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In re Order for Attorney's Fees

Court of Appeals of Wisconsin

March 16, 2016

IN RE THE ORDER FOR ATTORNEY'S FEES IN; IN RE THE ESTATE OF ELIZABETH CARPENTER: JOHN M. KELLY AND JOHN M. KELLY, ATTORNEY AT LAW, LLC, APPELLANTS,
v.
PAULA BROWN, MARGARET GERTH, HELEN LIRA, MARY CARPENTER-KUPSCH AND KATHLEEN MCALLISTER, RESPONDENTS

         Submitted on Briefs November 10, 2015 

         APPEAL from an order of the circuit court for Winnebago County: DANIEL J. BISSETT, Judge. Cir. Ct. No. 2013PR166.

         On behalf of the appellants, the cause was submitted on the briefs of John M. Kelly of John M. Kelly Attorney At Law LLC of Oshkosh.

         On behalf of the respondents, the cause was submitted on the brief of Charles J. Hertel of Dempsey Law Firm, LLP of Oshkosh.

         Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          OPINION

         HAGEDORN, J.

          [368 Wis.2d 355] [¶1] Lois Noone held a power of attorney (POA) for her mother Elizabeth Carpenter. Some of Elizabeth's other children brought an action to review certain decisions Noone made on their mother's behalf. Attorney John M. Kelly defended Noone in the action and was paid over $25,000 in fees. During the pendency of the action, Elizabeth passed away. The circuit court concluded the underlying action was moot, but nonetheless entered an order limiting Kelly's attorney's fees to just $6000, asserting it had the authority to do so under Wis. Stat. § 244.16(1) (2013-14).[1] Kelly and his firm--John M.

Page 128

Kelly, Attorney at Law, LLC--appeal this order.

          [¶2] Kelly argues that Wis. Stat. § 244.16(1) does not give the circuit court the authority to adjust his fees absent finding misconduct on the part of Noone. We agree and, therefore, reverse the circuit court's order. Because we reverse on this ground, we need not address additional grounds for relief raised by Kelly.

         Background

          [¶3] Elizabeth and her husband Harold Carpenter had ten children, including Noone, the attorney-in-fact[2] for Elizabeth. Some of the Carpenters' other children--Paula Brown, Margaret Gerth, Helen Lira, Mary Carpenter-Kupsch, and Kathleen McAllister (the Respondents)--brought an action under Wis. Stat. § § 244.16 [368 Wis.2d 356] and 155.60 to review certain decisions Noone made on behalf of Elizabeth as her attorney-in-fact. Kelly was enlisted to defend Noone in the action. Rather than hear testimony, the court first appointed a guardian ad litem (GAL) to investigate the matter. However, before the GAL concluded his investigation, Elizabeth passed away and the circuit court concluded that review of Noone's conduct was moot.[3]

          [¶4] Nevertheless, the circuit court held a hearing to resolve issues related to Kelly's fees. Though the court reiterated that it thought the action was moot, it expressed displeasure that the action had turned into a " fight of who should pay the bills." The court complained that the case had been " substantially over-litigated" and that " counsel should be ashamed of themselves." In light of what it viewed as excessive litigation, the court limited Kelly's fees to thirty hours at $200 per hour, or $6000.

          [¶5] After the hearing, Kelly filed a letter with the court objecting to the order limiting his fees.[4] Kelly argued that his fees had not been paid out of Elizabeth's assets by Noone as the attorney-in-fact, but rather by Harold and the trustee for the Carpenters' trust. In response, the court ordered the GAL to look into the issue and " ...


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