*1 Theatres, Inc., Plaintiff-Respondent-Petitioner,
v. Department State Wisconsin, Transportation, Highways, Defendant-Appellant.† Division of
Supreme Court Argued February No. May 30, 82-1387. 1984. Decided 1984.
(Also reported 661.) in 349 N.W.2d pending. Motion for reconsideration not de- † This motion was press. disposition cided at the time the volume went to Its will be reported in later volume. *2 were there plaintiff-respondent-petitioner For Foley & Daly, A. Baker and by Eugene David C. briefs argument by Klits- Marvin Milwaukee, Lardner, and oral ner. by argued defendant-appellant cause was
For the with whom general, Smith, Donald W. assistant attorney gen- Follette, Bronson La on the brief was C. eral. Theatres, Petitioner, CECI, J. Standard
LOUIS J. appeals published (Standard), Inc. from a decision of appeals1 court the cir of which reversed and remanded 32.28, cuit of fees under court’s award sec. county, Timothy L. Stats. The circuit court for Vilas Vocke, Judge, $29,410 Circuit attor awarded Standard ney arising proceeding from a condemnation under 32, appeals ch. and the court of reduced this award to $7,600. prop Because we conclude that the circuit court erly awarded fees under the statute, we reverse appeals. the court of parcel county,
Standard a owned of real estate in Vilas Wisconsin, on which a summer residence for the out-of- state theatre owner was respondent, located. The State Wisconsin, portion condemned land, pursuant a 32, Stats., ch. purpose for widening and relocat- ing Highway 70, which would in highway effect move the nearer to Standard’s residence. pay The state offered to Theatres, Dept. Inc. Trans., v. 103, 2dWis. (Ct. App. 1983). N.W.2d 281 damages $36,000 property other sustained Standard, pursuant 32.05(3). to sec. Because Standard compensation felt that offered the state was inade- quate, applied county judge it Vilas circuit assignment county commission condemna- tion, provided 32.05(9), September as sec. of 1978. hearing attorney participated in Standard’s before 29, the condemnation commission on November 1978. See, county 32.08(6), sec. in- Stats. commission $55,000. creased award to state then initiated appeal of the county commission’s award cir- Vilas provided January cuit court, 32.05(10), in sec. 1979. pre- August 13,
A trial was scheduled for *3 July 20, 2, however, July trial date was On set 1979. Standard’s notified the court of the death of year. appraiser, May Standard’s who had died in of that having also advised he was finding appraiser difficulties who would to be able testify August result, at the trial date. As a Standard’s requested postponing counsel pretrial both the conference July 20, trial 1979, stipulated On date. the state to postponement, such a adjourned approxi- to “be until mately November, 1979, the exact date to be set Court.” In a letter from Standard’s counsel which was attached to stipulation, stated that as soon as he appraiser’s had received a new report, he would copy forward a to the state. attorney apparently
Standard’s copy never forwarded a appraiser’s a report new Also, state. neither side asked the court pretrial set new trial or date. July the clerk of courts issued entitled, notice “Failure Comply Prosecute or with Statutes,” Procedure par- mailed such notice to both days twenty provided that unless within notice ties.2 The reads as follows: The notice *4 734
good delay, was shown for further the action cause would dismissed, (Rule) pursuant 805.03, to sec. Stats.3 responded to state with an offer Standard to settle the original $2,500 $36,000, case for an additional over the apparently but the state never notified trial court of respond offer.4 did not Standard also to the notice dismissal, obviously pending it because would have been satisfied appeal. with the dismissal of the state’s Ac- August cordingly, 25, 1980, the circuit court dismissed the case on the court’s own motion. 19, 1981,
On requested March the state a conformed copy of the order May 14, 1981, court’s of dismissal. On 3 Stats., provides: 805.03, Section prosecute comply procedure “805.03 Failure to with stat- any prosecute utes. For failure of claimant to or for failure any party comply governing procedure to with the statutes obey any in court, civil actions or to order of the court in which pending may the action is regard make in such orders to just, including failure as are but not limited to order authorized 804.12(2)(a). Any under operates s. dismissal under this section adjudication as an on the merits in unless the court for order its specifies good dismissal otherwise cause shown recited may order. A dismissal on the merits be set aside court grounds specified on the in and in accordance with A s. 806.07. may dismissal not on the merits be set aside court good cause shown and within a reasonable time.” also, Casey See King v. Corp., 311, 314, Latham & 2dWis. (1964), stated, N.W.2d “It where is considered power well established that a court has the inherent to resort to a dismissal orderly of an action in the interest of administration justice. general judicial control of the before it business is essential it to the court if is to function.” provided, pertinent part, following The letter offer: recently “I have contacted the District and Central Offices of Department Transportation, Highways, at Division of tempt authority dispose obtain of this matter short of con tinuing litigation. ... I would recommend to the District original $36,000 award be allowed stand and to $2,500 state would add an additional to cover costs and disburse ments.”
735 for order and motion motion of notice a filed the state August on the case dismissal court’s trial vacating the support of in alleged its affidavit The state 25, 1980. made only had who party the had been that it motion by its set- its resolution case to attempt to move any state should that “the and to Standard offer tlement to accommodate effort penalized for a sincere [not] his witness.” following the death plaintiff October court on by the circuit heard was motion present to contest was 1981, Standard’s 19, and August 25 vacate The motion motion. the state’s appealed to the then The state was denied. dismissal 14, 1981, and Standard appeals on December court cir- summary affirmance subsequently for moved to vacate. On motion denial of the state’s court’s cuit appeals granted the motion court of 31, 1982, the March unpublished summary decision. in an affirmance good had not shown appeals found that the state court of bringing delay motion to vacate cause for its dismissing See, sec. 806.07 circuit court’s order the case. 165, (2), Stats.; Terry, Rhodes v. 91 Wis. 2d N.W.2d (1979). The court reached this conclusion based upon the state received notice observation when days twenty action would be dismissed prosecute, failure to it took no further action until it re- quested copy 1981, 19, on the dismissal order March subsequently May and 14, moved to vacate 1981. February On Standard’s had filed litigation motion in circuit court for an award of ex- penses pursuant 32.28, to sec. Stats.5 After the court of 32.28, Stats., provides Section as follows: (1) section, ‘litigation “32.28 expenses’ Costs. In this means costs, expenses, including sum of the disbursements rea- attorney, appraisal engineering necessary pre- sonable pare participate anticipated proceedings for or in actual or before commissioners, any condemnation board of assessment or *6 argued issued, the motion was be- appeals was decision telephone judge three-way via fore the circuit court 1931, chapter chapter 275, or laws of as amended under this Law). (Kline “(2) provided Except (3), in sub. costs shall be allowed as any chapter chapter brought under this or ch. 814 action under 1931, (Kline Law). just 275, If the amount of laws of amended compensation by found the court or commissioners of condemnation highest prior jurisdictional offer or the offer exceeds written offer, jurisdictional to the the eondemnee shall be deemed the suc- party 814.02(2). s. cessful under “(3) 814, litiga- In lieu of costs under eh. the court shall award expenses tion to the eondemnee if: “(a) by condemnor; proceeding The is abandoned “(b) The court determines that the condemnor have does not right part property to condemn or all of the in the described jurisdictional necessity taking; offer or there is no for its “(c) judgment plaintiff is for the action under s. 32.10; “(d) The award of the condemnation commission under s. 3205 (9) 32.06(8) jurisdictional or highest exceeds the offer or the prior jurisdictional by written offer to the at offer least $700 party at appeals least and neither the award to the circuit 15% ; “(e) jury approved by verdict as the court under s. 32.05 (11) jurisdictional highest exceeds offer or the written offer prior jurisdictional by ; to the offer at least and at $700 least 15% “(f) appeals The eondemnee an award of the condemnation commission jurisdictional which exceeds the highest offer or the prior written offer jurisdictional by to the offer at $700 least 15%, and at jury by least approved if the verdict as the court under 32.05(10) 32.06(10) s. or exceeds the award the con- by demnation commission at least 15%; $700 and at least “(g) appeals The condemnor the award of the condemnation commission, jury if the approved by verdict as the court under s. 32.05(10) 32.06(10) jurisdictional or exceeds the or offer highest prior jurisdictional written offer by offer at least ; $700 and at least 15% “(h) appeals The eondemnee an award of the condemnation commission jurisdictional which does not exceed the or offer highest prior written jurisdictional offer 15%, offer jury if the approved by verdict as the court 32.05(10) under s. 32.06(10) jurisdictional exceeds the highest offer or the written prior offer jurisdictional offer at least $700 and at least 15%; or During May conference, the 18, 1982. conference ap- for its reimburse the state to court ordered disbursements, praisal but miscellaneous and other deciding The court fees. the award reserved of fees from for affidavits asked Standard’s practicing attorneys qualified similarly in the Milwaukee county area. receiving
After affidavits Standard’s similarly qualified concerning the state letters from July attorneys, judge circuit issued an order on judgment. judge July The circuit followed *7 attorney $29,410.00 awarded Standard fees and litigation expenses. $3,608.87for other appeal The state filed an of the circuit court’s award attorney appeals 5, of fees with of the court on October April opinion 26, 1983, 1982. On the court an issued Dept. Theatres, Trans., Standard Inc. v. 2dWis. of appeals attorney 103. court of reduced the award $7,600 fees to and remanded the case to the circuit court judgment with directions to enter for this amount. petitioned Standard then review, this court for and we granted petition. The issue before us is whether fees by awarded the circuit court were reasonable necessary and under 32.28, sec. Stats. However, to re- issue, solve underlying we find there two are They (1) issues which must be resolved. are: Was Stan- dard’s choice of an 32.28, reasonable under sec. (2) charged and were the Standard’s necessary reasonable and under the statute? “(i) The appeals eondemnee an damages assessment of and
benefits under 10(2) chapter section 275, 1931, laws of (Kline amended Law), if the jury verdict of the awards amount at least $700 greater and at least than the award 15% made city.”
I. ATTORNEY AN CHOICE OF WAS STANDARD’S 32.28, SEC. STATS.? UNDER REASONABLE (1), Stats., provides: 32.28 Section section, expenses’ ‘litigation means the sum “In this including costs, expenses, the able to ceedings reason- disbursements necessary appraisal engineering attorney, prepare participate anticipated pro- for or in actual or commissioners, before the condemnation board any chapter chapter of assessment or court under or (Kline Law).” of 1931, laws as amended Stats., (3), provides part: Section 32.28 “In lieu costs under the court shall award ch. litigation expenses to the condemnee if:
“(d) The award of the condemnation commission under 32.05(9) s. 32.06(8) jurisdictional or exceeds the highest offer or the prior jurisdic- written offer tional offer at least and at $700 least and neither 15% party appeals the award court; to the circuit “(g) appeals condemnor the award of the con- demnation commission, jury if the approved verdict as by the court 32.05(10) under s. 32.06(10) exceeds the jurisdictional highest offer or the prior written offer *8 jurisdictional the by offer at least and at least $700 15%;
“. . .” (Emphasis added.) We observe that in case, the instant although ap- the state pealed the award of the condemnation commission, the case did proceed not ever to Therefore, trial. there never was jury verdict approved by be In es- court. sence, then, the instant case is identical on the one hand to one where neither party appeals the commission’s award. However, no matter which subsection of the stat-
739 at- to determine when applied, the formula utilized ute is is the same: When torney awarded fees shall be jurisdictional offer or subsequent award exceeds by highest and at least written offer at least $700 15%. provides that attor- Initially, the statute we note that ney when for- the court fees “shall” be awarded mula contained in the statute is met. The use attorney term fee manda- “shall” denotes awards are tory. Nicolaou, Bank First Wisconsin Nat. v. 2d 113 Wis. 524, 536, citing (1983), In 390 Matter N.W.2d E.B., (1983). 2d Wis. N.W.2d question
This court has dealt with the of what consti- attorney past tutes reasonable fees in numerous decisions. appears to be the first instance where attorney challenged being client’s choice has been as argues unreasonable. the terms “reasona- and “necessary,” ble” 32.28(1), Stats., utilized in sec. refer to a reasonable choice the client of an represent that client’s interest in the condemnation proceeding. In the hand, case at Standard retained At- torney Eugene Daly of Milwaukee. state, argues hand, the other that reasonable re-
fers attorneys practicing rates of community in the where the property condemned Essentially, is located. argument thrust of the state’s is that the condemnee may only compensated legal what fees the con- demnee would have incurred had counsel in the Vilas county area been Therefore, according retained. state, Standard’s choice of an was unreasonable and unnecessary, since was not from the community property where the particu- was situated. In lar, challenges the state traveling time billed At- torney Daly and the excess of hourly charge fee over charged by attorneys in county. Vilas dispute case, then, centers around the use of the words “reasonable and necessary attorney fees” in *9 740 acknowledged, has court 32.28, As this
sec.
Stats.
when
this court
addressed
question
to
threshold
term,
statutory
am
is
construing
a statute is whether
402, 406,
N.W.2d
Engler, 80
2d
259
Wis.
biguous. State v.
ambiguous if
statutory
(1977).
term is
A
97
meaning.
Ad
disagree
Kollasch v.
persons
could
its
(1981).
amany,
104
2d
it litigation expenses, including reasonable necessary prepare participate actual or anticipated proceedings, shall be awarded given court in situations. There absolutely language no in the statute referring to the of what limits reason- able or necessary fee, such as the restriction the state urged has concerning the locality of the prop- condemned erty. Also, when we direct our attention to the situations governing when such an award is proper, we find that expenses these are mandated the following formula: When the jury verdict, or condemnation commission
741 by at least $700 offer jurisdictional the award, exceeds percent.6 least 15 and at by the legislature intended the what that believe We necessary and “reasonable the use of words The considered. is this formula when is obvious fees” legislature discour- meant to that the formula indicates jurisdic- inequitably making low age from the condemnor by the limit set lowest allowable tional offers. below percent 15 legislature and upon offers is these $700 limit exceed the condemnor final award. Should ultimately be turns out to which offer an amount and award, the percent the final 15 below at least and $700 indemnify the condemnee condemnor forced is appeal. This the obvious incurred an is legislature. up by intent behind the formula set only language referring that is to the fees themselves they necessary. must reasonable and There is abso- be implying lutely in the that reason- no restriction statute to the area from which must be able refers counsel language clearly Therefore, retained. we find that intention unambiguously and indicates an to award upon making based an offer. the condemnor’s action disagree persons may do not find reasonable We meaning necessary attorney of reasonable and fees. any statutory We also do not find inference lan- guage retaining implies only which from counsel community may property where the condemned located is necessary. deemed upon
When we case, focus the facts of this we note originally the state $36,000 offered Standard con- property. demned The commission awarded Standard $55,000. $19,000 This percent is increase of over the absolutely state’s question offer. There is no the court’s mind that this increase is one for which 6 Acquisition by Benson, Certain Lands 2d Wis. (Ct. App. N.W.2d 184 1981). The difference the award between and the offer tests, must meet both but the two are not cumulative. exactly It fees. an award mandates statute jurisdictional offer inequitable type discourage it drafted sec. when legislature intended 32.28, Stats. statutory in the no indication also
The trial court found “necessary” re- and “reasonable” language terms that the must be retained the fact that counsel ferred to property community located. in which the condemned agreed however, appeals, with the state that The court of *11 statutory imply did that local counsel the terms such fully expected to be must retained if the condemnee be legal compensated arising appeal. from an for its that, not The court noted “Standard has shown competent local counsel was unavailable.” 2d 113 Wis. at 106. reject appeals’ analysis.7 Initially,
We
the court of
we
recognized
note
this court has
that the rule of strict
applied
construction
power
should be
to the condemnor’s
and
power.
Parts,
exercise
Aero Auto
78
Wis. 2d at
This
241.
is
the
power
because
exercise
of eminent domain has been characterized as an “extraor-
7
appeals
The court of
also determined that Standard could have
representation
forty
obtained
contingent
for a
fee
per cent
juris
of the increase in the commission
award over
¡based
offer, apparently
upon
dictional
arrangement
the fee
utilized
State,
the decision of Kluenker v.
109
2dWis.
602,
(Ct.
327
App.
N.W.2d
1982),
which also involved sec.
32.28,
analysis
Stats.
may
While this sort of
have been useful had
challenged
fees in
contingency
this case involved a
fee con
tract, we do not find it relevant when a fixed
is
fee
involved. We
also believe that
consistent
20.06(6) (d),
with SCR
which
provides
lawyer
that a
generally
accept
should
employ
decline to
ment on
contingency
a
capable
fee contract when the client is
paying a reasonable
Also,
fixed fee.
recognized
this court has
contingent
that a
only
fee
guide,
contract is
but not a control on
question
of a reasonable fee. Hutterli v. State Conservation
Comm,.,
Wis. 2d
(1967).
dinary power,” property is taken whose owner to benefit tended Domain sec. Nichols, Eminent against or her will. his 3.213 [3] [4] (rev. 3d ed. 1981). Conversely, statu- those owner, tory such provisions in favor of paid to him or regulate compensation to be Aero Auto her, construction. afforded liberal are to be at 241. Parts, 2d 78 Wis. concerning
Therefore, provision we address the when fees, construing we find that rea- the award of compensation imply only sonable attorneys charging equiv- will allowed those rates charged by alent counsel in the area where the to those contrary property condemned located is to the rule of liberal construction. analysis appeals’
We also note that the court of failed particular into take account the facts of the case. require stated that it “not read did sec. 32.28 to pay expen- state to for Standard’s decision to seek more representation.” sive 2d at Wis. 105. *12 agree appeals 32.28,
We with the court of that sec. Stats., require should not be pay read to the state to for Standard’s expensive decision to seek representa- more tion. expensive Standard did not “seek” more representation. Because of the case, facts of this we find Standard’s choice of counsel to be reasonable. Standard anis out-of-state theatre owner with a summer residence in county. located Vilas When Standard learned that the property was by to be taken state, the it retained its thirty years counsel of represent it in the condemna- proceeding. tion attorney-client An relationship of this duration involves feelings mutual of trust, confidence and only and it is natural that when a arises, case such as this the client first consults its counsel. Because Standard’s experience had proceedings eminent domain in excess of twenty years, only it is natural that he chose find it to be an himself. We case to handle Standard’s its counsel unjust to abandon to force burden obviously has faith years, client be- thirty in whom the long-standing- relationship, to re- in order cause of their property is in the where the condemned tain counsel area keep mind that Standard volun- must located. We also Daly tarily Attorney should it have assumed appeal to been in its There- unsuccessful commission. fore, reject appeals’ interpretation court of we Standard must retain counsel from the area where condemned land is located order to be reimbursed its fees. interpretation statutory find that our
We terms concerning a necessary counsel, reasonable and choice upon the proceeding based nature of the condemnation particular and the case, facts of the is consistent with purpose behind ch. Stats. This court has noted that a statutory may subsection vacuum, not be considered in a but must be considered in reference to statutes address- ing subject the same Parts, matter. Aero Auto 2d 78 Wis. at 239. we policy When consider the behind ch. justly compensate the any condemnee for lands
taken the condemnor the condemnor’s exercise of power of eminent domain, position taken state is unreasonable. When deprived the owner is property against will, his or her it is obvious that owner justly compensated is not property his or her if the owner initially must litigate be forced to in order to obtain the full land, value of the pay and then must for his or her fees from this full value. The attorney fees incurred were, here all, after necessitated by the owner’s attempt get the fair value of the owner’s real estate. Therefore, one must start from the premise that the owner compensated to be for the at- torney fees. In words, other purpose behind the *13 statute is to make the “whole,” owner through compen- property taken of the the value
sating owner attempting to ob- attorney incurred fees for the value. tain reasoning when line used a similar has This attorney under other stat- considering award v. of Watkins case example, in the recent For utes. (1984), 2d 345 N.W.2d LIRC, 117 Wis. proper attorney fees were court noted reasonable Employ- (b) Fair 111.36(3) of the Wisconsin under sec. purposes under the The court reasoned ment Act. making act, of discrimina- include victims discouraging of dis- whole, acts and also include tion denying fees would cir- crimination, victim the act. cumvent purposes contrary of the Act if “It be would rights up person vindicated ends whose have been position economically than when he or worse she ‘whole,’ started. must be In order to make she [the individual] attorney’s Id. to recover fees.” able reasonable at 764.
Although Employment the Wisconsin Fair Act con- purposes tains very which are distinct from ch. sec. challenge 32.28 attempt addresses the condemnee’s jurisdictional By then, the condemnor’s analogy, offer. purpose discourage jurisdic- sec. 32.28 is to low tional offers and to make the condemnee whole when the litigate condemnee is forced to get in order to the full property. value of Similarly, the condemnee cannot whole, be made justly compensated, be if the in- creased award applied must toward which were incurred because of the condemnor’s actions. Accordingly, we hold that fees does not mean that counsel must be retained from the lo- cality where the property condemned is located. It implies a reasonable choice of condemnee, counsel upon based particular facts of the case.
746
II. WERE THE FEES CHARGED BY STANDARD'S ATTORNEY REASONABLE AND NECESSARY
UNDER THE STATUTE?
part
analysis
The second
of our
concerns
whether
charged by Attorney Daly
were reasonable and
necessary,
upon
proceedings
based
we
involved. As
previously,
noted
question
this court has dealt with the
attorney
of what constitutes reasonable
fees in numerous
past
Herro,
In
decisions.
McAndrews
Porter v.
&
Ger
hardt,
179, 184,
(1974),
62 Wis. 2d
214
401
N.W.2d
recognized
court
that a conflict
as to the tests to
exists
applied
determining
what constitutes
recognized
attorney
reasonable
fees.
Herró
decision
question
this court had stated that since the
of what
finding
is a
fact,
fee
ais
of
it will
clearly
upon appeal
be sustained
unless
unreasonable
against
great weight
preponderance
and clear
citing
183,
of
at
Klatt,
Id.
Knoll v.
evidence.
43 Wis.
271,
265,
(1969) ;
2d
Marotz,
168
Estate
N.W.2d 555
99, 103,
(1953). However,
263 Wis.
court will language contrary any challenged appeal Herro, Porter McAndrews & v. Ger withdrawn.” hardt, 2d at 184. 62 Wis. Nicolaou, Bank v. Nat. 113 Wis.
In First Wisconsin
*15
Herró
for determin-
modified the
test
2d
this court
attorney
ing
fees. After
constitutes
what
findings
acknowledging that the trial court’s
and award
given weight
review,
opinion
may
Nicolaou
the
be
following language:
utilized the
part
power
supervisory
the
“As
of
inherent
over
its
practice
law,
may independently
this court
review
the
Id. at
reasonableness of
fee award.”
(citations omitted; emphasis added).
advantageous
We believe that
the trial
is in an
court
position to make a determination
to the reasonable-
as
a
ness of
firm’s
trial
rates. This is because
the
may
aware
of the costs incurred
a firm in man-
aging
legal practice,
asking
capable
its
or is
to be
made aware of them. As this court noted in Tesch v.
Tesch,
320, 335,
(1974).
63 Wis. 2d
Utilizing standard, we note the trial court approved the instant case the fees At- submitted torney Daly. May We note that at the 18 motion hear- ing, the court asked for attorneys affidavits from with Daly’s, Attorney qualifications to affidavits similar had had similar work done and that clients who from accordingly. judge they spe- billed The made had been practice “standard in Milwaukee cific reference following language: repeated County,” the state a similar submit statement as to reasonable- “The State Although judge in Milwaukee?” did not re- ness directly question, spond question to the state’s itself indicates that the state understood the order. court’s proof upon submitting burden prove it the reasonableness of fee when Proceedings Against Marine, questioned, Disciplinary 602, 607, (1978), 2d and we ob- Wis. 264 N.W.2d Attorney Daly serve from the record that submitted a specific charges billed, breakdown his hours similarly qualified well from as affidavits Milwaukee attorneys. merely The state submitted letters from at- torneys throughout Mil- state none county judge waukee area. noted in letter of June *16 directing 29, 1982, Daly granting Mr. to draft an order attorney fees, that the had not state utilized affidavits. judge Apparently, place weight the did not much on the by state, referring letters submitted the Nat. to Ass’n Defense, Concerned v. Vets. Sec. F2d 675 1319 of of (DC 1982).8 Cir judge The trial following referred to the discussion from the opinion: reciting precise attorneys “[Affidavits the fees that with qualifications similar fee-paying have received from clients in comparable provide prevailing community cases rate information. by Recent through fees awarded the courts or settlement to attor neys comparable reputation of experience performing and similar guides work setting are also appropriate useful an Id. rate.” at (footnote omitted). addition, may applicants “In counsel for required specific submit billing to evidence of his or her actual practice during period, the applicant relevant time if in fact has billing practice report.” to (footnote omitted). Id. at 1326 “Casual expended after-the-fact estimates of time on a are case support insufficient attorneys’ to Attorneys award of fees. vary judge noted also
The trial per hour. state, throughout greatly $200 $30 following: noted the court also largely due to the higher are Milwaukee fees in “The overhead. . . . amount of considering Mr. I find that circumstances “Under the did Daly’s in this case as fees that reasonable of work that he qualifications, the amount going type work for this and the rate Milwaukee, charged by City of Bar in the Theatres, requested by Inc. are are necessary paid.” and shall be finding the trial court’s believe We Attorney Daly’s supported reasonableness of the facts of this case. The factors set forth in SCR finding.9 20.12(2) support It court’s also the circuit anticipate making application who con- a fee must maintain temporaneous, complete ac- and standardized time records curately attorney.” reflect the work each Id. at 1327. done provides, pertinent part, SCR 20.12 as follows: legal lawyer may (1) “Fees A services. not enter into an agreement charge clearly illegal or collect an excessive fee. “(2) clearly facts, when, A fee is a review the excessive after lawyer ordinary prudence would be left with a definite and firm conviction that the fee in excess of a reasonable fee. guides determining Factors to be considered as the reasonable- following: ness of a fee include the “(a) required, novelty difficulty The time and labor questions perform requisite legal involved and the skill properly. service “(b) likelihood, apparent client, accept- if particular ance employment preclude employment will other lawyer. “(c) customarily charged The fee locality legal in the for similar services. *17 “(d) The amount involved and the results obtained. “(e) imposed time limitations the client or the cir- cumstances. “(f) length The nature professional and relationship of the with the client. Attorney Daly has kept mind that handled should years represented cases for 24 and has domain eminent years. for 30 challenged particularly total amount has The state by Attorney Daly and allowed the trial time billed necessary fees, namely, and as reasonable court argues amount of the total court hours. The state only Attorney spent by Daly amounts to one full time working day. account, has take into how-
What the state failed to plain language Stats., ever, 32.28, is that of sec. preparation anticipated provides for fees incurred proceedings pro- the commission or This before court. ceeding years began ago. logical It six was the trial Attorney Daly anticipated to conclude that go acting and, thus, the matter to trial as a would re- sponsible attorney, prepared Also, for this event. we greater percentage note that of fees was incurred repeated, because of state’s unsuccessful efforts reduce the party commission’s award.10 The state “(g) experience, lawyer reputation ability or lawyers performing the services. “ (h) contingent.” Whether the fee is fixed or appears It only that Standard incurred hours of 79.2 work totaling $8,625, through the time of the commissioners’ award of $55,000. Daly’s affidavit indicates further hours were 54.25 through preparation incurred court, for trial before trial totaling $6,265, including appraiser, conferences with the etc. hours, $8,235, Daly’s through attempt billed at were incurred 54.9 to contest vacate, the state’s through research, motion prepara tion, participation. Finally, hours, an additional 104.5 $14,520,were incurred appeal because of the state’s of the trial court’s denial of the only motion to Ultimately, vacate. 79.2 hours necessary were proceed point of the commission’saward. An additional 253.65 hours were incurred because state’s appeal, approved the trial court in the amount of 213 hours. any event, In if we figure utilize the accepted by 213-hour the trial court, that approximately necessary 2.7 times hours to take through the matter commission, because of the state’s efforts to reduce the commission’saward. *18 appealed Also, the commission’saward. the state pending respond notice of a to to the court’s
failed prosecution, and, for lack of after the trial dismissal attempt case, court had dismissed the the state did not reopen matter until almost nine months later. to directly responsible Therefore, the state is for those by additional fees incurred Standard. proper deference, accord the trial court the
When we although spent we find that the actual time in court Daly Attorney may prepara- minimal, been have tory years spanning time over the course six proceeding spent Also, was substantial. hours Daly “necessary” spent they attempt- were in that were ing $55,000 to maintain his client’s award from the repeated attempts commission and block to the state’s to undermine this award. throughout
Also, because the state’s actions especially scenario, entire we feel that the inis an state poor position by arguing dispute the reasonableness of the fees spent by that the time Standard’s necessary. repeatedly was not The state has referred “inactivity” Attorney following request Daly, his adjournment for the of the trial date. party appeal; state is therefore, that initiated the it responsibility is the state’s to be certain that the case prosecuted. Further, we note that the state offered to settle case with $2,500 Standard over initial offer of its $36,000, $38,500, or for after Standard had obtained $55,000 award of from the commission. do not find We good-faith part that this offer indicated a effort dispute light of the state to resolve this of the sub- stantial increase made the commission over the state’s initial offer. Also, we observe that the effort state’s challenge Attorney necessity the reasonableness and Daly’s throughout fees was in the form of letters from the state. None of these letters were Milwaukee attorneys. that this We observe violation a court order, as the state understood the court’s directions. Also, note several of the we letters address *19 question what amount of of time and fees is involved preparation participation hearing' in for and in a before They question the commission. do not even address the protracted appeal of fees and time involved in a fol- lowing hearing totality commission or the of efforts six-year again proceeding. in this involved This does good-faith not part a indicate effort on the of the state attempting in put to forth to the trial court what would necessary constitute reasonable and fees. summary, then,
In we hold that under the facts of case, language 32.28, concerning Stats., of sec. necessary attorney reasonable and fees does not mean that a condemnee must retain locality counsel from the property where the condemned is located in order to re- compensation attorney ceive full of fees. We also hold judge that the trial did not abuse his discretion de- termining attorney that $29,410 fees of constituted attorney fees, finding and the of the trial court will be sustained.
By the Court. —The decision of appeals the court of reversed; judgment of the circuit court af- firmed. BABLITCH,
WILLIAM A. (dissenting). J. A unani- appeals mous court of held attorney’s that fee of $29,410 which the trial court awarded to Standard was not reasonable. independent Based on its review, appeals court of attorney’s determined that a reasonable fee in this $7,600. case was majority of this court reinstates the full a award under statute requires that pay the state to “reasonable fees’’ to prevailing party in a condemnation action. The majority approves as hourly up “reasonable” an fee attorney’s thereby approving a per hour1 total
to $150 for (which amount $29,410 includes sizable fee time2) paid This is must the state. travel despite at- evidence the record various allowed torneys locality where Standard’s outside locality normally practices (which is not the in this case brought) action was indicated where this condemnation litigation type normal for their would hourly approximately $75, rate of to be based on $60 attorney’s depending experience complex- litigation. ity of the charged
The issue not the fees this case is whether Daly (Standard’s attorney) Mr. with are reasonable hourly charged The fees Standard’s were based on per 1978; per rates hour hour $100 $110 $110 $120 1979; 1980; per per $130 hour for hour for $135 $150 *20 1981 and 1982. ap county Travel time between and Milwaukee Vilas was parently charged hourly at the full rate. at The record reveals least three for travel conferences which time was billed and approved by majority hearing the of this court. At a two hour October, 1981, Daly’s billing held in “10/19, Mr. reads as follows: 20, 1981, Appearance County travel; in Vilas Circuit Court and — trip telephone return Ling; hours, and J. conference 14.0 $2100.” billing 27, The 1978, “11/27, for 29, November 28 and reads: Telephone 28 and preparation Hankins; conference D. for 29/78 — hearing; Bourguignon Eagle conferences D. and Hankins R. at preparation River in preparation hearing; Ling for conference with J. hearing; County hearing attendance at before Commissioners; hours, Condemnation 16.0 $1760”. billing The for October 1979 states: “10/10/79 —Conference appraiser Eagle with Rhinelander; hours, River and 10.0 $1200”. The charges record also reveals $990 for hours pretrial “Attendance April at Although conference” on 1979. the record does not indicate the location conference, of this based on charged possible the amount charge it also included an amount for travel time. majority opinion approves billings, these $6050, which total in full. charged by firm, his normally him or respect to the firms by other charged services for similar to fees or normally practices (Mil- Daly locality Mr. where practicing law cost Unquestionably the waukee). from firm locality locality, and even law differs locality. not The issue does the same firm within to law Daly quality that Mr. rendered. of services concern charged by Mr. the fees Rather, is whether the issue hourly rates of between are based on Daly, $100 which fully and reimburs- $150, are “reasonable” therefore and Stats., meaning 32.28(1), able, of sec. within condemnee, circumstances, to re- under certain entitles pre- necessary “. . . cover anticipated proceed- participate or pare in actual for or ings. . . .” majority fully opinion addresses the issue necessary Daly requested by Mr. were
whether the fees participation in “. . . actual preparation and for the anticipated proceedings .”, . . and I concur with Daly majority’s spent in Mr. conclusion hours proceedings preparation participation in the and necessary, necessary. I Travel also but were time was majority’s question do not address the whether awarding hourly ap- time is the full rate for travel dissenting propriate. op. at n. 2. See court, before this based the record legislative clearly in the words intent as reflected disagree majority’s statute, I conclusion with the the fees awarded to were rationale meaning 32.28(1), “reasonable” within the of sec. Stats. *21 for further I would therefore remand to trial court proceedings. analysis employee purposes for
Assume that a state necessary will trip or she takes business which he expenses seek incurred. reimbursement for the travel em- 20.916(1), Stats., Under sec. officers and state ployees actual, “. . . shall be reimbursed traveling necessary expenses
and incurred in the dis- charge of their with duties accoradnce s. 16.535. added.) (Emphasis 16.535(1) (b) . . .” Section defines as “. . . not extreme “reasonable” or As- excessive.” employee sume further flies first even class though available, only other classes are eats the most expensive meals, stays only expensive at the most employee requests hotels. The then reimbursement meals, for the full flight, the state costs of the and ac- employee commodations. Would that full reim- obtain Obviously bursement for those costs? not. experience assuming
Reason and that, teaches us more moderately priced available, accommodations were employee most the state could be reimbursed for would moderately flight priced arrange- be the cost of more ments, employee meals and If accommodations. state fashion, expensive chooses to travel the state em- ployee only would be to do free so but at his her or own expense. additional majority’s under the hold- ing and case, rationale in this of the above results hypothetical would employee be to allow the state flight, recover the full cost of the first-class meals and (or accommodations at least allow full reimbursement employee’s personal if the use first-class travel long-standing duration). accommodations was of meaning Such results are inconsistent with the commonly “reasonable” as that word used. “Reason- “4.a) able” as extreme, immoderate, defined as: not b) expensive.” excessive not New Dic- World Webster’s tionary legislature (1972). When chose modify “attorney the words fees” with the word “reason- able,” legislative it contrary evinced clear intent that is majority opinion. conclusion of the conclu- majority sion renders the word “reasonable” surplusage. majority’s holding $29,410.00 in attor-
ney’s fees under awarded Standard were reasonable *22 based, part, in on its conclusion 32.28(1), Stats., sec. rep- has retained in this case that the counsel Standard supra thirty years. p. See at resented Standard at- majority that Standard’s p. also notes 750. proceedings experience eminent domain torney in had Supra twenty years. . . .” at 743. The of “. . in excess . meaning analysis concludes, of the majority without then statute, in the that the used “reasonable” as the word attorney charged by were reasonable. Standard’s fees long-standing profes- emphasis on the majority’s Daly Mr. relationship between Standard sional awarded to the fees support conclusion that its Sup- problems future cases. creates were reasonable brought county, action pose one a condemnation county from counsel another retains and the condemnee only once represented before in has the condemnee who hourly range action, type rates and whose another full reimbursement between Would $150-$200. charged attorney under those circum- counsel Suppose hypo- allowed? counsel the above stances be professional relationship with the con- thetical had a years. demnee for three full reimbursement Would attorney point? at fees be allowed majority’s problem
A further created focus long-term professional relationship between Stan- attorney dard and its under arises circumstances only pro- previously which a condemnee has utilized charging fessional services of an moderate hourly If retain rates. the condemnee now wishes to charges per the services of an who $100-$150 proceed- represent hour to him or her ain condemnation ing price reflects because he or she believes that quality legal rendered, will the condemnee services precluded obtaining at- full reimbursement of torney’s charged by at the rates merely enough because he or not been fortunate she has *23 long-term professional relationship with
to establish majority’s attorney? only analysis, that Under the those having expensive legal rep- to the used most individuals (and perhaps any “best” cost is resentation the if indi- quality) may able to full cation be obtain reimburse- attorney’s 32.28(1), Stats., ment fees under sec. at charged by attorney. However, the rates that those persons priced representation, used to lower those or legal may before, who have never utilized services be moderately priced representation restricted to ain con- they willing demnation pay action are unless the dif- ference in moderately fees between priced counsel expensive recognize more counsel. I that the nature and length professional of a relationship attorney between may and client is a factor that in be considered de- termining charged attorney by whether the are 20.12(2) disagree (f). However, reasonable. See SCR I majority merely with the that because Standard its attorney long-standing relationship, have a and because prior experience the had in eminent domain proceedings, automatically it follows that the fees charged Daly by Mr. were “reasonable” within mean- the ing statute, of the fully and therefore reimbursable. determining
In whether fees awarded to Standard were meaning 32.28(1), reasonable within the of sec. Stats., I look would set forth in factors SCR 20.12(2), 20.12(2) and particularly, (c). pro- SCR That “ pertinent vision part: (2) states in ... Factors to be guides determining considered as in the reasonableness following: of a fee (c) include the ... The fee cus- tomarily charged locality legal in the for similar ser- Although vices.” specify SCR 20.12 does not what locality” 20.12(2) meant (c), “the in SCR I believe it is reasonable that conclude under most circum- stances, locality” purposes 20.12(2) (c) “the of SCR locality refers to brought, where the action is or a prox- locality within a reasonable locality, or a similar brought.3 Under action imity site where charged by analysis, reasonableness ordinarily would a condemnee retained charged light similar services judged of fees attorneys I term. locality as have defined might if the con- arise situation a different indicating that can demnee demonstrate circumstances to retain counsel outside was it locality. fact com- include the Such circumstances that, locality, or petent counsel was unavailable 20.12(2) (a), particular consistent with SCR complexity of the firm needed because was required special expertise. it If matter or because *24 circumstances, mitigating such condemnee demonstrates in base an trial could decide its discretion to attorney’s prevailing rates for similar award fees legal locality where nor- services in that mally practices. 20.12(2) (c) interpret
I re- believe that to SCR as ferring charged by attorneys to for similar services fees locality, in the unless demonstrate the condemnee can mitigating circumstances, means of is a more effective ensuring attorney’s fees that the ultimate award of Stats., under within 32.28(1), sec. will “reasonable” be meaning If de- of the statute. reasonable fees are termined, looking charged part, in at fees for similar by attorneys locality, services in the this could discour- age doing a from what in this condemnee Standard did case, going beyond locality namely, retain- far and discourage ing expensive more This also counsel. could which, the situation in New example, a client from subject property York has to a con- Wisconsin that is dissent, “locality” For the remainder means the word this locality locality, brought, or where action is a similar locality proximity within a to the site where brought. action is action, and that client retains counsel demnation Chicago large charges York law who or New firm hourly Finally, in excess of rates could avoid $300. may expensive and travel costs that in- extensive be case, curred, and that were incurred when counsel beyond locality. from far retained dispute I do not that a condemnee is free retain (i.e., locality I out-of-town outside have defined term) counsel if he or she or out-of-state so desires. however, counsel, If the does retain condemnee outside might the trial court well conclude in its discretion that charged fully they if are not reimbursable are higher charged than the fees for similar services in the locality, any if the condemnee cannot demonstrate mitigating justify retaining circumstances outside circumstances, counsel. Under those the state should not required fully subsidize the choice condemnee’s attorney. analysis 20.12(2) (c) This of SCR is consistent with way analyzed some federal Disciplinary courts have (3) (B) Rule 2-106 of the ABA Code of Professional Re- sponsibility, 20.12(2) (c), is identical to SCR other (2) (c). Chrapliwy criteria similar to SCR 20.12 In Inc., v. Uniroyal, (7th 1982), F.2d 760 Cir. the court determining noted attorney’s whether awarded (k) VII, under sec. 706 of Title sec. USC (k) 2000e-5 reasonable, were it was relevant to consider *25 customarily charged the fees for similar services in the locality attorney normally where practices.
the court
customarily charged
also noted that “the fee
for similar
locality
in
services
where services are
rendered
. . .
is
relevant even where the
nor-
mally practices
.
.”
elsewhere.
.
tion the attorney’s reasonableness an out of town 760 billing reason to believe that services if there is rate charge readily or at a lower quality available equal rate were to rendered. area the services were be in the where readily however, party find “If, not counsel a does degree locality with whatever skill in that available required,
may reasonably
party
it
reasonable
attorney.
go
.
Id.
to find an
. .”
elsewhere
Corp.
Thompson,
F.2d 137
Cinema
v.
689
In Avalon
(8th
an award
1982), the court considered whether
Cir.
attorney’s
pursuant
1988 was
USC sec.
in Johnson
court cited factors set forth
reasonable. The
(5th
Georgia Highway Express,
Inc.,
On I fear the practicing tions for the public bar as well as the could negative. effectively is Justice denied when access justice aggrieved party denied because an cannot legal legislature afford the cost of services. The has recognized problem provided instances, in some here, prevailing such party as that a is entitled to be reimbursed for the cost of reasonable fees. Be- majority opinion cause contrary to law and the legislative clear expressed therein, intent fear their I negative conclusion could well response evoke a from the legislature grave which could cause harm to that con- cept.4 legislative history Recent legislature indicates body understanding has practicing little of the economic costs despite law. In protestations, legislature author’s provided privately appointed indigents counsel for could be per reimbursed no more than hour $35 for court time and $26 hour for all other today. time. Those amounts remain law See (4m), sec. 977.08 argued Stats. 1981-82. This author then that
those totally inadequate amounts barely were they in that were sufficient costs, cover overhead if that.