03-2284 Contardi v. American Family Mutual Ins. Co.

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Insureds filed a water damage claim, which their insurer paid pursuant to a homeowners policy; during the repair work, the insureds discovered mold throughout various ceilings; the insurer refused to pay for the mold damage; the insured filed suit, and the insurer filed a motion for summary judgment, citing the policy’s mold exclusion; the circuit court granted the insurer’s motion for summary judgment; if that order was final and appealable, the insured’s appeal was untimely filed.

To determine whether a judgment or order is final, we ask first whether the order disposes of the entire matter in litigation as to one or more of the parties under substantive law, and second whether the circuit court considered the order to be the last document it would enter in the litigation.

The insureds cite Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 326 N.W.2d 240 (1982), and argue that the circuit court order was ambiguous at best, and, coupled with comments made by the court, indicated that a further, final order would be forthcoming. But “it does not follow [from Radoff] that all circuit court orders that grant summary judgment are nonfinal.”

In Radoff, the supreme court relied on specific language in the order granting the summary judgment to determine that the circuit court in that case intended to enter a subsequent judgment. Here, the words of the order do not indicate that another document will be entered, nor did the court’s comments (“if the defendant prevails, the dismissal will follow”) during the hearing clearly indicate that the order granting summary judgment was not intended to be the last document in this litigation.

We conclude that the circuit court’s June 20, 2003 “Decision and Order” is a final order because: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. American Family timely filed and served a notice of entry of the order under Wis. Stat. §§ 806.06(5) and 808.04(1). The Contardis filed a notice of appeal on August 12, 2003. The notice of appeal was not timely. The appeal and cross-appeal are therefore dismissed.

Dismissed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, White, J., Per Curiam.

Attorneys:

For Appellant: W. Wayne Siesennop, Milwaukee; Todd D. Jex, Milwaukee

For Respondent: Terry J. Booth, Milwaukee