*1 Tammy Plaintiff-Appellant-Petitioner, Kolupar,
v. Thomp Inc. and Randall Cadillac, Pontiac Wilde Defendants-Respondents. son,
Supreme Court 12, March argument No. 02-1915. Oral 2004. July Decided 2004 WI 58.) (Also reported 683 N.W.2d *4 plaintiff-appellant-petitioner there were For Erspamer, Erspamer by Lisko & and Paul M. briefs by argument Er- Paul M. and oral S.C., Waukesha, spamer. by defendants-respondents there was a brief
For the Sawyer Kathryn Gutenkunst, and Hammes, James W. oral Hammes, LLP,Waukesha, and Cramer, & Multhauf by Kathryn argument S. Gutenkunst. by Mary filed Catherine amicus curiae brief An Judy Stoughton, Office; Law of Fons Fons, on behalf Office, Law of Tomczak Tomczak, Madison, on behalf Jejf The Jeff Olson, on behalf of Madison, Scott LLC; Harness, S.C.; and Edward W. Firm, Law Olson Scott Group. the Consumer Guardian Milwaukee, on behalf of Joy, by De Vonna filed curiae brief was An amicus Big Justice Law Consumer of the Bend, on behalf Connolly, Gwendolyn on Milwaukee, G. Center; and Connolly. Gwendolyn of G. Law Office of the behalf by Furlow filed Jon G. brief was An amicus curiae Friedrich, LLP, Madison, on behalf Best & and Michael by argument Jon G. oral Inc., and Resоrts, of Fairfield Furlow. by Stephen E. Meili filed curiae brief was
An amicus Santiago, of The on behalf Madison, and Marissa University Litigation of Clinic Law Consumer Lautenschlager Cynthia Peg School; Law Wisconsin Hirsch, Depart- of the Wisconsin on behalf Madison, Hagopian, Madison, on Mitchell Justice; ment of Advocacy,Inc. Coalition of The Wisconsin behalf by Ball, D. filed Colleen brief was amicus curiae An Myer, Jeffrey Milwaukee, on behalf R. Wauwatosa, and argument oral Legal Wisconsin, and Action Myer. Jeffrey R.
¶ 1. DAVIDT.PROSSER, J. This is a of a review published appeals.1 decision of the court of In the beginning by Tammy Kolupar this case involved a suit (Wilde) (Kolupar) against Wilde Pontiac Cadillac and employees, Thompson, one of Wilde's Randall over the unsatisfactory Kolupar's underlying sale of an used car. longer Kolupar claims are no issue; at and Wilde judg- settled, and the circuit court entered default against Thompson. primary question ment The in this properly review is whether the circuit court exerсised awarding attorney its discretion in reasonable fees and costs. Kolupar argues
¶ 2.
that the circuit court failed to
apply
proper legal analysis
when it concluded that
appropriate
$15,000
anwas
award for fees and
In
costs.
(1)
expressly
her view,the circuit court:
failed to
consider
approved by
determining
factors
this court for
reason-
(2)
attorney
apply
able
fees;
failed to
the "lodestar"
determining
attorney
method for
reasonable
fees; and
(3)
by considering
erred
the recommendation of a discov-
ery
appointed by
Kolupar
referee
the court.
asserts that
applied
if
appropriate
the court had considered and
substantially higher
law, it would have determined that a
appropriate.
award of
fees ¶ 3. Wilde counters that the circuit court did in
appropriate analysis
fact undertake an
and therefore did
erroneously
not
posits
exercise its discretion. Wilde
that
this court should defer to the circuit court's decision.
primary explanation
4. The circuit court's
the $15,000 award for fees and costs indicates that the
Kolupar pleaded
court believed
an excessive
number
complaint.
claims in her
The court also stated that this
"over-pleading" at the outset caused the case to be
1 Kolupar
Cadillac, Inc.,
v. Wilde Pontiac
175,
App
2003 WI
266 Wis. 2d
award sparse it had available to information mirrored Kolupar properly submitted If had make its decision. supporting number of hours documentation the reasonably expended, explanation court's
then the scrutiny. likely cir- However, the not withstand would type comported explanation and with the cuit court's in the absence of such it had amount of information explana- circuit court's result, As documentation. Kolupar's demonstrate unmet burden to tion reflected By requested contrast, award. the reasonableness although that understood substantial the circuit court why explain it concluded not incurred, it did costs were appropriate. remand therefore We no costs were the issue of to address circuit court issue to the costs.
BACKGROUND Kolupar and sued Wilde 29, 2000, 6. On March County to re- Thompson Circuit Court in Milwaukee damages allegedly in connection with incurred cover According purchase Benz 190E. Mercedes of 1985 Thompson, Kolupar's complaint, new car Wilde's civil Kolupar's accepted manager, Pontiac Sunbird represented exchange that the Mercedes, for the good The trans- condition. mechanical Mercedes was place dealer- at the Wilde in March of 1994 took action ship, formally determined has never but a court Thompson acting agent whether an as of Wilde or "curbing whether he was cars" on his own.
¶ 7. asserted that both Wilde and Th- ompson fraud, were liable for federal and state odom- express implied violations, eter law breach of warranties, and violations of Wisconsin's motor vehicle (1993-94).2 § responded statute, Wis. Stat. 218.01 Wilde complaint by denying any to the involvement in the May Kolupar dropped transaction.3 In the federal permitted damages— odometer claim—which treble summary judgment upon when Wilde moved based two-year the federal claim's statute of limitation. If the gone likely case had trial, the main factual issue Thompson would have been whether acted under apparent authority. Wilde's actual or *7 ¶ 8. There was no trial. In December of 2002, two years Kolupar and one-half after suit, initiated Wilde Kolupar underlying settled the $6,600 claim for plus inception dollars taxable costs. Between the of litigation parties litigated settlement, and this vigorously through suit motions, numerous near- correspondence, headstrong, constant sometimes regarding discovery obstinate behavior matters that ultimately appointment discovery necessitated the of a referee.
2 Subchapter I of Chapter 218 of the Wisconsin Statutes has substantially since been renumbered and revised. See 1999 Wis. 31; Act see also Subchapter Conversion Table for Chapter I of 218, (2001-02). Wisconsin Statutes 3596-98 All references are to the 1993-94 statutes unless otherwise noted.
3 Thompson failed to comply with numerous court dead granted lines and the court Kolupar's motion for judg default against ment him February 25, on 2002. Thompson While did appear by attorney to attorney address the fee May issue in 2002, his involvement is not material to our discussion. Kolupar By parties as- settled, 9. the time approximately $41,000 had accumulated serted that she litigation attorney $11,000 in ex- fees and almost Along penses. $6,600 settlement, Wilde offered with rejected attorney $15,000 fees, but left unresolved issue of Thus, offer. the settlement plus attorney for the $6,600 Since the taxable costs fees. 218.01(9) § Kolupar's underlying encompassed claim provides that a court has claim, and since that section authority including costs, "actual reasonable to award County Judge attorney fee," Milwaukee Circuit Thomas Cooper, attorney appropri- R. concluded that fees were ate in this case. May hearings Judge Cooper on 13 and 10. held
May 2002, in resolve the order to issue testimony from The received fees and costs. court (a judge served as T. former circuit who Frank Crivello referee), Erspamer (Kolupar's discovery Kolupar, Paul (vice-president attorney), and Patrick Donahue Wilde). testimony primarily on The focused establish- escalating litigation ing party's culpability for the each parties. expenses incurred Judge hearing, ¶ Near the conclusion billing Cooper documentation submitted addressеd the Judge Cooper by Kolupar. refuse to Wilde asked that Kolupar filed information because consider the written billing rule. violation of a local information in *8 County that Court Rule 365 directs Circuit Milwaukee support any party in to submit documents a who wishes (other summary judg- for than a motion of a motion dismissal) opposing provide with must counsel ment or days hearing 10 before the no later than the materials Friday, May the invoice until date. Wilde did not receive See 10, 2002, for a Monday, May 13, hearing. 365(a).4 Milwaukee R. Cty. Ct. Wilde, Judge Cooper agreed holding with failed to Kolupar's comport submission with local
rules. As a sanction noncompliance, Judge Cooper declined consider filed material in his untimely decision. 13. At the conclusion of the hearing, Judge in
Cooper $15,000 awarded fees and costs. Judge that he Cooper relying, stated at least on the part, recommendation of Crivello. Crivello testi- fied at hearing that: thirty years law,
In practice [the] as well as fifteen years judge myself[J as a circuit I have never seen a $6,000.00 way grow case barnacles the this one has.
I as special have served master in cases on numer- County ous occasions here in leaving Milwaukee since only the bench. The case that I ever have seen that approached magnitude this was... multi-million defendants, dollar case insurance with fifteen including one going British defendant. So .. through without. every page several pages my thousand I have in possession, I recall three or four instances where I 365(a) County Milwaukee Circuit Court provides: Rule brief, affidavit, If a to file movant desires other or documents in support summary judgment of a motion other than one for or dismissal, supporting such motion materials shall be received by parties represented all counsel of record not counsel and/or deputy assigned record and with the filed court clerk of the (10) judge days (including Saturdays, no later ten than calendar Sundays holidays) specified hearing. before thе time for the 365(a). Cty. Milwaukee R.Ct. *9 myself barring the [Kolupar's attorney]
sanctioned documents, testimony, of or or witnesses. presentation discovery Having examined the case terms of hearings of and over the course three and evidence discovery correspondence, I think that the of months inflated. evidentiary grossly in this case were and issues an automo- two-person transaction for This was ... bile. judgment the offer in and adopt So I would ...
... $6,600.00, apparently which she plaintiff the the award $15,000.00 the from accepted, I would award has is I to the in fees. And that how plaintiff defendant of if I were asked to. dispose this case would mean troubled —and I don't to be offensive I am lawyers, great professional I deal of who[m] have these the much for.... And I don't think case is worth respect 15,000 I fees, frankly. Although know than [$] more than spent a more time that. sides lot both that, they bear the lawyers to do then When decide that decision. onus of after hearing, day 14. On second his argument, Judge explained
testimony Cooper follows: аs decision Discovery case over-tried. question is no this was
There right from over-[pled] It was over—well over-done. was shotgun There get-go complaint. on was [pled] against Wilde everything was where pleading during II. Europe World War conquering short framework, daunting and the that was the So get-go. right discovery mountain created from was A lot plaintiffs pleading. upon based And that was of that I think over-pled, only but it applies as to what are attorney's reasonable during fees the course of *10 a contentious non-cooperative discovery process. said,
Like [counsel] this matter was over-tried. The long it, short it appreciate comes down to—I [the discovery referee's] recommendation. I appro- think it's priate. happen I to concur with it. my
In discretion I believe that there is entitlement attorney's reasonable fees on behalf plaintiff. attorney's Reasonable my $15,000.... fees in mind of .... way There was done, too much work and there should focus, have been a and much earlier in the proceedings. And nobody there is here with сlean hands, so that's the order of the Court. Joint and several. Judge Cooper 15. clarify When asked responded
the issue of costs, he $15,000 that included both fees and costs.
¶ 16. After her motion for reconsideration was Kolupar appealed. denied court, circuit A divided appeals uphold court of voted to the circuit court's Judge Cooper determination. It concluded did not by excluding Kolupar's billing err documentation for untimely filing, by considering did not err the recom- discovery applied mendation of the legal referee, the correct reaching attorney standard its conclusion as to deny fees, and did not Judge taxable costs. In dissent, Ralph Judge Adam Fine Cooper concluded that did not appropriate consider reaching factors in a reason- able fee award, and the court should have Kolupar's billing relied on documentation rather than discovery the recommendation of the referee. 12
DISCUSSION parties to a Rule, the the American Under attorney fees absent of their own the cost lawsuit bear legislative Bd. Buckhannon to shift costs. authorization Virginia Dep't Health & Home, Inc. v. West and Care (2001); Hensley v. Res., 598, 602 532 U.S. Human (1983); Co. Kremers-Urban Eckerhart, 424, 429 U.S. Employers Co., 722, 744, 2d 119 Wis. Ins. v. Am. ("Each (1984) [the party lawsuit, under N.W.2d litiga costs of bear its own Rule], American should tion."). legislature courts has authorized The Wisconsin litigants attorney fees to successful costs and to award 100.18(ll)(b) § e.g., many See, Stat. Wis. contexts. *11 (Wisconsin (2001-02) Deceptive Act Trade Practices (Wisconsin 218.0171(7) (2001-02) § (DTPA));Wis. Stat. (Wisconsin (2001-02) 425.308(1-2) Law); Con Lemon (WCA)). Act sumer complaint Kolupar's claim for included a
¶ 18. 218.01(9)(b), § renum pursuant now to Wis. Stat. relief 218.0163(2). Chapter § 218 of the as Wis. Stat. bered regulates business the automobile Statutes Wisconsin Transp. Transp. Dep't many respects. v. See (1983). 159 92, 330 N.W.2d Comm'n, 80, 2dWis. buyers protect design is "to Wisconsin Part of its (citing v. at 94 State from fraud." Id. motor vehicles (1952)). To Helwig, 301, 54 N.W.2d 262 Wis. buyers" § provides who that "retail end, 218.01 this damages may In pecuniary in court. recover loss suffer case, in this transaction of the relevant 1994, the time 218.01(9)(b) § рrovided follows: as of a because suffering pecuniary loss
Any buyer retail 8., 9., 10., sub.(3)(a)4., 5., 6., by a licensee of violation any the loss in damages for may recover 11., 18. or 31. competent jurisdiction court of together costs, with including attorney reasonable fees. interesting question, though
¶ 19. An one not presented by present case, is whether the word 218.01(9)(b) "may" §in indicates that the decision to attorney or award not award costs fees is discre- tionary. fee-shifting Unlike some statutes, 218.01(9)(b) § does not use the "shall," word which including attorney would indicate costs, fees, must litigants. be awarded to successful However, we note language may that the does not state that the court including attorney costs, award reasonable fees, but provides buyer suffering pecuniary rather that a retail recognized "may damages for a loss violation recover any competent jurisdiction together the loss in court of including attorney costs, with reasonable fees." Wis. 218.01(9)(b) added). § (emphasis Stat. It would cer- tainly judge impose be odd for a circuit to decline to damages plaintiff once it has been determined that the pecuniary suffered loss aas result of a listed violation by the defendant. Given that the statute directs that "may" damages "together the court award costs, with including may reasonable fees," the statute damages dictate that where awarded, are costs— including attorney fees—should follow. Kolupar's recovery In case, this of $6,600—
plus taxable costs—resulted from Wilde's offer of settle- *12 opposed ment, as to a factfinder's determination that statutory entitling met the threshold her to 218.01(9)(b). § recover under The settlement inwas Kolupar's underlying including satisfaction of claims, 218.01(9)(b) §her claim. Even if the award of costs were Judge Cooper at the discretion of court, said here he 14 persuaded controlled and that the statute fees were due. reasonable attorney Attorney A. Fees specific
¶ now turn our attention 21. We by presented question are either this case: Once costs appropriate, required how should the court or found attorney proper a fee award? arrive at Judge Cooper expressly that, in determined reasonable. $15,000 in fees was discretion, his attorney fees, the amount court awards circuit When First of the court. is left to the discretion of award Nicolaou, 524, 537, 2d Bank v. 113 Wis. Nat'l Wisconsin (1983). uphold the circuit court's We 335 N.W.2d erroneously ex the circuit court determination unless Theatres, Inc. v. Standard discretion. ercised its Dep't, Transp. 730, 747, 2d 349 N.W.2d 118 Wis. (1984). give decision the circuit court's deference to We billing with local court is familiar the circuit because likely first-hand have witnessed and will norms Thus, Id. we quality counsel. service rendered of the judgment judgment our do not substitute explanation probe the court's court, but instead circuit logical "employ[ed] rationale if determine the court legal principles appropriate and facts based on Chrysler Corp., Hughes 2d 197 Wis. Motors v. record." (1996) (quoting Shore Vill. 542 N.W.2d148 973, 987, Steinberg, 496 N.W.2d57 191, 204, 2d 174 Wis. wood v. (1993)). legal principles appropriate аre the 23. What determining apply a fee is whether are to
courts appropriate? *13 Supreme ¶ 24. Court Rule 20:1.5 addresses rea- attorney sonable fees. This rule was not drafted as a guide determine for courts to reasonable fees under fee-shifting designed govern statutes; it was to the obligation attorneys charge ethical reasonable Nonetheless, fees. this court has endorsed the factors encourages apply set out in SCR 20:1.5 and courts to they required these factors when are to determine or Shorewood, evaluate fees. See 174 Wis. 2d at cases). (citing Using helps the enumerated factors courts exercise their discretion with a consistent set of legal principles, allowing applicants oppo- and their legal arguments present nents to structure and evi- dence in the same manner. 20:1.5(a) Supreme "[t]he Court Rule lists determining
factors to be considered in the reasonable- ness of a fee." These factors are:
(1) the time required, novelty and labor the and diffi-
сulty questions involved, of the and the requi- skill perform site to legal service properly; (2) likelihood, apparent client, if to the
acceptance particular of the employment pre- will clude other employment by lawyer; (3) customarily the fee charged in locality legal services;
similar (4) the amount obtained; involved and the results (5) imposed the time by limitations the client or
circumstances; (6) the length nature and of the professional relation-
ship client; with the (7) the experience, reputation, ability lawyer lawyers
or
performing
services;
(8) whether the fee
fixed
contingent.
is
or
purport
Although
*14
does not
be
SCR 20:1.5
26.
variety
encompass a
of consider-
exhaustive, its factors
fee-shifting
appropriate
context. Admit-
in the
ations
subjective.
quite
tedly,
Therefore
are often
the factors
significant
open
The
variation.
factors
are
to
the results
only
unitary
single
value as the
lead to a
do not
range
They
justify a
of reasonable
fee.
can
reasonable
calculating them. In the
methods of
fees and different
using
imagine
attorney
might
an
the
abstract, we
range of fees that
the reasonable
factors to determine
charge,
attorney may ethically
and then determine
the
upon
actually charge based
the
that he or she will
fees
perception
market,
for
or his or her
market,
the
attorneys prob-
legal
practical manner,
As a
services.
ably
services,
of their
the market value
determine
employ
mar-
whether that
then
the factors
evaluate
way, conceptually speak-
rate
reasonable. Either
ket
is
ing,
fees;
ferret out unreasonable
factors serve to
analytical precision
they
to lead
command the
do not
figure.
single
to a
reasonable
user
endeavor to determine
Thus,
27.
when courts
using
20:1.5,
factors listed
SCR
fee
reasonable
expected.
extent that discre-
To the
variation is
be
decision-making
tionary
made more uniform
can bе
objective
transparent
providing
framework to
an
is desirable.
factors, such a framework
assess these
quest
for em-
framework
The
for a suitable
ploying
terri-
factors is not uncharted
SCR 20:1.5
ago,
years
tory.
Su-
the United States
than 20
More
methodology
preme
courts
in federal
refined the
Court
fee-shifting
attorney
awarding
statutes.
fees under
for
acknowledged
Hensley,
424. The Court
461 U.S.
govern
ultimately
particular
each
case
the facts of
Noting
legislative
amount of fees. Id. at 429.
that the
history
expressed
of the statute at
issue
that case
approval
adopted by
of 12 factors
the Fifth Circuit
Appeals
Highway Express,
Court of
in Johnson v. Ga.
(5th
1974),5
Inc.,
488 F.2d
717-19
Cir.
id. at
procedure
determining
429-30, the Court outlined a
for
incorpo
of a
amount
reasonable
fee that
objective component
utilizing
rates an
while
Johnson factors. The Court stated: "The most useful
starting point
determining
the amount of a reason
reasonably expended
able fee is the number of hours
on
litigation multiplied by
hourly
a reasonable
rate.
provides
objective
This calculation
an
basis on which to
lawyer's
make an initial estimate of the value of a
*15
Hensley,
services."
volved and result counsel's (10) (11) ability; undesirability; length and case nature and of (12) clients; relationship with the and awards in similar cases. Johnson v. Georgia Highway Express, (5th 714, 488 F.2d 717 1974). Cir. figure many "lodestar" of the twelve so-called —subsumes ought factors, n.9, 461 U.S. at a court Johnson but arriving analysis A not end its after at that number. may adjust figure up this lodestar or down to court any remaining account for Johnson factors not embodied Hensley, calculation. Id. at 434. Since the lodestar [the approach guiding light lodestar has become "the of fee-shifting jurisprudence." Court's] v. Barn Gisbrecht (2002) (citing Burlington hart, 789, 801 v. 535 U.S. (1992)). Dague, 505 U.S. 30. The obvious similarities between factors and the factors enumerated in SCR
Johnson origin 20:1.5 their in the American Bar have Responsibility, Disci Association's Code Professional (1969). Hensley's plinary endorsement of a Rule 2-106 objec analyze an method to the Johnson factors under compelling. tive is It reinforces the circuit framework range an court's discretion to set award within injects and at the same time the exer reasonableness uniformity. objectivity cise of that discretion with aspirations important and desirаble that These are so methodology adopt Hensley's we lodestar direct logic explaining how a its when circuit courts follow determined. fee award has been Judge Cooper's explanation respect ¶ 31. With note dearth of hard case, for the fee award in this we *16 Judge Cooper relied to the court. If had facts'available adopt today, Hensley approach on lodestar that we signifi- discretion to he would have been within his nothing cantly attorney or fee award to reduce "[t]he Hensley party nearly nothing. clear, makes As sup- seeking an of fees should submit evidence award porting claimed. the hours worked and rates Where inadequate,
documentation
hours is
the district court
of
may
accordingly."
reduce the award
¶ 32. nevertheless concluded that attorney appropriate. billing fees were The absence objective documentation meant that he had few facts to rely upon arriving figure Kolupar's at a fees. The testimony Kolupar sought the total reiterated amount approximately $53,000, fees and costs was and the accepted figure Kolupar's court this constituted attorney litigation expenses. actual fees and Without billing invoices, however, the court could not know Kolupar's attorney spent particular much how time on tasks, and therefore could make no assessment as to pursuing whether the hours her exercised in *17 any analysis the claim were reasonable. This rendered approach impractical. a lodestar under respect analysis using ¶ 33. With to an the SCR framework, outside the 20:1.5 factors lodestar which today accepted methodology, Kolupar until has been the Judge Cooper expressly stresses that did not mention array he the factors nor did discuss the full of factors analysis. Judge Cooper's analysis explained is his best by considering type the amount and of the information hearing. The informa- teased out at nature of the faсtor-by-factor analysis tion did not lend itself to a testimony argument because the lion's share of the and myopically focused delays on who was more at fault for certain discovery rather than on what SCR 20:1.5 guide methodology or factors other should the court to appropriate an award.
¶ 34. This
clear if
examine the factors
becomes
we
individually
compare
and
them with the information
hearing. Kolupar
adduced at
had the
burden to
demonstrate the amount of fees submitted were reason
Redevelopment
Mission,
able, Milwaukee Rescue
v.
Inc.
Milwaukee,
472, 494,
2d
Auth.
Wis.
468 N.W.2d
(1991) (citing
Theatres,
Standard
6 By hearing combing the information available from the always transcript, imply hearing we do not mean to that a is necessary proper require or that a exercise of discretion will similarly testimony hearing. on if there is a We courts to focus encourage judiciary develop procedures uniform bar may determining appropriate, fees when which or may hearing. not include a necessary analysis
The above discussion for our is demonstrate the dearth of reliable information available to ideally Kolupar that, court should each
with discuss *18 justify finding Judge factors, of these we cannot that erroneously Cooper Ko- exercised his discretion when lupar provide failed in her to the court with burden anything meaningful to discuss. eight look to in 35. We the factors set out SCR in
20:1.5 relation to the award. (a)(1) Paragraph ¶ 36. lists "the time and labor required, novelty difficulty questions the of the legal requisite perform involved, and the the skill to properly." Kolupar presented services evidence as to the charged, per hour, rate of the but because sanc- $145 present tion, she did not detailed information of what attorney performed. Judge Cooper Thus, activities her could not reach a to the time сonclusion as whether Kolupar's attorney spent reasonable, on the matter was By if accounts, even the rate was reasonable. all legal questions particu- involved were neither novel nor larly required difficult, nor was the level of skill to perform legal these services such that it warranted a large questions required investigation, fee. The factual testimony certainly explained and the some of the Kolupar's attorney's successes and failures of factual inquiries, yet testimony did not establish the expended pursuits. amount time those Without global accounting attorney's spent, of how the time Judge Cooper figure could not arrive at a for the investigative component Kolupar's attorney's bill, figure much less a all his activities.
Judge Cooper Kolupar's billing in the absence of information. presented When the court is reliable with and accurate docu- mentation as to the and nature expended amount of the time on case, it would imprоper rely not be for the court principally on that documentation. (a)(2) Paragraph speaks
¶ 37. to the likelihood, "if apparent acceptance client, that particular employment employment preclude will other lawyer." Kolupar's attorney testified the hear- at ing precluded taking that he was not from on other proceeded. work while this case (a)(3) Paragraph ¶ 38. addresses the fee custom- arily charged locality in the for similar services. Some testimony hourly attorneys touched on the rate other charge, already assuming discussed, but as even hourly figure rate was reasonable, is not useful where the is court without reliable information as to spent.
how the hours claimed were No information was given regarding the overall size of fees expect cases, automobile fraud nor would we there to be *19 typical attorney hourly a fee on an based calcula- rate reasonably required tion work because amount of widely vary would from to case. case (a)(4) Setting paragraph ¶ 39. to one side for the any regarding note moment, we that no evidence time imposed by Kolupar presented limitations paragraph was under
(a)(5). (a)(6) Paragraph permits ¶ 40. the consideration length professional of the and nature of time of the attorney. relationship between and her The testimony suggests attorney-client relationship that the only involving particular extended to matters auto- mobile at issue in this do transaction lawsuit. We not professional see how limited of their nature rela- tionship particular dictate a total for would value all attorney's her services. (a)(7) Paragraph speaks experience,
¶ 41. to the reputation, ability lawyer performing and Kolupar's attorney services. testified he had 18 years experience of and handled in the had similar cases may
past. Again, information the reason- this buttress hourly particular particulаr rate, a con- of ableness a percentage, particular tingent fee, fixed it fails or a but on an to hourly valuation of an overall fee based establish the figure companion a for the amount rate without performed. expended and the of hours tasks (a)(8) Paragraph whether the fee 42. addresses contingent. neither fixed is fixed or Here the fee was hourly contingent, at an rate. but was calculated nor only highlight unhelpfulness of This serves support regarding other factors that information particular hourly rate a in the of such reasonableness specific the hours documentation about absence expended. Judge Cooper's explanation relied almost
entirely on "the amount involved the results ob- (a)(4), pursuant paragraph good for tained" primary case, In the objective SCR 20:1.5 factor on reason. this which the had and reliable information court (a)(4). Hensley paragraph case The length, discusses this "important" factоr at and directs that courts plaintiff "[D]id achieve a level of success that ask: reasonably expended satisfactory the hours makes making In a fee award?" 461 at 434. basis U.S. evaluating "the factor, this the Court stated that most degree at critical factor is the success obtained." Id. plaintiff results, has obtained excellent 436. "Where fully compensatory recover a fee." his should *20 Id. at 435. emphasized Judge Cooper
¶ 44. that the case was question over-pled: "There is no this over-tried Discovery was over—well case was over-tried. over- over-[pled] right get-go from the on the done. It was complaint. shotgun pleading There the where ev- was conquering erything [pled] against was Wilde short of Europe during World War II. So that was the frame- daunting discovery work, and the mountain was cre- right get-go. upon ated from the And this was based plaintiffs pleading." Kolupar Indeed, 45. claims, asserted five one of eventually
which awas federal claim that she aban- passed. long doned because the statute of limitation had This federal claim would have authorized the court to damages. Kolupar award treble When first itemized her damages August figure plus 2000, $10,600 unspecified repair expenses, charges, interest and fi- charges. nancing Absent the amounts which Kolu- par provide specified considering did value,7 not potential damages, for treble claim Wilde faced a at $31,800. this at time for least year April, In 46. over a after instigated litigation, provided she court more specific damage In calculation. this new itemization of damages, sought she to recover for: vehicle,
1. Loss of use of a reliable specifi- motor cally, the 1993 Pontiac Sunbird calculated at a reason- able rental rate for 31-day period]. [a similar vehicle for Judgment
2. against Tammy Kolupar by Waukesha $9,155.67, State principal Bank amount to- gether accruing May, with interest since 1995 at 12% (less per $2,000.00 annum an offset for received Mercedes). Tammy Kolupar upon sale of the 1985 Repair (currently 3. costs tо the Mercedes known continue[s]). $615.76, investigation be but payments and charges paid 4. Loan finance on Mercedes loan. eventually When specified amounts were for these classes they
of damages, infra were note significant. See *21 (be- premiums paid on Mercedes 5. Insurance 06/25/94). period lieved for the to be $384.00 04/28/94 (accruing) Attorneys' 6. fees (accruing). Litigation expenses 7. respect judgment 2, in item 47. to the With
requested annual interest $9,155.67, of with 12% sum May through April 13th, 2001 1995, 1, from calculated (the equals itemization), subtracting $2,000,8 date of the other amount is added to the $15,976.17. When this specific figures, time, $16,975.93. is At this total Kolupar pursued and federal odometer claim its still including only damages, the hard numbers and, treble damages, excluding this the unvalued itemized and (as by per figure multiplied of the treble a factor three claim) brings damages the federal odometer under damages requested $50,927.79. to a minimum of ¶ 48. Even the federal odometer claim was after quite dropped, Kolupar's requested damages were still acknowledged large. In of oncе that June claim, had run on the of limitation federal statute specific to the court an even more she submitted damages, including all her The total of itemization.9 19, 2001, indi- as interest of June recalculation Kolupar sought $20,719.71. also cates She asked approximately in fees and $35,000 for costs. Tammy Kolupar's Thus, and from both quite perspectives, involved the amounts were Wilde's $2,000 represents money The subtracted received Tammy Kolupar upon the sale the 1985 Mercedes. $2,500 mar damages The included loss of actual claimed Sunbird, $16,362.79 the bank ket value the 1993 Pontiac for $2,000, repair judgment interest minus cost plus $615.76 Mercedes, charges, finance payments loan $857.16 premiums on Mercedes. insurance $384 large. figure only $6,600 The settlement she received was *22 damages, only her 32% of lowest itemization of and was April $50,927.79 13% of the itemized in of which parenthetically, requested did not include all her dam- ages. approximately that, note $41,000 We in attorney Kolupar sought, $15,000 fees that amounts to approximately requested. 36% of the fees While dowe bright-line approve simply not a rule which under courts apply a strict ratio of the amount claimed and the amount of fee, settlement to arrive at a reasonable we do significant find it that the fee in this case constituted a higher percentage sought of the total than same ratio the requested damages between the and the settlement. clearly thought ¶ 50. The court the case was over- pled, contributing to the excessive fees. Wilde was presented damages. a $50,000 with claim for over exposure may The extent of Wilde's have caused it to adopt uncompromising respect an attitude with to this hypothesiz- Thus, claim. ing some to extent the court was over-pleading instigated the that the contentious litigation ap- that towas follow. This cause-and-effect pears reasonably any based, and, event, we owe Judge Cooper deference.10 Kolupar's
¶ 51. While has characterized the $6,600 as an excellent result he because was able to persuade accept payment the bank to this in full outstanding principal satisfaction of the and accumu- 10Kolupar takes Judge Cooper's issue with reliance on the discovery referee's recommendation. She that asserts it Judge Cooper discovery erroneous for to the consider referee's opinion. position This the of apparent misstates level reliance Judge Cooper from the record. not did state he was adopting discovery Instead, recommendation referee. Judge Cooper appreciated stated that he his recommendation and happened quite separate to concur. This is from a situation discretionary authority. where a court no abdicates its We see type is loan, her car this not lated interest on 20:1.5(a)(4) is is concerned. This which SCR result with Tammy Kolupar, good not but indeed a conclusion good respеct It a result with this lawsuit. is with to litigation might respect any potential face over she respect her Bank. With with State loan Waukesha against Wilde, results were obtained lawsuit sought, she the court of the amount which fraction perhaps contributed to deemed which excessive protracted litigation. might explained The court well have circuit Hensley depth. dictates, with more But as
its decision give only explanation of a "concise clear court need but its for the fee award when reasonableness reasons *23 requested challenged." [of fee] 437. is 461 U.S. at given the facts of this case Here, $15,000 is sustainable objective provided lack information and the of Accordingly, affirm the we fee award. trial court. B. Costs 218.01(9)(b) §
¶ not We note that does autho- 53. attorney alone; fees it rize a court to award reasonable costs, a and the costs include authorizes court award attorney case, In made it fees. this the court reasonable awarding attorney fees, it $15,000 clear that was costs. At the conclusion of the fee hear- which included ing, exchange following occurred: my In I COURT]: discretion believe that
[THE attorney's reasonable fees on there is entitlement for my plaintiff. attorney's behalf of the Reasonable fees acknowledging knowledgeable court error in on record opinion. adoption This is the same as officer's not wholesale opinion. that $15,000. $15,000 ordering plaintiff I
mind am fee to originally that submit- attorney's for fees and costs judgment. an offer of ted as they has to fees flip
The side is Wilde swallow whatever in- I think that establishes what the statute have. done, way .... There was too much work and tended focus, much earlier in the there should have been a nobody And there is here with clean proceedings. hands, the order of the Court. Joint and so that's several. As to the costs?
[KOLUPAR'S ATTORNEY]: costs, $15,000. Fees and [THE COURT]: added). (Emphasis finding The a formal court made attorney represented fee, then
$15,000 a reasonable but aggregated part award as the court cost effect, In no costs. $15,000 award. court awarded 218.01(9)(b) not state that the 55. Section does attorney may court award costs or fees. Costs attorney linked; fees are the court is authorized to including costs, fee. While award reasonable may in costs or the court retain discretion to award $0 explained. costs, nominal a decision to do so must be may explanation. The court Here, the court offered no party's plus $6,600 have believed the settlement requested Kolupar. taxable costs included costs *24 perhaps court the costs should not be Or the believed required. explanation An Wetherefore awarded at all. is matter of costs to the circuit court. remand the appeals By decision of the court of the Court.—The part in remanded to the affirmed and the cause is is circuit court. participate.
¶ J., did not SYKES, 56. DIANE S. 29 ABRAHAMSON, C.J. ¶ S. 57. SHIRLEY protection 0dissenting). case under a consumer This is protection in this case law. The consumer a consumer by defendants, the the twice: once been victimized has system. by legal time the second by By affirming circuit ¶ fees awarded 58. spirit majority opinion and contravenes the court, the designed keep open that "were letter of the statutes persons do not whose claims doors to the courthouse lawyer prevailing, justify unless, retention of attorneys person her fees."1 can recover his or Judge vigorous in the court of ¶ Fine's dissent advantage taking appeals the defendants criticizes delaying in in car transaction and of Ms. obfuscating gives the flavor of the reader the trial Judge Fine wrote: the case.2 Cadillac, Inc., Randall employee and its Pontiac Wilde eighteen- advantage of an only not took Thompson delayed obfuscated they also year-old woman but Indeed, my from review litigation process. record, they a scorched-earth pursued I believe that justice in Rambo-litigation policy place that has no our system.3 compounded
¶ court auto 60. The circuit failing properly Kolupar by dealer's harm to Ms. awarding its discretion reasonable exercise and costs.4 fees
1
Inc.,
Cadillac,
175,
App
2003 WI
v.
Pontiac
Kolupar Wilde
(Fine, J.,
659,
dissenting).
32,
2d
¶ 62. The shifts the blame to Ms. Kolu- par asserting award, for the low that the record before the circuit court had a "dearth of hard facts."5 And whose fault was that?
¶ 63. The dearth of hard facts was caused Kolupar's circuit court's refusal to admit Ms. documen- support attorney's Why in tation of her fees. weren't these documents admitted? Because the circuit court ruled that the submission was late under local court agree Judge rules. I with Fine that the circuit court incorrectly applied Judge Local Rule 365. As Fine wrote: rule, however, governs "motions";
The it does not apply evidentiary to exhibits offered at or hearings. trials Kolupar fees; attorneys never filed a motion for permits statute them and she demanded them her complaint. Indeed, sponte court sua the trial set the hearing attorney-fees on the matter: 'We'll all meet back here on the date set for trial May court on attorneys' 13th and we'll consider the fee issue."6 applied ¶ if 64. And even this local rule in the (which not) present case it does and the documents days late, were a few the circuit court's sanction of refusing to admit the documents was too harsh and it was an erroneous exercise of discretion. majority opinion
¶ 65. Does the address the issue applicability majority of the local rule? No! The begs by again placing Kolupar, off the blame on Ms. 5 also, 31. See Majority op., majority op., (complain information). ing sparse about
6 Kolupar, (Fine, J., 2d dissеnting). Wis. 28¶ present claiming did not the issue that Ms. *26 preserve petition and therefore did not her for review right.7 appeal as a matter of the issue for presented disagree. petition ¶ for review I The 66. erroneously following "Did the trial court the issue: by failing apply and to consider exercise its discretion legal within the stated standard?" Included the correct question cor- the local rule was is the whether issue required rectly applied. petitioner to set forth The is not every argument petition that she will in for review the in court. make this parties arguments
¶ of the did Moreover, the 67. party record. not focus on the state of the Neither complains lack of documentation of the about Judge pointed attorney's in record. As Fine work parties [that is, one nor circuit out, "No neither lawyer court] disputes Kolupar's he did what said hourly rate was reasonable."8 he did and that his ¶ Rather, the debate whether the circuit 68. briefs reaching its court considered the correct factors Kolupar's position is that the circuit court decision. Ms. legal The did not consider the correct standards. position court considered defendant's is that the circuit majority opinion Why correct factors. doesn't the objection any defendants to the hold that the waived fees in the record and lack of documentation Kolupar's supposed failure to that the local to Ms. assert 7 course, could, Majority majority The exercise op., 31. ¶ apparently unwilling but is its discretion to address the issue 809.62(6). issue, If do so. See Wis. § Stat. it did address result of the case would be different. Kolupar, 2d 34. Wis. improperly applied?9 waiver, If there is this
rule was may proceed to decide the substantive issue. court The circuit court based its award of fees on discovery master, which were not the comments relating supported by any facts to the work of Ms. attorneys. Judge properly questioned Kolupar's Fine appeals' deferral to the the circuit court's and сourt of discovery and the failure of the circuit court to master any relating consider on the record of the factors judge discovery appointed The former to be a fees. appointed master was not to assess the fees. He held no findings hearings, evidence, and made no examined no regard opinion Nevertheless, he offered an on to fees. significantly *27 apparently fees, influenced the cir- which Judge harshly wrote, Fine not cuit court. somewhat but justification, without as follows: Yet, musings by Majority defers to the unfocused judge, part a small appointed both a former oversee case, discovery disputes in this trial of court. any
The trial here never considered on the record court Rather, attorney fees]. it determining [in of the factors judge assessment of the former deferred to the off-hand who, notes, only Majority appointed to be as abdication of its discovery master. The trial court's palpable, as reflected the trаn- responsibility was $15,000 suggested in the record.. . . Wilde script any judge adopted it without figure, and the former analysis beyond his that more was not warranted view 9 Guerard, 250, 85, See State v. Wis. 2d 682 2004 WI 273 Evans, 84, 192, v. 2d 682 State 12; 2004 WI 273 Wis. N.W.2d N.W.2d 784.
33 because, $6,600 Kolupar's acceptance of the offer with settlement, 'just barely the case was above a small claims case.'10 discovery viewing
¶ 70. The master erred in recovery amount of attorney as determinative reasonable recovery The amount of the fees. is not fee-shifting in measure of what the award should be protection cases.11 consumer ¶ 71. Because the circuit court excluded Ms. Kolupar's supporting documents, relied on the master's unsupported proposed $15,000, fee of and failed to majority forth, consider the factors the ously sets it errone- awarding only $15,000 exercised its discretion judgment I fees. would reverse the and remand the cause for reconsideration of fees as well as guided by majority opinion's costs, discussion of fees. Accordingly,
¶ 72. I dissent. ¶ 73. I am authorized to state that Justice ANN joins opinion. WALSH BRADLEY this 10 24, Kolupar, 266 Wis. 2d ¶¶ Castrovinci, 352, 358, Shands v. 2dWis. 340 N.W.2d (1983).