for reconsideration of the decision denying its motion for summary judgment. A hearing on the motion for reconsideration took place in January 2005.

¶ 7 On April 25, 2005, the circuit court issued a "Memorandum Decision" on reconsideration of Illinois Farmers' motion for summary judgment. In that decision, the court granted Illinois Farmers' motion for summary judgment. It determined that under the relevant law, the Wambolts "have no viable claim as to Illinois Farmers." It then stated that "[a]ccordingly, the Motion for Summary Judgment filed on behalf of Illinois Farmers Insurance Company is granted."

¶ 8 Three days later, Illinois Farmers served the Wambolts with a notice of entry of order, which stated that "an Order granting summary judgment in favor of defendant Illinois Farmers Insurance Company was entered on April 25, 2005." A copy of the circuit court's April 25 Memorandum Decision was attached to the notice.

¶ 9 On May 9, 2005, the Wambolts filed a motion for reconsideration of the April 25 Memorandum Decision, and requested a hearing on that motion. On May 26, 2005, the Wambolts sent a letter by facsimile to the circuit court requesting clarification as to whether the Memorandum Decision was intended to be the final judgment in the case. The letter advised the court that memorandum decisions are generally not appealable orders. It noted that the April 25 Memorandum Decision did not order the dismissal of Illinois Farmers, and that the Wambolts therefore believed that the Memorandum Decision was not an appealable order. The letter also reiterated the Wambolts' request for a hearing date on their May 9, 2005, motion for reconsideration. That letter stated as follows:

We have received Your Honor's Memorandum Decision, dated April 25, 2005, which grants the motion for summary judgment filed on behalf of Illinois Farmers Insurance Company (Illinois Farmers). Illinois Farmers has filed a "Notice of Entry of Order," thereby implying a belief that Your Honor's Order may be the Final Judgment for the case. However, the Memorandum Decision does not order the dismissal of Illinois Farmers from the action.

Generally, a trial court's memorandum decision is not an appealable order. See Sprangers v. Philippi, 52 Wis.2d 403, 190 N.W.2d 136 (1971). Based on the case law, and the lack of any language specifically dismissing Illinois Farmers, it is my belief that the Memorandum Decision is not appealable and that an additional judgment would be required to dispose of the claim on the merits. But if the Memorandum Decision is the Final Judgment, the deadline for filing a Notice of Appeal would be June 9, 2005. I would appreciate clarification of Your Honor's intent in that regard so as to avoid any confusion or litigation in regard to the status of the Memorandum Decision.

¶ 10 The circuit court issued an order on June 6, 2005, stating two things. First, it stated that "[i]t is hereby ordered that the Plaintiff's [May 9, 2005] Motion for Reconsideration is denied." Second, it stated that "for the reasons stated in the Court's Memorandum Decision of April 25, 2005, Illinois Farmers Insurance Company is dismissed from this action."

¶ 11 On June 15, 2005, Illinois Farmers served the Wambolts with a second notice of entry of order, to which it attached the June 6, 2005, order. On July 12, 2005 — 36 days after the circuit court's June 6 order, and 79 days after the circuit court's April 25 Memorandum Decision — the Wambolts

728 N.W.2d 675

filed a notice of appeal of the circuit court's June 6 order.

¶ 12 In a split decision, the court of appeals determined that the April 25 Memorandum Decision was final for the purposes of appeal under Wis. Stat. § 808.03(1). Thus, it determined that the Wambolts' July 12, 2005, notice of appeal was not timely filed under Wis. Stat. § 808.04(1).5 The court of appeals therefore concluded that it lacked jurisdiction, and it dismissed the Wambolts' appeal.

II

¶ 13 This case presents the issue of whether a memorandum decision may constitute a final order or judgment from which appeal may follow under Wis. Stat. § 808.03(1).

¶ 14 Determining whether the April 25, 2005, Memorandum Decision constitutes a final order or judgment for the purposes of appeal is a question of law subject to independent appellate review. Harder v. Pfitzinger, 2004 WI 102, ¶ 8, 274 Wis.2d 324, 682 N.W.2d 398.

III

¶ 15 Appeals pursuant to Wis. Stat. § 808.03(1) are a fundamental aspect of litigation in this state. Nevertheless, the question of what constitutes a final order or final judgment from which a party may appeal continues to arise. We addressed the question less than three years ago in Harder, where we held that:

when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.

274 Wis.2d 324, ¶ 2, 682 N.W.2d 398. However, as this case and others demonstrate, despite our best efforts in Harder, uncertainty continues.6 Our task, therefore, is to add further clarity in answering the questions of whether and how a memorandum decision is a final order or final judgment within the meaning of § 808.03(1).

¶ 16 We begin our analysis by looking at the statute. The right to appeal derives from § 808.03(1). It provides:

A final judgment or a final order of a circuit court may be appealed as a matter

728 N.W.2d 676

of right to the court of appeals unless otherwise expressly 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, and that is one of the following:

(a) Entered in accordance with s. 806.06(1)(b) or 807.11(2).

(b) Recorded in docket entries in ch. 799 cases.

(c) Recorded in docket entries in traffic regulation cases prosecuted in circuit court if a person convicted of a violation may be ordered to pay a forfeiture.

(d) Recorded in docket entries in municipal ordinance...

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50 practice notes
  • Northern Air Serv. Inc. v. Link, No. 2008AP2897.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2011
    ...(1974). Therefore, Jay argues, “ambiguities” should be construed to “preserve the right of appeal.” Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶ 50, 299 Wis.2d 723, 728 N.W.2d 670. 24. We assume that the statutory language expresses the legislature's intent and when the statutory langu......
  • Admiral Ins. Co. v. Paper Converting Mach. Co., No. 2009AP2099.
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    • United States State Supreme Court of Wisconsin
    • March 27, 2012
    ...[339 Wis.2d 303] ¶ 26 We recently addressed what it means for a judgment or order to be final in Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis.2d 723, 728 N.W.2d 670. In that case, we discussed the difference between deciding an issue in a written memorandum decision and di......
  • Kenosha Prof'L Firefighters, 414 v. Kenosha, No. 2007AP1198.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 17, 2009
    ...In two recent cases, Tyler v. Riverbank, 2007 WI 33, 299 Wis.2d 751, 728 N.W.2d 686, and Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis.2d 723, 728 N.W.2d 670, the court attempted to clarify the statutory ¶ 23 Tyler and Wambolt teach that in order to "dispose" of the entire ......
  • L. G., By Chippewa Family Servs., Inc. v. Aurora Residential Alternatives, Inc., No. 2018AP656
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2019
    ...OF APPEAL." Such a statement, while potentially helpful to litigants as a warning, has no legal effect. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶46 n.19, 299 Wis. 2d 723, 728 N.W.2d 670 ("[T]here may be cases in which a document states that it is final for purposes of appeal under [......
  • Request a trial to view additional results
50 cases
  • Northern Air Serv. Inc. v. Link, No. 2008AP2897.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2011
    ...(1974). Therefore, Jay argues, “ambiguities” should be construed to “preserve the right of appeal.” Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶ 50, 299 Wis.2d 723, 728 N.W.2d 670. 24. We assume that the statutory language expresses the legislature's intent and when the statutory langu......
  • Admiral Ins. Co. v. Paper Converting Mach. Co., No. 2009AP2099.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 27, 2012
    ...[339 Wis.2d 303] ¶ 26 We recently addressed what it means for a judgment or order to be final in Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis.2d 723, 728 N.W.2d 670. In that case, we discussed the difference between deciding an issue in a written memorandum decision and di......
  • Kenosha Prof'L Firefighters, 414 v. Kenosha, No. 2007AP1198.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 17, 2009
    ...In two recent cases, Tyler v. Riverbank, 2007 WI 33, 299 Wis.2d 751, 728 N.W.2d 686, and Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis.2d 723, 728 N.W.2d 670, the court attempted to clarify the statutory ¶ 23 Tyler and Wambolt teach that in order to "dispose" of the entire ......
  • L. G., By Chippewa Family Servs., Inc. v. Aurora Residential Alternatives, Inc., No. 2018AP656
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2019
    ...OF APPEAL." Such a statement, while potentially helpful to litigants as a warning, has no legal effect. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶46 n.19, 299 Wis. 2d 723, 728 N.W.2d 670 ("[T]here may be cases in which a document states that it is final for purposes of appeal under [......
  • Request a trial to view additional results

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