COURT OF APPEALS DECISION DATED AND FILED February 16, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Robert B. Moodie appeals an
order denying his motion to direct
¶2 A minor and his mother were plaintiffs in a birth trauma medical
malpractice action. Attorney Kenneth A.
Stern, of Stern & Associates, a
¶3 Four months later, Moodie moved for an order that Attorneys Terrance
J. Cirocco and Euel W. Kinsey of Stern & Associates be admitted pro hac vice to represent the plaintiffs
in the
¶4 The orders admitting Cirocco and Kinsey pro hac vice provided that the attorneys would be permitted to appear in the Waukesha county action “as long as they associate with [HRM&B] or some other lawyer/Law Firm admitted to practice law in the State of Wisconsin by the Wisconsin Supreme Court.” They associated only with HRM&B.
¶5 The jury returned a defense verdict and neither plaintiff was
awarded damages. With no trial recovery
from which the ward could pay, Moodie moved for an order directing
¶6 At the hearing on remand, the circuit court, the Honorable Ralph M. Ramirez presiding, found that Moodie was attorney of record when the action commenced, when he brought Cirocco and Kinsey in pro hac vice and throughout his service as GAL. The court denied his motion.
¶7 Moodie argues on appeal that the circuit court’s determination that he was both GAL and attorney of record goes against the great weight of the evidence; that its denial of fees was an erroneous exercise of discretion; and that he is entitled to reasonable GAL fees either under Wis. Stat. § 757.48(1)(b) or as a necessary operating cost of the court. We disagree.
¶8 If a minor’s interests are represented by an attorney of
record, the court shall, except for reasons not relevant here and except upon
good cause stated in the record, appoint that attorney as the guardian ad
litem. Wis.
Stat. § 803.01(3)(a). “The
guardian ad litem shall be allowed reasonable compensation for his or her
services such as is customarily charged by attorneys in this state for
comparable services.” Wis. Stat. § 757.48(1)(b). If the attorney of record also is the GAL, however,
he or she “shall be entitled only to attorney fees and shall receive no
compensation for services as guardian ad litem.”
¶9 Whether Moodie was attorney of record is a finding of
fact. See Guthrie v. WERC, 111
¶10 Kinsey testified at the fact-finding hearing that it was “nice and advantageous” for the plaintiffs “to have local counsel in Waukesha who was familiar with the environment as well as geographically … close to the client so that it would be easier for certain things for him to attend than for us.” He testified that Moodie attended depositions where “it was important to have someone there,” reviewed depositions and provided “a detailed report of … his impressions of those events.” Moodie personally attended some depositions Kinsey took by telephone and later provided Kinsey “with his observations of the witness and what he believed was important in the deposition.”
¶11 Moodie insisted that he was solely the GAL and was not permitted
to make an opening statement or closing argument at trial. Billing statement entries reflect discussions
Moodie had with
¶12 Of the exhibits admitted into evidence, the court deemed “important” the pro hac vice motion, the order granting the motion, and the accompanying cover letter to the court, all submitted four months after the lawsuit was filed. It also found noteworthy the lack of a fee agreement, written or otherwise, between Moodie and the county.
¶13 The court stated that, in contrast to a case in which the party needing the GAL is brought to court by another:
this is a case where a plaintiff came to court and made
certain decisions. Obviously, I’m not
faulting the plaintiffs, the child or the parents, but … the attorneys made a
decision, we’re going to bring this case, we’re going to bring it in
Applying Wis. Stat. §§ 757.48(1)(b) and 803.01(3)(a) to the facts, the court found that the case was commenced with Moodie as local counsel, rendering him attorney of record as well as GAL, and concluded that he “never ceased to be that attorney of record.”
¶14 The evidence may have allowed competing factual
inferences. The circuit court’s findings
that Moodie was both attorney of record and GAL do not go against the great
weight and clear preponderance of the evidence, however. We therefore must sustain them. See Phelps,
319
¶15 Having upheld the circuit court’s findings regarding Moodie’s dual role, we need not address whether compensation might have been warranted under other scenarios.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2009-10 version unless noted.
[2] The
county claims the summons and complaint were “signed by attorneys not
licensed to practice in the State of
In any event, the summons and complaint are not part
of the record on appeal. We are bound by
the record as it comes to us and assume that anything missing supports the
trial court’s ruling. Fiumefreddo
v. McLean, 174
[3] The motion also sought discharge as GAL. The court granted that part of the motion.