PUBLISHED OPINION
Case No.: 96-0262
Complete Title
of Case:
IN RE THE MARRIAGE OF:
SHIRLEY A. PRATSCH,
Petitioner-Appellant,
v.
ROBERT M. PRATSCH,
Respondent-Respondent.
Submitted on Motion: January 15, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: April 2, 1996
Opinion Filed: April
2, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Brown
(If "Special", JUDGE: Susan E. Bischel
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
the petitioner-appellant, the cause was submitted on the motion of Harvey G.
Samson of Block, Seymour and Samson of Appleton, and Betsy S.
Anding, co-counsel of Minneapolis, MN.
Respondent
ATTORNEYSOn behalf of
the respondent-respondent, the cause was submitted on the response of Jeffrey
F. Jaekels of Soquet, Wanezek, Umentum & Jaekels, S.C. of Green
Bay.
COURT OF APPEALS DECISION DATED AND RELEASED APRIL 2, 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. 96-0262
STATE
OF WISCONSIN IN COURT OF
APPEALS
IN RE THE MARRIAGE OF:
SHIRLEY A. PRATSCH,
Petitioner-Appellant,
v.
ROBERT M. PRATSCH,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Brown County:
SUSAN E. BISCHEL, Judge. Appeal
dismissed.
Before Cane, P.J., LaRocque
and Myse, JJ.
PER
CURIAM. Shirley A. Pratsch has filed a "motion to
determine [the] date of filing of Notice of Appeal." Shirley asks this court to determine that
her notice of appeal was filed on January 4, 1996. The respondent, Robert M. Pratsch, opposes the motion. The motion raises the question of whether a
notice of appeal may be filed by facsimile transmission. We conclude that it may not, and therefore,
dismiss this appeal for lack of jurisdiction.
Several affidavits have
been filed with this court.[1] Those affidavits establish the following
chronology. A final judgment was
entered on November 20, 1995. An
accurate notice of entry of judgment was filed on November 29, 1995. Therefore, the final day for filing a timely
notice of appeal was January 4, 1996. See
§ 808.04(1), Stats. (
"An appeal to the court of appeals must be initiated within 45 days of
entry of judgment or order appealed from if written notice of the entry of
judgment or order is given within 21 days of the judgment or order as provided
in s. 806.06(5)...").
On January 4, 1996,
Shirley's attorney, whose office is in Edina, Minnesota, telephoned the Brown
County Clerk of Courts. The attorney
asked an employee of that office whether a notice of appeal could be filed by facsimile
transmission. The attorney was told
that a notice of appeal could be filed in that fashion, providing that the
original notice of appeal and the filing fee arrived the following day. The attorney then faxed a notice of appeal
to the Brown County Clerk of Courts.[2]
The next day, the Brown
County Clerk consulted with persons in the Court of Appeals Clerk's Office. After that discussion, the Brown County
Clerk contacted Shirley's attorney and advised her that a notice of appeal
could not be filed by facsimile transmission.
An express mail envelope from the Edina law firm arrived at the clerk's
office on January 5, 1996. It was
returned to the firm, unopened.
Eventually, another notice of appeal was sent to the Brown County
Clerk's office.[3] The filing of this motion and affidavits
ensued.
The precise question of
whether a notice of appeal can be filed by facsimile transmission has not yet
been decided by this court. The general
topic, however, was addressed by the Supreme Court when it created
§ 801.16(2), Stats. That rule provides:
(2)
For papers that do not require a filing fee:
(a)
A court may adopt a local rule, if it is approved by the chief judge, that
requires the use of a plain-paper facsimile machine and permits the filing of
those papers by facsimile transmission to the clerk of circuit court.
(b)
If no rule has been adopted under par. (a), a judge may permit a party or
attorney in a specific matter to file those papers with the clerk of circuit
court by facsimile transmission to a plain-paper facsimile machine.
(c)
The party or attorney, by filing papers by facsimile transmission, certifies
that permission of the judge or court for filing by facsimile transmission has
been granted. Papers filed by facsimile
transmission are considered filed when transmitted except that papers filed by
facsimile transmission completed after regular business hours of the clerk of
court's office are considered filed the next business day.
Although awkwardly
constructed, § 801.16(2), Stats.,
plainly means that only those papers that do not require a filing fee may be
filed by facsimile transmission. The
Judicial Council Note, 1991, confirms that interpretation: "Sub. (2) clarifies that papers (other
than those requiring a filing fee) may be filed by facsimile transmission to
the judge or clerk, if a local court rule, or the judge in a specific matter,
so permits." A notice of appeal is
a paper that requires the payment of a filing fee. Rule 809.25(2)(a)1,
Stats. Therefore, § 801.16(2), Stats.,
does not permit the filing of a notice of appeal by facsimile transmission.
We note that "filing
under sec. 809.10 means physical delivery of the notice of appeal to and
receipt by the clerk of the trial court."
Boston Old Colony Ins. Co. v. International Rectifier Corp.,
91 Wis.2d 813, 822, 284 N.W.2d 93, 97 (1979).
In one sense, the clerk of the trial court received the notice of appeal
when the facsimile transmission occurred on January 4, 1996. However, we conclude that Boston Old
Colony does not answer this issue because it predated facsimile
technology and the creation of § 801.16(2), Stats. Section
801.16(2) represents an explicit exception to the general rule set forth in Boston
Old Colony.
In her motion, Shirley
emphasizes the fact that the Brown County Clerk of Courts told her attorney
that a facsimile filing was acceptable.
Implicit in her motion is the notion of "justifiable reliance"
on the clerk's representation. Such an
estoppel argument is not persuasive.
The failure to timely file a notice of appeal deprives this court of
subject matter jurisdiction. Rule 809.10(1)(b), Stats.
The concepts of waiver and estoppel are not material when we are
determining whether subject matter jurisdiction exists. See State ex rel. Gaudynski v.
Pruss, 233 Wis. 600, 606, 290 N.W. 189, 192 (1940).[4]
Because the appellant
did not properly file a notice of appeal within forty-five days from the entry
of the judgment, this court lacks jurisdiction over the appeal.
By the Court.—Appeal
dismissed.
[1] Affidavits have been submitted by Lynn M. Verheyen, the Clerk of Courts for Brown County, Jeanne A. Ramsden, the Chief Deputy Clerk of Courts for Brown County, and Shirley's attorney, Attorney Betty S. Anding.
[2] The precise time of transmission and receipt is disputed. We need not resolve that factual dispute.
[3] It appears that the notice of appeal received on January 4 was discarded after the clerk determined that a facsimile filing was ineffective.
[4] We also reject one of the arguments made by Robert in opposition to the motion. He contends that the notice of appeal could not be "filed" on January 4, 1996 because the docketing fee was not also received by the clerk of courts on that day. That argument is defeated by Douglas v. Dewey, 147 Wis.2d 328, 336, 443 N.W.2d 243, 245 (1989), in which the supreme court held that the timely submission of fees was not a jurisdictional requirement.