Civil Procedure — attorney fees

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Wisconsin Court of Appeals

Civil

Civil Procedure — attorney fees

In awarding attorney fees, a circuit court may not base its award solely on what the opposing party spent on fees.

“The circuit court found that Sands’ fee request ‘border[ed] on the obscene’ and ‘instantaneously shocked the conscience.’ The court also found that Sands did not provide sufficient information for the court to determine ‘what a reasonable hourly rate is and what a reasonable amount expended would be.’ Thus, the court acknowledged that Sands had not met her burden of proof. However, instead of dismissing Sands’ fee petition or requiring her to provide additional information, the court awarded Sands the exact amount of attorney fees expended by Menard. Sands does not cite any authority allowing a court to relieve a litigant of its burden to prove the reasonableness of a fee request or to award fees based solely on the amount the opposing party spent. Moreover, the circuit court did not even attempt to determine a reasonable hourly rate or the number of hours reasonably expended on the litigation. See Blanchard, 489 U.S. at 94. The court therefore failed to apply the proper legal standards for awarding attorney fees. As a result, the court’s attorney fee award constitutes an erroneous exercise of discretion. See Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811 N.W.2d 756 (court erroneously exercises its discretion by applying an improper legal standard).”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP286 Sands v. Menard, Inc.

Dist. III, Eau Claire County, Lenz, J., Cane, J.

Attorneys: For Appellant: Richie, John P., Eau Claire; Maier, Charles Kenneth, Minneapolis; Shulman, Daniel R., Minneapolis; Boehmke, Julie L., Minneapolis; Johnson, Jeremy L., Minneapolis; For Respondent: Westcott, Michael J., Madison; Modl, Michael J., Madison; Norton, Brian P., Chicago; Finn, Stephanie L., Eau Claire; Freeborn, Michael D., Chicago; Kornak, Michael P., Chicago