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L. G. v. Aurora Residential Alternatives, Inc.

Supreme Court of Wisconsin

June 28, 2019

L. G., by her Guardian, Chippewa Family Services, Inc., Plaintiff-Respondent,
v.
Aurora Residential Alternatives, Inc., Aurora Integrated Management, Inc. and Aurora Community Services, Inc., Defendants-Appellants-Petitioners, State of Wisconsin Department of Health Services and Centers for Medicare & Medicaid Services, Involuntary-Plaintiffs, Aurora 023 Community Based Residential Facility and Massachusetts Bay Insurance Company, Defendants.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 26, 2019

          Circuit Court Dunn County (L.C. No. 2017CV239) Rod W. Smeltzer, Judge:

         REVIEW of a decision of the Court of Appeals. Reversed.

          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 Boiler, . James E. Biese, and Boiler & Vaughan, LLC, Madison. There was an oral argument by James E. Biese.

          DANIEL KELLY, J.

         ¶1. 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 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 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 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. 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, ¶2l, 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 ...


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