The Super Bowl is over. Days are getting longer. The best words in the English language are: “Pitchers and catchers report.” Baseball will soon return!
With America’s pastime in mind, I have to ask the Wisconsin Supreme Court what they were thinking when they recently issued their (gulp, 28-page) opinion in Morway v. Morway? I mean, it’s one thing to swing and miss at a 100 mile per hour fastball. It’s quite another to swing and miss at a slow curve.
The court had an opportunity to clear up an unnecessarily confusing area of appellate practice. Instead, amazingly, they made it even more confusing. Appellate lawyers who need the extra income should thank them.
The high court could have adopted my (very helpful) suggestion in my article “Finality at Last. Maybe.” Wisconsin Law Journal, Oct. 10, 2024, to make a very simple, easy-to-follow rule regarding when an order is final for purposes of appeal. My suggestion is that a final order must say so. Or it’s not final. Period.
Apparently, that’s too easy for the Wisconsin Supreme Court. So instead of taking advantage of an opportunity to make the law clearer, the court swung and missed.
The case involves an appeal from a trial court order denying the modification of maintenance. The Supreme Court decision contains two sentences that contradict its own holding: “Set forth in the findings of the May 24 order is a statement that replicates Karen’s assertion at the April 19 hearing, which anticipated that ‘Karen will file a separate Motion’ on over trial. The order did not contain a statement indicating that it was final for purposes of appeal.” At ¶11.
Maybe I’m missing something, but if Ms. Morway is going to file another motion, the case isn’t over. The order is not final. And the order itself didn’t say it was final.
The court goes through numerous pages in its opinion discussing its tortured history of ascertaining whether an order is final. Isn’t there a message there? Maybe there’s so much past litigation because the court has never adopted a simple rule. Without a simple, easy-to-follow rule, more litigation will ensue.
The Supreme Court held “a judgment or order is final for purposes of appeal when it disposes of the entire matter in litigation as to one or more parties. WIS. STAT. § 808.03(1). A judgment or order disposes of the entire matter in litigation when the text of that judgment or order leaves nothing else to be decided as a matter of substantive law.” At ¶25 (Emphasis added).
The problem with that holding is apparent in its very wording. What is “substantive” to one party is procedural to another. Lawyers can (and undoubtedly will) litigate over the meaning of that word forever. Instead of taking the opportunity to close an unnecessary gap, the court allowed it to remain open.
Or, to continue the baseball analogy, in memory of Bob Uecker, its decision is just a bit outside. (N.B. If you are not familiar with the movie reference it is more than a bit sarcastic.)
In any event, welcome, spring.