2008 WI App 28
court of appeals of
published opinion
Case No.: |
2007AP42 |
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Complete Title of Case: |
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Opinion Filed: |
January 31, 2008 |
Submitted on Briefs: |
September 14, 2007 |
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JUDGES: |
Higginbotham, P.J., Vergeront and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the appellant, the cause was submitted on the briefs of Joseph A. Ranney and Michele Perreault of DeWitt Ross & Stevens, S.C., Madison. |
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Respondent |
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ATTORNEYS: |
On behalf of the respondents, the cause was submitted on
the brief of Thomas J. Vale of
Duxstad, |
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2008 WI App 28
COURT OF APPEALS DECISION DATED AND FILED January 31, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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In re the estate of Theodore C. Becker, Deceased: Stephen J. Bloom, Appellant, v. Judith Seeder Baskin, Barbara Bloom Kreml and Donald G. Bloom, Respondents. |
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APPEAL
from a judgment of the circuit court for
Before Higginbotham, P.J., Vergeront and Bridge, JJ.
¶1 BRIDGE, J. Stephen Bloom appeals the circuit court’s judgment in this contested will matter which provided that attorney fees and costs incurred by certain of the deceased’s paternal heirs were to be paid from the estate as a whole. Contrary to the circuit court’s ruling, Bloom argues that Wis. Stat. § 879.37 (2005-06)[1] permits the award of fees and costs from certain of the paternal heirs’ distributive share. We disagree and affirm.
Background
¶2 Theodore Becker died in December 2000. In his will, Becker bequeathed his entire estate to his mother. However, Becker’s mother predeceased him. No closely related heirs-at-law were living, and extensive efforts ensued to determine whether other legal heirs existed. Over the next two years, various individuals filed claims to the estate.
¶3 The claimants included eight individuals, among others,
claiming to be paternal heirs: Stephen
Bloom, Judith Seeder Baskin, Nancy Seeder Geller, Stephen Seeder, Barbara Bloom
Kreml and Donald Bloom, (collectively referred to as the “Baskin Group”), as
well as Joann Bloom Carrell Hugo and Lorraine Bloom Grawoig. The Baskin Group, together with Joann and
¶4 Some of the claims were disputed, and protracted litigation ensued. The claims were eventually resolved, and are not at issue in the present appeal. On August 24, 2006, following a contested evidentiary hearing, the court entered an order determining the Baskin Group members and Joann and Lorraine (as well as other individuals not involved in this litigation) to be the paternal heirs.
¶5 Over the course of the litigation, the Baskin Group incurred
approximately $179,000 in attorney fees and costs. In September 2006, the Baskin Group moved for
an award of its fees and costs from the Bloom Heirs’ share of the estate. In October 2006, Joann and
¶6 The circuit court found the fees to be reasonable, necessary and fair. However, the court determined that it had neither statutory under Wis. Stat. § 879.37 nor equitable authority to award the fees out of an heir’s distributive share, and instead was required to award the fees out of the estate as a whole. On November 17, 2006, the court entered a final judgment in the matter, which included a provision that the sum of $179,000 was to be withheld from the Bloom Heirs’ portion of the estate and placed in a trust account pending resolution of the attorneys fees dispute. One member of the Baskin Group, Stephen Bloom, appeals from this judgment.
Standard of Review
¶7 Resolution of this case requires that we construe Wis. Stat. § 879.37. On appeal, statutory construction is a
question of law subject to de novo review.
State v. Cole, 2000 WI App 52, ¶3, 233
Discussion
¶8
¶9 Bloom acknowledges that no
¶10 In construing a statute, we look first to the language of the
statute itself. State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. When the statutory language is
clear and unambiguous, we do not look beyond the plain words.
¶11 Bloom relies on language in Jandrt v. Jerome Foods, Inc.,
227
¶12 Bloom directs our attention to two cases from other
jurisdictions,
¶13 Bloom cites to a single
¶14 On appeal, the estate argued in part that the provision in Wis. Stat.
§ 879.37 which allows attorney fees to be awarded to “the
prevailing party,” should be interpreted to refer to a single party only. It asserted that the use of the definite
article “the” in reference to “prevailing party” in the statute did not
authorize fees paid to multiple parties.
Wheeler, 256
¶15 We concluded that the word “the” did not so limit the award of
fees.
¶16 Bloom suggests that we should likewise avoid imposing such an
“extremely literal and artificial” interpretation of the term “the estate” in
the present case. We decline the
invitation because we conclude that a literal interpretation of the phrase “out
of the estate” is warranted under the plain meaning rule, see Kalal, 271
Wis. 2d 633, ¶45, and we do not find such an interpretation to be either
extreme or artificial. Moreover, whereas
Wheeler
involved interpretation of an ambiguous term which had previously been
interpreted in other similar fee-shifting cases, the term at issue in the
present case is not ambiguous. Further,
to construe “out of the estate” as Bloom argues would in essence require that
we read the phrase as meaning “out of either the estate as a whole, or any part
thereof.” Had the legislature intended
that result, it could easily have so provided.
Brauneis v. State, 2000 WI 69, ¶27, 236
¶17 Although we reach this outcome by the plain language of Wis. Stat. § 879.37, we recognize, as did the circuit court, that equity might well lead to the opposite conclusion. It may be that the legislature will choose to address the issue in the future. For now, however, the plain language of § 879.37 dictates the outcome.
¶18 For the above reasons, we affirm the circuit court’s judgment.
By the Court.—Judgment affirmed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] See Footville
State Bank v. Harvell, 146