Appellate Jurisdiction

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WI Court of Appeals – District IV

Case Name: Eunice L. Poteete, et al., v. Nancy Wales

Case No.: 2020AP741

Officials: BLANCHARD, J.

Focus: Appellate Jurisdiction

Eunice and Larry Poteete (the tenants) appeal a March 2020 order of the circuit court in their action against Nancy Wales (the landlord). The tenants’ action primarily arose out of a dispute over the landlord’s return, or failure to return, some or all of the tenants’ security deposit. After a trial to the circuit court, the court issued an August 2019 order granting a judgment largely in the tenants’ favor. The tenants filed a post-judgment motion seeking an amended judgment that would increase their damages on two grounds, which are the two arguments that they now attempt to renew on appeal: (1) the circuit court erred in making determinations about the timing of lease termination and about when the landlord learned that the tenants had vacated the unit; and (2) the court should have awarded the tenants their actual attorney fees and costs. The court denied the post-judgment motion in March 2020.

After the tenants initiated this appeal, this court issued an order identifying the need for the parties to address appellate jurisdiction. The order observed that the tenants had filed their notice of appeal from the March 2020 order only after the time to appeal the August 2019 order granting the judgment had expired. The order of this court explained that the timing of the notice of appeal may deprive this court of jurisdiction to consider the appeal. For this reason, the order directed the parties to make the threshold issue of jurisdiction the first topic in their appellate briefing. The tenants inexplicably failed to follow this order, but the landlord did follow it, submitting a facially valid argument that this court lacks jurisdiction.

I conclude under all of the circumstances that it is appropriate to deem the tenants to have forfeited their argument that this court has jurisdiction to address their appeal from the March 2020 order. Only in their reply brief do the tenants offer any jurisdictional argument, which comes too late to give the landlord a fair chance to address it, and even then the tenants’ argument is underdeveloped. It would be unfair to the landlord to resolve the jurisdiction issue without requesting further briefing from the landlord. Further, I conclude that it would be inappropriate under these circumstances to prolong this litigation for further briefing. Accordingly, I dismiss the appeal based on a lack of jurisdiction. I also explain below why, even if I were to address the jurisdiction issue, the tenants’ apparent argument for jurisdiction is at a minimum incomplete.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.