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,
PAULA BROWN, MARGARET GERTH, HELEN LIRA, MARY CARPENTER-KUPSCH AND KATHLEEN MCALLISTER, RESPONDENTS
on Briefs November 10, 2015
from an order of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Cir. Ct. No. 2013PR166.
behalf of the appellants, the cause was submitted on the
briefs of John M. Kelly of John M. Kelly Attorney At Law LLC
behalf of the respondents, the cause was submitted on the
brief of Charles J. Hertel of Dempsey Law Firm, LLP of
Neubauer, C.J., Gundrum and Hagedorn, JJ.
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). Kelly and his firm--John
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.
[¶3] Elizabeth and her husband Harold
Carpenter had ten children, including Noone, the
attorney-in-fact 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.
[¶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. 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 " ...