Orlando Residence Ltd. v. Nelson
Orlando Residence Ltd. v. Nelson
Opinion of the Court
¶ 1. We are called upon in this appeal to decide whether various circuit court orders in aid of execution of a judgment are final in their own right or whether the appeal of those various orders is ripe only after an order is entered declaring that the original judgment has been satisfied in full. This question arises in the context of a decades-long legal fight spanning several states and court systems — state and federal, trial and appellate. Although the first judgment related to this matter was issued in 1990, a series of appeals,
¶ 2. The Nelsons argue that under Wisconsin law they may appeal an order as a matter of right only when all issues brought before the court have been decided and the court has issued an order declaring it to be final for purpose of appeal. They claim that the circuit court erred when it refused to issue their requested "final" order and found instead that it already had issued a series of final orders subject to immediate review over the course of the proceedings. We agree with and affirm the circuit court.
BACKGROUND
¶ 3. This case entered Wisconsin in 2007 with the filing of a foreign judgment obtained in Tennessee. Following supplementary proceedings, the circuit court determined the undisputed amount owed on the judgment to be $1,218,512.40 and ordered a turnover of assets owned by the Nelsons. The circuit court order, which was issued on November 18, 2008, contained no statement that it was final for purpose of appeal, although it stayed execution pending appeal under a number of terms and conditions. The Nelsons lost their appeal of that order before this court. Orlando Resi
¶ 4. After remittitur for execution on the judgment, the battle reignited. Among the issues that the court was called upon to decide in a series of orders were:
• whether the Nelsons could reduce the amount of the judgment with a different interest calculation,
• whether Orlando was entitled to immediate possession of the Nelsons' real property following purchase at a sheriffs sale,
• whether to end enforcement of the judgment due to time limitations,
• whether to set aside the sheriffs sale of the Nelsons' real property,
• whether Kenneth and Susan Nelson were entitled to homestead rights,
• whether to turn over certain property to Orlando,
• whether to stay the turnover of certain property to Orlando,
• whether to reconsider, clarify, or supplement previous orders,
• whether to extend the period of time for the Nelsons to redeem their real property, and
• whether to vest ownership in Orlando of certain property as a credit against the judgment.
¶ 5. Upon a joint stipulation of the Nelsons and Orlando, a satisfaction of judgment was filed on April 12, 2012, which declared that Orlando's judgment had
STANDARD OF REVIEW
¶ 6. This appeal raises questions of law regarding (1) whether, following the full satisfaction of a judgment, a court must issue an order removing temporary restrictions imposed to aid in satisfaction of that judgment and (2) whether postjudgment proceedings in aid of execution involve only one final order or a series of final orders from which an appeal as a matter of right may be had. We independently review such questions of law. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶¶ 13-14, 299 Wis. 2d 723, 728 N.W.2d 670.
DISCUSSION
A. No Final Order Is Necessary Following a Satisfaction of Judgment
¶ 7. As a threshold matter, we consider whether the Nelsons need an order to relieve them from the restrictions placed upon them by the November 2008 execution order. We conclude that they do not. The only restrictions identified by the Nelsons in the execution
¶ 8. Thus, the only remaining reason why the Nelsons might need such an order is for an appeal. Such an order is also unnecessary. The Nelsons had an appealable order that brought before this court all prior nonfinal rulings adverse to the Nelsons: the April 2012 stipulated order. See Haeuser v. Haeuser, 200 Wis. 2d 750, 757 n.3, 548 N.W.2d 535 (Ct. App. 1996), overruled in part on other grounds hy Kruckenberg v. Harvey, 2005 WI 43, ¶ 60 n.59, 279 Wis. 2d 520, 694 N.W.2d 879; Wis. Stat. Rule 809.10(4) (2011-12).
B. The Nelsons May Not Now Appeal the Previous Orders
¶ 9. Wisconsin Stat. § 808.03 provides that a party may appeal a final judgment or order of the circuit court as a matter of right unless otherwise provided by law. "A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding." Sec. 808.03(1). To
¶ 10. None of the postjudgment orders presented in this appeal include the finality statement required by Wambolt. Nor did the language of the orders unambiguously establish that they "disposed of the entire matter in litigation as to one or more of the parties." Admiral Ins. Co., 339 Wis. 2d 291, ¶ 29. The problem in applying such standards to this case is that neither Wambolt nor Admiral Insurance involved — or even contemplated —orders issued in aid of execution following a final judgment. Postjudgment orders are appealable so long as they could not have been reviewed on an appeal from the judgment itself. Ver Hagen v. Gibbons, 55 Wis. 2d 21, 24, 197 N.W.2d 752 (1972). Yet, in postjudgment proceedings, the meaning of what constitutes a "final order for purpose of appeal" is less clear than in the prejudgment context. Mayer v. Wall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012) (per curiam). Our courts have heard appeals from postjudgment orders that do not necessarily end the entire litigation
¶ 11. We find help from federal case law, where appellate jurisdiction also rests on a finding of finality. Federal appellate courts treat postjudgment proceedings as free-standing litigation where the final judgment is the first order in the case and finality is dependent upon resolution of the issues raised in the motion that kicked off the postjudgment proceedings. Mayer, 672 F.3d at 1224. Even so, "[flederal case law instructs that some, but not all, postjudgment orders are final and therefore appealable." Luster v. Brinkman, 250 P.3d 664, 667 (Colo. App. 2010). Appellate review may be required in unique postjudgment proceedings where far-reaching orders do not end the proceedings. Bogard v. Wright, 159 F.3d 1060, 1062-63 (7th Cir. 1998).
¶ 12. A general rule first espoused by the United States Supreme Court, and followed by federal courts, provides that an order that "decides the right to the property in contest, and directs it to be delivered up" is final and appealable. Forgay v. Conrad, 47 U.S. 201, 204 (1848). This rule is based on the notion that a party will suffer irreparable harm if forced to wait before it can appeal an order involving "an immediate transfer of title to property." Faysound Ltd. v. Falcon Jet Corp., 940
¶ 13. The Nelsons now argue that postjudgment orders in aid of execution that do not end the entire proceedings, even orders confirming the sale of real estate that may transfer the title to property, are not
¶ 14. Thus, we believe the proper framework in which to examine the finality of the orders issued by the circuit court over the course of the postjudgment proceedings following remittitur is by focusing on whether the orders resulted in the immediate transfer of title to property. If an order led to such a result, it was a final order for purpose of appeal and the time for review was immediate. Orders that did not transfer title to property, or orders that we have not already declared are final orders for purpose of appeal, are not final and may be open to review at this time. We review only those previous orders that were argued in the Nelsons' brief and included in their appendix. See Wis. Stat. Rule 809.19(2)(a).
¶ 15. The circuit court held a hearing on September 17, 2010, where it considered the Nelsons' motion to declare the judgment satisfied and void the sheriffs sale of their real estate as well as Orlando's motion for sanctions. The court denied the Nelsons' motion, finding that it was bound by our determination in the appeal of the November 2008 order that the Nelsons had waived their right to challenge the calculation of interest accumulated up to the time preceding that order. The court also denied Orlando's motion for sanctions. The court reserved ruling on the issue of the calculation of interest on the judgment after October 8, 2008. We cannot find, and the Nelsons have not pointed us to, a written order signed by the court that memorialized these rulings or resolved the Nelsons' request to recalculate future interest. A judgment or order must be reduced to writing and filed with the clerk of the circuit court before an appeal can be taken. Ramsthal Adver. Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell, 70 Wis. 2d 220, 222, 234 N.W.2d 345 (1975). We cannot hear the Nelsons' appeal of the issues raised at the hearing.
November 5, 2010 Order
¶ 16. The circuit court issued an order on November 5, 2010, denying Orlando's motion to declare it had an immediate right to possession of the Nelsons' real estate sold at a sheriffs sale and directing Orlando to
June 6, 2011 Order
¶ 17. The circuit court issued an order on June 6, 2011, that (1) denied the Nelsons' "motion to dismiss" the judgment, (2) denied the Nelsons' motion to set aside the sheriffs sale, and (3) scheduled an evidentiary hearing on the Nelsons' request for homestead rights. Any appeal now pursued by the Nelsons related to the denial of their request to set aside the sheriffs sale is untimely as the order resulted in the immediate transfer of title to property and was final for purpose of appeal. See Wis. Stat. § 808.04. Further, the Nelsons cannot pursue an appeal on the basis that the order scheduled an evidentiary hearing, as the Nelsons ultimately prevailed at that hearing and were awarded homestead rights. See Wis. Stat. Rule 809.10(4).
¶ 18. That leaves only the issue of whether the denial of the Nelsons' motion to dismiss remains available to appeal. Unlike the other parts of the order, this denial did not directly result in the immediate transfer of property nor did the Nelsons prevail on the issue. Moreover, denials of motions to dismiss litigation are not considered final orders for purpose of appeal. Szuszka v. City of Milwaukee, 15 Wis. 2d 241, 243-44, 112 N.W.2d 699 (1961). However, although labeled a "motion to dismiss," the Nelsons' motion is more properly characterized as a motion for relief from the judgment as it is based on an argument that Orlando
June 7, 2011 Order
¶ 19. The circuit court signed an order on Orlando's motion on June 7, 2011, transferring judgments held by a Nelson-controlled entity to Orlando and awarding the Nelsons credit against Orlando's judgment. As this order resulted in the immediate transfer of title to property, it was appealable and now is untimely. See Wis. Stat. § 808.04.
December 5, 2011 Order
¶ 20. The circuit court issued an order on December 5, 2011, that (1) denied the Nelsons' motion to stay the proceedings and the turnover of certain property; (2) denied the Nelsons' motion for "reconsideration,
March 23, 2012 Order
¶ 21. The circuit court denied a motion by Orlando to apply certain property held by a Nelson-controlled entity to the judgment on March 23, 2012. As the prevailing party, the Nelsons cannot appeal this order. See Wis. Stat. 809.10(4).
¶ 22. On April 16, 2012, the circuit court signed an order releasing funds to Orlando, pursuant to a joint petition from the Nelsons and Orlando, and declaring the judgment "SATISFIED IN FULL." There is no indication that this final payment was paid under protest or that the Nelsons reserved their right to challenge the final amount needed to satisfy the judgment; as such, this order does not present a question for review. Cf. Lassa v. Rongstad, 2006 WI 105, ¶ 34, 294 Wis. 2d 187, 718 N.W.2d 673.
CONCLUSION
¶ 23. The circuit court properly declined to issue an order that was not needed. As Judge Posner observed in a decision issued by the Seventh Circuit more than four years ago, the time has come for this litigation to end. See Orlando Residence, Ltd. v. GP Credit Co., 553 F.3d 550, 558 (7th Cir. 2009).
By the Court. — Order affirmed.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
The Nelsons misstate that the November 2008 order involved only whether Orlando could collect on a foreign judgment and what property was available to satisfy the judgment, whereas the postremittitur orders focused on how much Orlando could collect. To the contrary, the November 2008 order established the amount of the judgment, an issue that the court repeatedly addressed postremittitur at the Nelsons' insistence. The Nelsons also attempt to distinguish the November 2008 order from subsequent orders by the fact that the November 2008 order stayed its own execution "pending appeal," and thus contemplated and conveyed the right to an immediate appeal. The Nelsons fail to point out that this language was inserted at their request after they declared in open court their plan to appeal. Finally, the Nelsons seem to concede that their previous appeal does not fit their current argument by stating, "As an academic exercise, one might dispute whether [the November 2008 order] really was an appealable order, but it is moot because the parties and this Court treated it as such."
Although bearing a different caption, this federal case involved the same parties as here. The Seventh Circuit in that decision found that GP Credit was the alter ego of our defendant Kenneth Nelson in a case that also stemmed from Orlando's attempt to collect this judgment. Orlando Residence, Ltd. v. GP Credit Co., 553 F.3d 550, 555 (7th Cir. 2009). The court's precise words were: "The time has come to put an end to the defendants' stubborn efforts to prevent Orlando from obtaining the relief to which it is entitled." Id. at 558.
Reference
- Full Case Name
- Orlando Residence, Ltd., Plaintiff-Respondent v. Kenneth E. Nelson, Nashville Lodging Company and Susan B. Nelson, Nashville Residence Corporation, Robert W. Baird & Co., Inc. and U.S. Bank National Association, Garnishees
- Cited By
- 6 cases
- Status
- Published