Hartman v. Winnebago County

• Decision Date: 05 February 1997
• Docket Number: No. 96-0596,96-0596
• Citation: 561 N.W.2d 768,208 Wis.2d 552
• Parties: Judy HARTMAN and Ronald Delap, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. WINNEBAGO COUNTY, a municipal corporation, Winnebago County Board of Supervisors, Winnebago County Social Services Board, and the Winnebago County Department of Social Services, Defendants-Respondents. d
• Court: Wisconsin Court of Appeals

Page 768

561 N.W.2d 768

208 Wis.2d 552

Judy HARTMAN and Ronald Delap, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. WINNEBAGO COUNTY, a municipal corporation, Winnebago County Board of Supervisors, Winnebago County Social Services Board, and the Winnebago County Department of Social Services, Defendants-Respondents. ^d

No. 96-0596.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 16, 1996.

Opinion Released Feb. 5, 1997.

Opinion Filed Feb. 5, 1997.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Jeff Scott Olson of Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of John E. Thiel and Rebecca L. Kent of Godfrey & Kahn, S.C. of Oshkosh.

Before SNYDER, P.J., BROWN and ANDERSON, JJ.

ANDERSON, Judge.

Judy Hartman and others (collectively, Hartman) in this class action suit appeal from an order denying their motion for an award of attorney's fees under 42 U.S.C. § 1988. The circuit court determined that Hartman was not entitled to attorney's fees because they had not demonstrated that they were "prevailing parties" in this suit and because their motion for attorney's fees was untimely. We conclude that Winnebago County and others (collectively, the County) were not unfairly surprised or prejudiced by Hartman's motion for attorney's fees, thereby rendering the motion timely. We further conclude that Hartman met their burden of establishing a causal link between this litigation and the remedial changes made by the County and proving that the remedial changes were required by law. We therefore reverse the circuit court's order and remand for a determination of reasonable attorney's fees.

The facts leading up to this third appeal are undisputed and shall be compiled from the two previous unpublished decisions by this court. ¹ General relief in Wisconsin is administered through the counties pursuant to ch. 49, STATS. ² In September 1990, the Winnebago County Social Services Board adopted a reduction in the amount of general relief available for Winnebago county recipients. The changes were scheduled to go into effect on October 1, 1991. The reduction in benefits was not based on a determination of the actual cost of the standard of living in Winnebago county; rather, the minutes of the meeting state that the benefits would be reduced to "whatever the State minimum is as stated in SS 49.032(1)(c) and (d)." Hartman v. Winnebago County, No. 91-2414, unpublished slip op. at 2-3 (Wis.Ct.App. April 22, 1992) (Hartman I ).

On October 4, 1990, Hartman commenced this action and sought injunctive and declaratory relief. Hartman made the following six claims:

(1) The county's action in reducing the amount of general relief and its failure to furnish relief in a reasonable amount violates sec. 49.01(5m), Stats.

(2) The county's failure to establish written standards of need violates sec. 49.02(1m), Stats.

(3) The county's failure to engage in a procedure which is designed to determine a reasonable standard of need violates the due process requirements of the federal and state constitutions.

(4) The county violated the minimum standards of sec. 49.032, Stats.

(5) The county's failure to provide adequate notice required by sec. 49.037(6), Stats., prior to the implementation of the reduction in relief violated the due process rights guaranteed by the federal and state constitutions.

(6) The county's adoption of a policy creating a ten-day limit on the right to appeal violates sec. 49.037, Stats.; due process rights under the federal and state constitutions; and creates a cause of action under 42 U.S.C. sec. 1983.

Id., unpublished slip op. at 3-4. The trial court issued a temporary injunction enjoining the county from implementing the relief reduction.

On May 6, 1991, the board rescinded the September 10 reduction and restored the benefits to the original levels. The minutes indicate that the rescission was in response to the Hartman litigation. The minutes of the May 6, 1991 meeting state:

John Bodnar discussed the possibility of revoking the General Relief rent levels which were set in 9/90, back to their original amount of $260. He indicated that we are involved in litigation right now, and it will probably continue if we don't lower the rent levels. We are under an injunction because we didn't have adequate criteria for lowering the levels last September.

Id., unpublished slip op. at 5 n. 1 (emphasis added). The circuit court subsequently granted the County's motion to dismiss the class action as moot. Hartman appealed. See id., unpublished slip op. at 5.

In Hartman I, we held that despite the rescission, a question remained as to whether the County had proper standards of need in place and, if so, whether they were adequate under the applicable law. See id., unpublished slip op. at 7. Because the matter was not moot in this respect, we remanded to the circuit court for this determination. See id. On remand, the circuit court ruled that the County had enacted valid standards. Hartman appealed for a second time.

During the pendency of the second appeal, Hartman v. Winnebago County, No. 94-0022, unpublished slip op. (Wis.Ct.App. April 19, 1995) (Hartman II ), the supreme court decided Clark v. Milwaukee County, 188 Wis.2d 171, 524 N.W.2d 382 (1994). Thereafter, the County moved this court to reopen the record or remand to the circuit court for a determination as to whether the written standards of need which were the subject of the second appeal complied with Clark. Hartman opposed the motion. See Hartman II, unpublished slip op. at 3. We then received an amended motion from the County advising that it had revised its written standards of need to comply with Clark and that the revisions made the issues on appeal moot. See Hartman II, unpublished slip op. at 3. The County asked that we either remand to the circuit court for a determination or declare the appeal moot while Hartman sought a decision addressing the adequacy of the new standards. See id. Because the appeal involved new law and facts which had not been considered by the circuit court, we dismissed the appeal as moot. See id., unpublished slip op. at 4-5.

Seven months later, on November 16, 1995, Hartman filed their motion for an award of attorney's fees under 42 U.S.C. § 1988 for work done onHartman I and II. The circuit court found that Hartman was not a prevailing party; rather, whatever positive results inured to Hartman came about because of the Clark case. In the alternative, the circuit court determined that Hartman's motion was untimely and dismissed the motion. Hartman appeals.

Hartman first argues that their motion for attorney's fees was timely. A plaintiff may not recover attorney's fees in his or her claim against the defendant unless such liability arises from a specific statute or the contract of the parties. See Production Credit Ass'n v. Laufenberg, 143 Wis.2d 200, 203, 420 N.W.2d 778, 779 (Ct.App.1988). Hartman claims attorney's fees under 42 U.S.C. § 1988(b). In any action or proceeding to enforce a provision of 42 U.S.C. § 1983, "[T]he court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Section 1988(b). ³ The determination of the amount of reasonable attorney's fees is discretionary with the trial court. See Thompson v. Village of Hales Corners, 115 Wis.2d 289, 305, 340 N.W.2d 704, 712 (1983). A trial court's award of attorney's fees under § 1988 will only be reversed if the trial court misused its discretion. See id.

Hartman asserts that "[t]he only timeliness bar on attorneys' fees applications recognized in the White opinion [White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) ], was a suggestion that courts retained the discretion to deny fees 'in cases in which a post-judgment motion unfairly surprises or prejudices the affected party.' " Hartman maintains that their fee application was filed within a reasonable time after the termination of the litigation because the County was not unfairly surprised or prejudiced by the application.

The County counters that an application for attorney's fees is governed by § 806.06(4), STATS., which contains a thirty-day deadline for the entry of a judgment. The County further argues that Hartman's application "is not only untimely under state law, but it is also untimely under Rule 54(d) of the Federal Rules of Civil Procedure." In the alternative, the County maintains that Hartman's application was not filed within a reasonable time.

The circuit court held in favor of the County. The circuit court specifically found that (1) Hartman's motion was untimely because it was not filed within thirty days of the plaintiffs' receipt of notice of entry of the judgment under § 806.06(4), STATS.; (2) if federal law is applicable, the motion was still "untimely because it was not filed within the 14-day limitation of Rule 54(d)"; and (3) the motion "was not filed within a reasonable period of time as a matter of law because it was filed more than six (6) months after entry of the judgment." We disagree.

There are neither procedural rules nor Wisconsin cases discussing the timeliness of attorney's fees under 42 U.S.C. § 1988. See, e.g., Gorton v. American Cyanamid Co., 194 Wis.2d 203, 230, 533 N.W.2d 746, 757 (1995) (holding § 805.16, STATS., time limits inapplicable to a petition for attorney's fees, cert. denied, --- U.S. ----, 116 S.Ct. 753, 133 L.Ed.2d 701 (1996)); Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis.2d 278, 292, 528 N.W.2d 502, 508 (Ct.App.1995) (requiring bothss 814.025 and 802.05, STATS., frivolous-costs motions be filed prior to the entry of judgment in the case). Accordingly, we adopt that rule set forth in White regarding the timeliness of attorney's fees. The Supreme Court inWhite concluded that "[s]ection 1988...