Update: The Ghost of Procedural Rules Past
In 2024, we wrote about Bowie v. Settecase, No. 2022AP1561 (Wis. Ct. App. Dec. 12, 2023) (per curiam) (unpublished). There, the Court of Appeals deemed the defendant’s summary judgment argument waived because the case went to trial and “a party who proceeds to trial waives the right to appeal an order denying his or her earlier motion for summary judgment.” Id. ¶6. Our prior article explained that the cases the Court of Appeals cited to apply this waiver rule relied on a now-repealed statute that made denials of motions for summary judgment automatically appealable. The current statutory language states that “[a]n appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled on.” Wis. Stat. § 809.10(4). The current statutory language abrogated the waiver rule, and we opined that “[t]he Court of Appeals should recognize [the abrogation] and stop holding parties responsible for failing to follow procedural rules of the past.”
By way of two recent cases, the Court of Appeals and Wisconsin Supreme Court have now fixed this blemish in Wisconsin appellate procedure. The first case is Mani v. Selective Ins. Co., 2026 WI App 6, __ Wis. 2d __, __ N.W.3d __, which the court of appeals decided on January 21, 2026. There, an insurer appealed from the circuit court’s order dismissing its crossclaims, which was a final order for purposes of appeal. Id. In a footnote, the court of appeals “expressly note[d]” that
[U]nder Wis. Stat. Rule 809.10(4), a party is not required to seek interlocutory review of a nonfinal judgment or order, including nonfinal judgments or orders on dispositive motions, to preserve its right to appeal from those nonfinal judgment or orders after a subsequent final judgment or order is entered. This marks a change from the now-repealed procedural statutes that were in effect when cases such as Richie v. Badger Mutual Casualty Co., 22 Wis. 2d 133, 125 N.W.2d 381 (1963) and Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977) were decided, prior to the enactment of Rule 809.10(4).
Id. ¶18 n.9 (emphasis added). Therefore, the insurer’s appeal from the circuit court’s earlier orders denying the insurers motion for summary judgment and motion for reconsideration were “also properly before th[e] court.” Id.
The Wisconsin Supreme Court decided the second case, Estate of Lorbiecki v. Pabst Brewing Co., 2026 WI 12, __ Wis. 2d __, __ N.W.3d __, on April 15, 2026, and reached an identical conclusion. Id. ¶13. In that case, the circuit court denied Pabst’s motion for summary judgment, and the case proceeded to trial where Pabst then moved for judgment as a matter of law and a motion for judgment notwithstanding the verdict, each of which the circuit court also denied. Id. ¶¶8, 10-12. Pabst appealed all three orders denying its motions. Id. ¶13.
The Supreme Court recognized that “Pabst’s appeal of the denial of summary judgment might appear to be barred by our older cases, which state that ‘a party who proceeds to trial waives the right to appeal . . . an order denying his earlier motion for summary judgment.’” Id. (citing Wittke and Richie). The court “conclude[d] that this rule no longer applies, however, because” of the adoption of Wis. Stat. § 809.10(4). Id. (emphasis added). The court definitively held that Wis. Stat. § 809.10(4)’s rule “includes orders denying motions for summary judgment.” Id. Therefore, according to the court, “Pabst’s appeal of the denial of its motion for summary judgment [was] properly before [the court].” Id.
Mani and Estate of Lorbiecki represent a welcome update to Wisconsin’s rules of appellate procedure. The cases confirm that appellants are no longer haunted by the ghosts of procedural rules past and may appeal an order denying a motion for summary judgment even after the case proceeds to trial.
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