Admiral Insurance Company and Chubb Custom Insurance Company appeal a judgment dismissing their claims against their insured, Paper Converting Machine Company. We initially decided the appeal on the merits, including the following language in a footnote: Admiral and Chubb purport to appeal from a judgment entered July 8, 2009 that, “[b]ased on the court’s Decision of March 26, 2009, with respect to the parties’ cross-motions for summary judgment[,]” dismissed both parties’ claims against Paper Converting. However, the March 26, 2009 written “Decision and Order” already explicitly stated that the circuit court denied Admiral’s and Chubb’s motions for summary judgment, granted Paper Converting’s motion for summary judgment and that “[t]he Court hereby orders this case dismissed.”
Thus, it appears the March 26 Decision and Order was the Wis. Stat. § 808.03(1)(a) appealable final order. See Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶31, 299 Wis. 2d 723, 728 N.W.2d 670. The time for appeal from that order would have expired no later than June 24, 2009. See Wis. Stat. § 808.04(1). Admiral and Chubb did not initiate their respective appeals until August 12 and August 20, 2009. See Wis. Stat. Rule 809.10(1). However, because Paper Converting did not object to the untimely filings and filed a response brief, it has waived any issue of our jurisdiction over the appeal. See Wis. Stat. § 807.07(1) (“[T]he respondent shall be deemed to have waived all objections … to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceedings in said appellate court.”); State v. Van Duyse, 66 Wis. 2d 286, 291, 224 N.W.2d 603 (1975) (timeliness of appeal goes to jurisdiction over parties). However, we withdrew our decision on our own motion. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
2009AP2099 Admiral Insurance Company v. Paper Converting Machine Company (PCMC), et al.
Dist III, Outagamie County, Metropulos, J., Per Curiam
Attorneys: For Appellant: Richter, Ward I., Madison; Sullivan, Sheila M., Madison; For Respondent: Conway, Gregory B., Green Bay; Blaney, Patrick M., Green Bay; Darrough, Matthew S., St. Louis, MO; Von Holt, Dudley W., St. Louis, MO