Final for purposes of appeal: Making sense of the exception to clarity in Wambolt and Tyler

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One of the first issues facing attorneys in an appeal as of right is whether the judgment or order appealed from is final for purposes of appeal. According to the Wisconsin Statutes sec. 808.03(1), a final judgment or order is one that disposes of the entire matter in litigation as to one or more of the parties and has been entered.

While this appears straightforward, it has become a “trap for the unwary.” Wambolt v. West Bend Mut., 2007 WI 35, ¶ 42. Practitioners have experienced difficulty in determining whether a judgment or order is final for purposes of appeal. Most often there is only one document that disposes of the entire matter in litigation, whether or not denominated. But sometimes there are two documents that purport to dispose of the entire matter. Why the second document?

Answering that question is particularly important because sec. 808.04 establishes a mandatory deadline for filing a notice of appeal that runs from the date of the final judgment or order.

The Wisconsin Supreme Court addressed the issue of finality last year in two seminal cases released on the same day, Wambolt and Tyler v. The Riverbank, 2007 WI 33. To stem confusion surrounding this issue, Wambolt decreed that effective Sept. 1, 2007 the court would “require a statement on the face of a document that it is final for the purpose of appeal.”

Furthermore, in order to fully “dispose” of the matter so as to be final within the meaning of sec. 808.03, “a memorandum decision must contain an explicit statement either dismissing the entire matter in litigation or adjudging the entire matter in litigation as to one or more parties.” For the litigant who desires to smoothly transition her case to the Court of Appeals, Wambolt’s decree provides appreciated clarity.

Enter flexibility. Despite its decree, Wambolt did not actually “require” an explicit statement on the face of the pertinent document. Instead, the court in Wambolt observed that there may be “final orders and judgments that arguably dispose of the entire matter in litigation as to one or more parties, but which do not contain a clear statement that they are the documents from which appeal of right may follow.”

This statement is perplexing because the bar should be expected to heed the state Supreme Court’s instructions. Nevertheless, the Supreme Court remarked that where no document contains a statement of finality, the Court of Appeals is to “liberally construe documents in favor of timely appeals.” How should attorneys apply this decision?

The Supreme Court’s statement that the Court of Appeals is to “liberally construe” non-compliant documents in favor of appeals must not be stripped of context. The tardy litigant should carry the burden of showing that he reasonably believed the circuit court order did not “arguably dispose of the entire matter,” consistent with Wambolt.

In other words, there must be some genuine issue regarding finality, such as with a matter identified by sec. 808.075 as having both pre- and post-judgment qualities. A litigant who disappears for months or years who later attempts to resurrect a stale circuit court case by appeal ought not to be viewed in the same light as one who actively seeks to establish the finality or non-finality of the circuit court order at issue. The word “construe” (liberally or otherwise) must have some meaning, or Wambolt and Tyler will become a springboard for those who sleep.