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  • WisBar News
    August 08, 2016

    Dismissal Order was Final Despite Pending Attorney Fee Issue

    Joe Forward

    Aug. 8, 2016 – A state appeals court has ruled that a circuit court’s dismissal order was “final” even though the parties had not resolved a claim for contractual attorney fees, concluding the appeals court has jurisdiction to hear the appeal.

    Dean McConley filed a breach of contract action against T.C. Visions Inc., which answered and moved to dismiss with costs of $1,000 and attorney fees of more than $19,000, pursuant to contractual language granting costs and fees to a prevailing party.

    The circuit court ultimately granted summary judgment to T.C. Visions on the breach of contract issue and issued a dismissal order. But the court did not rule on the costs and attorney fees issue, so T.C. Visions moved for an assessment of costs and fees.

    Meanwhile, McConley appealed the dismissal order. In Wisconsin, a party can only appeal “final” judgments or orders as a matter of right, under Wis. Stat. section 808.03(1), unless otherwise expressly provided by law.

    In McConley v. T.C. Visions, 2016AP671 (Aug. 4, 2016), the District IV appeals court issued a per curiam opinion (recommended for publication), concluding the circuit court’s order was “final” for purposes of appeal, confirming the court’s jurisdiction.

    “The parties agree that the contractual entitlement to attorney fees is simply a taxation of cost … and that the pending claim for attorney fees does not preclude the dismissal order from being a final order appealable as of right,” the court ruled.

    The appeals court noted that a pending claim for attorney’s fees under a specific fee-shifting statute “does not render a judgment or order nonfinal, provided that the judgment or order disposes of all the substantive causes of action between the parties.”

    T.C. Visions asserted its costs and fees claim under its contracts with McConley, not a fee-shifting statute. But the appeals court ruled that attorney’s fees dictated by contracts should be treated the same, on jurisdiction, as attorney fees under fee-shifting statutes.

    “[T]he prevailing party’s pending claim for attorney fees incurred in the litigation and payable under a contract between the parties to the litigation does not affect the appealability of an order or judgment that otherwise disposes of the matter in litigation,” the court wrote.

    The court noted that circuit courts may postpone fee issues pending appeal to economize time, and award fees for circuit court and appellate court proceedings at the same time on remand. However, the appeals court also noted that parties should make appellate courts aware when seeking a remand for that purpose.



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