It sounds so simple: If a judgment or order “disposes of the entire matter in litigation as to one or more of the parties” and is properly entered or recorded (Sec. 808.03(1), Stats.), it is “final,” and the appeal time starts ticking.
Every rule seems to have exceptions, however, and the final judgment rule is no different. In addition, while the Wisconsin Supreme Court has advised practitioners that final judgments or orders should include language confirming their finality, a judgment or order can be final without it.
Even so, after 32 years of practice, I thought I had the concept down. But then I read Orlando Residence Ltd. v. Nelson, 2013 WI App 81, __ Wis.2d __, 2013 WL 2232290, petition for review filed June 24.
And re-read it. And graphed it out.
After making sure that my head had not in fact exploded, I made a decision. To always err, non-frivolously, of course, on the side of appealing an adverse post-judgment order. Especially one that can be construed as involving property transfers.
Orlando Residence, admittedly, is not a typical case, not only because it involved a $1.2 million foreign judgment. The litigation spanned two decades over multiple jurisdictions, weathering several appeals, new trials and executions.
Still, the 2013 decision is useful because it systematically analyzes and applies the final judgment rule to at least 10 different orders. It provides a guideline for when post-judgment, execution-type orders are final, even if they might not appear to be final on their face.
Unfortunately for the appellant, Nelsons, the orders the court found to be final had been appealed too late, and the remaining orders were either favorable to them or contained nothing in them to appeal.
The brouhaha really began in November 2008, when the trial court quantified the undisputed amounts owed under the judgment and ordered the Nelsons to turn over assets. The 2008 order did not include “final judgment” language, although it did stay the turnover pending appeal, which was unsuccessful.
After remittitur from the unsuccessful appeal, many orders were entered between 2010 and 2012. These involved collection matters, including turnover, homestead, sheriff’s sale, redemption, and interest issues. None included the “final judgment” language.
The parties apparently came to some resolve, because a satisfaction of judgment was filed in April 2012. The Nelsons wanted a final order entered to relieve them from the November 2008 order. The trial court denied that request and another appeal followed.
The Court of Appeals held that the satisfaction of judgment by definition terminated any restrictions in the 2008 execution order and no final order was needed to do so. That, however, was only the beginning of the analysis.
The rest of the decision focused on whether any of the orders between 2010 and the 2012 judgment satisfaction could be appealed. The answer was no.
First the court ruled that the April 2012 satisfaction of judgment was itself a final order. Thus, that satisfaction triggered the appeal time for any prior non-final orders. Moreover, some of the prior orders may have themselves been final as involving property transfers, in which case the time to appeal them would begin to run on their entry. As to this issue, the court stated (Par. 14):
Thus, we believe the proper framework in which to examine the finality of the orders issued by the circuit court over the course of the postjudgment proceedings following remittitur is by focusing on whether the orders resulted in the immediate transfer of title to property. If an order led to such a result, it was a final order for purpose of appeal and the time for review was immediate. Orders that did not transfer title to property, or orders that we have not already declared are final orders for purpose of appeal, are not final and may be open to review at this time.
The court then went through all of the 2010-12 orders and ruled that none could be appealed. Aside from the orders which either benefited or were joined in by the Nelsons or really had nothing to appeal from, the remaining were (1) a denial of a request to set aside a sheriff’s sale, which resulted in the immediate transfer of property; (2) a denial of a motion to dismiss, re-characterized as a motion for relief from judgment, which was appealable as of right; (3) an order transferring judgments owned by the Nelsons to their creditor, which was an immediate property transfer; and (4) a denial of a reconsideration motion not raising new issues, which did not toll the appeal time of the underlying order.
A lay person, already unhappy with the affirmance, would certainly be confused upon parsing through this decision, and maybe even more confused from his attorney’s explanation of the final judgment rules. But what should practitioners make of this case?
Appeal. Appeal when you know the judgment or order is final. Appeal when you think it probably is. Appeal if there is any reasonable possibility that it is.