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COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
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May 21, 1998 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
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Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
A party may file with the Supreme Court
a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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Robert
L. Haack,
Plaintiff-Respondent, v. James
Stephens, d/b/a Century 21 Lakewood
Real Estate,
Defendant-Appellant, Century
21 Lakewood Real Estate, and
Mary B. Leader, Defendants. |
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APPEAL from a judgment of the circuit court for Waushara County: Lewis Murach, Judge. Affirmed.
Before Dykman, P.J., Roggensack and Deininger, JJ.
PER CURIAM.[1] James Stephens appeals from a judgment awarding attorney’s fees to Robert Haack incurred while litigating a deed reformation claim against a third party, Mary Leader. The trial court held that Stephens’ negligence forced Haack to litigate his successful claim against Leader. Stephens acknowledges that where the wrongdoing of one party forces another into litigation with a third party, the wrongdoer may be held liable for the other’s attorney fees. See Meas v. Young, 142 Wis.2d 95, 102, 417 N.W.2d 55, 57 (Ct. App. 1987). However, he contends that the rule does not apply unless the wrongful conduct far exceeds his mere negligence in this case. We disagree and therefore affirm.
Haack sold Leader a large parcel of property. Through the negligence of Haack’s realtor, James Stephens, the deed conveyed more property than Haack intended to sell or Leader intended to buy. In subsequent litigation the court ordered the deed reformed and ordered Stephens to pay Haack $3300 in attorney’s fees incurred while litigating the reformation claim.[2]
The trial court properly held Stephens accountable for Haack’s attorney’s fees. “An award of fees may be made by way of damages to a party who, because of the tortious conduct or breach of contract by another, has had to protect his or her interest by bringing or defending an action against or by a third party.” Silverton Enters., Inc. v. General Cas. Co., 143 Wis.2d 661, 675, 422 N.W.2d 154, 159 (Ct. App. 1988). That is precisely what occurred here. Although Meas appears to distinguish between “wrongful conduct” and negligence for the purpose of awarding fees under this rule, that dichotomy is not recognized in other cases that apply it. See Gustavson v. O’Brien, 87 Wis.2d 193, 203, 274 N.W.2d 627, 631-32 (1979); Wisconsin Academy of Sciences, Arts & Letters v. First Wis. Nat’l Bank, 142 Wis.2d 750, 760, 419 N.W.2d 301, 306 (Ct. App. 1987). In both of those cases the court recognized that a party’s mere negligence, as opposed to some greater degree of culpability, entitled the plaintiff to resulting attorney’s fees. Stephens offers no persuasive reasons to exempt licensed real estate agents from the same standard.
By the Court.—Judgment affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.