L. G., by her Guardian, Chippewa Family Services, Inc., Plaintiff-Respondent,
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.
of a decision of the Court of Appeals. Reversed.
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.
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.
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.
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.
Approximately four years later, L.G. filed a lawsuit against
Aurora over the incident in the Dunn County Circuit
Court. But L.G. 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
(Emphasis in original.)
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").
Aurora filed its notice of appeal 46 days
later. 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) ]  ." 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.
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.
STANDARD OF REVIEW
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 ...