Practitioners faced with an adverse final order or judgment may view the appellate process as daunting. Chapters 808 and 809 of the Wisconsin Statutes, however, provide a practical roadmap for a civil appeal’s successful prosecution.

This article discusses the traditional appeal from a final civil judgment to the court of appeals. Chapters 808 and 809 should be reviewed for other appeals, including permissive appeals, cross-appeals, appeals to the Supreme Court, and appeals of small claims, traffic, ordinance, parental rights termination and minor abortion cases.

An important practical factor in determining whether to appeal is the extent to which the court of appeals will defer to the trial court. The court of appeals reviews questions of law de novo. Questions of fact will not be overturned if any credible evidence exists to support them. Discretionary determinations are reviewed under the erroneous exercise of discretion standard.

The first step is to determine whether the order or judgment is entered and final. To appeal, an order or judgment must be “entered”— filed with the clerk of court. Secs. 808.03(1)(a), 806.06(1)(b), 807.11(2). A written document is required. Sec. 807.11(1), Stats. An attorney cannot, for example, appeal from an oral bench decision.

Only final orders or judgments are appealable as of right. Sec. 808.03(1), Stats. A final order or judgment is one “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), Stats. Resolving some, but not all, issues between the parties does not yield a final order or judgment. An order or judgment which is final as to one party does not lose its finality just because issues involving other parties remain.

The issue of finality has resulted in a litany of appellate decisions, and has caused many problems, including dismissed appeals, for unwary practitioners. These problems may be eased by two March 21, 2007 Wisconsin Supreme Court decisions, Wambolt v. West Bend Mutual Insurance Company, 2005 AP 1574, and Tyler v. Tyler, 2005 AP 2336. These cases involved a memorandum decision and an order on post-trial motions, respectively. Under these decisions, beginning Sept. 1, 2007, a statement must appear on the face of a document that it is final for purposes of appeal. Absent such a statement, the appellate courts are to liberally construe ambiguities in the document to preserve the right of appeal.

Appeal from a final order or judgment is begun by filing a Notice of Appeal in the circuit court of the county where the case was heard, with the required fee and with service on all parties. Sec. 809.10(1), see also Sec. 808.03(1), Stats. The notice’s purpose is to advise the court of appeals of the appeal and its nature. The notice must specify the order or judgment appealed from, the trial court judge and case number, whether the case is one decided by one judge instead of the traditional three, and whether a statute gives the appeal preference. Sec. 809.10(1)(b), Stats. The notice should also indicate to which of the four districts (determined geographically by county) the appeal is being made. Many practitioners attach a copy of the order or judgment appealed from to the Notice, although the statutes do not so require.

The notice must be filed within 90 days of the entry of the final order or judgment appealed from. However, if a formal, written Notice of Entry of Judgment is given within 21 days after the order or judgment’s entry, the time for filing the Notice of Appeal is reduced to 45 days after the order or judgment’s entry. Sec. 808.04(1), Stats. The court may not extend the time to file a traditional civil appeal. Sec. 809.82(2)(b), Stats.

When the notice is filed with the circuit court, the appellant must file with the court of appeals and serve on all parties a copy of the notice and a docketing statement, which can be obtained at www.wicourts.gov/about/organization/appeals/ expedited.htm. Secs. 809.10(1)(c),(d). The docketing statement provides jurisdictional, party and background information, a statement of the issues and their standards of review, and information from which the court of appeals can determine whether the appeal is appropriate for expedited resolution.

The parties will receive notice when the Court of Appeals dockets the appeal. The appellant has 14 days after the Notice of Appeal’s filing to make arrangement for the preparation of any needed transcript. Within that period the appellant must file with the circuit court and court of appeals, and serve on all parties, a Statement on Transcript (signed by the court reporter if transcripts have been ordered), describing the transcript and when it was ordered or stating that none is needed. Sec. 809.11(4)(b), Stats. The court reporter must prepare and file the ordered transcripts within 60 days, absent an extension. Sec. 809.11(7)(a), Stats. The respondent can arrange for transcripts if it feels the appellant’s designation is incomplete. See Sec. 809.11(5).

The circuit court clerk is responsible for compiling the record and transmitting it to the court of appeals. Secs. 809.15(2), 809.15(4)(a) Stats. The clerk will give notice to the parties at least 10 days before transmittal. Sec. 809.15(2). Although some clerks transmit every filed document, the statutes only require transmission of certain documents, not including briefs or affidavits. These include “(a)ny other paper of exhibit filed in the court and requested by a party to be included in the record.” Sec. 809.15(1)(a)(10), Stats. Counsel should review the record before its transmittal to ensure that all desired documents are included.

The briefing schedule begins running from the date the record is filed with the Court of Appeals. The appellant’s principal brief and appendix are due 40 days after the record’s filing. Sec. 809.19(1), Stats. The respondent’s brief is due 30 days after the later of service of appellant’s brief, the date the Court accepts appellant’s brief, or the date of the record’s filing. Sec. 809.19(3)(a)1, Stats. The appellant’s reply brief is due 15 days after the later of the respondent’s brief’s acceptance or service. Sec. 809.19(4)(a), Stats. Section 809.19, Stats. contains particularized requirements for briefs and appendices, including the required certifications.

The court of appeals usually resolves an appeal without oral argument, notifying the parties that the matter has been submitted on briefs. The court resolves the appeal with its decision. Costs are allowed under Sec. 809.25, Stats.

Information about pending appeals, including opinions scheduled for release, may be obtained via http://wscca.wicourts.gov and its related links.

Diane Slomowitz is a partner at Fox, O’Neill & Shannon, S.C. in Milwaukee. Slomowitz can be reached at dslomowitz@foslaw.com.