Schlimgen v. Cohen

• Court: Wisconsin Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Schlimgen v. Cohen, 406 N.W.2d 170, 138 Wis.2d 525 (Wis. App. 1987)
• Decision Date: 26 March 1987
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. GILBERT W. SCHLIMGEN and EDWARD J. WOJTAL, Plaintiffs-Respondents, v. STUART B. COHEN and MICHAEL S. JACOBS, Defendants-Appellants, HOMART DEVELOPMENT COMPANY, Defendant. 84-2435.

Page 170

406 N.W.2d 170

138 Wis.2d 525

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

GILBERT W. SCHLIMGEN and EDWARD J. WOJTAL, Plaintiffs-Respondents, v. STUART B. COHEN and MICHAEL S. JACOBS, Defendants-Appellants HOMART DEVELOPMENT COMPANY, Defendant.

84-2435.

Court of Appeals of Wisconsin.

March 26, 1987.

Circuit Court, Dane County

Reversed

Appeal from an order of the circuit court for Dane county: William F. Eich, Judge.

Before GARTZKE, P.J., DYKMAN and LaROCQUE, JJ.

PER CURIAM.

Vendees Michael Jacobs and Stuart Cohen appeal an order requiring them to pay the attorney fees of vendors Edward Wojtal and Gilbert Schlimgen incurred to foreclose a land contract. The land contract provides that vendors may recover from the vendees reasonable attorney fees for enforcement of any remedy under the contract. The trial court had initially denied the vendors fees, which they appealed, but later reconsidered its denial when the vendors moved to vacate the judgment under 806.07(1) on the basis of 'newly discovered case law.' The vendees contend that the trial court lacked jurisdiction to award fees during the pendency of the vendors' appeal, that by bringing the strict foreclosure action the vendors elected against attorney fees, that the award effects a double recovery, that five percent of the land contract balance is excessive, they are entitled to a set-off against the fees, and that the award has no basis in the record. We conclude that the newly discovered case law did not justify modification of the judgment. We therefore reverse the order.

The issue of fees was argued at a hearing before the judgment of foreclosure was issued. The trial court awarded no fees in the strict foreclosure judgment dated March 30, 1983. It denied the request for fees in a memorandum decision dated September 26, 1983 and implementing judgment dated October 17, 1983. On October 31, 1983 the vendors requested reconsideration of the October 17, 1983 judgment under sec. 806.07(1), Stats. because of newly discovered case law. On December 1, 1983, vendors appealed the October 17, 1983 judgment in appeal no. 83-2331. On January 23, 1984, the trial court reconsidered the judgment by holding in a memorandum decision that attorney's fees could be recovered under the new case law. On April 5, 1984 and on the vendors' motion we remanded the record to the trial court. On April 17, 1984, the trial court issued a judgment which allowed recovery of attorneys fees with the amount to be determined...