Werner v. Hendree
| Decision Date | 16 February 2011 |
| Docket Number | 2009AP2322.,Nos. 2008AP2045,s. 2008AP2045 |
| Citation | 2011 WI 10,331 Wis.2d 511,795 N.W.2d 423 |
| Parties | Evelyn WERNER, Plaintiff–Appellant–Petitioner,v.Kenneth HENDREE and Michael Honeck, Defendants–Respondents.Evelyn Werner, Plaintiff–Appellant,v.Kenneth Hendree and Michael Honeck, Defendants–Respondents. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-appellant-petitioner, there were briefs by Andrew J. Shaw and Shaw Law Offices, and Joseph F. Owens, New Berlin, and Arthur & Owens, S.C., and oral argument by Joseph Owens.For the Defendants–Respondents, the cause was argued by John J. Glinski, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.ANNETTE KINGSLAND ZIEGLER, J.
This case comprises two separate appeals. A brief summary of the facts and procedural history is necessary to explain the posture of our review.
¶ 2 Eighty-four-year-old Evelyn Werner (Werner) was physically attacked in her home and had her safe stolen by three assailants, one of whom was Kenneth Hendree (Hendree). Hendree had previously visited Werner's home several times while employed as an insurance examiner by the Office of the Commissioner of Insurance (OCI). Werner filed suit against both Hendree and Michael Honeck (Honeck), Hendree's supervisor.
¶ 3 The Waukesha County Circuit Court, Judge Kathryn W. Foster presiding, dismissed Werner's complaint against Honeck on the grounds of governmental immunity. At a subsequent hearing, the circuit court ruled that Hendree was ineligible for indemnification from the State under Wis. Stat. § 895.46 (2007–08).1 For purposes of combining the matters for later appeal, Werner's counsel requested that the circuit court not sign and file the above two orders until a trial was held and judgment was entered as to Hendree's liability and damages. The Attorney General, counsel for Honeck, did not voice an objection. Accordingly, on the record, multiple times, the circuit court assured counsel that it would not sign and file the order dismissing Honeck and the order ruling that Hendree was ineligible for indemnification until the case was entirely resolved as to Hendree. However, contrary to those assurances and unbeknownst to the parties, the circuit court prematurely signed the two orders on December 3, 2007, several months before the trial was conducted and judgment was entered against Hendree. Once the orders were signed, the clerk of the circuit court was then obligated to file the orders. See Wis. Stat. § 806.06(2).
¶ 4 In fact, it was on June 24, 2008, that the circuit court held a bench trial and determined Hendree's liability and Werner's damages. On July 11, 2008, the circuit court signed the judgment against
[795 N.W.2d 426 , 331 Wis.2d 516]
Hendree. Werner filed her notice of appeal on August 18, 2008. Werner appealed from the following: (1) the order dismissing Honeck on the grounds of governmental immunity, (2) the order ruling that Hendree was ineligible for indemnification, and (3) the July 11, 2008, judgment against Hendree.
¶ 5 Werner timely appealed from the July 11, 2008, final judgment entered after trial. However, because the circuit court did not adhere to its assurances to hold the earlier orders for signature and filing until after trial, Werner's notice of appeal was filed more than 90 days after the date on which the order dismissing Honeck and the order ruling that Hendree was ineligible for indemnification were filed. Accordingly, as to those orders, the court of appeals dismissed Werner's appeal for lack of jurisdiction. See Wis. Stat. § 808.04(1).
¶ 6 Werner petitioned this court for review of the court of appeals' published per curiam decision, Werner v. Hendree, 2009 WI App 103, 320 Wis.2d 592, 770 N.W.2d 782, which dismissed as untimely her appeal of (1) the order dismissing Honeck and (2) the order ruling that Hendree was ineligible for indemnification. We granted Werner's petition for review, and the parties presented oral arguments.
¶ 7 Subsequent to the court of appeals decision, Werner moved the circuit court to vacate and reenter those two orders pursuant to Wis. Stat. § 806.07(1)(a). The circuit court denied Werner's motion. Werner then appealed the circuit court's denial of her motion to vacate and reenter the orders to the court of appeals at the time that Werner's first appeal was pending before this court. Consequently, the court of appeals stayed Werner's second appeal pending our decision in the first appeal.
Pursuant to Wis. Stat. § (Rule) 809.61 2 and Article VII, Section 3, subsection 3 of the Wisconsin Constitution,3 upon the court's own motion, we removed Werner's second appeal from the court of appeals in the interests of judicial economy. Thus, we are also reviewing the circuit court's order denying Werner's motion to vacate and reenter the order dismissing Honeck and the order ruling that Hendree was ineligible for indemnification.
¶ 9 Our holding today resolves both appeals.
¶ 10 Concerning the order ruling that Hendree was ineligible for indemnification, we conclude that Werner's appeal survives on two alternative grounds: Werner timely appealed from the order in the first instance because the order was not final, and alternatively, the circuit court erroneously exercised its discretion when it denied Werner's motion to vacate and reenter the order. Concerning the order dismissing Honeck, we conclude that Werner's appeal survives on the second basis; that is, the circuit court erroneously exercised its discretion when it denied Werner's motion to vacate and reenter the order. Our analysis is broken down into two parts.
¶ 11 First, we hold that the court of appeals improperly dismissed as untimely Werner's appeal of the order ruling that Hendree was ineligible for indemnification, irrespective of the date on which the order was filed. This is so because the order was not final under Wis. Stat. § 808.03(1). The order did not dispose of the entire matter in litigation as to either Werner or Hendree,4 and accordingly, was not appealable until July 11, 2008, when the circuit court entered judgment on Hendree's liability and Werner's damages.
¶ 12 Second, we hold that the circuit court erroneously exercised its discretion when it denied Werner's motion to vacate and reenter (1) the order dismissing Honeck and (2) the other order ruling that Hendree was ineligible for indemnification. The circuit court erroneously concluded that it was without the power to vacate and reenter the orders given Werner's failure to bring the motion within one year after the orders were filed.
¶ 13 Accordingly, we reverse both the court of appeals decision dismissing Werner's first appeal and the circuit court's order denying Werner's motion to vacate and reenter the orders. We remand to the circuit court with instructions to vacate and reenter the order dismissing Honeck and the order ruling that Hendree was ineligible for indemnification.
¶ 14 We derive the facts of this case from Werner's complaint and her testimony before the circuit court.5 As they have been relayed by Werner, the facts of this case are quite unsettling.
In August 2005, Werner, then 84–years–old and wheelchair-ridden, 6 filed a complaint with OCI regarding her annuities. Beginning in September 2005 and continuing through October 2006, Hendree, then employed by OCI as an insurance examiner, visited Werner in her home. Hendree informed Werner that he had been assigned by OCI to gather information about her claim.
¶ 16 Hendree's visits to Werner's home were numerous, unannounced, and often took place in the evenings and on the weekends. Hendree stayed for hours each visit and asked Werner detailed questions about her finances. Trusting of his position with OCI, Werner always let Hendree into her home and answered his questions.
¶ 17 Throughout this time period, Werner made several telephone calls to OCI to complain about Hendree's frequent and strange visits. According to Werner, she spoke with Honeck, Hendree's supervisor, but nothing was done. Werner averred that no one at OCI ever told her that Hendree was not authorized to visit her after-hours or so frequently.
¶ 18 Hendree's final visit to Werner's home took place on Sunday, October 29, 2006, and lasted for about three hours. The next day, Werner again telephoned OCI and complained to Honeck.
On November 1, 2006, Hendree resigned from his position at OCI. At the time, Werner was unaware of Hendree's resignation.
¶ 20 On the evening of December 13, 2006, two men and one woman carrying a gun broke into Werner's home, physically attacked her, and stole her safe. The female attacker hit Werner on the head with the gun, and one of the other attackers held a pillow over Werner's face. Werner never saw the attackers' faces, but she recognized one of their voices as belonging to Hendree.
¶ 21 Around the same time, Victoria Colletti (Colletti), Werner's nightshift caregiver, arrived at Werner's home and noticed two people getting into a car parked inside Werner's garage. Colletti called out to them, but they did not respond. A third person then came running out of the house, pointing a gun at Colletti. Colletti got back into her car, backed out of the driveway, and called 911 on her cellular phone. The other car followed Colletti's until she arrived at a gas station to meet up with a police officer.
¶ 22 Werner was transported by ambulance to a hospital, where she was treated for head injuries.
¶ 23 To our knowledge, no one has been criminally charged in connection with Werner's attack. However, during the time-span of Hendree's visits to Werner's home and unbeknownst to Werner, Hendree had pending criminal charges for stalking and second-degree sexual assault.7 Those criminal charges were filed on July 21, 2005.
On December 28, 2006, the Director of the Bureau of Market Regulation for OCI sent a letter to Werner. The letter provided, in relevant part:
As I told...
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