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  • WisBar News
    June 23, 2009

    Appeal of attorney fees order subject to ‘finality’ requirements, supreme court says

    The Wisconsin Supreme Court requires an explicit statement in a circuit court order declaring that it has either dismissed or adjudicated an entire matter before a party can appeal it. This rule extends to orders addressing attorney fees, statutory damages, and costs.

    June 23, 2009 – “Final and appealable” judgments or orders are those that explicitly dismiss or adjudicate the entire matter in litigation as to one or more parties.

    In Kenosha Professional Firefighters v. City of Kenosha, 2009 WI 52, the Wisconsin Supreme Court held that the firefighters’ appeal of an order denying their motion for attorney fees and costs should not have been dismissed as untimely because the order in question was not “final.”

    Besides the lack of an explicit statement in the circuit court order, the justices said that so long as some part of the underlying litigation remained unresolved, an order regarding attorney fees arising from it could not be final.

    An open records dispute

    The attorney fees were incurred in the firefighters’ legal struggle over access to personnel records of fire chiefs and other officials. Under the state open records law, the firefighters requested copies of these officials’ written applications for their positions and their “matrix scores.” In January 2006, the firefighters filed a petition for a peremptory writ of mandamus to press the city to release the materials.

    A writ issued on April 27, 2006 compelled the city to disclose most of the records, but it did not grant or deny the firefighters’ petition regarding the matrix scores which the city claimed had been destroyed by a third-party contractor in the ordinary course of business. The circuit court requested the city and records custodian to file affidavits to support its explanation of the matrix scores unavailability.

    Those affidavits were provided in the fall of 2006. In the meantime, the firefighters moved for an award of attorney fees, statutory damages, and costs pursuant to Wis. Stat. § 19.37 (2) (a) on Aug. 4, 2006.

    The city opposed the firefighters’ motion, arguing that § 806.06 (4) gave the firefighters just 30 days from the entry of the writ to seek these amounts and so the firefighters were too late.

    On Jan. 19, 2007, the circuit court agreed with the city, concluding that the April 2006 writ was the final document from which an appeal could have been taken. The firefighters moved for reconsideration, but the court stood by its decision in an April 26, 2007 order.

    Before the court of appeals, the firefighters argued that neither the Jan. 19 order nor its April 26 decision were “final” for purposes of appeal because the circuit court had yet to enter a final, appealable judgment disposing of the underlying suit against the city. Accordingly, they asked the court of appeals to dismiss the appeal, but without prejudice so that they may appeal again after resolution of the central litigation.

    The court of appeals concluded that the Jan. 19 order was final and that the firefighters’ appeal from that order was untimely. The court of appeals added that the circuit court’s decision on April 26 did not include any new issues and so it lacked jurisdiction to hear an appeal of the reconsideration order, citing Ver Hagen v. Gibbons, 55 Wis. 2d 21 (1972).

    A final order “disposes”

    In its analysis, the supreme court noted that § 806.03 (1) defines a final judgment or final order as one “that disposes of the entire matter in litigation as to one or more of the parties. However, courts have struggled with the meaning of “dispose,” the justices remarked.

    The court consulted two recent cases, Tyler v. Riverbank, 2007 WI 33, and Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35. These cases instruct that a circuit court seeking to “dispose” within the meaning of § 806.03 (1) must include “an explicit statement” on the face of its order to either dismiss the entire matter or to adjudge it completely.

    Underscoring the importance of “an explicit statement,” the court said, “[A] circuit court cannot dispose of the entire matter in litigation merely by deciding all the substantive issues presented by the matter.”

    Applying the facts of the firefighters’ case to this framework, the court concluded neither the Jan. 19 order nor the April 26 decision contains this explicit statement. “[T]he circuit court merely decided a substantive issue before it,” the court observed.

    “When a document does not explicitly state that it is dismissing or adjudging the entire matter as to one or more of the parties, the appropriate course of action for an appellate court ‘is to liberally construe documents in favor of timely appeals,’” the court wrote, quoting Wambolt.

    By these principles, the justices said, the firefighters had prematurely filed an appeal which should be dismissed, but without prejudice.

    Unresolved issue

    The peremptory writ of mandamus “may be viewed as containing explicit language disposing of some, but not all, matters in litigation between the firefighters and the City relating to the release of public records,” the court stated.

    In particular, the writ did not resolve the claim regarding the matrix scores, the court noted.

    “The circuit court’s decisions relating to attorney fees, statutory damages, and costs therefore might not be the last word regarding these matters and should not be accorded the status of final judgments or final orders for purposes of appeal,” the court wrote.

    The peremptory writ’s lack of finality should have been the sole reason to overturn the court of appeals, Justice Patience Roggensack argued in a concurrence joined by Justices Annette Kingsland Ziegler and Michael Gableman.

    Roggensack commented that a final order on the merits of a case can be entered while a request for attorney fees is pending, but not necessarily the other way around. Consequently, she said, there was no need for the court to consider Wambolt.

    Alex De Grand is the legal writer for the State Bar of Wisconsin.


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