L. G., by Chippewa Family Servs., Inc. v. Aurora Residential Alternatives, Inc.

2019 WI 79
SUPREME COURT OF WISCONSIN
CASE NO.: 18AP656
COMPLETE TITLE: L. G., by her Guardian, Chippewa Family
Services, Inc.,
Plaintiff-Respondent,
State of Wisconsin Department of Health Services
and Centers for Medicare & Medicaid Services,
Involuntary-Plaintiffs,
v.
Aurora Residential Alternatives, Inc., Aurora
Integrated Management, Inc. and Aurora Community
Services, Inc.,
Defendants-Appellants-Petitioners,
Aurora 023 Community Based Residential Facility
and Massachusetts Bay Insurance Company,
Defendants.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: June 28, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 26, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dunn
JUDGE: Rod W. Smeltzer
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ABRAHMASON, J. and A.W. BRADLEY, J. withdrew
from participation.
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs filed by Donna J. Fudge, Esquire, and Fudge Broadwater,
P.A., Fond du Lac. There was an oral argument by Donna J. Fudge,
Esquire.
For the plaintiff-respondent, there was a brief filed by
Matthew Boller, James E. Biese, and Boller & Vaughan, LLC,
Madison. There was an oral argument by James E. Biese.
2
2019 WI 79
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP656
(L.C. No. 2017CV239)
STATE OF WISCONSIN : IN SUPREME COURT
L. G., by her Guardian, Chippewa Family
Services, Inc.,
Plaintiff-Respondent,
State of Wisconsin Department of Health
Services and Centers for Medicare & Medicaid
Services,
Involuntary-Plaintiffs, FILED
v. JUN 28, 2019
Aurora Residential Alternatives, Inc., Aurora Sheila T. Reiff
Integrated Management, Inc. and Aurora Clerk of Supreme Court
Community Services, Inc.,
Defendants-Appellants-Petitioners,
Aurora 023 Community Based Residential Facility
and Massachusetts Bay Insurance Company,
Defendants.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DANIEL KELLY, J. This case addresses whether a
circuit court order denying a request to compel arbitration and
stay a pending lawsuit is final for the purposes of appeal. We
No. 2018AP656
hold that it is and so reverse and remand the matter to the
court of appeals.
I. BACKGROUND
¶2 Aurora Residential Alternatives, Inc., Aurora
Integrated Management, Inc., and Aurora Community Services, Inc.
(collectively, "Aurora") own and operate residential facilities.
L.G., the respondent, is a mentally disabled resident of one of
Aurora's facilities. In October 2012, L.G. accused an Aurora
employee of sexually assaulting her by forcing her to perform
sexual acts on him, for which he was convicted of fourth-degree
sexual assault.
¶3 Approximately four years later, L.G. filed a lawsuit
against Aurora over the incident in the Dunn County Circuit
Court.1 But L.G.2 had signed an arbitration agreement with
Aurora that provided, in relevant part:
Any and all claims or controversies arising out of or
in any way relating to this Arbitration Agreement, the
Admission Agreement, and/or any of the Consumer's
stay(s) at the Home, including disputes regarding the
making, execution, validity, enforceability,
voidability, unconscionability, severability, scope,
arbitrability, interpretation, waiver, duress,
preemption, or any other defense to enforceability of
this Arbitration Agreement, whether arising out of
State or Federal law, whether now existing or arising
in the future, whether for statutory, compensatory or
punitive damages and whether sounding in breach of
1 The Honorable Rod W. Smeltzer presided.
2 Chippewa Family Services, Inc. is L.G.'s legal guardian
and represents her interests in this matter, just as it did in
executing the arbitration agreement.
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No. 2018AP656
contract, tort (i.e., negligence or wrongful death),
or breach of statutory duties (including, without
limitation, any claim based on Consumers' Rights or a
claim for unpaid Home charges), irrespective of the
basis for the duty or of the legal theories upon which
the claim is asserted, shall be submitted to binding
arbitration.
. . . .
The Parties hereby expressly agree that the Admission
Agreement, this Arbitration Agreement, and the
Consumer's stay at the Home involve interstate
commerce. The Parties also stipulate that the Federal
Arbitration Act, 9 U.S.C. § 1-16 in effect as of July
1, 2013 ("FAA"), shall apply to this Arbitration
Agreement and that the FAA shall preempt any
inconsistent state law and shall not be reverse
preempted.
(Emphasis in original.)
¶4 In response to the lawsuit, Aurora filed a motion to
compel arbitration and stay the circuit court proceedings
pending the arbitration pursuant to the Federal Arbitration Act,
9 U.S.C. §§ 1-16 ("FAA") (the "Motion"). The circuit court
denied the Motion in a written order (dated February 15, 2018),
which bore the following statement: "THIS IS A FINAL ORDER FOR
PURPOSES OF APPEAL" (the "Order").3
¶5 Aurora filed its notice of appeal 46 days later.4 L.G.
moved to dismiss the appeal for lack of jurisdiction because
3The Order also decided: (1) Massachusetts Bay Insurance
Company's motion to bifurcate insurance issues and stay the
proceedings; and (2) a motion for a protective order related to
discovery issues.
4When no party provides written notice of entry of a final
judgment or order, the appellant must file a notice of appeal no
later than 90 days after entry of the order appealed from:
(continued)
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No. 2018AP656
Aurora was "seeking a review of a non-final order that denied
their motion to compel arbitration." L.G. v. Aurora Residential
Alts., Inc., No. 2018AP656, unpublished order (Wis. Ct. App. May
10, 2018). The court of appeals granted the motion. It held
that "because the order denying arbitration does not dispose of
the entire matter of litigation, it is not a final and
appealable order as of right under Wis. Stat. § 808.03(1)
[(2017-18)][5]." Id. The court of appeals also stated that
Aurora could appeal the Order only pursuant to Wis. Stat.
§ 808.03(2), which governs permissive appeals. Under that
procedure, the prospective appellant must file a petition
requesting permission to appeal no later than 14 days after
entry of the order to be reviewed. § 809.50(1). The court of
appeals dismissed the appeal for lack of jurisdiction,
concluding that the Order was not final, and Aurora had not
filed a petition requesting permission to appeal. L.G., No.
Initiating an appeal. An appeal to the court of
appeals must be initiated within 45 days of entry of a
final judgment or order appealed from if written
notice of the entry of a final judgment or order is
given within 21 days of the final judgment or order as
provided in s. 806.06 (5), or within 90 days of entry
if notice is not given, except as provided in this
section or otherwise expressly provided by law. Time
limits for seeking review of a nonfinal judgment or
order are established in s. 809.50.
Wis. Stat. § 808.04(1) (2017-18) (emphasis in original). There
is no notice of entry of final order or judgment in the record.
5All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
4
No. 2018AP656
2018AP656, unpublished order (Wis. Ct. App. May 10, 2018).
Aurora moved the court of appeals to reconsider, specifically
pointing out the statement on the Order indicating it was final
for purposes of appeal. The court of appeals denied the motion,
concluding that the statement was erroneous because the order
did "not dispose of the matter in litigation among the parties."
L.G. v. Aurora Residential Alts., Inc., No. 2018AP656,
unpublished order (Wis. Ct. App. May 31, 2018) (order denying
the motion for reconsideration). The court of appeals also
denied Aurora's alternative request to extend the deadline to
file a petition requesting permission to appeal.
¶6 Aurora filed a petition for review of the court of
appeals' orders, which we granted. We now reverse the court of
appeals' dismissal of Aurora's appeal.
II. STANDARD OF REVIEW
¶7 In the course of this opinion we are required to
interpret and apply our statutes. "These are questions of law
that we review de novo." Kieninger v. Crown Equip. Corp., 2019
WI 27, ¶12, 368 Wis. 2d 1, 924 N.W.2d 172 (citing State v.
Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346). More
specifically, the finality of a circuit court's order presents a
question of law subject to de novo review. Admiral Ins. Co. v.
Paper Converting Mach. Co., 2012 WI 30, ¶22, 339 Wis. 2d 291,
811 N.W.2d 351.
III. ANALYSIS
¶8 Whether Aurora may appeal the Order depends entirely
on whether it was final within the meaning of Wis. Stat.
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No. 2018AP656
§ 808.03(1). If it was, then the notice of appeal was timely,
and the court of appeals should not have dismissed the appeal.
If not, then the quest must end because Aurora did not file a
petition requesting permission to appeal the Order, and it does
not argue otherwise.6 Therefore, the balance of this opinion
focuses on whether the Order was final within the meaning of
§ 808.03(1).7
¶9 The finality of the Order is outcome dispositive
because of its jurisdictional consequences. Our statutes
provide for an appeal as of right only from final orders or
judgments: "A final judgment or a final order of a circuit
court may be appealed as a matter of right to the court of
appeals unless otherwise expressly provided by law." Wis. Stat.
§ 808.03(1). Without finality, there is no jurisdiction for
such an appeal. "[T]his court lacks jurisdiction over an appeal
[as of right] brought from a nonfinal judgment or order."
McConley v. T.C. Visions, Inc., 2016 WI App 74, ¶3, 371
6Wisconsin Stat. § 808.03(2), in part, provides: "A
judgment or order not appealable as a matter of right under
sub. (1) may be appealed to the court of appeals in advance of a
final judgment or order upon leave granted by the court[.]"
7"[S]tatutory interpretation 'begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.' Statutory language is given its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (internal citations omitted); see generally Daniel R.
Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969
(2017).
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No. 2018AP656
Wis. 2d 658, 885 N.W.2d 816 (quoting Leske v. Leske, 185
Wis. 2d 628, 630, 517 N.W.2d 538 (Ct. App. 1994)) (alteration in
original).
¶10 "Finality," to the extent it concerns us today, has
two components. Our statutes say that "[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 [it is] rendered in an action or special
proceeding . . . ." Wis. Stat. § 808.03(1). The first
component, therefore, relates to whether the order in question
is part of an "action" or, instead, a "special proceeding." The
second component relates to whether the order disposed of the
entire matter in dispute between the parties.
A. "Action" versus "Special Proceeding"
¶11 We will start with the first component——whether the
Order denying the Motion to compel arbitration was entered in an
action as opposed to a special proceeding. The distinction is
important because it will define the "matter in litigation" that
must be resolved before we may consider whether the order was
final. If the Motion was part of L.G.'s "action" against Aurora
for damages stemming from the sexual assault, then there can be
no disposition of the "entire matter in litigation" until the
question of Aurora's alleged liability to L.G. has been
answered. But if the Motion represents a "special proceeding"
separate from L.G.'s "action," then we will need to identify the
"disputed matter" within that special proceeding so that we may
determine whether the Order entirely disposed of it. The court
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No. 2018AP656
of appeals' conclusion that the Order had not disposed of the
entire matter indicates it understood the Motion to have been
part of L.G.'s action, rather than a separate special
proceeding. This is a question on which we have not yet
provided any guidance. See Wisconsin Auto Title Loans, Inc. v.
Jones, No. 2011AP2482, unpublished slip op. (Wis. Ct. App. Feb.
5, 2013) ("[T]he finality of orders regarding arbitration
appears to be an open question.").
¶12 Although we may not have provided any guidance on this
question, the Legislature has. The Wisconsin Arbitration Act
(Wis. Stat. § 788.01 et seq. (the "Arbitration Act")) governs
the enforcement of arbitration agreements, and describes how to
compel arbitration both before a lawsuit has been filed as well
as when a lawsuit is already pending. We examine these
provisions for what they might say about whether a motion to
compel arbitration represents a special proceeding or, instead,
a motion integral to a pending action.
¶13 When a party to an arbitration agreement refuses to
arbitrate, the other party may apply to our courts for relief.
If there is no pending lawsuit when the refusal occurs, the
aggrieved party may "petition" the circuit court for an order
compelling arbitration: "The party aggrieved by the alleged
failure, neglect or refusal of another to perform under a
written agreement for arbitration may petition any court of
record having jurisdiction of the parties or of the property for
an order directing that such arbitration proceed as provided for
in such agreement." Wis. Stat. § 788.03.
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No. 2018AP656
¶14 Upon the filing of such a petition, the Arbitration
Act limits the circuit court's role to determining the existence
of an enforceable arbitration agreement and any failure to
comply with it. If the parties do not dispute those matters,
the circuit court simply orders compliance: "The court shall
hear the parties, and upon being satisfied that the making of
the agreement for arbitration or the failure to comply therewith
is not in issue, the court shall make an order directing the
parties to proceed to arbitration in accordance with the terms
of the agreement." Wis. Stat. § 788.03. However, if a party
does dispute the making of the agreement or performance of the
parties, the matter proceeds directly to trial——but only on
those issues. Id. ("If the making of the arbitration agreement
or the failure, neglect or refusal to perform the same is in
issue, the court shall proceed summarily to the trial
thereof."). Upon resolution of those issues, there are only two
possible outcomes——either the circuit court orders compliance
with the arbitration agreement according to its terms, or it
dismisses the proceeding consequent upon a failure to prove an
enforceable arbitration agreement or deficient performance. Id.8
8In the absence of a jury demand, the circuit court decides
any challenge to the making of the arbitration agreement or
deficiency in performance. See Wis. Stat. § 788.03 ("If no jury
trial is demanded, the court shall hear and determine such
issue."). If a jury decides the issues, and finds the
petitioner's arbitration demand wanting, the circuit court must
dismiss the petition. Id. ("If the jury finds that no agreement
in writing for arbitration was made or that there is no default
in proceeding thereunder, the proceeding shall be dismissed.").
However, if the jury finds an enforceable arbitration agreement,
(continued)
9
No. 2018AP656
¶15 The Arbitration Act's tight control on what a circuit
court may do with a petition under Wis. Stat. § 788.03 suggests
that a request to compel arbitration is a matter separate from,
but related to, the parties' underlying dispute. Resolution of
a petition under this provision does not, and cannot, reach the
merits of the matter to be arbitrated. And the circuit court's
work on the petition ends before anyone takes any further steps
to resolve the issues allegedly covered by the arbitration
agreement. So the only effect the petition has on the
underlying dispute is determining the forum in which it will be
resolved. Once that is decided, the circuit court's involvement
in determining the forum in which the dispute will be decided is
over.
¶16 The circuit court's role is similarly limited when the
attempt to enforce an arbitration agreement takes place in a
pending lawsuit. The procedure under Wis. Stat. § 788.02 is
somewhat truncated in comparison to Wis. Stat. § 788.03, but the
circuit court's responsibility is essentially the same. Both
statutes require the circuit court to do nothing more than
determine whether the parties must arbitrate their dispute, and
and a failure to abide by its terms, the court issues an order
directing compliance. Id. ("If the jury finds that an agreement
for arbitration was made in writing and that there is a default
in proceeding thereunder, the court shall make an order
summarily directing the parties to proceed with the arbitration
in accordance with the terms thereof.").
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No. 2018AP656
then ensure they do. The primary difference is that the
determination is made in the context of an existing lawsuit:
If any suit or proceeding be brought upon any issue
referable to arbitration under an agreement in writing
for such arbitration, the court in which such suit is
pending, upon being satisfied that the issue involved
in such suit or proceeding is referable to arbitration
under such an agreement, shall on application of one
of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms
of the agreement, providing the applicant for the stay
is not in default in proceeding with such arbitration.
§ 788.02. The stay issues if the circuit court is "satisfied
that the issue involved in such suit or proceeding is referable
to arbitration under such an [arbitration] agreement." Id.
¶17 An application to stay proceedings under Wis. Stat.
§ 788.02 addresses issues as discrete as the petition under Wis.
Stat. § 788.03. Both mechanisms are limited to determining
whether there is an enforceable arbitration agreement, and
ensuring the parties abide by its terms. The circuit court's
resolution of the application is entirely self-contained,
inasmuch as it simply determines the forum for resolution of the
dispute without addressing the dispute's merits. And the matter
does not return to the circuit court "until such arbitration has
been had in accordance with the terms of the agreement."
§ 788.02. That is to say, the circuit court's disposition of
the application is distinct from the dispute the arbitration is
supposed to resolve, even as it retains some connection to it.
¶18 The relationship between an application to stay and
the action in which it is made convinces us the former is a
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No. 2018AP656
special proceeding within the meaning of Wis. Stat. § 808.03(1).
This conclusion is faithful to the standard we have long used in
assaying the difference between actions and special proceedings.
Over a century ago, we said "[t]he test to be applied in
determining the nature of any judicial remedy, as regards
whether it is a special proceeding, is whether it is a mere
proceeding in an action, or one independently thereof or merely
connected therewith. The latter two belong to the special class
and the other does not." Voss v. Stoll, 141 Wis. 267, 271, 124
N.W. 89 (1910).
¶19 We used the Voss test just last term to help us
identify the relationship between a pending criminal proceeding
and a proceeding to determine the defendant's competency. State
v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. We
observed that "[t]he competency proceeding resolves an issue
separate and distinct from the issues presented in the
defendant's underlying criminal proceeding." Id., ¶33. So we
said the "competency proceeding is not part of the defendant's
underlying criminal proceeding," but they were nonetheless
"'related' or 'connected' to one another." Id. We held
therefore, that "the competency proceeding is properly 'treated
as being commenced independently of any other action or
proceeding.'" Id. We can gain additional insight into the
nature of an application to stay under Wis. Stat. § 788.02 by
considering the types of proceedings that we do not consider
"special." Long ago, we said that proceedings are not "special"
if they comprise "the necessary and ordinary steps or
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No. 2018AP656
proceedings taken in an action to conduct it to a final hearing
and judgment." Ernst v. The Steamer "Brooklyn", 24 Wis. 616,
617, 1869 WL 3554 (1869). An application to stay the pending
action in favor of an arbitral resolution cannot be a
"necessary" or "ordinary" step in reaching a final judgment,
inasmuch as it affirmatively seeks to prevent that very result.
The relationship between a pending lawsuit and an application
under § 788.02 is in all material respects the same as that
obtaining between the competency proceeding and criminal
proceeding at issue in Scott. As in Scott, an application to
stay "resolves an issue separate and distinct from the issues
presented in" the pending lawsuit, but the two proceedings are
nevertheless "related" or "connected." 382 Wis. 2d 476, ¶33.
¶20 L.G. rejects this analysis, and points instead to a
line of cases that describe a special proceeding as "one either
entirely outside of an action, as a proceeding for contempt or
to condemn land, or one merely connected with an action as a
proceeding by a person not a party to an action to be made
such." State v. Wisconsin Tel. Co., 134 Wis. 335, 336, 113
N.W. 944 (1907). We said something similar more recently: "A
special proceeding, like an action, is a stand-alone proceeding
that is not part of an existing case." Alger, 360 Wis. 2d 193,
¶29. The authority for that statement was Black's Law
Dictionary, which defined a proceeding as something "that can be
commenced independently of a pending action and from which a
final order may be appealed immediately." Id. (quoting Black's
Law Dictionary 1398 (10th ed. 2014)). Alger also relied on the
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No. 2018AP656
court of appeals for the proposition that "a special proceeding
[is] one occurring entirely outside the underlying
action . . . ." 360 Wis. 2d 193, ¶29 (quoting Wellens v. Kahl
Ins. Agency, Inc., 145 Wis. 2d 66, 69, 426 N.W.2d 41 (Ct. App.
1988)). One may understand these statements as either
descriptive or, alternatively, prescriptive. That is, it is
possible for these statements to accurately describe various
special proceedings that occurred entirely outside of the
underlying actions, while not asserting that special proceedings
must occur outside of the underlying actions (the descriptive
reading). The prescriptive reading, on the other hand, would
understand these statements as creating a normative rule, to
wit, that all special proceedings must occur outside of the
underlying actions.
¶21 We believe the best reading of Alger, Wisconsin Tel.
Co., and Wellens is that they describe, but do not prescribe.
In Alger we relied on Black's Law Dictionary for the proposition
that special proceedings "can be commenced independently of a
pending action." 360 Wis. 2d 193, ¶29. But just because
something can be commenced in a particular fashion does not mean
it must be so commenced. Because Black's Law Dictionary was the
basis for our statement in Alger that "[a] special proceeding,
like an action, is a stand-alone proceeding that is not part of
an existing case," id., it would be most prudent to understand
it as simply paraphrasing the authority upon which it relied.
In that sense, the statement describes a subset of special
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No. 2018AP656
proceedings, but does not prescribe a quality that all special
proceedings must share.
¶22 Reading Alger as descriptive, as well as Wisconsin
Tel. Co. and Wellens, harmonizes them with Scott, our most
recent analysis of this question. The competency proceeding at
issue in Scott was most assuredly not "a stand-alone proceeding
that [was] not part of an existing case." Alger, 360
Wis. 2d 193, ¶29. And yet we concluded it was, nonetheless, a
special proceeding. We reaffirm that Voss describes the test we
use to determine whether something qualifies as a special
proceeding. Voss and Scott demonstrate that an "application to
stay" under the auspices of Wis. Stat. § 788.02 is a special
proceeding within the meaning of Wis. Stat. § 808.03(1). When a
circuit court addresses such an application it "resolves an
issue separate and distinct from the issues presented in" the
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No. 2018AP656
pending lawsuit, but which is "related" or "connected" to that
lawsuit.9 Scott, 382 Wis. 2d 476, ¶33.
B. Finality
¶23 The second (and final) step in our analysis is
determining whether the circuit court's order denying Aurora's
motion to compel arbitration represented a final disposition of
"the entire matter in litigation as to one or more of the
9
L.G. also directs us to several cases in which the court
of appeals has treated orders disposing of motions to stay an
action in favor of arbitration as nonfinal. See, e.g., Midwest
Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs.,
LLC, 2018 WI 112, ¶1, 384 Wis. 2d 669, 920 N.W.2d 767 (where we
characterized the circuit court's order denying the motion to
stay the proceeding and compel arbitration as "non-final");
Mortimore v. Merge Techs. Inc., 2012 WI App 109, ¶11, 344
Wis. 2d 459, 824 N.W.2d 155 (The appellant "filed for leave to
appeal the circuit court's nonfinal order denying [appellant]'s
Motion to Stay Pending Arbitration."); Coady v. Cross Country
Bank, 2007 WI App 26, ¶1 n.1, 299 Wis. 2d 420, 729 N.W.2d 732
(where the appellant "filed a petition for leave to appeal from
this non-final order."); Wisconsin Auto Title Loans, Inc. v.
Jones, 2006 WI 53, ¶24, 290 Wis. 2d 514, 714 N.W.2d 155 ("The
court of appeals granted Wisconsin Auto Title Loans' request to
appeal the nonfinal order of the circuit court[.]"); and Madison
Beauty Supply, Ltd. v. Helene Curtis, Inc., 167 Wis. 2d 237, 481
N.W.2d 644 (Ct. App. 1992) (which reviewed a circuit court's
order denying an application to stay the proceedings under Wis.
Stat. § 788.02 as a non-final order).
There are two reasons none of these cases are instructive.
First, in each of these cases the appellant characterized the
order as nonfinal by filing a petition for permissive review
under Wis. Stat. § 809.50. Consequently, the appellants did not
put the finality of the order at issue. And second, in each of
these cases the court of appeals simply accepted, rather than
analyzed, the appellant's characterization of the order as
nonfinal.
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No. 2018AP656
parties" in the special proceeding. Wis. Stat. § 808.03(1).10
To make that determination, we need to compare the circuit
court's order to the scope of matters at issue in the special
proceeding.
¶24 We said in a recent case that, in the context of a
petition to compel arbitration, the potential scope of matters
the court may address is quite limited: "In an action to compel
arbitration under Wis. Stat. § 788.03, the issues are limited to
the making of the arbitration agreement or the failure, neglect
or refusal to perform under the agreement." First Weber Grp.,
Inc. v. Synergy Real Estate Grp., LLC, 2015 WI 34, ¶32, 361
Wis. 2d 496, 860 N.W.2d 498 (internal marks omitted). Aurora
filed its motion to stay pursuant to Wis. Stat. § 788.02,
however, because there was already a lawsuit pending. But as we
discussed above, there is no difference between §§ 788.02 and
788.03 with respect to the scope of issues the circuit court
considers in such a special proceeding.
10
The Arbitration Act allows a party to file an
"application" to stay the trial, Wis. Stat. § 788.02, which
application is "made and heard in the manner provided by law for
the making and hearing of motions." Wis. Stat. § 788.05. The
fact that Aurora denominated its filing a "motion" instead of an
"application" is of no moment because we are governed by a
document's substance, not its label. Twn. of Fitchburg v. City
of Madison, 98 Wis. 2d 635, 647-48, 299 N.W.2d 199 (1980) ("We
will look beyond the form and the label of the document to the
substance[.]"); and Wesolowski v. Erickson, 5 Wis. 2d 335, 339,
92 N.W.2d 898 (1958) ("The mere labeling of a complaint does not
determine its nature. The nature of an action is to be
determined as a whole and all allegations in the complaint must
be considered.").
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No. 2018AP656
¶25 Aurora's Motion presented no issue to the circuit
court outside the parameters of Wis. Stat. § 788.02. After
asserting the existence of an enforceable arbitration agreement
and L.G.'s failure to abide by its terms, the motion asked the
circuit court "for an Order staying this action and compelling
the parties to binding arbitration pursuant to the specific
terms within the Binding Arbitration Agreement and for such
other relief as this Court deems just and proper." Although the
ensuing Order resolved three pending motions, it discretely
disposed of each one in separate sections. The section relating
to Aurora's motion to stay was limited to the subject of
arbitrability. It said: "For the reasons stated at the
hearing, including the Court's finding that there is not a
contract to arbitrate this case, the defendants' Motion to
Compel Arbitration is DENIED."11 The circuit court's discussion
of the motion on the record was more extensive, of course, but
did not go beyond whether the matter under consideration was
subject to an arbitration requirement. It is clear, therefore,
that Aurora's Motion, and the circuit court's resolution, both
11
The order also said: "THIS IS A FINAL ORDER FOR PURPOSES
OF APPEAL." Such a statement, while potentially helpful to
litigants as a warning, has no legal effect. Wambolt v. West
Bend Mut. Ins. Co., 2007 WI 35, ¶46 n.19, 299 Wis. 2d 723, 728
N.W.2d 670 ("[T]here may be cases in which a document states
that it is final for purposes of appeal under [Wis. Stat.]
§ 808.03(1), but does not actually 'dispose of the entire matter
in litigation as to one or more of the parties[.]' . . . Such a
document cannot be a final order or final judgment under the
plain language of the statute.").
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No. 2018AP656
remained within the boundaries of the special proceeding
described by § 788.02.
¶26 We conclude that the circuit court's Order disposed of
the entire matter in controversy between L.G. and Aurora in the
Wis. Stat. § 788.02 special proceeding. The Order's terms are
categorical, and they resolve the only question presented by the
Motion. Further, the Order does not contemplate any future
circuit court action with respect to issues potentially
encompassed by § 788.02. For these reasons, the circuit court's
Order was final within the meaning of Wis. Stat. § 808.03(1).12
IV. CONCLUSION
¶27 We hold that an application to stay pursuant to Wis.
Stat. § 788.02 is a special proceeding within the meaning of
Wis. Stat. § 808.03(1). We further hold that a circuit court
order that disposes of the entire matter in litigation between
one or more parties in a § 788.02 special proceeding is final
for the purposes of appeal.
12 Because we conclude that a circuit court order resolving
an application to compel arbitration pursuant to Wis. Stat.
§ 788.02 is final for the purposes of appeal, we need not
address Aurora's argument that the Federal Arbitration Act
preempted our appellate procedures and by its own force made the
Order immediately appealable. Walworth State Bank v. Abbey
Springs Condo. Ass'n., Inc., 2016 WI 30, ¶13 n.7, 368
Wis. 2d 72, 878 N.W.2d 170 ("Typically, an appellate court
should decide cases on the narrowest possible grounds."). We
express no opinion on that novel argument.
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No. 2018AP656
By the Court.—The decision of the court of appeals is
reversed.
¶28 SHIRLEY S. ABRAHAMSON, J. and ANN WALSH BRADLEY, J.,
withdrew from participation before oral argument.
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No. 2018AP656
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