The Ghost of Procedural Rules Past: Wisconsin Court of Appeals Applies Waiver to Party Failing to Appeal a Non-Appealable Order
Attorneys Jeff Mandell and David P. Hollander Explain Wisconsin Appellate Court Decision to Apply Waiver to Party Failing to Appeal a Non-Appealable Order
Waiver is a well-established concept under Wisconsin law, defined as the intentional relinquishment of a known right. E.g., Loren Imhoff Homebuilder, Inc. v. Taylor, 2022 WI 12, ¶13, 400 Wis. 2d 611, 970 N.W.2d 831. Wisconsin courts often wield waiver in important ways, to streamline litigation and avoid waste of resources. But, in one context, Wisconsin courts sometimes take it too far, applying waiver in a manifestly unfair way.
On December 12, 2023, the Court of Appeals issues an unpublished, per curiam opinion in Bowie v. Settecase, Appeal No. 2022-AP-1561 (Wis. Ct. App. Dec. 12, 2023). The opinion is short, and largely not noteworthy. But the court dismissed the defendant’s entire summary judgment argument as waived, holding:
Settecase first claims that the trial court never should have allowed the matter to proceed to trial in the first place. However, a party who proceeds to trial waives the right to appeal an order denying his or her earlier motion for summary judgment. Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 345, 259 N.W.2d 515 (1977). Settecase thus waived the right to appeal the order denying summary judgment and we will not discuss this issue further.
Id., ¶6. This is not the first time the Court of Appeals has applied waiver in this context. See Garver v. Krueger, 2018 WI App 39, ¶13, 382 Wis. 2d 831, 917 N.W.2d 233 (“[A] party who proceeds to trial waives the right to appeal an order denying his or her earlier motion for summary judgment.”) (citing Wittke, 80 Wis. 2d at 345).
These waiver cases cite to Wittke, which in turn cites to a 1963 Supreme Court case that held:
While this apparently presents a question of first impression in this court, we conclude that a party, who voluntarily participates in a trial of the action after denial of his motion for summary judgment without having appealed from the order denying the motion and without requesting a stay until such appeal has been determined, waives his right to appeal from such order.
Richie v. Badger State Mut. Cas. Co., 22 Wis. 2d 133, 137–38, 125 N.W.2d 381 (1963).
Wittke and Richie are unequivocal holdings of the Wisconsin Supreme Court, and the Court of Appeals is duty-bound to faithfully apply those precedents. The problem, however, is that Wisconsin’s procedural statutes have changed significantly in the last 50-odd years, and the current framework renders Wittke and Richie no longer coherent.
In the 1960s, the denial of a motion for summary judgment was immediately appealable. Wis. Stat. § 274.33(3) (1965-1966) (“The following orders when made by the court may be appealed […] When an order […] denies an application for summary judgment[.]”);[1] see also, e.g., Buckley v. Park Bldg. Corp., 27 Wis. 2d 425, 431, 134 N.W.2d 666 (1965); Szuszka v. City of Milwaukee, 15 Wis. 2d 241, 244, 112 N.W.2d 699 (1961). However, the statutory provision on which Wittke and Richie are based was repealed more than 45 years ago. See Laws of Wisconsin 1977, ch. 187, § 118 (Dec. 1, 1977) (repealing Wis. Stat. ch. 817, including § 817.33(3)(h) (1975), which was substantively the same as prior § 274.33(3), renumbered pursuant to a Wisconsin Supreme Court order dated February 17, 1975).
Today, only final judgments are appealable as of right. This is established under Wis. Stat. § 808.03(1), a rule designed “to avoid piecemeal appeals which delay and interfere with trial court proceedings and destroy the integrity of trial court judgments.” State v. Alles, 106 Wis. 2d 368, 394, 316 N.W.2d 378 (1982). Consequently, an order denying a motion for summary judgment generally is not appealable as of right. E.g., Corning v. Carriers Ins. Co., 88 Wis. 2d 17, 20, 276 N.W.2d 310 (Ct. App. 1979). And far from waiving the right to appeal non-final orders, our procedural rules now expressly provide 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 upon.” Wis. Stat. § 809.10(4).
Indeed, the Court of Appeals expressly made this point when a defendant attempted to argue that the plaintiff waived their motion to dismiss argument by failing to immediately appeal it. Bank of New York Mellon v. Klomsten, 2018 WI App 25, ¶11, 381 Wis. 2d 218, 911 N.W.2d 364. The Court explained that, under Section 809.50(1), a “party may file a petition for leave” to appeal an “order that is not appealable as of right[.]” Id. (emphasis in the original). It does not follow that “a party must do so to bring a nonfinal ruling before the appellate court.” Id. (emphasis in the original). The Court continued to explain that such a holding would be contrary to the rule that an “appeal from a final order brings before the appellate court all prior nonfinal orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding.” Id. (citation omitted).
Under Wisconsin’s appellate rules, there is no material distinction between denial of a motion for summary judgment and denial of a motion to dismiss. Neither is appealable as of right, and both become appealable under Wis. Stat. § 809.10(4) upon entry of a final judgment. In neither case can it genuinely be said that a party’s decision not to appeal constitutes an intentional relinquishment of a known right.
Wittke and Richie have been superseded by statutory amendment. The Court of Appeals should recognize as much and stop holding parties responsible for failing to follow procedural rules of the past.
[1] Available at https://docs.legis.wisconsin.gov/1965/statutes/statutes/274.pdf (last accessed Dec. 12, 2023).
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