Herbal Aspect LLC v. Alexander Gish

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 5, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2615 Cir. Ct. No. 2024CV1941

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

HERBAL ASPECT LLC,

PLAINTIFF-APPELLANT,

ALAN ROBINSON,

PLAINTIFF-CO-APPELLANT,

V.

ALEXANDER GISH, MATTHEW NELSON, AND RACHEL CEFALU,

DEFENDANTS-RESPONDENTS.

On consideration of appellate jurisdiction over an order of the circuit
court for Dane County: RHONDA L. LANFORD, Judge. Leave to appeal
granted.

Before Graham, P.J., Blanchard, and Taylor, JJ.
No. 2024AP2615

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. In this opinion we address rules related to this
court’s appellate jurisdiction and how those rules apply in the specific context of
the initial circuit court proceedings regarding a matter headed for arbitration.
Central to our analysis are two established propositions: (1) when a party moves to
stay an action to allow the parties to arbitrate their dispute, this commences a
special proceeding in the circuit court regarding the arbitrability of the dispute,
which is related to but distinct from the underlying action; and (2) the order
disposing of the motion to stay is a final order in that special proceeding, which
may be appealed as of right under WIS. STAT. § 808.03(1) (2023-24).1 See L.G. v.
Aurora Residential Alts., Inc., 2019 WI 79, ¶¶11-19, 23-26, 387 Wis. 2d 724, 929
N.W.2d 590; WIS. STAT. § 788.02. In this case, the respondents moved the circuit
court for a stay to arbitrate, which commenced a special proceeding to address the
motion, and the court granted the motion based on the conclusion that the parties’
dispute is arbitrable. The appellants do not contest that the underlying dispute is
arbitrable.

¶2 Instead, the appellants challenge rulings by the circuit court on two
other motions that the appellants filed on issues other than arbitrability, which
raises the issue of whether this court has jurisdiction to review these two rulings.
We conclude that the challenged rulings are not reviewable through an as-of-right
appeal, because they were not made in the special proceeding regarding
arbitrability, and instead they were nonfinal orders in the underlying action. At

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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the same time, we separately conclude that it is appropriate for this court to grant
leave to appeal by permission concerning the challenged rulings. Accordingly,
this court has jurisdiction over the appeal.2

BACKGROUND

¶3 Alan Robinson commenced this civil action by filing a complaint
naming Alexander Gish, Matthew Nelson, and Rachel Cefalu as defendants. As
we describe in more detail in the discussion below, the underlying dispute
involves the ownership and ability to control a company called Herbal Aspect
LLC. Robinson sought relief on his own behalf and on behalf of Herbal Aspect.
Consistent with Robinson’s allegations regarding who properly controls Herbal
Aspect, the company is listed as a purported co-plaintiff, bringing claims against
Gish, Nelson, and Cefalu.3

¶4 The Gish parties moved the circuit court to stay the proceedings until
the parties could complete arbitration, pursuant to WIS. STAT. § 788.02.4

2
In a separate opinion to be issued later, this court will address the merits of the
substantive issues raised based on the merits briefing that has already been filed in this court.
3
For ease of reference, we use “the Robinson parties” when discussing, in their
capacities as parties to this appeal, both Robinson and Robinson’s co-appellant, which is the party
purporting to act as Herbal Aspect in the circuit court and in this appeal. We use “Herbal Aspect”
or “the company” in referring to the business entity at issue. We refer to the defendants
collectively, in their capacities as parties to proceedings in the circuit court and in this appeal, as
the “Gish parties.”
4
WISCONSIN STAT. § 788.02 (“Stay of action to permit arbitration.”) states:

(continued)

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¶5 After the stay motion was filed, but before the circuit court held a
hearing to address it, the Robinson parties brought the two motions that are at the
heart of this appeal. They moved for a preliminary injunction under WIS. STAT.
§ 813.02(1)(a), seeking to restrain the Gish parties from taking certain actions
relating to the management of company resources and employees. In addition, the
law firm purporting to represent the company filed a motion on behalf of the
company requesting that the court declare that the law firm “was properly retained
by the Company and may appear on behalf of Herbal Aspect in this action.” We
sometimes refer to these two motions brought by the Robinson parties as “the
preliminary motions.” The Gish parties opposed both of the preliminary motions,
arguing in part that the relief they sought was precluded by case law interpreting
WIS. STAT. § 788.02.

¶6 The circuit court granted the motion for a stay under WIS. STAT.
§ 788.02. At the same hearing, the court stated that it was declining to grant either
of the preliminary motions. The court determined that it lacked the authority to
address either of the preliminary motions because both are intertwined with
“substantive matters” that would be decided in arbitration.

If any suit or proceeding be brought upon any issue
referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being
satisfied that the issue involved in such suit or proceeding is
referable to arbitration under such an agreement, shall on
application of one of the parties stay the trial of the action until
such arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in default
in proceeding with such arbitration.

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¶7 The circuit court issued a written order memorializing its oral rulings
(“the stay order”).5 The Robinson parties appealed the stay order.

¶8 After the merits briefs were filed in this court, this court sua sponte
ordered the parties to submit supplemental letter briefs addressing our jurisdiction.
See McConley v. T.C. Visions, Inc., 2016 WI App 74, ¶4, 371 Wis. 2d 658, 885
N.W.2d 816 (per curiam) (“It is the duty of this court, notwithstanding the fact that
no party has raised the issue, to take notice of its jurisdiction and dismiss an appeal
if taken from a nonappealable order.”). Pursuant to an order of this court, the
parties have addressed whether this court has appellate jurisdiction for an appeal
as of right from a final order, and, if it does not, whether this court should grant
the Robinson parties leave to appeal by permission pursuant to WIS. STAT.
§ 808.03(2).

DISCUSSION

¶9 We begin by explaining our conclusion that the Robinson parties are
not permitted to pursue the issues regarding their preliminary motions in this
appeal as a matter of right under WIS. STAT. § 808.03(1), and then we explain why
we grant them leave to appeal.

¶10 This court interprets and applies statutes de novo, without deferring
to circuit court determinations. See L.G., 387 Wis. 2d 724, ¶7. This includes our

5
This was a stay order under WIS. STAT. § 788.02 and not an order to compel arbitration
under WIS. STAT. § 788.03. Because the Robinson parties had already commenced this lawsuit
by the time the Gish parties sought relief through arbitration, the Robinson parties filed a motion
in the circuit court under § 788.02, as opposed to filing a petition in the circuit court to compel
arbitration under § 788.03, which is the available route when no lawsuit is pending. See L.G. v.
Aurora Residential Alts., Inc., 2019 WI 79, ¶¶13, 16, 387 Wis. 2d 724, 929 N.W.2d 590; Payday
Loan Store of Wis. Inc. v. Krueger, 2013 WI App 25, ¶10, 346 Wis. 2d 237, 828 N.W.2d 587.

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No. 2024AP2615

decision as to whether an order is “final” for purposes of WIS. STAT. § 808.03.
See L.G., 387 Wis. 2d 724, ¶7 (citing Admiral Ins. Co. v. Paper Converting
Mach. Co., 2012 WI 30, ¶22, 339 Wis. 2d 291, 811 N.W.2d 351).

I. Appeal as of Right

A. Legal Standards

¶11 The following standards are pertinent to the determination of
whether the rulings on the preliminary motions are appealable as of right.

¶12 “A final judgment or a final order of a circuit court may be appealed
as a matter of right to the court of appeals unless otherwise expressly provided by
law.” WIS. STAT. § 808.03(1). An order is “final” under the terms of § 808.03(1)
if it “disposes of the entire matter in litigation as to one or more of the parties,
whether rendered in an action or special proceeding.”

¶13 “‘An action’” is defined as follows: “‘an ordinary proceeding in a
court of justice by which a party prosecutes another for the enforcement or
protection of a right, the redress or prevention of a wrong, or the punishment of a
public offense.’” State v. Alger, 2015 WI 3, ¶28, 360 Wis. 2d 193, 858 N.W.2d
346 (quoted source omitted).

¶14 “Special proceedings” are defined by reference to actions. A special
proceeding “resolves an issue separate and distinct” from what is sometimes
referred to as an underlying action, although the special proceeding is “‘related’ or
‘connected’” to the underlying action. See L.G., 387 Wis. 2d 724, ¶19 (quoting
and discussing State v. Scott, 2018 WI 74, ¶33, 382 Wis. 2d 476, 914 N.W.2d
141).

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¶15 Determining finality for purposes of appellate jurisdiction has two
parts.6

¶16 The first part is defining the scope of “the entire matter in litigation.”
When there is an action with a connected special proceeding, as here, this part of
the determination turns on whether the order at issue is part of the action or,
instead, is part of the special proceeding. L.G., 387 Wis. 2d 724, ¶¶10-11; see
also Wellens v. Kahl Ins. Agency, Inc., 145 Wis. 2d 66, 69, 426 N.W.2d 41 (Ct.
App. 1988) (per curiam) (determining whether an order resolving a motion for
relief from judgment under WIS. STAT. § 806.07(1) based on excusable neglect
was appealable as of right in part by “decid[ing] which pigeonhole [the] order
issued from—action or special proceeding”).

¶17 The second part is determining whether, in the action or the special
proceeding defined in the first part, the order disposed of the entire matter in
litigation as to at least one of the parties. L.G., 387 Wis. 2d 724, ¶¶10-11; see also
Morway v. Morway, 2025 WI 3, ¶25, 414 Wis. 2d 378, 15 N.W.3d 886 (“A
judgment or order disposes of the entire matter in litigation when the text of that
judgment or order leaves nothing else to be decided as a matter of substantive

6
A note on terminology. In L.G., our supreme court referred to these parts of the finality
analysis as “components.” See L.G., 387 Wis. 2d 724, ¶¶10-11. We avoid using this terminology
to prevent potential confusion over what we interpret to be a different point made by our supreme
court in this context. Specifically, at one point in Morway v. Morway, 2025 WI 3, ¶25, 414
Wis. 2d 378, 15 N.W.3d 886, the court referred to the fact that prior case law regarding finality
had characterized the finality inquiry as having “‘two components’” in a different sense. See id.,
¶20 n.10 (quoting Harder v. Pfitzinger, 2004 WI 102, ¶12, 274 Wis. 2d 324, 682 N.W.2d 398).
The different sense noted in Morway was that prior case law had taken into account the circuit
court’s “intent,” in addition to the text of the order at issue, but that the separate “intent”
“component” of the inquiry was eliminated by the supreme court in Harder. See id. We do not
interpret Morway to have modified or abrogated any relevant point made in L.G. that we discuss
in the text.

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No. 2024AP2615

law.”). This determination “is based on the text of the judgment or order at issue,”
and is not based on “the subsequent actions taken by the circuit court nor the
court’s intent.” See Morway, 414 Wis. 2d 378, ¶¶20, 25.

¶18 Also relevant here is the rule that an appeal from a final order under
WIS. STAT. § 808.03(1) “brings before” this court “all prior nonfinal judgments,
orders and rulings adverse to the appellant and favorable to the respondent made
in the action or proceeding not previously appealed and ruled upon.” WIS. STAT.
RULE 809.10(4).

¶19 Given the legal standards that we have just summarized, we are
presented here with four relevant questions, the first of which is settled.

¶20 Was the circuit court’s order granting a stay for arbitration a final
order in the arbitration special proceeding? The parties do not dispute that the
answer is yes, and we agree. But we explain this point to provide context for the
other three questions.

¶21 Were the circuit court’s rulings on the preliminary motions made in
the special proceeding on arbitrability? We explain below why we conclude that
they were not. The Robinson parties do not argue that these rulings were made in
some other kind of special proceeding not related to arbitrability. Thus, at least as
argued by the parties here, the preliminary rulings were made in the underlying
action.

¶22 Were the preliminary motion rulings final orders made in the action?
We explain below why we conclude that they were not.

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No. 2024AP2615

¶23 Are the rulings nonetheless reviewable under the “brings before”
rule of WIS. STAT. RULE 809.10(4) for nonfinal orders? We explain below why
we conclude that they are not.

B. The Stay Order is Final

¶24 It is undisputed that, under L.G., the circuit court’s decision to grant
a stay was a final order resolving a special proceeding on arbitrability. This is
because that order completely resolved the narrow arbitrability issue presented in
the special proceeding by staying the underlying case while arbitration proceeds,
without the need for later rulings on that topic.

¶25 In L.G., our supreme court addressed the finality, for purposes of
determining appellate jurisdiction, of a circuit court order that denied a
defendant’s motion to stay circuit court proceedings pending arbitration. See L.G.,
387 Wis. 2d 724, ¶¶4, 8.7 Regarding the first part of the finality inquiry, the L.G.
court concluded that a motion to stay an action under WIS. STAT. § 788.02
commences a special proceeding that is separate from, but related to, the
underlying action in which the application is made. See L.G., 387 Wis. 2d 724,
¶¶17-18. Specifically, such motions address the “discrete” issue of arbitrability,
and are “mechanisms” that are “limited to determining whether there is an
enforceable arbitration agreement, and ensuring the parties abide by its terms.”
Id., ¶¶17, 24. “The circuit court’s resolution of the application [for a stay] is

7
The Gish parties here, like the defendant who moved for a stay in L.G., styled their
request to the circuit court for a stay under WIS. STAT. § 788.02 as a “motion” instead of an
“application,” the label used by § 788.02. See L.G., 387 Wis. 2d 724, ¶23 n.10. But, as noted in
L.G., this difference in labeling does not affect the finality analysis. See id.

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entirely self-contained, inasmuch as it simply determines the forum for resolution
of the dispute without addressing the dispute’s merits.” Id.

¶26 Regarding the second part of the finality inquiry, the circuit court
order at issue in L.G. “disposed of the entire matter in controversy between [the
parties] in the WIS. STAT. § 788.02 special proceeding.” L.G., 387 Wis. 2d 724,
¶26. This was because the order denied the defendant’s motion to stay the action
and did “not contemplate any future circuit court action with respect to issues
potentially encompassed by § 788.02.” See L.G., 387 Wis. 2d 724, ¶¶25-26.

¶27 Applying here the reasoning in L.G., the circuit court’s stay order is
a final order because it resolved the Gish parties’ motion for arbitration under WIS.
STAT. § 788.02. The Gish parties’ motion commenced a special proceeding
regarding the arbitrability of the underlying dispute. They alleged, without dispute
by the Robinson parties, that the operating agreement contained an arbitration
clause requiring arbitration of the underlying dispute. As noted above, the court
granted the stay of the underlying dispute. Neither party suggests that the fact that
the court granted the motion to stay, instead of denying it, changes how the
reasoning in L.G. applies here, even though the circuit court in L.G. denied the
stay. This is consistent with language in L.G. that frames one of its conclusions in
terms not specific to granting or denying a motion under § 788.02. See L.G., 387
Wis. 2d 724, ¶26 n.12 (“we conclude that a circuit court order resolving an
application to compel arbitration … is final for the purposes of appeal”). What

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matters here is that, with the court’s granting of the stay, there would be no need
for the court to revisit the arbitrability issue. See id., ¶26.8

¶28 Thus, this court has jurisdiction over a timely, as-of-right appeal
from the stay order under WIS. STAT. § 808.03(1), at least to the extent that it
resolves the issue of arbitrability.

C. The Preliminary Motions Rulings Were Not Part of the Special
Proceeding

¶29 We turn to the issue of whether the circuit court’s rulings on the
preliminary motions are reviewable in an as-of-right appeal of the final order in
the arbitration special proceeding. We explain below why we conclude that each
of the following supports our bottom line that the court’s rulings on the
preliminary motions are not part of the special proceeding on arbitrability: the
nature of the relief sought in the preliminary motions; the grounds for relief stated
in the motions; and the text of the stay order resolving the motions. In taking into
account these particular considerations, we follow the discussion in the case law
addressing the distinction between special proceedings and underlying actions.
See, e.g., L.G., 387 Wis. 2d 724, ¶¶11-19 (discussing the nature of relief sought in
an application for a stay under WIS. STAT. § 788.02 to determine if order denying

8
We note that, while federal court case law interpreting the Federal Arbitration Act can
provide persuasive authority on some issues involving Wisconsin’s arbitration statutes, that is not
the case here, because the federal and Wisconsin statutory schemes vary regarding what is
immediately appealable. See U.S. Bank Nat’l Ass’n v. Klein, 2024 WI App 7, ¶12 n.4, 410
Wis. 2d 598, 3 N.W.3d 726 (“Wisconsin courts, when interpreting the Wisconsin Arbitration Act,
routinely rely on federal cases interpreting the Federal Arbitration Act” because the acts “are
substantively identical.”); but see 9 USCA § 16(a)(1)(A)-(B), (b)(1)-(2) (specifying that denials
of motions to stay for arbitration or compel arbitration may be appealed but that grants of such
motions may not be appealed with a limited exception); WIS. STAT. § 788.15 (allowing an appeal
from various court orders related to arbitration but without addressing stays to arbitrate or orders
compelling arbitration).

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stay was made in a special proceeding); Wellens, 145 Wis. 2d at 69 (concluding
that WIS. STAT. § 806.07 motions based on excusable neglect are part of “the
context of the action which produced the judgment,” relying in part on the text of
§ 806.07(2)). Although we deem the nature and grounds for relief sought by the
preliminary motions, along with the text of the stay order, to be dispositive on this
issue, we caution that we do not mean to suggest that in future cases other relevant
considerations may not arise depending on the nature of the litigation.

¶30 L.G. provides important context in analyzing the preliminary
motions and their resolution. In a special proceeding on arbitrability, a circuit
court does “nothing more than determine whether the parties must arbitrate their
dispute, and then ensure” that the parties do so. See L.G., 387 Wis. 2d 724,
¶¶16-17. The circuit court here was required to dispose of the special proceeding
by “determin[ing] the forum for resolution of the dispute without addressing the
dispute’s merits.” See id., ¶17. Bearing in mind this understanding of the special
proceeding, we address in turn the two preliminary motions and the pertinent text
of the stay order.

Motion for Preliminary Injunction

¶31 The following is additional background regarding the Robinson
parties’ preliminary injunction motion. Their complaint alleged that the Gish
parties purported to remove Robinson from his roles as majority LLC member,
board member, and president of Herbal Aspect through actions that failed to
comply with proper procedures under the company’s operating agreement. Based
on these allegations, the complaint contains nine causes of action against the Gish
parties. This includes a claim for declaratory relief, asking for an order declaring

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in part that Robinson remains the true majority member, and the president of,
Herbal Aspect.

¶32 The Robinson parties brought their motion for an injunction under
WIS. STAT. § 813.02(1)(a).9 The motion sought numerous forms of restraint
relating to the management and control of the company. For example, the
injunction motion sought to restrain the Gish parties from “[t]aking any action as
purported directors” or officers of the company. The motion did not seek
injunctive relief related to the special proceeding on arbitrability. That is, the
Robinson parties hoped to obtain injunctive relief that would not depend on
whether any of the disputes in the underlying action would be decided in
arbitration, or instead remained in the circuit court. And, more broadly, to repeat,

9
WISCONSIN STAT. § 813.02(1)(a) states:

When it appears from a party’s pleading that the party is
entitled to judgment and any part thereof consists in restraining
some act, the commission or continuance of which during the
litigation would injure the party, or when during the litigation it
shall appear that a party is doing or threatens or is about to do, or
is procuring or suffering some act to be done in violation of the
rights of another party and tending to render the judgment
ineffectual, a temporary injunction may be granted to restrain
such act.

Courts have interpreted this language to require that the movant demonstrate the
following:

(1) the movant is likely to suffer irreparable harm if a temporary
injunction is not issued; (2) the movant has no other adequate
remedy at law; (3) a temporary injunction is necessary to
preserve the status quo; and (4) the movant has a reasonable
probability of success on the merits.

See Milwaukee Deputy Sheriffs’ Ass’n v. Milwaukee County, 2016 WI App 56, ¶20, 370
Wis. 2d 644, 883 N.W.2d 154 (citing Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513,
520-21, 259 N.W.2d 310 (1977)).

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the Robinson parties never contested the arbitrability of any of their underlying
claims.

¶33 The grounds for relief in support of the injunction motion depend on
the merits of the Robinson parties’ underlying claims. More specifically, the
Robinson parties’ arguments in the circuit court in favor of injunctive relief largely
rested on language in the operating agreement regarding the proper procedures for
removing members of the company as an LLC. Consistent with the Robinson
parties’ position of not contesting the arbitrability of any particular dispute, they
did not make any argument in favor of an injunction that rested on the arbitration
clause at issue. In sum, the injunction motion bore directly on the merits of the
Robinson parties’ claims in the underlying action, and not at all on the merits of
arbitrability.

¶34 Applying the pertinent language in WIS. STAT. § 808.03(1), along
with related propositions from case law noted above, we conclude that the relief
requested and the grounds for that request in the injunction motion show that it
was not part of the special proceeding on arbitrability. Stated in terms of WIS.
STAT. § 813.02(1)(a) and related case law, the injunction motion sought to
establish that the Robinson parties appear to be “entitled to judgment” or have a
“reasonable probability of success” in the underlying action. See supra note 9. In
the special proceeding, the “judgment” or “success” sought would be an outcome
related to whether the parties would arbitrate their dispute, but the Robinson
parties’ injunction motion took no position on any such outcome.

¶35 The Robinson parties argue that the injunction motion was part of
the special proceeding on arbitrability because, had the circuit court reached the
merits of the motion and granted an injunction, it “would take effect during the

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special … proceedings.” This argument fails for at least the reason that it rests on
the premise that in any such scenario, assuming that the injunctive relief is sought
and granted in the underlying action, that relief can be treated as part of the special
proceeding for purposes of WIS. STAT. § 808.03(1) so long as the injunction
remains in effect while the special proceeding is being litigated. The Robinson
parties do not direct us to any legal authority supporting this premise.

¶36 And in any case, the premise is inconsistent with L.G.’s discussion
of special proceedings as being related to, but still in fact separate from,
underlying actions. The fact that relief granted in one may affect the other is to be
expected, given that they are related. But if one were to weigh heavily the
potential for the related proceedings to merely affect each other in some practical
way in determining the boundary between the action and the special proceeding, it
would effectively erase the strong distinction that L.G. draws between underlying
actions and special proceedings. Under the Robinson parties’ logic, contrary to
the discussion in L.G., the fact that special proceedings on arbitrability ultimately
determine who resolves the parties’ underlying dispute renders the underlying
dispute part of the special proceedings. See L.G., 387 Wis. 2d 724, ¶¶11, 15-17
(distinguishing between the role of a circuit court in a special proceeding on
arbitrability to determine the forum for resolving a dispute from the actual
resolution of that dispute, either in court or in arbitration).

¶37 For similar reasons, it does not help the Robinson parties to
characterize their appeal as challenging the circuit court’s decision to issue a stay
without also granting either injunctive relief or the counsel-related relief in the
other preliminary motion. This characterization of their appeal does not advance
the ball for the Robinson parties. Assuming that the Robinson parties had hoped
that the court would render favorable outcomes for them on the preliminary

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motions while the special proceeding on arbitration was still pending, this does not
mean that the rulings on the preliminary motions are a part of the special
proceeding.

Motion for Declaration Regarding Counsel for the Company

¶38 As background to this topic, Meissner Tierney Fisher & Nichols
(“the law firm”) has purported to represent the company as its counsel in pursuing
this lawsuit against the Gish parties. Counsel for the Gish parties filed pleadings
that included a “prefatory objection” to Robinson purporting to authorize Herbal
Aspect to join suit with the law firm as its counsel. As noted, the law firm brought
a motion seeking a declaration from the circuit court that the law firm was
properly authorized to represent the company.

¶39 In its brief to the circuit court supporting that motion, the law firm
argued that the court had the inherent authority to resolve who could properly
retain counsel for the company. The law firm’s brief also asserted that the court
needed to resolve any dispute about representation before “any other aspect of this
case can be addressed,” including the Gish parties’ motion for a stay. But the law
firm took no stance on the arbitrability of any issue. Instead, it directly addressed
the merits of the underlying dispute, grounding its request for relief in arguments
regarding who could properly direct the retention of litigation counsel for the
company. Further, the law firm’s motion regarding retention of counsel requested
relief that the Robinson parties hoped to achieve regardless of whether any of their
claims came to be arbitrated or instead remained in the circuit court. For these
reasons, and again applying the legal standards noted above, we conclude that the
law firm’s motion regarding retention of counsel was not made in the special
proceeding.

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Text of Stay Order

¶40 Although it is unclear, the Robinson parties may intend to make two
arguments related to the text of the stay order. The first possible argument would
involve the fact that the circuit court used the same document both to order the
stay and to decline to grant the preliminary motions. The contention may be that
this supports a conclusion that the rulings on the preliminary motions were made
as part of the final order in the arbitration special proceeding. The second and
related possible argument would be that, because the stay order was based on the
reasoning that the preliminary motions themselves were arbitrable, those rulings
were made in the special proceeding. We now explain why the text of the
document containing the stay order does not support the conclusion that the
preliminary motions are a part of the special proceeding. See L.G., 387 Wis. 2d
724, ¶25 (concluding that circuit court’s resolution of motion to stay for arbitration
“remained within the boundaries of the special proceeding” based on the order’s
text).

¶41 The circuit court’s stay order stated the following:

[The Robinson parties] having filed [the complaint],
a motion purporting to be on behalf of Herbal Aspect LLC
to Declare that [the law firm] May Appear as Counsel for
Herbal Aspect LLC, and [the Robinson parties’] Joint
Motion for Preliminary Injunctive Relief; [the Gish parties]
having filed a Motion to Stay Proceedings and Order
Arbitration; and a hearing having been held …; for the
reasons … stated by the Court on the record:

IT IS HEREBY ORDERED THAT [the Gish
parties’] Motion to Stay Proceedings and Order Arbitration
is granted and the parties are ordered to arbitrate this matter
including [the Robinson parties’] claims and motions
pursuant to the arbitration provision of the Herbal Aspect
LLC Operating Agreement.

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This is a final appealable order for purposes of WIS.
STAT. § 808.03(1)[.]

(Record citations omitted.)10

¶42 In light of the setup in the first paragraph of this text, the only
reasonable interpretation of the reference to the Robinson parties’ “claims” in the
second paragraph is as a reference to their claims against the Gish parties as stated
in the complaint that commenced the underlying action. Similarly, the circuit
court’s reference to the Robinson parties’ “motions” could only reasonably mean
the preliminary motions, which were the only motions brought by the Robinson
parties. Thus, the court lumped together here the Robinson parties’ substantive
claims and preliminary motions as part of the proceedings that would be stayed
and arbitrated. In this sense, the court treated the preliminary motions as parts of
the underlying action that would not be resolved in the circuit court, as a
consequence of its decision in the special proceeding that concluded with the
granting of a stay for arbitration. In sum, the text shows that the court was
addressing matters within the action and resolving the special proceeding on
arbitrability.

¶43 L.G. makes clear that a single written document issued by a circuit
court can contain what are, for purposes of WIS. STAT. § 808.03(1), one or more

10
The circuit court included a finality statement in the stay order. See Morway, 414
Wis. 2d 378, ¶25 (“Circuit courts are required to indicate that their final judgments and orders are
final for purposes of appeal with a finality statement.”). This is consistent with the undisputed
point that the court’s grant of a stay was itself a final order made in the special proceeding. But
the presence of the statement is not dispositive regarding the court’s rulings on the preliminary
motions. It is not dispositive because, finality statement or not, for the reasons explained in the
text, we conclude that the stay order was unambiguous both in making a final decision in the
special proceedings and in not making a final decision in the underlying action. See id., ¶¶23-25
(defects regarding finality statements do not make an unambiguously nonfinal order final).

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No. 2024AP2615

orders in an action and one or more orders in a special proceeding. In L.G., the
circuit court order at issue resolved three motions, but our supreme court
addressed only one as a final order, namely, the circuit court’s resolution of a
special proceeding on arbitrability initiated by a motion for a stay under WIS.
STAT. § 788.02.11 More generally, given the separate-from-but-connected-to
relationship between the underlying actions and special proceedings, a circuit
court presiding over both an action and a related special proceeding will at times
dispose of matters arising from both the action and the related special proceeding.
And we see nothing in § 808.03(1) or L.G. to suggest that, when a circuit court
uses a single written document to do so, it blurs the line between the action and the
special proceeding for purposes of finality. Instead, following the logic of L.G., in
applying § 808.03(1) we are mindful that a single document issued by a court
might, for jurisdictional purposes, contain multiple orders from different types of
circuit court proceedings; that is, a single document styled as an order might
contain at least one order each from both an action and from one or more special
proceedings.

¶44 Turning to the Robinson parties’ possible argument about the circuit
court’s reasoning, this argument is resolved by our discussion above. To repeat,
the Robinson parties may intend to emphasize that the court’s reasoning for

11
As context for our interpretation of L.G., we note that the case involved a final order
that was made in a special proceeding and also at least one order that was not made in the special
proceeding. In L.G., our supreme court noted that the circuit court order at issue in the appeal
also decided an insurer-party’s motion to bifurcate and stay litigation on insurance matters and a
motion for a protective order related to discovery issues. See L.G., 387 Wis. 2d 724, ¶4 n.3. Our
supreme court did not explicitly state that these other motions were made and resolved outside of
the special proceeding on arbitrability, but it is clear that at least the insurance-related motion had
no apparent relationship to the issue of whether the non-insurer parties had agreed to arbitrate the
underlying dispute.

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No. 2024AP2615

declining to grant the preliminary motions was based on the court’s determination
that the motions themselves were arbitrable. The arbitration of disputes that were
raised in an underlying action is, of course, a result of an arbitration order issued
in a special proceeding. But, as we note above, L.G. demonstrates that such an
order does not render those disputes part of the special proceeding and instead it
only determines who will decide the merits of the disputes. See L.G., 387 Wis. 2d
724, ¶¶15, 17 (circuit court in special proceeding on arbitrability “determines the
forum for resolution of the dispute without addressing the dispute’s merits”).

D. The Preliminary Motions Rulings Were Not Final Orders in the
Underlying Action

¶45 Having explained why we conclude that the circuit court’s rulings on
the preliminary motions were not a part of the special proceeding addressing the
arbitration stay motion, we now explain why we conclude that the rulings
regarding the preliminary motions were not final rulings in the underlying action
because the rulings did not dispose of the entire matter being litigated in the action
as to any party.

¶46 As we have already noted, the Robinson parties do not argue in the
alternative that the circuit court’s rulings on the preliminary motions were made in
a special proceeding on a topic other than arbitrability. That is, they do not
contend that either preliminary motion commenced a special proceeding regarding
the following topics: potentially enjoining the Gish parties on a temporary basis
under WIS. STAT. § 813.02(1) on matters relating to control of the company; or
legal representation of one of the parties. In effect, the Robinson parties concede
that, if the preliminary order rulings were not made in a special proceeding on
arbitrability, they were instead made in the underlying action.

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No. 2024AP2615

¶47 Nevertheless, the Robinson parties suggest that these rulings were
final because the circuit court stayed the action and concluded that it could not
grant the preliminary motions. Therefore, the argument proceeds, the court “did
not leave anything [further] to be determined,” meaning that there was nothing
further to be determined in the circuit court either in the special proceeding or the
underlying action. But when the preliminary motions are understood to be part of
the underlying action, it is clear that the court’s rulings on them are not final.
Neither ruling disposed of the entire matter of the Robinson parties’ merits claims
against the Gish parties. See WIS. STAT. § 808.03(1); L.G., 387 Wis. 2d 724, ¶11
(stating that if the motion to stay for arbitration was part of the underlying action,
“then there can be no disposition of the ‘entire matter in litigation’ until the
question of … alleged liability … has been answered”). Instead, the merits claims
are what has been stayed pending arbitration.

¶48 Further, neither of the circuit court’s rulings on the preliminary
motions were what case law refers to as the “last document in the litigation” of the
Robinson parties’ merits claims, from which an appeal from the underlying action
could be taken. See Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶27, 299
Wis. 2d 723, 728 N.W.2d 670 (one factor in determining finality under WIS. STAT.
§ 808.03(1) is “whether the document is final because it is the last document in the
litigation, which is to say that the circuit court did not contemplate a subsequent
document from which an appeal could be taken”); L.G., 387 Wis. 2d 724, ¶26
(order denying stay for arbitration was final in part because it did “not contemplate
any future circuit court action with respect to issues potentially encompassed by
[WIS. STAT. §] 788.02”). Although the court granted an uncontested motion for a
stay of the underlying action to arbitrate the merits of the Robinson parties’
claims, the Wisconsin Arbitration Act retains for circuit courts possible roles in

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No. 2024AP2615

issuing appealable orders following arbitration awards. See WIS. STAT.
§§ 788.09-.11 (describing circuit court authority to confirm, vacate, or modify
arbitration award); WIS. STAT. § 788.12 (An appeal may be taken from an order
confirming, modifying, correcting or vacating an award, or from a judgment
entered upon an award, as from an order or judgment in an action.”). We note
that, even absent one of these particular kinds of motions, a party may seek
dismissal of the underlying action in connection with the case being referred to or
completing arbitration, though we express no view on when granting such relief
would be appropriate. See U.S. Bank Nat’l Ass’n v. Klein, 2024 WI App 7, ¶12
n.5, 410 Wis. 2d 598, 3 N.W.3d 726 (noting, without taking a position on, federal
circuit court split on whether district courts “retain discretion to dismiss actions
after all claims have been referred to arbitration” under federal analog to WIS.
STAT. § 788.02).

E. The Final Order in the Special Proceeding Does Not Bring Up
for Appeal Nonfinal Orders from the Underlying Action

¶49 We now explain why we conclude that, under case law applying
WIS. STAT. RULE 809.10(4), an as-of-right appeal from the circuit court order
granting a stay for arbitration—which is the only final order in this case—does not
bring before this court nonfinal rulings made in the underlying action. This
conclusion means that, at this juncture, the preliminary motion rulings are not
reviewable through an as-of-right appeal.

¶50 As noted, under WIS. STAT. RULE 809.10(4), “[a]n appeal from a
final judgment or final order brings before the court all prior nonfinal judgments,
orders and rulings adverse to the appellant and favorable to the respondent made
in the action or proceeding not previously appealed and ruled upon.” As this court
has explained, however, “[a]n appeal from a final order brings up for review only

22
No. 2024AP2615

non-final orders pertinent to the action or proceeding in which the final order was
entered.” See State v. Heyer, 174 Wis. 2d 164, 168, 496 N.W.2d 779 (Ct. App.
1993) (emphasis added). “Pertinent to” is further clarified to mean that nonfinal
orders, in order to be reviewable under RULE 809.10(4), must be “brought up by
appeal from a final order in the same action or proceeding.” See Heyer, 174
Wis. 2d at 168 n.3 (emphasis in Heyer).

¶51 Also instructive is our supreme court’s discussion in Sanders v.
Estate of Sanders, 2008 WI 63, 310 Wis. 2d 175, 750 N.W.2d 806. In that
opinion, our supreme court noted that “the probate of an estate is a series of
special proceedings, which are terminated with a series of orders that are final
orders for the purposes of an appeal.” Id., ¶26. In this context, the Sanders court
identified a series of issues in a dispute between the estate and the decedent’s
spouse over real estate as a “real estate special proceeding.” See id., ¶¶6, 8-10, 29.
The supreme court identified what it considered to be the circuit court’s final order
in that special proceeding, analyzing the order’s finality. See id., ¶¶38-41. As part
of this discussion, the supreme court observed that the appeal of the final order
made in the real estate special proceedings “had the effect of bringing” up on
appeal the resolution of “all of the real estate issues” addressed by the circuit court
as part of the larger probate of the estate. Id., ¶41 n.5. This was because, under
WIS. STAT. RULE 809.10(4), these issues consisted of “prior nonfinal judgments,
orders, or rulings … in the real estate special proceeding.” See id. (emphasis
added). Although the supreme court did not definitively state that issues raised in
other special proceedings arising out of the same probate case could not be
brought up on appeal under RULE 809.10(4), this approach is heavily implied, and
the approach is consistent with the reasoning in Heyer.

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No. 2024AP2615

¶52 This approach is consistent with WIS. STAT. RULE 809.10(4), which
establishes the reviewability of nonfinal judgments or orders “made in the action
or proceeding” (emphasis added). This language establishes that the applicability
of the rule turns on which specific circuit court proceeding the nonfinal order was
entered in, regardless whether the final order or judgment appealed from arose in
an action or a special proceeding. See State v. Arberry, 2018 WI 7, ¶19, 379 Wis.
2d 254, 905 N.W.2d 832 (definite article “the” is often used to indicate that the
following noun is a specified instance of the noun). Moreover, this approach fits
the logic articulated in L.G. that, for finality purposes, special proceedings are
related to underlying actions, but the special proceedings address issues separate
and distinct from the underlying actions. See L.G., 387 Wis. 2d 724, ¶19. In
short, for a nonfinal order to be reviewable as a matter of right, the order must
have been made in the same action or special proceeding as the final judgment or
order that is appealable as a matter of right.

¶53 In sum on this issue, we conclude that WIS. STAT. § 808.03(1) does
not give this court jurisdiction over an appeal of the circuit court’s rulings on the
preliminary motions in the underlying action. See L.G., 387 Wis. 2d 724, ¶9
(court of appeals “‘lacks jurisdiction over an appeal [as of right] brought from a
nonfinal judgment or order’” (quoting McConley, 371 Wis. 2d 658, ¶3) (alteration
in L.G.)).

¶54 But this lack of jurisdiction is not dispositive here because, as we
now discuss, we asked the parties to address whether this court should acquire
jurisdiction over the appeal through WIS. STAT. § 808.03(2).

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No. 2024AP2615

II. Leave to Appeal by Permission

¶55 Before we explain why we grant leave to appeal by permission the
preliminary motion rulings, we address the fact that the Robinson parties have not
timely sought leave to appeal those rulings. Instead, consistent with their
arguments regarding WIS. STAT. § 808.03(1), addressed above, they filed only an
appeal of the stay order on an as-of-right basis, well after the deadline to seek
leave to appeal under § 808.03(2). See WIS. STAT. RULE 809.50(1) (“A person
shall seek leave of [this] court to appeal a judgment or order not appealable as of
right under [§] 808.03(1) … within 14 days after the entry of the judgment or
order.”). Likewise, if one construes the Robinson parties’ letter briefs as a request
for permission to appeal nonfinal orders, there is no dispute that their request is
late.

¶56 This is not necessarily the end of the line for an appeal of these
issues now, however, because this court may, “upon its own motion or upon good
cause shown by motion,” “enlarge … the time prescribed by the[] rules [in WIS.
STAT. ch. 809] … for doing any act, or waive or permit an act to be done after the
expiration of the prescribed time.” WIS. STAT. RULE 809.82(2)(a).

¶57 We conclude under all of the circumstances that there is good cause
to waive the lack of timeliness. Neither the Robinson parties, nor the Gish parties,
identified an issue related to appellate jurisdiction before this court identified the
issue sua sponte, after the parties had fully briefed the case on the merits.

¶58 The Gish parties might intend to argue that the Robinson parties’
failure to comply with the deadline to seek leave to appeal deprives this court of
jurisdiction over any such appeal, and to suggest that this court lacks authority to
exercise its power to excuse compliance with the deadline under these

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No. 2024AP2615

circumstances. See WIS. STAT. RULE 809.10(1)(e) (“The filing of a timely notice
of appeal is necessary to give the court jurisdiction over the appeal.”); State v.
Sorenson, 2000 WI 43, ¶16, 234 Wis. 2d 648, 611 N.W.2d 240 (court of appeals
must dismiss appeals over which it has no jurisdiction). To the contrary, however,
our supreme court has stated that the timeliness of a petition for leave to appeal
nonfinal orders presents a “non-jurisdictional” issue, and therefore this court has
the authority to excuse noncompliance. See State v. Polashek, 2002 WI 74, ¶16,
253 Wis. 2d 527, 646 N.W.2d 330; see also WIS. STAT. RULE 809.82(2)(b) (court
may not enlarge “time for filing notice of appeal … of a final judgment in cases
other than those appealed under WIS. STAT. RULES 809.107 and 809.30 (emphasis
added)).

¶59 The Gish parties further argue that it was unreasonable for the
Robinson parties to think that their challenge to the preliminary motion rulings
was reviewable through an as-of-right appeal. As part of this argument, the Gish
parties contend that the Robinson parties should have understood that the relief
they seek is “entirely unrelated” to the only final order in this case, namely, the
final order in the special proceeding on arbitrability. In the alternative, the Gish
parties contend that, even if the Robinson parties were reasonably mistaken about
how to appeal the rulings that they now challenge, their “ignorance of the law
cannot be a defense for failing to meet an appellate deadline.” While it is true that
we reject each of the Robinson parties’ arguments that they are able to pursue their
appeal through WIS. STAT. § 808.03(1), the Gish parties’ points do not alter our
overall view of the circumstances as justifying leave to appeal under § 808.03(2).
As our discussion of the as-of-right appeal issue demonstrates, resolving that issue
requires an application of the principles articulated in L.G. and other cases
regarding § 808.03(1) to a new set of facts.

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No. 2024AP2615

¶60 Turning to the leave issue, on review of the parties’ letter briefing
regarding the criteria in WIS. STAT. § 808.03(2), we conclude that granting leave is
appropriate under the statutory standards.12

¶61 The Gish parties argue that a permissive appeal under WIS. STAT.
§ 808.03(2) cannot be obtained as to the circuit court’s rulings on the Robinson
parties’ preliminary motions, because the rulings do not constitute “a judgment or
order” for purposes of that statute. The argument is that the circuit court did not
deny the motions, but only determined that the court could not rule on them one
way or another. This argument fails for at least the reason that the Gish parties do
not provide legal authority supporting the proposition that a nonfinal order must be
labeled as a “denial” in order for this court to grant leave to appeal under the
criteria listed in § 808.03(2)(a)-(c). Further, we reject the explicit premise of this
argument that the circuit court did not in fact deny the Robinson parties’ motions
under the circumstances here. The court declined, on an indefinite basis, to grant
the requested relief on the grounds that the court lacked the authority to reach the

12
Under WIS. STAT. § 808.03(2), “[a] judgment or order not appealable as a matter of
right under” § 808.03(1) “may be appealed to the court of appeals in advance of a final judgment
or order upon leave granted by the court.” For this court to grant leave, we must determine that
the appeal of the nonfinal order will do one of the following:

(a) Materially advance the termination of the litigation or clarify
further proceedings in the litigation;

(b) Protect the petitioner from substantial or irreparable injury;
or

(c) Clarify an issue of general importance in the administration
of justice.

§ 808.03(2).

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No. 2024AP2615

merits of the motions and grant them. The Gish parties do not dispute that this
aggrieved the Robinson parties.

¶62 The Gish parties further assert that WIS. STAT. § 808.03(2) cannot
authorize the Robinson parties’ request for leave to appeal because this request
came “well after a final judgment.” See § 808.03(2) (“A judgment or order not
appealable as a matter of right … may be appealed to the court of appeals in
advance of a final judgment or order ….” (emphasis added)). This argument fails
because, for the reasons we have explained above, the Robinson parties seek
review of nonfinal orders that were made in the underlying action, which has not
proceeded to a final judgment or order, in contrast to the special proceeding on
arbitrability, which has.

CONCLUSION

¶63 For all of these reasons, we conclude that this court would lack
jurisdiction to review the rulings on the preliminary motions absent a grant of
leave to appeal, but that this court has jurisdiction over these issues because we
now grant leave to appeal under WIS. STAT. § 808.03(2).

By the Court.—Leave to appeal granted.

Recommended for publication in the official reports.

28