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2004AP328 In Re: the Attorney Fees in In Re the Marriage of Elizabeth J. Kohl v. Richard H. Zeitlin

By: dmc-admin//August 15, 2005//

2004AP328 In Re: the Attorney Fees in In Re the Marriage of Elizabeth J. Kohl v. Richard H. Zeitlin

By: dmc-admin//August 15, 2005//

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“While it may be that Kohl’s construction gives the term ‘substitution of attorneys’ its common meaning when the term is read in isolation, her construction is not reasonable when the term is considered in context and in light of the purpose of the paragraph. The manifest purpose of Wis. Stat. sec. 767.23(3)(a) is to provide an expeditious procedure for determining the amount of fees that attorneys in actions affecting the family (as well as guardians ad litem) are owed in the three identified situations. The legislature has evidently made the policy decision that in these three situations there should be a procedure to facilitate the prompt determination and payment of fees owed.

“The result of Kohl’s construction is unreasonable because it ties an attorney’s ability to obtain a judgment for attorney fees owed him or her to events wholly unrelated to any discernible purpose of the statute. Whether a client has another attorney ready to step in as soon as the first attorney withdraws, as opposed to proceeding pro se for a short time, as here, or for the entire action remaining, has no rational relationship to whether the first attorney should have available to him or her this expeditious manner of obtaining a judgment for attorney fees owed. Instead, which of those events occurs is within the client’s control, or, perhaps, within the control of market forces (that is, availability and cost of another attorney); it is certainly not within the control of the withdrawing attorney. In addition, the benefits of this procedure to the withdrawing attorney, as well as any burden or benefit it may have for the client, is not affected by whether another attorney takes over immediately, sometime later, or not at all.”

Further, we hold that defendant has not shown any error in the court’s determination of the amount of fees owed.

Judgment affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Dykman, J. “Kohl asserts that unless we interpret Wis. Stat. sec. 767.23(3)(a) (2003-04) as not permitting the trial court to award attorney fees, that statute violates article I, sec. 5 of the Wisconsin Constitution. I agree with the majority that sec. 767.23(3)(a) permitted the court to award attorney fees to DeWitt Ross and Stevens. But the majority fails to address whether the statute is unconstitutional. I would address the question presented, and conclude that the statute violates article I, sec. 5 of the Wisconsin Constitution.

“To begin with, the majority misinterprets Kohl’s argument. She does not argue that the statute would be constitutional if attorney fees could only be awarded if there was a substitution of attorneys. Nor do I agree with the majority that Kohl has not developed her argument. Kohl’s argument is not complex: article I, sec. 5 of the Wisconsin Constitution provides: ‘The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy .…’ Kohl asserts that a dispute over attorney fees that leads to a judgment against her is a case at law. That is what the following, easily obtained authority provides. There is little to develop….

“A suit for attorney fees seeks money damages, and asserts a contractual right to those damages. In Dilger v. Estate of McQuade, 158 Wis. 328, 331, 148 N.W. 1085 (1914), the court noted: ‘An action for damages for breach of a contract is triable by jury in the circuit court as a matter of right.’ I conclude that a suit for attorney fees was regarded as “at law” in 1848 because it was a suit on contract or quasi-contract, and because such a suit seeks money damages. Both prongs of the analysis of an asserted article I, sec. 5 right to a jury trial having been met, I would reverse and remand to permit the trial court to empanel a jury to hear Kohl’s defenses to DeWitt, Ross and Stevens’s claim for attorney fees. Since the majority does not do so, though I concur in much of its opinion, I dissent from its refusal to address the issue of Kohl’s right to a jury on Dewitt, Ross and Stevens’s claim for attorney fees.”

Dist IV, Dane County, O’Brien, J., Vergeront, J.

Attorneys:

For Appellant: Richard J. Auerbach, Madison

For Respondent: Scott K. Petersen, Madison

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