COURT OF APPEALS DECISION DATED AND FILED June 2, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM.[1] Alexander & Bishop, Ltd., appeals an order requiring it to pay prejudgment interest immediately and make quarterly payments of postjudgment interest. Alexander & Bishop contends the circuit court was without jurisdiction to enter the order. We agree and reverse the order.
BACKGROUND
¶2 In December 2007,
¶3 Alexander & Bishop appealed the summary judgment granting
specific performance and the order awarding pre- and postjudgment interest. We affirmed both.
DISCUSSION
¶4 Alexander & Bishop claims the circuit court did not have
jurisdiction to enter the November 2008 order regarding pre- and postjudgment
interest because of the pending appeal from the August 2008 order.[2]
¶5 The parties do not dispute that the November order was
entered during the pendency of the appeal from the August order. Generally, a circuit court does not have
jurisdiction to act during a pending appeal.
See Wis. Stat. §§ 808.07 and 808.075. However, §§ 808.07 and 808.075 provide exceptions
to that rule. Whether the circuit court
had authority to enter the November order is a question of law that we review
de novo. See Harvest Savings Bank v. ROI Invests., 228
¶6 We conclude the circuit court did not have jurisdiction to
enter the November order while an appeal was pending from the August
order. The only statutory exception that
¶7 Eschewing an argument based on a statutory exception, Ash
Park relies on Cashin v. Cashin, 2004 WI App 92, ¶¶10-18, 273 Wis. 2d
754, 681 N.W.2d 255, where we applied the rule that “while a written judgment
that is clear on its face is not open to construction, the trial court does
have the authority to construe an ambiguous judgment to effectuate the trial
court’s objective.” Relying on Cashin,
¶8 We first note that Cashin does not address the issue presented here, which is whether the court had jurisdiction to act during a pending appeal. That question turns on whether there is a statutory exception allowing the circuit court to act. No exception is argued here.
¶9 Regardless, we do not agree that the lack of a payment
schedule and deadlines in the August order rendered it ambiguous. The August order specified pre- and postjudgment
interest rates for specific time periods.
It was not ambiguous.[3] The November order added a payment schedule
and deadlines. Because the August order
was not ambiguous, the additions in the November order amounted to a
modification of the August order. Therefore,
the November order’s imposition of a payment schedule and deadlines went beyond
a mere clarification under Cashin. See Cashin, 273
¶10 Finally, we deny
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or mali-ciously injuring another.
2. The party or the party’s attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Because we are reversing the November order based on Alexander & Bishop’s claim that the court lacked jurisdiction, we conclude neither of these circumstances is present here.
By the Court.—Order reversed. Motion for frivolous costs denied.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] In its briefs, Alexander & Bishop also argued the circuit court erred by awarding interest on a judgment requiring specific performance. We addressed whether interest could be awarded on a judgment for specific performance in our decision on the appeal from the August order. See Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71, ¶¶26-31. By letter to this court, Alexander & Bishop has since withdrawn that argument in this appeal.
[3] Under