Untimely appeal can proceed

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An elderly woman who was assaulted by an employee of the Office of the Commissioner of Insurance will get to appeal the dismissal of her claim against the employee’s supervisor.

The Wisconsin Supreme Court held on Feb. 16 that, even if the appeal was filed too late, it could proceed, because the woman’s attorney relied on the circuit court’s statement that the dismissal would not become final until the entire case was resolved.

In 2006, Evelyn Werner was physically assaulted by Kenneth Hendree, an OCI employee, and two unknown assailants.

Werner sued both Hendree and Michael Honeck, Hendree’s supervisor. The circuit court dismissed the case against Honeck on the grounds of governmental immunity, and held that the Hendree was ineligible for indemnification from the State. However, the court stated on the record that it would not sign the orders until final judgment was entered against Hendree, who did not appear in the case.

Nevertheless, the court signed the order on Dec. 3, 2007, and the clerk of court filed it. A judgment of more than $3 million was entered against Hendree on July 11, 2008.

Werner timely appealed that judgment on Aug. 18, but it was too late to appeal the earlier rulings on Honeck’s liability and Hendree’s indemnification. As a result, the Court of Appeals dismissed Werner’s appeal of those holdings.

Werner then moved the circuit court to vacate and reenter the earlier orders, but the court denied the motion. Werner appealed again.

The Supreme Court accepted Werner’s petition for review of the first appeal, and took jurisdiction of the second appeal. In an opinion by Justice Annette Kingsland Ziegler, the court reversed in both.

The court first held that the Dec. 3 order was not a final appealable order, because it did not dispose of the entire matter in litigation as to either Werner or Hendree.

Second, the court held that the circuit court erroneously exercised its discretion in denying Werner’s motion to vacate and reenter those orders.

Under sec. 806.07, a court can relieve a party from an order under various circumstances. One circumstance is “mistake, inadvertence, surprise, or excusable neglect.” Under subsec (1)(a), however, a motion on this ground must be made within a year.

Under subsec. (1)(h), however, a court may do so for “any other reasons justifying relief from the operation of the judgment.” Under this subsection, the motion need only be made “within a reasonable time.”

“[E]xtraordinary circumstances justify relief under Wis. Stat. sec. 806.07(1)(h),” the court concluded. “Specifically, despite the circuit court both orally and in writing stating that it would hold the orders so that one appeal could later be taken after trial, it did not so hold the orders. Here, Werner’s counsel’s reliance on the court’s representation to hold the orders provides a basis for extending Werner’s time to appeal under sec. 806.07.”

“Werner’s reliance on the circuit court’s assurances effectively deprived her of the right to appeal. Justice rings hollow if Werner is penalized for the circuit court’s failure to act according to its clear intention as stated both orally and in writing on the record.”

Justice Ann Walsh Bradley dissented in part, in an opinion joined by Chief Justice Shirley S. Abrahamson.

The dissenters concluded that the circuit court could not have erroneously exercised its discretion in denying the motion to vacate and reenter the judgment, because Werner never argued that subsec. (1)(h) applied, but only argued the applicability of subsec. (1)(a).

The dissenters further agreed with the circuit court that Werner did not file the motion within a reasonable time after discovering the orders were mistakenly entered.

David Ziemer can be reached at [email protected]

What the court held

Case: Werner v. Hendree, Nos. 2008AP2045 & 2009AP2322

Issues: Where the circuit court entered an order despite stating it would not do so until the entire case was finished, should the order be vacated and reentered, so the parties can appeal?

Holdings: Yes. Where the parties relied on the circuit court’s statements, relief is justified under sec. 806.07(1)(h).

Attorneys: For Plaintiff: Andrew J. Shaw, Joseph Owens; For Defendants: John J. Glinski.