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July 26, 1983


APPEAL from a judgment of the Circuit Court for Rock county, J. RICHARD LONG, Judge. Affirmed.

Petition to Review Denied September 19, 1983

Before Gartzke, P.j., Dykman, J. and W. L. Jackman, Reserve Judge.

The opinion of the court was delivered by: Jackman

W. L. JACKMAN, Reserve Judge. Appellant claimed damage to a vehicle it leased to respondent. Respondent returned the vehicle in a damaged condition when the lease expired. The damage exceeded ordinary wear and tear. Appellant appeals the $70.00 damages and $400.00 attorneys' fees awarded by the court as inadequate. We affirm.

The lease provides in relevant part:

LESSEE shall indemnify and hold harmless LESSOR from and against any damage, loss, theft or destruction of the LEASED VEHICLE and of the cargo or contents thereof, during the term of this lease, and from and against any and all losses, damages, injuries, claims, demands, costs and expense (including legal expenses) of every kind and nature, arising out of or connected with the use, condition or operation of the LEASED VEHICLE....

Upon termination of this lease or the expiration of the term of this lease, LESSEE shall return the leased vehicle to LESSOR'S place of business or such other place as may be mutually agreed upon, in good operating condition and working order free from any collision or other physical damage. LESSEE is responsible for any damage to the LEASED VEHICLE'S Interior or exterior over and above normal wear during the term of the lease and at termination. LESSEE agrees to pay LESSOR'S cost of repairing or replacing any damage to the leased vehicle, ordinary wear excepted.

The trial court found that "cost" as used in the lease means appellant's cost, not the retail charge that appellant would make to a customer, and that appellant failed to prove its cost of repairs. Some of the repairs were done in appellant's own shop, some repairs were not done, and the repair of the seats was done by contract in another shop at an admitted cost to plaintiff of $70.00. As to each item (other than the seat) which was repaired, the court found that there was no evidence of the cost of materials or labor. The court therefore awarded judgment to appellant for $70.00 for damage to the vehicle.

Appellant offered no evidence of the time it expended or of its cost for materials used in the repairs. Appellant unsuccessfully attempted to prove its costs through an estimate prepared by its employee. The estimate was based on a document labeled: "Motor Crash Estimating Guide of the Ford Motor Company." On its face the document states: "The times reported herein are predicated on an undamaged vehicle, using new, undamaged vehicle manufacturer parts and are to be used as a GUIDE only." No evidence was submitted that the estimate based on the guide was reasonably accurate or even that the ultimate figure for repair was reasonable.

The court's determination that there was a failure of proof of the cost of repair was not against the great weight and clear preponderance of the evidence. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249, 274 N.W.2d 647, 650 (1979). The court's finding renders it unnecessary to determine if elements of unrepaired damages can be included as a cost of repair.

The trial court awarded $400 to appellant as a reasonable attorney's fee. The court found: "Based on the experience of the court and based on all the findings previously recited regarding the time and effort of the appellant's attorney in bringing this case to trial, a reasonable fee for an experienced attorney would be $900.00, but based on the results achieved in this case, a reasonable fee is $400.00 as an award for reasonable attorney fees." The result in this action is a $70 recovery. Respondent does not contest appellant's claim that attorney's fees are an item of damage under the lease. Appellant engaged its attorney on a time and expense basis. A compilation of the attorney's time resulted in a fee of $5,445.00.

There is evidence that it was customary in appellant's dealings with his attorneys for them to bill for their time and for appellant to pay for it. There having been no expressed contract for any certain fees to be paid, there was an implied contract to pay a reasonable fee. 7A C.J.S., Attorney & Client, sec. 311, at p. 595.

Appellant sought to prove the amount of a reasonable fee by expert evidence, but the testimony of the expert was rejected by the court. The pretrial order entered in the case required that the parties disclose their expert witnesses before a certain date. The name of the expert whose testimony appellant proposed to offer was not timely disclosed. There was no error in the rejection of the expert's testimony. Kletsch v. Waukesha County, 61 Wis. 2d 662, 664, 213 N.W.2d 367, 369 (1974). The proof rests on the affidavits of the time appellant's attorneys devoted to the case and the charge per hour.

In Taylor v. The Chicago, Milwaukee & St. Paul R. Co., 83 Wis. 645, 648, 53 N.W. 855, 856 (1892), the court said: "The circuit Judge was called upon to fix the amount of such services on that testimony, supplemented by his own knowledge of the character and the extent of such services; for most of these were rendered before him. By submitting the question on such unsatisfactory proofs, the parties compelled the Judge to use his own knowledge, thus acquired, in order to give intelligent judgment." Courts have the inherent power and responsibility to determine whether attorney's fees are reasonable and to refuse enforcement of those charges which are not. Herro, McAndrews ...

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