By Joe Forward, Legal Writer, State Bar of Wisconsin

June 2, 2010 – A letter of engagement, itemized bills, and a billing attorney’s affidavit that such bills were sent and unpaid was sufficient evidence to support a law firm’s summary judgment motion against a client for unpaid legal fees, the appeals court recently held.

In Simandl & Murray, S.C. v. Mainstreet Homes, LLC (May 25, 2009AP1247), the law firm of Simandl & Murray filed a complaint to recover nearly $28,000 in unpaid legal fees from its client, Mainstreet.

A signed letter of engagement and itemized bills were attached to the complaint, and thus became part of the record. In addition, the law firm filed an affidavit signed by firm attorney Robert Simandl with the summary judgment motion. The Milwaukee County Circuit Court considered these items in granting summary judgment to Simandl & Murray.

On appeal, Mainstreet argued it was error for the circuit court to consider the “attached” documents in deciding the summary judgment motion, and “even if those documents were properly considered, there [was] a lack of evidence to permit summary judgment.”

Must papers already on record be attached?

Mainstreet first argued that it was error for the trial court to consider documents attached to the complaint – the letter of engagement and the itemized bills – because these documents were not also attached to the summary judgment motion.

Contrary to Mainstreet’s argument, Wis. Stat. section 802.08(3) does not require that papers already on record be filed separately with the summary judgment motion, the court noted.

The statute “contemplates that documents already in the record” can be used to prove a summary judgment motion, the court wrote.

Summary judgment appropriate on attorney fees

Simandl & Murray’s complaint included itemized bills and Robert Simandl’s affidavit stating that itemized bills were sent and never paid. The complaint sought payment of nearly $28,000.

Mainstreet argued that the trial court erred in granting summary judgment to Simandl & Murray because the affidavit “failed to include critical evidentiary facts concerning the itemized bills” that were attached to the complaint.

In Mainstreet’s view, the affidavit needed additional information to substantiate legal fees charged by the law firm or else the grant of summary judgment was error.

Such additional information would include “a reasonably exact description and record citation for the billing statements” and affirmations that “the listed legal tasks were in fact performed” and “time claimed was accurate and the rate charged was reasonable.”

But the appeals court held these additional facts were not necessary. Mainstreet failed to counterclaim that fees were unreasonable, the court noted, and failed to timely name an expert witness to testify to that issue, which is required.

Instead, a Mainstreet attorney – Jarold Fennell – filed a post-pleading affidavit claiming that Robert Simandl’s legal work was unnecessary and the firm’s fees were unreasonable.

An expert witness must decide whether legal fees are reasonable, the appeals court concluded, and Mainstreet failed to timely file a witness list that named an expert witness.

The case might not have been appropriate for summary judgment, the appeals court noted, if Mainstreet had taken proper steps to address that issue.