00-3544 Purdy v. Cap Gemini American Inc.

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Even though plaintiff’s request for attorneys’ fees is based on a contract, not on a statute, and the request in Hartman v. Winnebago Cty., 216 Wis.2d 419 (1998) was made pursuant to 42 U.S.C. sec. 1988, which specifically provides that sec. 1988 attorneys’ fees are “costs,” we conclude that the proffered distinctions are unavailing.

“As we have noted, the supreme court did not find the use of the word ‘cost’ in the federal statute decisive in Hartman, but focused instead on whether the requested attorneys’ fees were ‘allowed by law’ and whether they represented a ‘necessary’ cost of litigation to which a prevailing party is entitled’ under Wis. Stat. sec. 814.04(2). … After making the same two inquiries regarding the fees Purdy seeks to recover, we arrive at the same result reached by the supreme court in Hartman. …

“Nothing in Wis. Stat. sec. 814.04, or in the supreme court’s analysis of that section in Hartman, suggests that a distinction should be made between a claim for attorneys’ fees based on a contract as opposed to one based on a statute. If a party’s contractual entitlement to actual attorneys’ fees is contested, we see no reason why a dispute regarding a party’s entitlement to fees, or the reasonable amount thereof, cannot be addressed within the context of Wis. Stat. sec. 806.06(4). This could occur, either by a timely objection and judicial resolution of the issue under Wis. Stat. sec. 814.10, or, as the supreme court noted in Hartman, by a timely request to postpone consideration of the fees issue until such time as the dispute may be fully resolved. …

“We conclude, as well, that policy considerations underlying Wis. Stat. sec. 806.06(4) support its application here in preference to the general, six-year limitation for contract actions under Wis. Stat. sec. 893.43. The circuit court that presides over the litigation has the expertise and best opportunity to fully consider the matter of attorneys’ fees requested by a prevailing party.”

The order of the circuit court dismissing plaintiff’s action is therefore affirmed.

Recommended for publication in the official reports.

Dist IV, Dane County, Krueger, J., Deininger, J.

Attorneys:

For Appellant: Kent I. Carnell, Madison; Lisa P. Mays, Madison

For Respondent: James F. Gebhart, Madison