Civil Procedure – appeal — final judgments

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Wisconsin Supreme Court

Civil

Civil Procedure – appeal — final judgments

Where it is ambiguous whether a pending claim for attorney fees is substantive or procedural, the judgment is not final for purposes of appeal.

“In the record before this court, the nature of PCMC’s counterclaim is unclear. The counterclaim makes reference to the Uniform Declaratory Judgment Act, Wis. Stat. § 806.04(8), which is not a fee-shifting statute. Rather, it permits parties to pursue ‘[f]urther relief . . . whenever necessary or proper.’ The pleading does not specify the theory of law upon which PCMC’s counterclaim was based. Further, the court of appeals denied Admiral’s motion to supplement the record with information pertinent to PCMC’s counterclaim. On this record, we cannot determine whether PCMC’s counterclaim was based on, for example, an asserted contractual right or other theory of law which might take it outside the rule set forth in Leske.”

“Under these circumstances, although the March 26 order arguably disposed of the entire matter in litigation between the parties, we cannot say on this record that it unambiguously did so. Accordingly, we construe it as nonfinal, pursuant to our policy of construing any ambiguity to preserve the right of appeal. We conclude that Admiral’s appeal of the July 8 judgment is timely.”

Reversed.

2009AP2099 Admiral Ins. Co. v. Paper Converting Machine Co.

Bradley, J.

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, Miss.; Von Holt, Dudley W., St. Louis, Miss