Knoll v. Klatt
| Decision Date | 27 June 1969 |
| Docket Number | No. 60,60 |
| Citation | 43 Wis.2d 265,168 N.W.2d 555 |
| Parties | Evelyn KNOLL et al., Plaintiffs-Respondents, v. Ralph A. KLATT et al., Defendants, Bruce R. Rasmussen, Intervenor-Appellant. |
| Court | Wisconsin Supreme Court |
This is an appeal by Bruce R. Rasmussen, formerly attorney for plaintiffs, from an order entered February 7, 1968, in the county court of Dodge county, awarding appellant $1,795.64 in fees and prohibiting appellant from collecting any more in fees from the plaintiffs.
Attorney Rasmussen of Beaver Dam was retained upon a contingent fee basis by the plaintiffs, Evelyn Knoll and Phyllis Swan, to prosecute a claim against the plaintiffs' brother, Ralph Klatt, and his wife for money which they owed to the estate of his parents. The contract between Rasmussen and the plaintiffs provided for payment of a contingent fee of one-fourth of the amount recovered without suit or one-third of the amount recovered with suit. It also included the provision:
Rasmussen obtained a cognovit judgment against the Klatts for $16,261.34. Upon motion of the Klatts, the judgment was opened, and they were given leave to answer.
During the first week of June 1967, Ralph and Charmion Klatt, the defendants, offered to settle the claim for $7,472, which offer the plaintiffs, upon advice of Attorney Rasmussen, rejected. At a pretrial conference on November 2, 1967, a settlement of $8,500 was offered to the plaintiffs by the Klatts. The plaintiffs had told Rasmussen, prior to this conference, that they wanted the $8,500 offer accepted. However, Rasmussen rejected it because he believed that he had authority under the contingent fee contract to reject an offer of which he did not approve.
By order of the court on December 4, 1967, Attorney William L. McCusker was substituted as attorney for the plaintiffs. The court also ordered McCusker to pay into the court one-third of any recovery he made in the action, to be held until the court determined the amount of fees to which Rasmussen and McCusker were entitled.
Subsequently, on December 9, 1967, Rasmussen filed a lien against the proceeds of the settlement, asking that one-third of $14,000 be set aside as fees owed to him under the contingent fee contract. On December 15, 1967, an order to show cause issued why Rasmussen should not be punished for contempt and why the lien should not be vacated or released. The hearing was held on December 21, 1967. At the close of the hearing, the trial court dismissed the portion of the order to show cause which asked that Rasmussen be found in contempt of court for filing the lien and vacated the lien because his rights were protected by the court's order requiring McCusker to pay into court one-third of any settlement obtained by him for the plaintiffs. The hearing was then adjourned until February 7, 1968, at which time the trial court heard testimony concerning the amount of fees to which each attorney was entitled. At the close of this hearing, the court ordered the clerk of the county court to pay McCusker fees of $1,000 and disbursements of $37.70 and Rasmussen fees of $1,795.64. The court also ordered the plaintiffs not to pay any further attorneys' fees to either attorney.
An appeal is taken from this order by Attorney Rasmussen.
Williams, Meyer & Williams, Oshkosh, for appellant.
William L. McCusker, Madison, for respondents.
Attorney McCusker, attorney for respondents, was awarded the sum of $1,000, plus disbursements, for his services, and the appellant, Attorney Rasmussen, was awarded $1,795.64.
No objection is made by respondents or their attorney to the fees set by the county judge, even though the fee under the contract with Rasmussen was limited to one-quarter in the event of settlement without suit. Here the amount withheld for attorneys' fees was one-third of the settlement figure of $8,500. Accordingly, we are not confronted with any question other than the propriety of the allocation of the fees. No claim is before this court that the contract was invalid in its entirety or that Rasmussen was entitled to no fees. Inasmuch as the respondents do not ask for a review of the portion of the order awarding fees to Attorney Rasmussen, the trial court specifically ruled that the question of whether Rasmussen had been discharged for cause was not a consideration in its decision. Therefore, the only question is whether the trial court erred in awarding Attorney Rasmussen $1,795.64 when he had not been discharged for cause.
In Tonn v. Reuter (1959), 6 Wis.2d 498, 95 N.W.2d 261, this court enunciated the standard applicable in the instant case:
'The majority rule is...
To continue reading
Request your trial
-
Standard Theatres, Inc. v. State, Dept. of Transp., Div. of Highways
...and against the great weight and clear preponderance of the evidence. Id. at 183, 214 N.W.2d 401, citing Knoll v. Klatt, 43 Wis.2d 265, 271, 168 N.W.2d 555 (1969); Estate of Marotz, 263 Wis. 99, 103, 56 N.W.2d 856 (1953). However, in Herro, this court also acknowledged that past decisions h......
-
Markwardt v. Zurich American Ins. Co.
...This section shall not be construed as changing the law in respect to champertous contracts. (Emphasis added.) See Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555 (1969), overruled on other grounds by Herro, Wis.2d 179, 214 N.W.2d 401 (1974); Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959)......
-
Anderson v. Gailey
...11 Williston, Supra at 301, and has been applied to wrongfully discharged attorneys on contingent fee contracts. See Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555 (1969); Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959); Berry v. Nichols, 227 Ark. 297, 298 S.W.2d 40 (1957); 5 Corbin on Co......
-
Sohn v. Brockington
...the discharged attorney in performing the balance of the contract. Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959); Knoll v. Klatt, 43 Wis.2d 265, 168 N.W.2d 555 (1969). A more recent trend of cases denies the attorney, discharged by his client before the contingency has been fulfilled, ......