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Talmer Bank And Trust v. Jacobsen

Court of Appeals of Wisconsin

January 10, 2018

Talmer Bank and Trust, Successor in Interest to First Banking, Plaintiff,
Thomas S. Jacobsen and Deborah L. Jacobsen, Defendants-Respondents, Felimon Gomez and Teresa Gomez, Defendants-Appellants.

         APPEAL from a judgment of the circuit court for Walworth County, No. 2015CV148 DAVID M. REDDY, Judge.


          HAGEDORN, J.UDGE.

         ¶1 The third-party litigation exception to the American Rule allows a plaintiff to recover attorney fees incurred in third-party litigation caused by a wrongful act of the defendant. The question in this case is whether a breach of contract leading to third-party litigation is a wrongful act. We hold that a breach of contract can be a wrongful act under the third-party litigation exception to the American Rule. The attorneys' fees in this case are rightly considered part of the damages flowing from the defendants' breach of contract, and are therefore recoverable. We reverse the circuit court's holding to the contrary.


         ¶2 The relevant facts are undisputed. Talmer Bank and Trust held a mortgage on real property owned by Thomas and Deborah Jacobsen in the Town of Lyons. Felimon and Teresa Gomez wanted to purchase commercial property to operate their business, so in 2006, they entered into a land contract with the Jacobsens for the Town of Lyons' property. Pursuant to the land contract, the Gomezes made monthly payments to the Jacobsens and continued to operate their business on the property.[1] The Jacobsens, however, while pocketing these payments, failed to make fifteen separate payments on the mortgage between 2012 and 2015. The Gomezes were unaware of these delinquent payments.

         ¶3 Talmer Bank initiated a foreclosure action against both the Jacobsens and the Gomezes. The Jacobsens did not answer Talmer Bank's foreclosure action, and the circuit court granted a default judgment against them. The Gomezes did answer the complaint; they also filed a cross-claim against the codefendants, the Jacobsens. The cross-claim alleged that the Jacobsens breached the land contract by failing to make the mortgage payments to Talmer Bank and alleged that this breach of contract forced the Gomezes to hire counsel "to preserve their equitable interests as vendees to the subject property." Accordingly, the Gomezes sought as damages reasonable attorneys' fees incurred in defending the foreclosure action.

         ¶4 In the underlying litigation, Talmer Bank moved for summary judgment against the Gomezes. After a contested summary judgment hearing, the circuit court withheld making a decision and continued the hearing to a later date. Talmer Bank and the Gomezes eventually settled the claim, and the Gomezes retained title to the property.

         ¶5 The Gomezes' cross-claim against the Jacobsens, however, remained to be adjudicated, and the Jacobsens moved for summary judgment. In their brief in support, the Jacobsens conceded that they "defaulted on the terms of the mortgage note by failure to make payments as required under the terms of the note and mortgage to Talmer Bank resulting in the commencement of this foreclosure action." The Jacobsens further conceded the contract with the Gomezes required that the Talmer Bank "mortgage payments be made" and the failure to make those payments was a breach of their contract with the Gomezes. However, the Jacobsens argued that pursuant to the American Rule-which dictates that parties generally may not recover attorney fees-the Gomezes could not recover attorneys' fees as damages. For their part, the Gomezes maintained that an award of attorneys' fees was proper under the third-party litigation exception to the American Rule and requested that the circuit court grant summary judgment in their favor.

         ¶6 The circuit court sided with the Jacobsens. Resting on the Wisconsin Supreme Court's decision in Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70, 342 Wis.2d 29, 816 N.W.2d 853');">816 N.W.2d 853, the circuit court held that the Jacobsens' breach of the land contract was not a wrongful act and therefore the third-party litigation exception did not apply. While the circuit court recognized that Kriefall "does not expressly limit the wrongful act in the [third-party litigation] exception to a showing of fraud or breach of fiduciary duty, " the circuit court declined to apply the exception to a breach of contract. Accordingly, the circuit court granted the Jacobsens' motion for summary judgment and denied the Gomezes' motion. Because the Gomezes' cross-claim did not allege any additional damages besides attorneys' fees, the circuit court confirmed that "the litigation is over." The Gomezes appeal this ruling.


         ¶7 It is undisputed that the Jacobsens breached the land contract with the Gomezes, and this breach resulted in the Gomezes being sued in the foreclosure action, thus incurring attorneys' fees defending the suit. The main issue, then, is whether this breach of contract was a wrongful act that could entitle the Gomezes to attorneys' fees under the third-party litigation exception. Consistent with the circuit court's decision, the Jacobsens rely on Kriefall and argue that a wrongful act is limited to fraud, breach of fiduciary duty, or something similar. Simple breach of contract, the Jacobsens maintain, is not a wrongful act under the third-party litigation exception; something more is required. Whether a party is entitled to attorney fees under an undisputed fact scenario is a question of law we review de novo. See id., ¶\6.

         ¶8 Wisconsin follows the American Rule for attorney fees which provides that "parties to litigation typically are responsible for their own attorney fees" unless a statute or contract provides otherwise. Id., ¶I2. However, consistent with many states, [2] Wisconsin has adopted a "narrow exception" to this rule-often referred to as the third-party litigation exception-when a party is "wrongfully drawn into litigation with a third party." Id., ¶¶72-73.

The general rule is that costs and expenses of litigation, other than the usual and ordinary court costs, are not recoverable in an action for damages, nor are such costs even recoverable in a subsequent action; but, where the wrongful acts of the defendant have involved the plaintiff in litigation with others, or placed him in such relation with others as to make it necessary to incur expense to protect his ...

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