Glamann v. St. Paul Fire and Marine Ins. Co.
| Decision Date | 28 June 1988 |
| Docket Number | No. 85-2266,85-2266 |
| Citation | 424 N.W.2d 924,144 Wis.2d 865 |
| Parties | , 60 Fair Empl.Prac.Cas. (BNA) 1341 Carol Ellen GLAMANN, Plaintiff-Respondent-Petitioner, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Carl F. Anderson, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
William Smoler (argued), and Smoler & Albert, S.C., Madison, for plaintiff-respondent-petitioner.
Carroll Metzner, Virginia L. Newcomb (argued), and Bell, Metzner & Gierhart, S.C., Madison, for defendants-appellants.
Carol Ellen Glamann (Glamann) seeks review of that portion of a court of appeals' decision which denied her award of attorney's fees for legal expenses she incurred in proving an employment discrimination claim within a legal malpractice action. 140 Wis.2d 640, 412 N.W.2d 522. Glamann also challenges the court of appeals' denial of appellate attorney's fees for appellate work relating to the underlying discrimination claim.
The court of appeals concluded that attorney fees for the underlying discrimination claim were barred on the ground that Glamann failed to submit her claim for reasonable attorney's fees to the jury for determination. Additionally, the court rejected Glamann's request for appellate attorney's fees based on its conclusion that appellate fees were not available by statute or otherwise authorized. We disagree.
In a legal malpractice action involving an underlying employment discrimination claim, we conclude that the question of reasonable attorney's fees for the underlying claim should be determined by the court as a matter of law because of the court's special expertise in assessing legal fees for a case within a case. Further, in accordance with Wisconsin's policy of making victims of employment discrimination "whole," we conclude that Glamann is entitled to appellate attorney's fees for that portion of the appellate work related to the underlying discrimination claim.
Accordingly, the decision of the court of appeals regarding the availability of both trial and appellate attorney's fees is reversed. The circuit court's award of attorney's fees is reinstated and the cause is remanded for further proceedings consistent with this opinion.
The facts are not disputed. Glamann brought a legal malpractice action against her former attorney, Carl Anderson (Anderson), for his failure to file an employment discrimination claim on her behalf against her employer, Command Performance. Anderson had failed to bring the action before the state and federal statutes of limitation had lapsed.
A three and one-half day jury trial on Glamann's malpractice claim was held in Dane county circuit court before Judge Moria G. Krueger. The jury found that Anderson was negligent in handling Glamann's claim and that Command Performance had unlawfully discriminated against Glamann by both reducing her hours and discharging her. The jury awarded Glamann $2,200 in damages.
In motions after the verdict, Glamann requested a change in the damage award, to include attorney's fees for the work performed in the underlying discrimination claim and interest on the damage award. The circuit court increased the damage award, awarded interest and permitted application for attorney's fees and costs.
Glamann subsequently filed an application for attorney's fees and costs for the legal work performed in establishing the underlying discrimination claim. The circuit court offered Anderson an opportunity to request an evidentiary hearing on the reasonableness of the attorney's fees. However, the record does not reflect that Anderson ever requested a hearing. The circuit court then granted Glamann's application for costs and attorney's fees, totaling $13,780.31, and added these expenses to the damage award.
Anderson appealed the circuit court's judgment and damage award on several grounds. These grounds included the following: that the evidence did not support a finding of discrimination under the Wisconsin Fair Employment Act (WFEA), that the increase in the damage award was unwarranted, that prejudgment interest is not awardable in a legal malpractice case and that Glamann failed to submit the question of reasonable attorney's fees to the jury for consideration. Glamann, in turn, brought a motion to remand to the circuit court for a determination of reasonable appellate attorney's fees.
The court of appeals rejected Anderson's claim that there was insufficient evidence to support a finding of discrimination and an award of interest. However, the court found that the circuit court erred in increasing the jury's award and reinstated the jury's original damage award. Additionally, the court of appeals concluded that the circuit court erred in awarding attorney fees, noting that the question of reasonable attorney's fees should have been submitted to the jury rather than to the court for determination. Finally, the court of appeals concluded that appellate attorney's fees were not recoverable because they were neither authorized by statute nor incurred as a result of "any wrongful act by Anderson." Judge Sundby dissented, concluding that attorney's fees for the underlying discrimination claim were properly determined by the circuit court and that appellate attorney's fees related to the discrimination claim were recoverable.
Glamann subsequently filed a petition to review with this court. The petition was granted on September 15, 1987, 140 Wis.2d 871, 416 N.W.2d 65, to review the issues pertaining to recovery of attorney's fees.
We first consider whether Glamann's claim for reasonable attorney's fees in the underlying employment discrimination case should have been submitted to the jury as part of its determination of damages or determined by the circuit court as a matter of law. 1
To establish causation and injury in a legal malpractice action, the plaintiff is often compelled to prove the equivalent of two cases in a single proceeding or what has been referred to as a "suit within a suit." Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 277, 276 N.W.2d 284 (1979); Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 103, 362 N.W.2d 118 (1985). This entails establishing that, " 'but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action.' " Lewandowski, 88 Wis.2d at 277, 276 N.W.2d 284, citing 7 Am.Jur.2d, Attorneys at Law, sec. 188 at 156 (1963). In the present case, this meant that Glamann had to prove she was discriminated against by her employer in violation of the Wisconsin Fair Employment Act (WFEA). Glamann prevailed in this claim and was awarded damages by the jury.
As a prevailing plaintiff under the WFEA, Glamann was also entitled to recover reasonable attorney's fees incurred in prosecuting the employment discrimination claim. Watkins v. LIRC, 117 Wis.2d 753, 345 N.W.2d 482 (1984). She brought a post-verdict motion to recover her legal fees, which was subsequently granted by the circuit court. This procedure is consistent with that employed in the administrative process, where reasonable attorney's fees are determined by the hearing examiner. Id. The court of appeals reversed the award of attorney's fees, however, concluding that because the discrimination claim is an underlying claim to the malpractice action, a tort action, the principles of tort law control. Thus, the issue of attorney's fees should have been submitted to the jury as part of its determination of damages.
While we acknowledge that the proper procedure for determining damages in a tort action is to submit all questions of damages to the jury for determination, we have also recognized the unique character of a legal malpractice action involving a case within a case. In regard to such actions, we have stated that the procedure for ascertaining liability and damages must be flexible to accommodate individual cases.
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