Finality at last. Maybe.
October 14, 2024
In last month’s column, I made several very useful suggestions (if I may say so myself) to the Wisconsin Supreme Court for improvements during their new term. Shockingly, not one member of the court thanked me for the helpful advice, nor have they (so far) adopted any of my suggestions.
Since I’m sure this was simply an oversight and that the court welcomes my commentary, I would like to weigh in on a present case where the court has the opportunity to make a ruling that could greatly assist practitioners and litigants.
On Sept. 23, 2024, the Supreme Court heard oral arguments in Morway v. Morway, 2013AP1614. The court accepted review of a Court of Appeals order that, sua sponte, dismissed an appeal of a trial court’s ruling as untimely. The issue raised is, “What is a final order for purposes of appeal under Wis. Stats. §808.03(1)?”
In 2007 in Wambolt v. West Bend Mutual Insurance Company, 2007 WI 35 the Supreme Court held that to be appealable, a circuit court order must explicitly state it is “final for purposes of appeal.” In addition, the court held that “absent explicit language that the document is intended to be the final order or final judgment for purposes of appeal, appellate courts should liberally construe ambiguities to preserve the right of appeal” At ¶46.
In Morway, however, the order that the Court of Appeals found appealable not only did not contain this language, but in fact, the order contemplated that an issue, to wit: overtrial, was still unresolved. The overtrial issue was eventually litigated and resolved, after which Mr. Morway filed his appeal, which the Court of Appeals dismissed as untimely.
Morway provides the Supreme Court a chance to do a favor for litigants and practitioners: Make a simple and easy-to-follow rule without exceptions (which are an invitation to litigation) by eliminating the “absent explicit language exception”. Litigating over non-substantive issues is expensive and inefficient. And fortunately, it’s also unnecessary.
A simple rule is that a final order, subject to appeal, should contain this sentence: “This is a final order for purposes of appeal.” Without that statement, it’s not a final order.
Since it’s in the interest of the prevailing party, who is typically the party who drafts the order, to secure finality, it would be in the interest of that party to make sure that line is included in a final, appealable order. If this line isn’t part of the order, it’s not a final order for purposes of appeal. Period.
To the Supreme Court: You’re welcome! I’m always glad to be of service.
