PUBLISHED OPINION
Case No.: 95-3315
Complete
Title
of
Case:
DOROTHEA
HACKMANN,
Plaintiff-Respondent,
v.
RANDY
BEHM and
SHARLENE
BEHM,
Defendants-Respondents,
A.F.
SMITH & SONS, INC.,
Defendant-Appellant.
Submitted
on Briefs: August 12, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 11, 1996
Opinion
Filed: December
11, 1996
Source
of APPEAL Appeal from a judgment and an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Manitowoc
(If
"Special" JUDGE: ALLAN
J. DEEHR
so
indicate)
JUDGES: Anderson,
P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Thomas A. Van Horn of Thomas Van Horn Law
Office of Manitowoc.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of David J. Pawlowski of Salutz & Salutz
of Manitowoc.
No brief was
submitted by the defendants-respondents.
COURT OF
APPEALS DECISION DATED AND
RELEASED December
11, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3315
STATE OF WISCONSIN IN
COURT OF APPEALS
DOROTHEA
HACKMANN,
Plaintiff-Respondent,
v.
RANDY
BEHM and
SHARLENE
BEHM,
Defendants-Respondents,
A. F.
SMITH & SONS, INC.,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge. Dismissed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. On November 27, 1995, A.F. Smith & Sons, Inc.
(Smith) filed a notice of appeal from an order entered in the trial court on
September 20, 1995, denying its motion for an order requiring Dorothea
Hackmann to accept its tender of the amount owed to Hackmann by Randy and
Sharlene Behm pursuant to a land contract and strict judgment of foreclosure on
that land contract. Smith requested
that Hackmann be ordered to accept the tender and assign her rights in the land
contract to Smith. In the notice of
appeal Smith also appealed from a judgment entered in the trial court on
November 22, 1995, which confirmed the strict judgment of foreclosure entered
in the trial court on August 1, 1995, nunc pro tunc July 7, 1995, and restored
all rights, title and interest in the property conveyed by the land contract to
Hackmann. We conclude that we lack
jurisdiction over this appeal and dismiss it.
Hackmann,
as vendor, and the Behms, as purchasers, entered into a land contract for the
sale of farm property on April 6, 1987.
On May 5, 1995, Hackmann commenced an action for strict foreclosure of
the land contract based on the Behms' failure to make the payments required by
the contract. Hackmann also named Smith
as a defendant on the ground that it might claim an interest or lien in the
premises by virtue of a judgment docketed in its favor against the Behms on
October 31, 1994. Hackmann requested
that if the Behms did not pay the amount due on the land contract by a date to
be set by the trial court, then judgment of strict foreclosure be entered
against all of the defendants and anyone claiming under them.
Smith
answered the complaint and filed a cross-claim against the Behms, alleging that
it had a judgment lien against the Behms by virtue of the judgment docketed on
October 31, 1994, and that it wanted to "foreclose" that judgment
lien, thereby succeeding to the Behms' interests and rights as the vendees of
the land contract. It further requested
that in the event judgment of strict foreclosure was entered, the Behms be
given sufficient time to redeem so that their right of redemption could be
attached by Smith in accordance with its cross-claim.
The
trial court entered findings of fact, conclusions of law, and the judgment of
strict foreclosure on August 1, 1995.
In its findings of fact and conclusions of law, it stated that Smith
might have an interest or lien in the interest of the Behms in the real estate,
but that Smith's interest was subject to and subordinate to the interests of
Hackmann. It held that Hackmann was
entitled to recover $49,725, plus postjudgment interest, from the Behms
pursuant to the land contract, and that she was entitled to a lien in, and all
right, title and interest of the Behms in the real estate until that sum was
paid in full. It gave the Behms until
November 1, 1995, to redeem the land contract.
It further provided that if the Behms did not perform their obligations
within the time specified, then the Behms, and all persons claiming under them,
including Smith, would be forever foreclosed of any right, title or interest in
the real estate, and title would vest in Hackmann with possession of the
premises delivered to her. It
reiterated this determination in the judgment of strict foreclosure entered on
August 1, 1995, providing that if payment was not made by the Behms within the
time specified, any interest that the Behms or Smith had in the real estate
would cease to exist.
Rather
than appealing directly from the judgment of strict foreclosure within ninety
days pursuant to § 808.04(1), Stats.,
Smith moved the trial court for an order requiring Hackmann to accept Smith's
tender of the amount owed by the Behms and to assign her rights under the
judgment of strict foreclosure to Smith.
The trial court denied that motion in an order entered on September 20,
1995. Smith then filed a motion stating
that its president and owner, Dennis Brandl, had purchased the Behms' right of
redemption for $1. Based on this
purchase and its proffering of the balance due under the judgment of strict
foreclosure, Smith moved the trial court for an order requiring Hackmann to
issue a warranty deed to it. The trial
court denied that motion and entered judgment on November 22, 1995, confirming
the judgment of strict foreclosure and providing that based on the Behms'
failure to redeem, their right, title and interest in the real estate, as well
as the right, title and interest of any parties or entities claiming under
them, ceased to exist. The judgment
further provided that all right, title and interest in the premises was
restored to Hackmann free and clear of all encumbrances.
We
conclude that when the judgment of strict foreclosure was entered, it
determined Smith's rights in this case, extinguishing them completely unless
the Behms timely executed their right of redemption. If Smith wanted to challenge this determination on appeal, it had
to do so by appealing the judgment of strict foreclosure within ninety days of
its entry on August 1, 1995, or by October 30, 1995. Smith failed to do so and lost its right to challenge the
extinction of its interests on appeal.
A
final judgment may be appealed to this court as a matter of right within the
time specified in § 808.04, Stats. See Shuput v. Lauer,
109 Wis.2d 164, 169, 325 N.W.2d 321, 324 (1982). A final judgment is one which disposes of the entire matter in
litigation as to one or more of the parties, whether rendered in an action or
special proceeding. See id.
at 169, 325 N.W.2d at 325.
In
mortgage foreclosure cases, the judgment of foreclosure and sale determines the
parties' legal rights in the underlying obligation and the mortgaged property
and thus determines the default, the right of the mortgagee to realize upon the
security, the time and place of sale of the security, and the right of the
mortgagee to a judgment of deficiency. See
id. at 171, 325 N.W.2d at 325.
The statutory proceedings after the judgment of foreclosure and sale,
including the sale, judicial confirmation of the sale, the computation of the
deficiency, and the entry of judgment for the deficiency, carry into effect and
enforce the judgment of foreclosure and sale.
See id. The
judgment of foreclosure and sale thus determines the rights of the parties and
disposes of the entire matter in litigation, while the sale and confirmation
proceedings constitute the execution of judgment. See id. at 172, 325 N.W.2d at 326. The judgment of foreclosure and sale
therefore is a final judgment appealable as a matter of right under
§ 808.03(1), Stats.,[1]
which must be appealed within the time prescribed by § 808.04, Stats.
See Shuput, 109 Wis.2d at 172, 325 N.W.2d at
326. The order confirming the sale is
also a final order appealable as of right, enabling the appellant to challenge
proceedings subsequent to the judgment of foreclosure and sale, but not the
judgment itself. See id.
While
mortgage foreclosure proceedings are distinct from land contract foreclosure
proceedings, the Shuput discussion of appealability is applicable
here. Like the judgment of foreclosure
and sale in a mortgage foreclosure case, the judgment of strict foreclosure
entered in this case determined Smith's legal rights and interest in the real
estate which was subject to the land contract.
The remaining proceedings after its entry constituted an execution of
that judgment and were limited to determining whether the Behms redeemed their
interest in the real estate by paying the amount due under the judgment of
strict foreclosure.
The
judgment of strict foreclosure expressly determined that Hackmann was entitled
to title and possession of the real estate, and that all interest of the Behms
and Smith would cease to exist unless the Behms redeemed the land contract by
November 1, 1995. Although Smith sought
judgment in its answer and cross-claim
permitting it to succeed to or attach the Behms' right of redemption,
the trial court did not grant relief as requested by Smith. Instead, it provided that Hackmann was
entitled to possession and title absent redemption by the Behms, thus
effectively denying Smith's requests.
Smith
was required to appeal within ninety days of entry of the judgment of strict
foreclosure if it wanted to challenge this determination.[2] It could not, in effect, seek to extend the
time for challenging the trial court's determination that it could not succeed
to or attach the Behms' right of redemption by filing postjudgment motions
related to those issues. Because
Smith's postjudgment motions presented issues which were already decided by the
judgment of strict foreclosure, neither the September 20, 1995 order nor the
November 22, 1995 judgment was appealable by it to this court. See LaCrosse Trust Co. v.
Bluske, 99 Wis.2d 427, 428-29, 299 N.W.2d 302, 303 (Ct. App. 1980).[3]
By
the Court.—Appeal dismissed.
[1] Section
808.03(1), Stats., was amended by
1995 Wis. Act 139. However, these
amendments do not affect our analysis.
[2] If the Behms had
redeemed the property within the time set in the judgment of strict
foreclosure, title to the real estate would have transferred to them. Based on its docketed judgment against the
Behms, Smith would then have been able to seek satisfaction of its judgment from
the real estate. However, this interest
would have been based upon the Behms' title to and possession of the real
estate. The possibility that the Behms
would redeem did not render the judgment of strict foreclosure nonfinal as to
Smith, any more than the period of redemption permitted in a mortgage
foreclosure judgment pursuant to § 846.13, Stats., renders that judgment nonfinal.
[3] We recognize
that the judgment of strict foreclosure did not address whether Smith could
purchase the Behms' right of redemption, as Smith tried to do in postjudgment
proceedings. However, the judgment of
strict foreclosure clearly provided that both title and possession of the real
estate were Hackmann's unless the Behms redeemed by November 1, 1995. By granting a right of redemption solely to
the Behms, the judgment determined that Smith had no right to redeem, whatever
form or means it attempted to use to acquire such a right. Smith was required to timely appeal from the
judgment of strict foreclosure if it wanted to challenge this final disposition
of its rights.