Alden Associates v. Jacki Curry

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP520 Cir. Ct. No. 2018CV278

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ALDEN ASSOCIATES,

PLAINTIFF-COUNTER-DEFENDANT-APPELLANT-CROSS-RESPONDENT,

MARGE ALDEN,

COUNTER-DEFENDANT-APPELLANT-CROSS-RESPONDENT,

V.

JACKI CURRY,

DEFENDANT-COUNTER-CLAIMANT-RESPONDENT-CROSS-APPELLANT,

MAJESTIC WELLNESS SPA,

DEFENDANT,

MAJESTIC FALLS, INC.,

COUNTER-CLAIMANT-RESPONDENT-CROSS-APPELLANT.
No. 2023AP520

APPEAL and CROSS-APPEAL from an order of the circuit court
for Polk County: DANIEL J. TOLAN, Judge. Affirmed in part; reversed in part
and cause remanded with directions.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jacki Curry prevailed on her counterclaims filed in
response to Marge Alden’s suit to recover unpaid rent from Curry, and, pursuant
to statutory fee-shifting provisions for two of those counterclaims, the circuit court
awarded Curry $138,202.18 in attorneys’ fees.1 Alden and Curry appeal and
cross-appeal, respectively, the court’s award of attorneys’ fees on several grounds.
For the reasons that follow, we affirm the court’s attorneys’ fees award against
Alden’s challenges, but we reverse and remand for the court to consider Curry’s
fee request under the proper methodology.

BACKGROUND

¶2 The facts underlying this case can be found in the parties’ previous
appeal: Alden Associates v. Curry (Alden I), No. 2022AP1280, unpublished slip
op. (WI App Dec. 19, 2023), review denied (WI May 21, 2024).2 After a six-day
bench trial, Curry was successful on seven of her eight counterclaims against

1
For ease of reading, we will refer to all the parties in this case as either Alden or Curry.
2
We cite this unpublished opinion simply for background information and the law of the
case. See WIS. STAT. RULE 809.23(3) (2021-22). All references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise noted.

2
No. 2023AP520

Alden for constructive eviction, unjust enrichment, civil theft, conversion, tortious
interference with contractual and prospective contractual relationships, trademark
infringement, and defamation. Id., ¶1. She was unsuccessful on her eighth
counterclaim, which alleged a violation of the landlord/tenant provisions of WIS.
ADMIN. CODE ch. ATCP 134 (Oct. 2021)3 and WIS. STAT. § 100.20. Alden I,
No. 2022AP1280, ¶10. We affirmed the circuit court’s judgment against Alden’s
appellate challenges. Id., ¶1.

¶3 After the circuit court entered its judgment following the bench trial,
Curry submitted her petition for legal fees and costs pursuant to the fee-shifting
provisions of the civil theft statute, WIS. STAT. § 895.446(3)(b), and the trademark
infringement statute, WIS. STAT. § 132.033(2)(d). Curry sought $317,357.54, for
fees incurred by her attorneys, Timothy J. O’Brien and Carol N. Skinner, and
non-taxable costs, arguing that all the fees and costs should be awarded because
the claims share “a common core of facts” and are “interrelated.” Alden opposed
Curry’s fee petition on several bases, including Skinner’s alleged limited
involvement in the case, WIS. STAT. § 814.045(2)(a)’s “3 times” presumption for
attorneys’ fees, and whether O’Brien’s fees should be limited to only those
incurred to prove the civil theft claim.

¶4 The circuit court held two nonevidentiary hearings on the fee issue.
On September 30, 2022, the court heard the parties’ arguments and discussed its
thoughts but reserved ruling on the issue to allow some time to review the parties’
submissions and arguments, including an analysis of the work each of Curry’s
attorneys performed during the trial. On January 27, 2023, the court issued its oral

3
All references to WIS. ADMIN. CODE ch. ATCP 134 are to the October 2021 register.

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No. 2023AP520

ruling, awarding $50,489.80 for the work performed by O’Brien and $87,712.38
for the work performed by Skinner.

¶5 The circuit court arrived at these figures by applying what it called
the lodestar method of valuation. It then reduced that lodestar figure by
forty-three percent in the case of O’Brien4 and fifty percent in the case of Skinner,
representing Curry’s success on three of seven counterclaims pursued by O’Brien
and four of eight counterclaims pursued by Skinner. The court included more than
just the two fee-shifting counterclaims in its calculation based on its finding that
Curry’s counterclaims for civil theft, unjust enrichment, and conversion “are
interrelated and share a common core of facts and are not separate and distinct
under the facts of this case.” It further reasoned that “[g]iven the convoluted
nature of this case and the interrelated causes of action, there is no real way for
[the] court to determine how much time was spent on each claim not only during
the trial, but also outside of the trial.”

¶6 The circuit court also examined each of the WIS. STAT. § 814.045(1)
statutory factors on the record at both hearings. For example, the court found that
“[t]here is no doubt that this case was labor intensive from start to finish”; that “a
lot of the extra hearings were due to the lack of cooperation from Alden”; that
“trademark infringement is a specialized area of law” and “given the multiple
causes of action, there is definitely skill that is required” of the attorneys; that “the
physical number of days … that this case took up” would “[p]resumably … affect
other opportunities for employment for both Skinner and O’Brien”; that affidavits

4
The circuit court also reduced O’Brien’s requested hourly rate from $375 per hour to
$350 per hour because, as the court reasoned, “that’s what the contract in the retainer agreement
was.”

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No. 2023AP520

in the record supported the hourly fees charged by the attorneys as well as their
experience, reputation, and ability; that this case has been pending for a long time
and, at that time, Curry’s “relationships [with O’Brien and Skinner] are now over
five years old”; and “that the case was complex in terms of the counterclaims.”
The court did not, however, address Curry’s request for costs of investigation or
non-taxable court costs. The court entered its written order granting attorneys’
fees on February 8, 2023. Alden appeals, and Curry cross-appeals.

DISCUSSION

¶7 The subject of both the appeal and the cross-appeal is the circuit
court’s award of attorneys’ fees and costs. Curry’s attorneys, as the ones
submitting the fees, bear the burden of demonstrating the reasonableness of those
fees. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶34, 275
Wis. 2d 1, 683 N.W.2d 58. Generally speaking, we defer to the circuit court in
reviewing an award of attorney fees and costs, and we will not overturn its
decision unless there was an erroneous exercise of discretion.5 See Hughes v.
Chrysler Motors Corp., 197 Wis. 2d 973, 987-88, 542 N.W.2d 148 (1996). “A
circuit court erroneously exercises its discretion when it fails to examine the
relevant facts, applies the wrong legal standard, or does not employ a
demonstrated rational process to reach a reasonable conclusion.” Borreson v.
Yunto, 2006 WI App 63, ¶6, 292 Wis. 2d 231, 713 N.W.2d 656. “[T]he exercise

5
Alden uses the phrase “abuse of discretion” throughout her briefing. In 1992, our
supreme court replaced that phrase with “erroneous exercise of discretion.” See, e.g., Shirk v.
Bowling, Inc., 2001 WI 36, ¶9 n.6, 242 Wis. 2d 153, 624 N.W.2d 375. In her reply brief, Alden
acknowledges this fact, even citing Shirk for this proposition. Confusingly, however, she
continues to use the incorrect phrase, even calling it “the more commonly phrased ‘abuse of
discretion’ standard of review.” We reiterate that, in Wisconsin, the phrase “erroneous exercise
of discretion” has replaced any other previously used phrases.

5
No. 2023AP520

of discretion is not the equivalent of unfettered decision-making”; “a discretionary
determination must be the product of a rational mental process by which the facts
of record and law relied upon are stated and are considered together for the
purpose of achieving a reasoned and reasonable determination.” Hartung v.
Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

I. Alden’s Appeal
a. WIS. STAT. § 814.045(2)(a)

¶8 Alden challenges the circuit court’s award of attorneys’ fees to
Curry on two bases. First, Alden argues that the court erred by failing to
“acknowledge the statutory ‘3 times’ presumption under” WIS. STAT.
§ 814.045(2)(a)6 when it awarded Curry $37,712.38 in attorneys’ fees for her
trademark infringement claim under WIS. STAT. § 132.033. A circuit court
considering a request for attorney fees under § 814.045 must consider numerous
factors under subsec. (1) “in determining whether to award attorney fees and in

6
WISCONSIN STAT. § 814.045(2) provides:

(a) In any action in which compensatory damages are
awarded, the court shall presume that reasonable attorney fees do
not exceed 3 times the amount of the compensatory damages
awarded but this presumption may be overcome if the court
determines, after considering the factors set forth in sub. (1), that
a greater amount is reasonable.

(b) In any action in which compensatory damages are not
awarded but injunctive or declaratory relief, rescission or
modification, or specific performance is ordered, reasonable
attorney fees shall be determined according to the factors set
forth in sub. (1).

6
No. 2023AP520

determining whether the attorney fees are reasonable.” 7 Sec. 814.045(1). The
presumption found in para. (2)(a) applies in cases where “compensatory damages
are awarded,” and the court must then “presume that reasonable attorney fees do
not exceed 3 times the amount of compensatory damages awarded.”
Sec. 814.045(2)(a). However, “this presumption may be overcome if the court
determines, after considering the factors set forth in sub. (1), that a greater amount
is reasonable.” Id.

¶9 According to Alden, the circuit court’s “award of $100 in so-called
nominal damages for [Curry’s trademark infringement] claim must be
construed … as an award of compensatory damages that triggers that
presumption”—in other words, given the award of $100 in nominal damages, the
reasonable attorneys’ fees should not exceed $300. Thus, Alden asserts the court
erred by concluding “that [WIS. STAT. § 814.045(2)(a)] did not apply because it
awarded injunctive relief for Curry’s statutory trademark infringement claim—
thus implying that [§ 814.045(2)(b)] applied instead.”

¶10 Curry counters that the circuit court awarded nominal damages, not
compensatory damages, and the two are not the same under the law. Further,

7
The WIS. STAT. § 814.045(1) factors include the following: (1) the time and labor
required by the attorney; (2) the novelty and difficulty of the questions involved in the action;
(3) the skill requisite to perform the legal service properly; (4) the likelihood that the acceptance
of the particular case precluded other employment by the attorney; (5) the fee customarily
charged in the locality for similar legal services; (6) the amount of damages involved in the
action; (7) the results obtained in the action; (8) the time limitations imposed by the client or by
the circumstances of the action; (9) the nature and length of the attorney’s professional
relationship with his or her client; (10) the experience, reputation, and ability of the attorney;
(11) whether the fee is fixed or contingent; (12) the complexity of the case; (13) awards of costs
and fees in similar cases; (14) the legitimacy or strength of any defenses or affirmative defenses
asserted in the action; and (15) other factors the court deems important or necessary to consider
under the circumstances of the case.

7
No. 2023AP520

Curry argues that in a potential conflict between WIS. STAT. §§ 132.033 and
814.045, the specific statute controls over the general statute. But the parties
disagree as to which statute is the general or specific statute. Curry advocates for
§ 132.033 as the more specific statute, arguing that para. (2)(b) of that section
“specifically anticipates and recognizes” the result in this case because “Curry
proved the injury but could not prove the corresponding monetary damages.”8
“Therefore,” Curry claims, “the court did not have to award actual damages (‘the
court may award…’) but could still recognize the violation of the right by
enjoining Alden under [§ 132.033](2)(a), and by awarding the costs and legal fees
under [§ 132.033](2)(d).”

8
WIS. STAT. § 132.033(2) provides, in pertinent part:

(a) If the person, association or union proves by a
preponderance of the evidence that the defendant engaged in a
violation of this section which threatens the person, association
or union with irreparable injury, a court may grant an injunction
to restrain such manufacture, use, display or sale and shall order
that all such counterfeit marks in the possession or under the
control of any defendant be delivered to the court to be
destroyed.

(b) Except as provided in par. (c), if the person, association or
union proves injury and monetary damages by a preponderance
of the evidence the court may award the person, association or
union actual damages resulting from such manufacture, use, sale
or display or an amount not to exceed 3 times the defendant’s
profits directly resulting from such wrongful manufacture, use,
display or sale.

….

(d) If the person, association or union proves a violation by a
preponderance of the evidence, the court may award the costs of
investigating the violation and of prosecuting the suit, including
reasonable investigator and attorney fees.

8
No. 2023AP520

¶11 We need not address the parties’ arguments regarding this issue.
Instead, for the purposes of this decision, we will assume, without deciding, that
WIS. STAT. § 814.045(2)(a) applies. See State v. Castillo, 213 Wis. 2d 488, 492,
570 N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest
possible grounds.”). In doing so, we conclude that the circuit court considered the
§ 814.045(1) factors and implicitly determined that the statutory presumption in
para. (2)(a) was overcome. The court, therefore, did not erroneously exercise its
discretion.

¶12 The record clearly demonstrates that the circuit court considered
Alden’s argument under WIS. STAT. § 814.045(2)(a)’s language and rejected it. At
both the September 22, 2022 and January 27, 2023 hearings, the court addressed in
detail the § 814.045(1) factors that it considered in determining the attorneys’ fees
award. Further, the court

considered that it was all the actions of Alden that led to the
trademark infringement. She brought it upon herself and
her company. Although the [c]ourt could not determine the
amount of damages from the evidence, there is no doubt
that Alden’s trademark infringement damaged Curry which
is one of the reasons [the court] granted the permanent
injunction.

¶13 Contrary to Alden’s argument that the circuit court’s statement that
Alden “brought it upon herself” “applies to nearly all defendants found liable for
infringement,” the court’s entire discussion—including the § 814.045(1) factors—
demonstrates that the court found the circumstances of this case weighed heavily
in favor of awarding an amount greater than the presumptive $300 in attorneys’
fees for trademark infringement. Thus, even if the presumption applied, Curry
overcame it. The court’s decision was not an erroneous exercise of discretion.

9
No. 2023AP520

b. Interrelated Claims

¶14 Alden’s second argument is related to Curry’s civil theft
counterclaim under WIS. STAT. § 895.446. Section 895.446(3) contains a
fee-shifting provision, stating that where a party prevails on his or her claim under
that section, “he or she may recover” “[a]ll costs of investigation and litigation that
were reasonably incurred, including the value of the time spent by any employee
or agent of the victim.” Sec. 895.446(3)(b); see also Miller v. Storey, 2017 WI 99,
¶49, 378 Wis. 2d 358, 903 N.W.2d 759 (concluding “that attorney fees are
included within the meaning of ‘costs of investigation and litigation’ under
[§] 895.446(3)(b)”).

¶15 Alden argues that the circuit court erroneously included services
rendered for the unjust enrichment and conversion claims, which are not
fee-shifting claims, in its attorneys’ fees award under WIS. STAT. § 895.446(3)(b).
According to Alden, these claims are not so interrelated that separation would be
impossible for the purpose of awarding statutorily authorized attorneys’ fees. She
further asserts that by combining these claims, the court improperly abrogated the
American Rule that parties are presumptively responsible for their own attorney
fees.

¶16 “Under the American Rule, the parties to a lawsuit bear the cost of
their own attorney fees absent legislative authorization to shift costs.” Kolupar,
275 Wis. 2d 1, ¶17. However, the legislature “has authorized courts to award
costs and attorney fees to successful litigants in many contexts,” including under
WIS. STAT. § 895.446(3)(b). See Kolupar, 275 Wis. 2d 1, ¶17. In Kolupar, our
supreme court adopted the “so-called ‘lodestar’” method from the United States
Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), to

10
No. 2023AP520

determine the reasonable amount of attorney fees to award under fee-shifting
statutes. Kolupar, 275 Wis. 2d 1, ¶¶28-30. Under the lodestar method, “the
circuit court must first multiply the reasonable hours expended by a reasonable
rate” as a starting point to determine the amount of a reasonable fee, and the court
“may then make adjustments” pursuant to the WIS. STAT. § 814.045(1) factors.9
See Anderson v. MSI Preferred Ins. Co., 2005 WI 62, ¶39, 281 Wis. 2d 66, 697
N.W.2d 73.

¶17 In this case, the circuit court stated that it was using the lodestar
method to reach an initial determination of a reasonable fee and also discussed all
the WIS. STAT. § 814.045(1) factors in its oral ruling. Our review of the court’s
robust discussion of those factors suggests that it found virtually all of the factors
favored a full award of attorneys’ fees to Curry.10

¶18 The circuit court, however, then applied what it called a
“mathematical formula[,] dividing the number of claims by the … successful
number of claims” to “allocate a percentage of the total time billed to the claims
where the attorney’s fees are available and the claims are interrelated.” The court
did so based on its conclusion that due to “the convoluted nature of this case and
the interrelated causes of action, there is no real way for [it] to determine how
much time was spent on each claim not only during the trial, but also outside of

9
WISCONSIN STAT. § 814.045 was enacted in 2011 and altered the analysis for
determining reasonable attorney fees. See 2011 Wis. Act 92, § 1. Prior to its enactment, the
reasonableness of attorney fees was analyzed using the SCR 20:1.5(a) factors and relevant case
law. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶¶23-30, 275 Wis. 2d 1, 683
N.W.2d 58.
10
It does not appear that Alden is challenging the circuit court’s findings as to the WIS.
STAT. § 814.045(1) factors.

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No. 2023AP520

the trial.” Both Alden and Curry challenge the court’s use of this mathematical
formula on appeal, but they do so for different reasons.11

¶19 Alden argues that while the circuit court had discretion to award
attorneys’ fees under WIS. STAT. §§ 895.446(3)(b) and 132.033(2)(d) for Curry’s
civil theft and trademark infringement claims, respectively, it was not permitted
“to include other, non-statutory claims … and effectively increase the fees
awarded.” According to Alden, the unjust enrichment and conversion claims “are
not sufficiently interrelated with Curry’s statutory civil theft claim,” and the final
award of attorneys’ fees should be reduced to represent only the services
performed for Curry’s civil theft claim.

¶20 The circuit court, however, specifically found that the civil theft,
unjust enrichment, and conversion claims were “interrelated and share a common
core of facts and are not separate and distinct under the facts of this case.” The
basis for its finding of a “common core of facts” comes from Hensley. In
Hensley, the issue involved 42 U.S.C. § 1988 federal civil rights actions, which
contain a fee-shifting provision for a prevailing party. Hensley, 461 U.S. at 426.
The question before the court was whether “a partially prevailing plaintiff may
recover an attorney’s fee for legal services on unsuccessful claims.” Id. The
Court explained that where the claims for relief “involve a common core of facts
or [are] based on related legal theories,”

[m]uch of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis. Such a lawsuit cannot
be viewed as a series of discrete claims. Instead
the … court should focus on the significance of the overall

11
We discuss Curry’s challenge below. See infra ¶¶28-39.

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No. 2023AP520

relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.

Where a plaintiff has obtained excellent results, his [or
her] attorney should recover a fully compensatory fee.
Normally this will encompass all hours reasonably
expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified.
In these circumstances the fee award should not be reduced
simply because the plaintiff failed to prevail on every
contention raised in the lawsuit.

Id. at 435.

¶21 We conclude that the circuit court did not erroneously exercise its
discretion by awarding attorneys’ fees for services rendered for the civil theft,
unjust enrichment, and conversion claims based on its finding that the claims were
“interrelated and share a common core of facts.” As we outlined previously in
Alden I, all of Curry’s counterclaims derived from Alden’s act of locking Curry
out of the premises from which Curry operated a spa business and thereafter
retaining Curry’s property located on the premises and using that property to
operate her own spa business under a very similar name.12 Alden I,
No. 2022AP1280, ¶¶1, 4-5, 9-10. The court found that Alden intentionally stole
and converted Curry’s property and that Alden was unjustly enriched because she
did so. In other words, proof of one claim resulted in proof of the other claims.

12
In some respects, we also previously addressed this issue in Alden I, when we
affirmed the circuit court’s judgment against Alden’s claim that the court “erroneously analyzed
three of Curry’s counterclaims related to personal property—unjust enrichment, conversion, and
civil theft—under identical facts without acknowledging that WIS. STAT. § 895.446 required
Curry to prove that Alden had the ‘specific criminal intent’ to steal her personal property.” Alden
Associates v. Curry (Alden I), No. 2022AP1280, unpublished slip op. ¶¶9, 13, 16-17 (WI App
Dec. 19, 2023), review denied (WI May 21, 2024). As the court noted in its oral decision on fees,
the court “combined” the damages for unjust enrichment, civil theft, and conversion because
“while all three causes of actions have different elements, all of which were proven over the
course of the six day trial[,] [t]hey emanate from the same common core of facts, and [the court]
fully addressed those … when [it] rendered [its trial] decision.”

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Therefore, the fees incurred for proving the fee-shifting claim for civil theft were
also incurred for proving the other two claims.

¶22 Further, the circuit court determined that “[g]iven the multiple
overlaps in the testimony” and “the numbers of hours spent on the case by
Attorney O’Brien and Attorney Skinner,” “it would be nearly impossible for [the
court] to dissect what time in both Skinner and O’Brien’s time sheets [was]
attributable to the claims,” which “compounds the difficulty in making any
independent analysis of the time spent on each cause of action where reasonable
attorney fees were available.” See Hensley, 461 U.S. at 435. The court’s findings
are supported by the record.

¶23 Alden’s arguments that the circuit court erred by determining that
the three counterclaims shared a common core of facts are not persuasive. In
general, she asserts that the court’s decision improperly abrogates the American
Rule. According to Alden, the American Rule “must be ‘strictly adhered to,’”
see DeChant v. Monarch Life Ins. Co., 200 Wis. 2d 559, 571, 547 N.W.2d 592
(1996), and “noticeably absent” from WIS. STAT. § 895.446(3)(b) “is any reference
to the costs of related claims.” She also faults Curry’s arguments for failing to
consider the American Rule in drawing a line for awarding fees when at least one
claim is a fee-shifting claim.

¶24 For several reasons, we conclude that the American Rule does not
prevent Curry from recovering attorneys’ fees under the facts of this case, given
the fee-shifting statutes at issue. See DeChant, 200 Wis. 2d at 571 (“[P]arties to
litigation are generally responsible for their own attorney’s fees unless recovery is
expressly allowed by either contract or statute ….” (emphasis added)). First,
Alden has not cited any legal authority, aside from general case law defining the

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No. 2023AP520

American Rule, to support her assertion that the circuit court’s conclusion in this
case, based on Hensley’s reasoning, runs afoul of the American Rule. Second, we
stress that the court’s conclusion that the counterclaims shared a common core of
facts did not authorize “the costs of related claims” to be paid under WIS. STAT.
§ 895.446(3)(b). Instead, it recognized that the “costs of investigation and
litigation” of the civil theft counterclaim would have necessarily subsumed the
unjust enrichment and conversion counterclaims because of the interrelation of the
issues.

¶25 Third, as to Alden’s claim that there is no “line” drawn for awarding
fees in a case where there are multiple claims and only one is properly considered
under a fee-shifting statute, we disagree. Alden faults the circuit court for failing
to “analyz[e] potential interrelation between claims through [the] fundamental
[American R]ule, a process that requires rational line drawing,” but she fails to
specify where she believes the line should be.13 See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped
arguments). We conclude that to the extent a “line” is necessary, it is determined
by the court’s finding that the claims are or are not interrelated or do or do not
involve a common core of facts. Just as the court is called on to determine the
reasonable amount of hours expended and a reasonable rate to determine a
reasonable fee, it is well within the purview of the court to determine, subject to an

13
We can only assume, based on her arguments, that Alden believes the line should be
legal work related to only the fee-shifting-statute claim, absent an analysis of a common core of
facts, because she asserts that “the circuit court should have instead awarded fees for legal work
that Curry’s attorneys performed solely on her statutory civil theft claim.” However, she appears
to acknowledge the analysis of interrelated claims in her reply brief, stating that “the American
Rule forbids awarding attorneys’ fees unless there is an underlying statutory basis or sufficient
interrelation between claims where one has that underlying basis.” (Emphasis added.)

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No. 2023AP520

erroneous exercise of discretion standard, whether claims involve a common core
of facts.

¶26 Next, Alden argues that unjust enrichment and conversion are not
sufficiently related to civil theft because that claim requires proof of specific
criminal intent, while conversion and unjust enrichment do not require this
element. Alden details the elements of each of those claims and concludes that
each one “involves its own distinct elements” as well as “drastically different
arguments and factual underpinnings that require distinct legal work for success.”
Alden admits that the counterclaims “involve the same parties, the same location,
and the same general timeline,” but she argues “if that were enough, then, in
almost every case, attorneys’ fees would apply to all claims where at least one
claim provides fee shifting. That cannot be the law.”

¶27 We disagree with Alden’s argument to the extent that she engages in
an elements-only analysis of each counterclaim. The Hensley Court identified
cases with “a common core of facts” or those cases with “related legal theories,”
but the Court did not specifically require that the claims have common elements.
See Hensley, 461 U.S. at 435. Thus, the Hensley approach is not strictly an
elements-only analysis. Additionally, Alden has not presented any legal authority
where a court applied the Hensley approach to different types of claims and
utilized an elements-only analysis. While elementally, we agree that Curry’s civil
theft, unjust enrichment, and conversion counterclaims are somewhat different, the
facts giving rise to the counterclaims are the same in more than just the parties, the
location, and the timeline. In other words, as the circuit court recognized in its
trial decision, Curry’s proof of the facts establishing civil theft also established
that conversion occurred and that Alden was unjustly enriched by her wrongful
actions. Alden fails to show that the court’s determination—i.e., that the

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counterclaims shared a common core of facts and were interrelated—was an
erroneous exercise of discretion, and we conclude that the court’s ruling finds
support in the record.

II. Curry’s Cross-Appeal
a. Mathematical Formula

¶28 Curry’s cross-appeal also challenges the circuit court’s calculation of
the fee award. She argues that given the court’s findings, the court’s use of the
mathematical formula to reduce the attorneys’ fees in this case was an erroneous
exercise of discretion. Curry claims that under Hensley, the court should have
found that all of her successful counterclaims shared a common core of facts and,
therefore, that “all fees should be awarded which were expended in pursuit of the
ultimate result achieved.”

¶29 In contrast, Alden argues that the circuit court’s application of the
mathematical formula was proper. In general, Alden claims that “Curry’s
argument that every claim is interrelated finds no support in law”; thus, Alden
contends that the court applied “a proper mathematical formula” to reduce Curry’s
attorneys’ fees award in this case, notwithstanding Alden’s arguments against the
award noted above. (Formatting altered.) See supra ¶¶14-27. Further, Alden
faults Curry for “focus[ing] on various fee awards [cases] from other jurisdictions”
because those cases “cannot justify reversing the circuit court’s application of the
factors under WIS. STAT. § 814.045(1), with its corresponding mathematical
formula applying those factors to relevant claims.”

¶30 We agree that the circuit court erred by applying a so-called
“mathematical formula” to its lodestar analysis. After finding that most of the
WIS. STAT. § 814.045(1) factors supported a fee award, the court failed to use

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No. 2023AP520

those factors to adjust the lodestar figure up or down. Instead, the court applied a
“mathematical formula” to reduce the lodestar figure by the number of claims—
sometimes referred to as a “mechanical claim-chopping approach”—which was
rejected in Hensley. See Lenard v. Argento, 808 F.2d 1242, 1245 (7th Cir. 1987);
Hensley, 461 U.S. at 436 n.11; cf. Johnson v. Roma II-Waterford LLC, 2013 WI
App 38, ¶26, 346 Wis. 2d 612, 829 N.W.2d 538 (“The record ought to assure us
that the [trial-level] court did not ‘eyeball’ the fee request and ‘cut it down by an
arbitrary percentage because it seemed excessive to the court.’” (alteration in
original; citation omitted)). Utilizing a mathematical formula to divide a fee
award is not the appropriate analysis under Hensley, as adopted by our supreme
court in Kolupar and its progeny, to determine whether the number of hours
expended by counsel was reasonable and, if not, what number of hours would be
reasonable.

¶31 It appears from our review of the record that the circuit court
believed that it was required to reduce Curry’s attorneys’ fees award using the
mathematical formula because some of the counterclaims were not brought under
fee-shifting statutes. Thus, the court’s error stems from its determination that only
the civil theft, unjust enrichment, and conversion counterclaims were “interrelated
and share a common core of facts and are not separate and distinct under the facts
of this case.” Essentially, the court’s conclusion that some counterclaims shared a
common core of facts did not go far enough.

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No. 2023AP520

¶32 We conclude that all of Curry’s seven successful counterclaims
shared a common core of facts.14 We previously affirmed the circuit court’s
finding that Alden engaged in willful conduct with criminal intent in the actions
she took in this case that went beyond an “eviction gone wrong,” see Alden I,
No. 2022AP1280, ¶¶13, 17, 36-47, and we agree with Curry’s assessment in this
appeal that “virtually all of the work in this case was necessitated by Alden’s
wrongful actions in her attempt to steal Curry’s business.” In other words,
counsels’ work on any one of Curry’s counterclaims was not unrelated to
counsels’ work on another claim because the facts that Curry was required to
prove to establish one counterclaim either established an element of another
counterclaim or at least provided support or background for the same. As a result,
Curry would have incurred these attorneys’ fees even if she had brought only the
two fee-shifting counterclaims, rather than all of her successful counterclaims,
because counsel would still have had to, for example, file and serve her answer
and counterclaims; file her amended answers; appear at the numerous pretrial or
motion hearings due in part to, as the court explained, “the lack of cooperation
from Alden”; orally argue the motions; engage in discovery; conduct research; and
prepare for and participate in the trial.

¶33 Accordingly, the factual basis and evidence for all the counterclaims
and defenses asserted by Curry were intertwined in such a way that it was not
possible to itemize time spent on only certain causes of action. Therefore, the

14
Curry concedes that “[i]n the instant case, the only claim which was distinct in all
respects from the seven counterclaims upon which Curry prevailed was the eighth counterclaim,”
which asserted a violation of WIS. ADMIN. CODE ch. ATCP 134 and “for which an extremely
small amount of time was spent by Attorney O’Brien, essentially work related to drafting the
pleading. It is also the only counterclaim on which Curry didn’t prevail in this lawsuit.”

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No. 2023AP520

hours reported by Curry’s attorneys were “devoted generally to the litigation as a
whole.” See Hensley, 461 U.S. at 435. Importantly, the circuit court did not find
that its inability to identify the legal work expended for each claim was the result
of counsels’ sloppy or imprecise time submissions. Further, the court stated that it
could “absolutely” “understand the hours that were put into this case as contained
in the time sheets produced by the attorneys[.]”

¶34 As addressed above, where a party’s claims “arise out of a common
core of facts,” a “losing party is not entitled to a reduction in attorney’s fees for
time spent on unsuccessful claims, if the winning party achieved substantial
success and the unsuccessful claims were brought and pursued in good faith.”
Radford v. J.J.B. Enters., Ltd., 163 Wis. 2d 534, 550, 472 N.W.2d 790 (Ct. App.
1991); Hensley, 461 U.S. at 435-36. It seems reasonable, then, to this court that a
losing party—Alden—is similarly not entitled to a reduction in Curry’s attorneys’
fees for time spent on successful claims which were not subject to a fee-shifting
statute, provided the time spent on those claims was necessitated by fee-shifting
claims.

¶35 For example, as the Seventh Circuit Court of Appeals explained,
“For tactical reasons and out of caution lawyers often try to state their client’s
claim in a number of different ways,” but the client is not “penalized just because
some, or even all but one, are rejected, provided that the one or ones that succeed
give him [or her] all that he [or she] reasonably could have asked for.” Lenard,
808 F.2d at 1245-46; see also Hensley, 461 U.S. at 448 (Brennan, J., concurring in
part; dissenting in part) (“Courts should recognize that reasonable counsel in a
civil rights case, as in much litigation, must often advance a number of related
legal claims in order to give plaintiffs the best possible chance of obtaining
significant relief.”). Similarly, Curry’s attorneys should not be penalized because

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No. 2023AP520

she brought—and was able to prove—additional counterclaims based on facts she
otherwise would have had to establish to meet her burden on the fee-shifting
claims.

¶36 In response, Alden challenges the application of Hensley, as well as
other federal civil rights decisions cited by Curry, to the circumstances of this
case. According to Alden, “the fee-shifting provided for by [42 U.S.C.] § 1988 is
allowable because such litigation serves a greater purpose than that of a private
dispute,” but “[t]here is no compelling reason why the [circuit] court here should
have cited Hensley, or any other federal civil rights case.” Alden claims that “the
concept of ‘interrelatedness’ in civil rights cases, where all claims are subject to
fee-shifting, simply is not automatically transferable to cases such as this where
the majority of claims are not subject to any fee-shifting statute.”

¶37 We disagree that the holding in Hensley is inapplicable. Our
supreme court expressly adopted Hensley’s lodestar methodology and directed the
circuit courts to follow its logic when explaining how a fee award has been
determined. See Kolupar, 275 Wis. 2d 1, ¶30.15 By that token, other federal cases
applying or explaining the lodestar methodology can provide persuasive authority
for this court. See Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114,
¶39, 275 Wis. 2d 171, 684 N.W.2d 141. Further, courts in this jurisdiction have
applied Hensley’s reasoning in various fee-shifting cases where Wisconsin
statutes are at issue. See Lynch, 275 Wis. 2d 171, ¶39 (collecting cases).

15
We also note that Kolupar involved a fee-shifting statute providing recovery for
pecuniary loss for retail buyers of motor vehicles and, thus, was not a case enforcing civil rights.
See Kolupar, 275 Wis. 2d 1, ¶18.

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No. 2023AP520

¶38 As to whether “the concept of ‘interrelatedness’ in civil rights cases”
is transferable to this case, we agree with Curry that the public policy purposes for
fee-shifting provisions remain the same whether civil rights, civil theft, or
trademark infringement is at issue. For example, our supreme court has held that
“an important purpose of fee-shifting statutes is to encourage injured parties to
enforce their statutory rights when the cost of litigation, absent the fee-shifting
provision, would discourage them from doing so,” “even when the costs of
litigation exceed the value of the action.” Kolupar v. Wilde Pontiac Cadillac,
Inc., 2007 WI 98, ¶55, 303 Wis. 2d 258, 735 N.W.2d 93. Other goals of
fee-shifting provisions are to make the victim whole, see Standard Theatres, Inc.
v. DOT, 118 Wis. 2d 730, 744-45, 349 N.W.2d 661 (1984); Johnson, 346 Wis. 2d
612, ¶32, and to attract competent counsel to represent individuals in these cases,
see Lynch, 275 Wis. 2d 171, ¶45; Betz v. Diamond Jim’s Auto Sales, 2014 WI
66, ¶26, 355 Wis. 2d 301, 849 N.W.2d 292.

¶39 In consideration of these public policy objectives, Hensley
recognized that attorneys should be compensated for all time reasonably expended
on a matter. Alden provides no legal authority stating that the Hensley “concept
of interrelatedness” does not apply under the circumstances presented here, and we
see no reason to diverge from its instruction when to do so would defeat the
purposes of the fee-shifting statutes at issue.

b. O’Brien’s Hourly Rate

¶40 Curry next challenges the circuit court’s reduction of O’Brien’s
hourly rate from $375 per hour to $350 per hour. She asserts that “well-settled
law regarding fee-shifting calculations does not support the [circuit] court’s
reduction of … O’Brien’s hourly rate to $350, based on a fee agreement entered

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No. 2023AP520

into years before trial.” Instead, Curry claims that “compensation for attorneys in
fee[-]shifting cases should be based on current rates, to compensate for the delay
in payment.”

¶41 In the fee agreement that Curry originally signed with O’Brien’s
firm on December 11, 2017, the hourly rate set for representation—with a
different attorney—was $350 per hour. During the circuit court’s oral ruling, it
explained that it “reduced O’Brien’s hourly rate to $350 because that’s what the
contract in the retainer agreement was. WISCONSIN STAT. § 814.045(3) says this
section does not abrogate the rights of persons to enter into an agreement for
attorney’s fees. And the [c]ourt shall presume that such an agreement is
reasonable.” As Curry argues, however, the fee agreement also provided: “We
may make reasonable adjustments to these rates once each year.” Accordingly,
Curry submitted O’Brien’s affidavit explaining that his billing rate increased to
$375 per hour on October 1, 2019. Further, Curry also submitted affidavits from
other attorneys practicing in the area who opined that O’Brien’s rate of $375 per
hour was reasonable.

¶42 We conclude that the circuit court erroneously exercised its
discretion by failing to explain its reason for reducing O’Brien’s hourly fee,
beyond stating that $350 was established as his hourly rate in the fee agreement.
The lodestar method instructs the court to determine a reasonable hourly rate.
See Hensley, 461 U.S. at 433. A reasonable hourly rate is the prevailing market
rate for an attorney with a similar skill level and experience who is providing
similar services in the same community. See Crawford County v. Masel, 2000 WI
App 172, ¶8, 238 Wis. 2d 380, 617 N.W.2d 188; see also WIS. STAT.
§ 814.045(1)(e) (instructing courts to consider “[t]he fee customarily charged in
the locality for similar legal services”). The Supreme Court has also suggested

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No. 2023AP520

that compensation for attorneys in fee-shifting cases be based on current rates due
to a delay in payment. Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989) (“[A]n
appropriate adjustment for delay in payment—whether by the application of
current rather than historic hourly rates or otherwise—is within the contemplation
of [42 U.S.C. § 1988].”).

¶43 In this case, Curry—as the party with the burden—submitted
evidence to the circuit court that the fee agreement with the $350 billing rate was
signed in 2017; the fee agreement provided for that billing rate to be adjusted once
per year; O’Brien’s billing rate increased to $375 in October 2019; and a $375
hourly rate was consistent with the current market rate for comparably skilled and
experienced attorneys. It does not appear that Alden submitted contrary evidence
on this issue. Although the court cited WIS. STAT. § 814.045(3) for the
proposition that the billing rate in a fee agreement is presumptively reasonable,
nothing in § 814.045(3) requires a court to accept that rate, especially when a
party is arguing that a higher rate is appropriate.

¶44 We acknowledge that when the circuit court fails to explain its
reasoning, “we may search the record to determine if it supports the court’s
discretionary decision.” Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1,
612 N.W.2d 737. We nevertheless find no discussion in the court’s oral ruling
from which we can confidently ascertain why it determined that Curry failed to
meet her burden to show the reasonableness of O’Brien’s $375 billing rate or why
it determined that a lower fee was reasonable under the circumstances of the case.
Given that we are remanding on a separate basis, we also remand with instructions

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No. 2023AP520

to the court to explain its reasoning for applying the $350 billing rate to all of
O’Brien’s time submissions.16

c. Non-taxable Costs

¶45 Finally, Curry argues that the circuit court erred by failing to award
her “non-taxable costs in the total amount of $3,905.45.” She claims that her
request for non-taxable costs was “essentially unopposed,” apart from Alden’s
objection to a $275 federal trademark filing fee. Thus, Curry asserts that the court
“simply forgot to address [her] request for non-taxable costs, as it did not address
this issue at all.”

¶46 Alden, in contrast, argues that this issue is “not appealable” because
“[a]s it stands, there is no ‘final judgment’ or ‘final order’ on this issue that could
provide the [circuit] [c]ourt jurisdiction.” According to Alden, “[i]f Curry
believes [the court forgot to address non-taxable costs], she should advise the
circuit court so that it may render a decision related to non-taxable costs.”

¶47 We disagree that we lack jurisdiction to address this issue. The
circuit court’s order on Curry’s petition for attorneys’ fees and costs was a final
order for purposes of appeal. Curry requested non-taxable costs in her petition,
but the court did not consider those costs in response to Curry’s request.
Therefore, they were denied. The court did not, however, exercise its discretion

16
Curry also claims that O’Brien’s fees were further improperly reduced because the
circuit court “assum[ed] incorrectly that … O’Brien had not worked on the trademark claim, only
the” civil theft, unjust enrichment, and conversion counterclaims. She argues that “O’Brien
handled the testimony of several witnesses regarding trademark infringement” and that “Alden
admit[ted] this in her summary of testimony requested by the court.” This issue should also be
addressed by the court on remand.

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No. 2023AP520

by denying Curry’s request for non-taxable costs. Accordingly, we also remand
for the court to consider this issue and to explain its reasoning.

CONCLUSION

¶48 In conclusion, the circuit court erred in this case by applying a
“mathematical formula” to the lodestar figure rather than adjusting that figure
based on the WIS. STAT. § 814.045(1) factors. The court’s “mathematical
formula” also failed to account for the fact that all of Curry’s successful
counterclaims were interrelated and based on a common core of facts such that the
counterclaims could not be viewed as discrete claims. We further conclude that
the court erroneously exercised its discretion by failing to explain its decision to
award O’Brien’s fees at $350 per hour and to address Curry’s request for
non-taxable costs. Accordingly, we reverse the court’s order awarding attorneys’
fees in part and remand the matter for the court to apply the correct legal standard
and to provide an adequate explanation for its decision.

¶49 No costs are awarded to any party.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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