### COURT OF APPEALS DECISION DATED AND FILED June 11, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE 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 W IS . S TAT . § 808.10 and R ULE 809.62.
Appeal No. 2023AP520 Cir. Ct. No. 2018CV278 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

A LDEN A SSOCIATES , P LAINTIFF - C OUNTER - D EFENDANT - A PPELLANT - C ROSS - R ESPONDENT , M ARGE A LDEN , C OUNTER - D EFENDANT - A PPELLANT - C ROSS - R ESPONDENT ,
V . J ACKI C URRY , D EFENDANT - C OUNTER - C LAIMANT - R ESPONDENT - C ROSS - A PPELLANT , M AJESTIC W ELLNESS S PA , D EFENDANT , M AJESTIC F ALLS , I NC ., C OUNTER - C LAIM ANT - R ESPONDENT - C ROSS - A PPELLANT .No. 2023AP520

2 APPEAL and CROSS

- APPEAL from an order of the circuit court for Polk County: DANIEL J. TOLAN , Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3). ¶ 1 PER CURIAM. Jacki Curry prevailed on her counterclaims filed in respo nse to Marge Alden’s suit t o recover unpaid rent from Curry , and, pursuant
to statutory fee

- shifting provisions for two of those counter claims, the circuit court awarded Curry $138,202.18 in attorney s’ fees. 1 Alden and Curry appeal and

cross
- appeal, respectively, the court’s award of atto rney s’ fees on several grounds. For the reasons that follow, w e affirm the court’s attorneys’ fees award against Alden’s challenges, but we reverse and remand for the court to consider Curry’s fee request under the p roper methodology

. BACKGROUND
¶ 2 The facts underlying this case can be found in the parties’ previous appeal: Alden Associates v. Curry (Alden I) , No. 2022AP1280 , unpublished slip op. (WI App Dec. 19, 2023) , review denied (WI May 21, 2024 )

. 2 After a six

- day bench trial, Curry was successful on seven of her eight counterclaims against

1 For ease of reading, we will refer to all the parties in this case as either Alden or Curry.

2 We cite this unpublished opinion simply for background information and the law of the case. See W IS

. S TAT

. R ULE 809.23(3) (2021

- 22)

. All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.No. 2023AP520

3 Alden for constructive eviction, unjust enrichment, civil theft, conversion, tortious interference with contractual and prospective contractual relationships, trademark infringement, and defamation. Id. , ¶1. She was unsuccessful on her eighth counterclaim, which alleged a violation of the land lord/tenant provisions of W IS

. A DMIN

. C ODE ch. ATCP 134 (Oct. 2021) 3 and W IS

. S TAT

. § 100.20. Alden I , No. 2022AP1280, ¶10. W e affirmed the circuit court’s judgment against Alden’s appellate challenges. Id. , ¶1.
¶ 3 After the circuit cou rt entered its judg ment following the bench trial, Curry submitted her p etition for legal fees and costs pursuant to the fee

- shifting provisions of the civil theft statute, W IS

. S TAT

. § 895.446(3)(b) , and the trademark infringement statute, W IS

. S TAT

. § 132.033(2)(d). Curry sought $317,357.54 , for fees incurred by her attorneys , Timothy J. O’Brien and Carol N. Skinner, and

non
- taxable costs, arguing that all the fees and costs should be awarded because the claims share “a common core of facts” and are “i nterrelated.” Alden opposed Curry’s fee petition on several bases, including Skinner’s alleged limited involvement in the case, W IS

. S TAT

. § 814.045(2)(a)’s “3 times” presumption for attorneys’ fees , and whether O’Brien’s fees should be limited to only th ose incurred to prove the civil theft claim.
¶ 4 The circuit court held two nonevidentiary hearings on the fee issue. On September 30, 2022, the court heard the parties’ arguments and discussed its thoughts but reserved ruling on the issue to allow some time to review the parties ’ submissions and arguments , including an analysis of the wor k each of Curry’s attorneys performed during the trial

. On January 27, 2023, t he court issued its oral

3 All references to W IS

. A DMIN

. C ODE ch. ATCP 134 are to the October 2021 register.No. 2023AP520

4 ruling, awarding $50,489.80 for the work performed by O’Brien and $87,712.38 for the work performed by Skinner

. ¶ 5 The circuit court arrived at these figures by applying what it called the lodestar method of valuation . It then reduc ed that lodestar figure by forty

- three percent in the case of O’Brien 4 and fifty percent in the case of Skinner, representing Curry’s success on three of seven counterclaims pursued by O’Brien and four of eight counter claims pursued by Skinner

. The court included more than just the two fee

- shifting counterclaims in its calculation based on its finding that Curry’s counterclaims for civil theft, unjust enrichment, and conversion “are interrelated and share a common core of facts and are not separate and distinct under the facts o f this case

. ” It further reasoned that “[g] iven the convoluted nature of this case and the interrelated causes of action, there is no real way for [the] court to determine how much time was spent on each claim not only during the trial, but also outside of the trial.”
¶ 6 The circuit court also examined each of the W IS

. S TAT

. § 814.045(1) statutory factors on the record at both hearings . For example, the court found that “[t]here is no doubt that this case was labor intensive from start to finish”; that “a lot of the extra hearings were due to the lack of cooperation from Alden”; that “trademark infringement is a specialized area of law” and “given the multiple causes of action, there is definitely skill that is required” of the attorneys ; that “the physical number of days

... that this case took up” would “[p]resumably

... affect other opportunities for employment for both Skinner and O’Brien”; that affidavits

4 The circuit court also reduced O’Brien’s requested hourly rate from $375 per hour to $350 per hour because, as the court reasoned, “that’s what the contract i n the reta iner agreement was.”No. 2023AP520

5 in the record supported the hourly fees charged by the attorneys as well as their

e xperience, reputation, and ability ; that this case has been pending for a long time and , at that time, Curry’s “ relationships [with O’Brien and Skinner] are now over five years old ” ; and “that the case was complex in terms of the counterclaims.” The court did not , however, address Curry’s request for costs of investigat ion or

non
- taxable court costs. The court entered its written order grant ing attorneys’ fees on February 8, 2023. Alden appeals , and Curry cross

- appeals.

DISCUSSION
¶ 7 The subject of both the appeal and the cross
- appeal is the circuit court’s award of attorneys’ fees and costs

. Curry’s attorneys, as the ones submitting the fees , bear the burden of demonstrating the reasonableness of those fees. See Kolupar v. Wilde Pon tiac Cadillac, Inc. , 2004 WI 112, ¶34 , 275 Wis. 2d 1, 683 N.W.2d 58

. G enerally speaking, we defer to the circuit court in reviewing an award of attorney fees and costs, and we will not overturn its decision unless there was an err oneous exercise of discre tion. 5 See Hughes v. Chrysler Motors Corp. , 197 Wis. 2d 973, 987

- 88 , 542 N.W.2d 148 (1996). “A circuit court erroneously exercises its discretion when it fails to examine the relevant facts, applies the wrong legal standard, or does not employ a demonstr ated rational process to reach a reasonable conclusion.” Borreson v. Yunto , 2006 WI App 63, ¶6, 292 Wis. 2d 231, 713 N.W.2d 656 . “[T] he exercise

5 Alden uses the phrase “abuse of discretion ” throughout her briefing

. In 1992, our supreme c ourt replaced that phrase with “ er roneous exercise of discretion.” See, e.g. , Shirk v. Bowling, Inc. , 2001 WI 36, ¶9 n.6, 242 Wis. 2d 153, 624 N.W.2d 375. In her reply brief, Alden acknowledges this fact, even citing Shirk for this proposition. Confusingly, however, she continues to use the incorrect phrase, even calling it “the more commonly phrased ‘abuse of di scretion’ standard of review .” We reiterate that, in Wisconsin, the phrase “ er roneous exercise of discretion” has replaced any other previously used phrases.No. 2023AP520

6 of discretion is not the equivalen t of unfettered decision

- making”; “ a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. ” Hartung v. Hartung , 102 Wis. 2d 58, 66, 306 N.W.2d 16 ( 1981)

. I. Alden’s Appeal

a. W IS

. S TAT

. § 814.045(2)(a) ¶ 8 Alden challenges the circuit court’s award of attorneys’ fees to Curry on two bases

. First, Alden argues that the court erred by failing to “acknowledge the statutory ‘3 times’ pre sumption under” W IS

. S TAT

. § 814.045(2)(a) 6 when it awarded Curry $37,712.38 in attorneys’ fees for her trademark infringement claim under W IS

. S TAT

. § 132.033. A circuit court considering a request for attorney fees under § 814.045 must consider numerous factors under subsec. (1) “in determining whether to award attorney fees and in

6 W ISCONSIN S TAT

. § 814.045(2) provides:

(a) In any action in which compensatory damages are awarded, the court shall p resume that reasonable attorney fees do not exceed 3 times the amount of the compensatory damages awarded but this presumption may be overcome if the court determines, after considering the factors set forth in sub. (1), that a greater amount is reasonable

. (b) In any action in which compensatory damages are not awarded but injunctive or declaratory relief, rescission or modification, or specific performance is ordered, reasonable attorney fees shall be determined according to the factors set forth in su b. (1).No. 2023AP520

7 determining whether the attorney fees are reasonable.” 7 Sec. 814.045(1). The presumption found in para. (2)(a) applies in cases where “compen satory dama ges are awarded,” and the court must then “presume that reasonable attorney fees do not exceed 3 times the amount of compensatory damages awarded.” Sec. 814.045(2)(a). However, “this presumption may be overcome if the court determines, after c onsidering the factors set forth in sub. (1), that a greater amount is reasonable.” Id.
¶ 9 According to Alden, the circuit court’s “ award of $100 in so

- called nominal damages for [ Curry’s trademark infringement] claim must be construed

... as an award of compensatory damages that triggers that presumption ”

— in other words, giv en the award of $100 in nominal damages, the reasonable attorneys ’ fees should not exceed $300. Thus, Alden asserts the court erred by concluding “that [ W IS

. S TAT

. § 81 4.045(2)(a)] did not apply because it awarded injunctive relief for Curry’s statutory trademark infringement claim

— thus implying that [§ 814.045(2)(b)] applied instead.”
¶ 10 Curry counters that the circuit court awarded nominal damages, not compensatory damages, and the two a re not the same under the law. Further,

7 The W IS

. S TAT

. § 814.045(1) factors include the following: (1) the time and labor required by the attorney; (2) the novelty and difficulty of the questions involved in the action; (3) the skill requisite to perform the legal service properly; (4) the likelihood that the acceptance of the particular case precluded other employment by the attorney; (5) the fee customarily charged in the locality for similar legal services; (6) the amount of damages involved in the action; (7) the results obtained in the action; (8) the time limitations imposed by the client or by the circumstances of the action; (9) the nature and length of the attorney’s professional relationship with his or her client; (10) the experience, reputation, and ability of the attorney ; (11) whether the fee is fixed or contingent; (12) the complexity of the case; (13) awards of costs and fees in similar cases; (14) the legitimacy or strength of any defenses or affirmative defenses asserted in the action; and (15) other factors the court deems important or necessary to consider under the circumstances of the case.No. 2023AP520

8 Curry argues that in a potential conflict between W IS

. S TAT

. §§ 132.033 and 814.045, the specific statute controls over the general statute . B ut the parties disagree as to which statute is the general or specific statute . Curry advocates for § 132.033 as the more specific statute, arguing that para. (2)(b) of that section “specifically anticipates and recognizes” the result in this case because “Curry proved the injury but could not prove the corresponding monetary damages.” 8

“ Therefore, ” Curry claims, “ the court did not have to award actual damages (‘the court may award...’ ) but could still recognize the violation of the rig ht by enjoining Alden under [ § 132.033 ] (2)(a), and by awa rding the costs and legal fees under [ § 132.033 ](2)(d).”

8 W IS

. S TAT

. § 132.033(2) provides, in pertinent part:

(a) If the person, association or union proves by a preponderance of the evidence that the defendant engaged in a v iolation of this section which threatens the person, association or union with irreparable injury, a court may grant an injunction to restrain such manufacture, use, display or sale and shall order that all such counterfeit marks in the possession or under the control of any defendant be delivered to the court to be destroyed. (b) Except as provided in par. (c), if the person, association or union proves injury and monetary damages by a preponderance of the evidence the court may award the person, asso ciation or union actual damages resulting from such manufacture, use, sale or display or an amount not to exceed 3 times the defendant’s profits directly resulting from such wrongful manufacture, use, display or sale.

.... (d) If the person, associ ation or union proves a violation by a preponderance of the evidence, the court may award the costs of investigating the violation and of prosecuting the suit, including reasonable investigator and attorney fees.No. 2023AP520

9 ¶ 11 We need not address the parties’ arguments regarding this issue

. Instead, for the purpose s of this decision, we will assume, without deciding, that W IS

. S TAT

. § 814.045(2)(a) applies. See State v. Castillo , 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest possible grounds.”). In doing so , we conclude that the circuit court consid ered the § 814.045(1) factors and implicitly determined that the statutory presumption in para. (2)(a) was overcome. The court , therefore, did not erroneously exercise its discretion.
¶ 12 T he record clearly demonstrates that the circuit court considered Alden’s argumen t under W IS

. S TAT

. § 814.045(2)( a) ’s language and rejected i t. At both the September 22, 2022 and January 27, 2023 hearings, the court addressed in detail the § 814.045(1) factors that it considered in determining the attorneys’ fees award

. Further, the court

considered that it was all the actions of Alden that led to the trademark infringement. She brought it upon herself and her company. Although the [c] ourt could not determine the amount of damages from the evidence, there is no doubt that Alden ’ s trademark infringement damaged Curry which is one of the reasons [ the court ] granted the permanent injunction.
¶ 13 Contrary to Alden’s argument that the circuit court’s statement that Alden “brought it upon herself” “ applies to nearly al l defendants found liable for infringement,” the court’s entire discussion

— including the § 814.045(1) factors

— demonstrates that the court found the circumstances of this case weighed heavily in favor of awarding an amount greater than the presumptive $300 in attorneys’ fees for trademark infringement . Th us, even if the presumption applied, Curry overcame it. The court’s decision was not an erroneous exercise of discretion

.No. 2023AP520

10 b. Interrelated Claims
¶ 14 Alden’s second argument is related to Curry’s civil theft
counter claim under W IS

. S TAT

. § 895.446. Section 895.446(3) contains a fee

- shifting provision, stating that where a party prevails on his or her claim under that section, “he or she may recover” “[a]ll costs of investigation and litigation that were reasonably incurred, including the value of the time spent by any employee or agent of the victim.” S ec. 895.446(3)(b); see also Miller v. Storey , 2017 WI 99, ¶49, 378 Wis. 2d 358, 903 N.W.2d 759 (concluding “ that attorney fees are included within the meaning of ‘ costs of investigation and litigation’ under [§] 895.446(3)(b) ” ).
¶ 15 Alden argues that the circuit court err oneously included services rendered for the unjust enrichment and conversion claims, which are not fee

- shifting claims, in its attorneys’ fees award under W IS

. S TAT

. § 895.446(3)(b)

. According to Alden, these claims are not so interrelated that separation would be impossible for the purpose of awarding statuto rily authorized atto rneys’ fees . S he further asserts that by comb ining these claims, the court improperly abrogated the American Rule that parties are presumptively responsible for their own attorney fees.
¶ 16 “ Under the American Rule, the parties to a lawsui t bear the cost of their own attorney fees absent legislativ e authorization to shift costs.” Kolupar , 275 Wis. 2d 1, ¶17 . However, the legislature “has authorized courts to award costs and attorney fees to success ful litigants in many contexts,” including under W IS

. S TAT

. § 895.446(3)(b). See Kolupar , 27 5 Wis. 2d 1, ¶17. In Kolupar , our supreme court adopted the “so

- called ‘lodestar’” method from the United States Supreme Court’ s decision in Hensley v. Eckerhart , 461 U.S. 424, 433 (1983) , toNo. 2023AP520

11 determine the reasonable amount of attorney fees to award under fee

- shifting
statutes

. Kolupar , 275 Wis. 2d 1, ¶¶28

- 30. Under the lodestar method, “the circuit court must first multiply the reasonable hour s expended by a rea sonable
rate ” as a starting point to determine the amount of a reasonable fee , and the court

“ may then make adjustments ” pursuant to the W IS

. S TAT

. § 814.045 (1) factors

. 9 See Anderson v. MSI Preferred Ins. Co. , 2005 WI 62, ¶39, 281 Wis. 2d 66, 697 N.W.2d 73.
¶ 17 In this case, the circuit court stated that it was using the lodestar method to reach an initial determination of a reasonable fee and also discussed all the W IS

. S TAT

. § 814.045(1) factors in its oral ruling. Our r eview of the court’s robust discussion of those factors suggest s that it found virtually all of the factors favored a full award of attorneys’ fees to Curry

. 10
¶ 18 The circuit court, however, then applied what it called a “mathematical formula[,] dividing the number of claims by the

... successful number of claims” to “allocate a percentage of the total time billed to the claims where the attorney’s fees are available and the claims are interrelated.” The court did so based on its conclus ion that due to “the convoluted nature of this case and the interrelated causes of action, there is no real way for [it] to determine how much time was spent on each claim not only during the trial, but also outside of

9 W ISCONSIN S TAT

. § 814.045 was enacted in 2011 and altered the analysis for determining reasonable attorney fees. See 2011 Wis. Act 92, § 1. Prior to its enactment, the reasonableness of attorney fees was analyzed using the SCR 20:1.5(a) factors and relevant case law. See Kolupar v. Wilde Pont iac Cadillac, Inc. , 2004 WI 112, ¶¶23

- 30, 275 Wis. 2d 1, 6 83 N.W.2d 58.

10 It does not appear that Alden is challenging the circuit court’s findings as to the W IS

. S TAT

. § 814.045(1) factors

.No. 2023AP520

12 the tri al.” Both Alden and Curry cha llenge the court’s use of this mathematical formula on app eal , but they do so for different reasons. 11
¶ 19 Alden argues that while the circuit court had discretion to award attorneys’ fees under W IS

. S TAT

. §§ 895.446(3)(b) and 132.033(2)( d ) for Curry’s civil theft and trademark infringement claims, respectively, it was not permitted

“ to include other, non

- statutory claims

... and effectively increase the fees awarded. ” According to Alden, the unjust enrichment and conversion claims “are not sufficiently interrelated with Curry’s statutory civil theft claim,” and the final award of attorneys’ fees should be reduce d to represent only the services performed for Curry’s civil theft c laim.
¶ 20 The circuit court, however, specifically found that the civil theft, unjust enrichment, and conversion claims were “interrelated and share a common core of facts and are not separate and distinct under the facts of this case.” Th e basis for its finding of a “common core of facts” comes from Hensley . In Hensley , the issue involved 42 U.S.C. § 1988 federal civil rights actions, which contain a fee

- shifting provision for a prevailing party. Hensley , 461 U.S. at 426. The question b efore the court was whether “a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.” Id. The Court explained that where the claims for relief “ involve a common core of facts

or [are] b ased on related leg al theories,”

[m]uch of counsel’ s time will be devoted generally to the litigation as a whole, making it difficult to divide the hou rs expended on a claim

- by

- claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the

... court should focus on the significance of the overall

11 We discuss Curry’s challenge below. See infra ¶¶ 28

- 39

.No. 2023AP520

13 relief obtained by th e plaintiff in relation to the hours reasonably expended on the litigation. Where a plaintiff has obtained excellent results, his [or her] attorney should re cover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced s imply because the plaintiff failed to prevail on every co ntention raised in the lawsuit.

Id. at 435.
¶ 21 We conclude that the circuit court did not erroneously exercise its discretion by awarding attorneys’ fees for services rendered for the civil theft, unjust enrichment, an d conversion claims based on its finding that the claim s were

“ interrelated and share a common core of facts

. ” As we outlined previously in Alden I , all of Curry’s countercla ims derived from Alden’s act of locking Curry out of the premises from whic h Curry operated a spa business and thereafter retaining Curry’s property located on the premis es and using that property to operate her own spa business under a very similar name

. 12 Alden I , No. 2022AP1280 , ¶

¶ 1, 4

- 5, 9

- 10. The court found that Alden intentionally stole and converted Curry’s property and that Alden was unjustly enriched because she did so. In other words, proof of one claim resulted in proof of the other claims.

12 In some respects, we also previously addressed this issue in Alden I , when we affirmed the circuit court’s judgment against Alden ’s claim that the court “ erroneously analyzed three of Curry’s counterclaims related to personal property

—unjust enrichment, co nversion, and civil theft

— under identical facts without acknowledging that W IS

. S TAT

. § 895.446 required Cur ry to prove that Alden had the ‘ specific criminal in tent’ to steal her personal property. ” Alden Associates v. Curry (Alden I) , No. 2022AP1280 , unpublished slip op. ¶¶9, 13, 16

- 17 (WI App Dec. 19, 2023), review denied (WI May 21, 2024). As the court noted in its oral decision on fees, the court “combined” the damages for unjust enrichment, civil theft, and conversion because

“ while all three caus es of actions have different elements, all of which were proven over the course of the six day trial[,] [t]hey emanate from the same common core of facts, and [the court] fully addressed those

... when [it] rendered [its trial] decision. ”No. 2023AP520

14 Therefore, the fees incurred for proving the fee

- shifting claim for civil theft were also incurred for proving the other two claims.
¶ 22 Further, the circuit court determined that “[g] iven the mul tiple overlaps in the testimony” and “ the numbers of hours spent on the case by Attorney O’ Brien and Attorney Skinner ,” “ it would be nearly impossible for [the court] to dissect what time in both Skinner and O’Brien’ s time sheets [was] attributable to the claims , ” which “ compounds the difficulty i n making any independent analysis of the time spent on each cause of action where reasonable attorney fees were available. ” See Hensley , 461 U.S. at 435

. The court’s findings are supported by the record

. ¶ 23 Alden’s arguments that the circuit court erred by determining that the three counterclaims shared a common core of facts are not persuasive. In general, s he asserts that the court’s decision improper l y abrogates the American Rule. According to Alden, the American R ule “ must be ‘ st rictly adhered to, ’”

s ee DeChant v. Monarch Life Ins. Co. , 200 Wis. 2d 559, 571, 547 N.W.2d 592 (1996) , and “noticeably absent” from W IS

. S TAT

. § 895.446(3)(b) “ is any reference
to the costs of related claims.” S he also faults C urry’s arguments for failing to consider the American Rule in draw ing a line for awarding fees when at least one claim is a fee

- shifting claim

. ¶ 24 For several reasons, we conclude that t he American Rule does not prevent Curry from recovering attorney s ’ fee s under the facts of this case , given the fee

- shifting statutes at issue. See DeChant , 200 Wis. 2d at 571 (“[P] arties to litigation are generally res ponsible for their own attorney’ s fees unless recover y is expressly allowed by either contract or statute

.... ” (emphasis added) ). First, Alden has not cited any legal authority, aside from general case law defining theNo. 2023AP520

15 American Rule, to support her assertion that the circuit court’s conclusion in this

case , based on Hensley ’s reasoning , runs afoul of the American Rule. Second, we stress that the court’s conclusion that the counterclaims shared a common core of facts did not authorize “ the costs of related claims ” to be paid under W IS

. S TAT

. § 895.446(3)(b) . Instead, it recognized that the “ costs of inves tigation and litigation” of the civil theft coun terclaim would have necessarily subsumed the unjust enrichment and conversion counterclaims because of the interrelation of the issues

. ¶ 25 Third, as to Alden’s claim that there is no “ line ” d rawn for awarding fees in a case where there are multiple claims and only one is properly considered under a fee

- shifting statute , we disagree. Alden faults the circuit court for failing to “analyz[e] potential interrelation between claims through [the] f undamental [American R] ule, a process that requires rational line drawing,” but she fails to specify where she believes the line should be. 13 See State v. Pettit , 171 Wis. 2d 627, 646

- 47, 492 N.W.2d 633 ( Ct. App . 1992) (w e need no t address undeveloped arguments). We conclude that to the extent a “line” is necessary, it is determined by the court’s finding that the claims are or are not interrelated or do or do not involve a common core of facts. Just as the court is called on to determine the reasonable amount of hours expended and a reasonable rate to determine a reasonable fee , it is w ell within the purview of the court to determine, subject to an

13 We can only assu me, based on her arguments, that Alden believes the line should be legal work related to only the fee

- shifting

- statute claim, absent an analysis of a common core of facts, because she asserts that “the circuit court should have instead awarded fees for leg al work that Curry’s attorneys performed solely on her statutory civil theft claim.” However, s he appears to acknowledge the analysis of interrelated claims in her reply brief, stating that “the American Rule forbids awarding attorneys’ fees unless there is an underlying statutory basis or sufficient interrelation between claims where one has that underlying basis .” (Emphasis added.)No. 2023AP520

16 e rroneous exercise of discretion standard , whether claims involve a common core of facts

. ¶ 26 Next, Alden argues that unjust enrichment and conversion are not sufficiently related to civil theft because that claim requires proof of specific criminal intent, while conversion and unjust enrichmen t do not require this eleme nt. Alden details the elements of each of those claims and concludes that each one “involves its own distinct elements” as well as “drastically different arguments and factual underpinnings that require dis tinct legal work for success.” Alden admits that the counterclaims “ involve the same parties, the same location, and the same general timeline,” but she argues “ if that were enough, then, in almost every case, attorneys’ fees would apply to all claims where at least one claim provides fee shifting. That cannot be the law. ”
¶ 27 We disagree with Alden’s argument to the extent that she engages in

an elements

- only analysis of each counterclaim. The Hensley Court identified cases with “ a common core of facts ” or those cases with “ related legal theories ,” but t he Court did not specifically require that the claims have common elements

. See Hensley , 461 U.S. at 4 35

. Thus, the Hensley approach is not strictly an elements

- only analysis. Additionally, A lden has not presented any legal authority where a c ourt applied the H ensley approach to different types of claim s and utilized an elements

- only analysis

. While elementally, we agree that Curry’s civil theft, unjust enrichment, and conversion counterclaim s are somewhat different, the facts giving rise to the cou nterclaims are the same in more than just the parties, the location, and the timeline. In other words, as the circuit court recognized in its trial decision, Curry’s proof of the facts establishing civil theft also establish ed that conversion occurred and that Alden was unjustly enr iched by her wrongful actions. Alden fai ls to show that the court ’s determination

— i.e., that theNo. 2023AP520

17 counterclaims shared a common core of facts and were interrelated

— was an

erroneous exercise of discretion , and we conclude that the court’s ruling finds support in the record. II. Curry’s Cross
- Appeal

a. Mathematical Formula ¶ 28 Curry’s cross

- appeal also challenges the circuit cou rt’s calculation of the fee award

. S he argues that given the court’s findings , the court’s use of the
mat hematical formula to reduce the attorneys’ fees in this case was an err oneous exercise of discretion. Curry claims that under Hensley , the court should have found that all of her succ essful counterclaims shared a common core of facts and, therefore, that “all fees should be awarded which were expended in pursuit of the ultimate result achieved.”
¶ 29 In contrast, Alden argues that the circuit court’s application of the

ma thematical formula was proper. In general, Alden claims that “Curry’s argument that every claim is interrelated finds no support in law”; thus, Alden contends that the court applied “a proper mathematical formula” to reduce Curry’s attorneys’ fees award in this case, notwithstanding Alden’s arguments against the award noted above. (Formatting altered.) See supra ¶¶14

- 27

. Further, Alden faults Curry for “focus[ing] on various fee awards [cases] from other jurisdictions” because those cases “cannot just ify reversing the circuit court’s application of the factors under W IS

. S TAT

. § 814.045(1), with its corresponding mathematical formula applying thos e factors to relevant claims.”
¶ 30 W e agree that the circ uit court erred by applying a so

- c alled “mathematical formula” to its lodestar analysis. After findi ng that most of the W IS

. S TAT

. § 814.045 (1) factors s upported a fee award, the court failed to useNo. 2023AP520

18 those factors to adjust the lodestar figure up or down. Instead, t he court applied a “mathematical formula” to reduce the lodestar figure by the number of claims

— sometimes referred to as a “mechanical claim

- chopping approach ”

— which was rejected in Hensley

. See Lenard v. Argento , 808 F.2d 1242 , 1245 (7th Cir. 1987) ; Hens ley , 461 U.S. at 436 n.11; cf. Johnson v. Roma II
- Waterford LLC , 2013 WI App 38, ¶26, 346 Wis. 2d 612, 829 N.W.2d 538 (“ The reco rd ought to assure us that the [trial

- level] court did not ‘eyeball’ the fee request and ‘ cut it down by an arbitrary percentage because it seemed excessive to the court.’” (alteration in original; citation omitted)). Utilizing a mathematical formula to divide a fee award is not the appropriate analysis under Hensley , as adopted by our supreme court in Kolupar and its progeny , to determine whether the number of hours expended by counsel was reasonable and, if not, what number of hours would be reasonable

. ¶ 31 It appears from our review of the record that the circuit court believed tha t it was required to reduce Curry’s attorneys’ fees award using the mathematical formula because some of the counterclaims were not brought under fee

- shifting statutes. Thus, t he court’s error stems from its determination that only the civil theft, unjust enrichment, and conversion counter claims were “interrelated and share a common core of facts and are not separate and distinct under the facts of this case

. ” Essentially, t he court’s conclusion that some counterclaims shared a common core of facts did not go far enough.No. 2023AP520

19 ¶ 32 We conclude that all of Curry’s seven successful counterclaims sh ared a common core of facts

. 14 We previously affirmed the circuit court’s finding that Alden engaged in willful conduct with criminal intent in the actions she took in this case that went beyond an “ eviction gone wrong ,” see Alden I , No. 2022AP1280 , ¶¶ 13, 17, 36

- 47, and we agree with Curry’s assessment in this appeal that “ virtually all of the work in this case was necessitated by Alden’s wrongful actions in her att empt to steal Curry’s business .” I n other words, counsels’ work on any one of Curry’s counter claim s was not unrelated to counsels’ work on another claim because the facts that Curry was required to prove to establish one counterclaim ei ther established an element of another counterclaim or at least provided support or background for the same. As a result, Curry would have incurred these attorneys’ fees even if she had brought only the
two fee

- shifting counterclaims, rather than all of her successful counterclaims , because counsel would still have had to, for example, file and serve her answer and counterclaims; file her amended answers; appear at the numerous pretrial or motion hearings due in part to, as the court explained, “the lack of cooperation from Alden”; orally argue the motions; engage in discovery; conduct research; and prepare for and participate in the trial.
¶ 33 Accordingly, the factual basis and evidence for all the counterclaims and defenses asserted by Curry were intertwined in such a way that it was not possible to itemize time spent on only certain causes of action. T herefore, the

14 Curry concedes that “[i]n the instant case, the only claim which was distinct in all respects from the seven counterclai ms upon which Curry prevailed was the eighth counterclaim,” which asserted a violation of W IS

. A DMIN

. C ODE ch. ATCP 134 and “for which an extremely small amount of time was spent by Attorney O’Brien, essentially work related to drafting the pleading. It i s also the only counterclaim on which Curry di dn’t prevail in this lawsuit.”No. 2023AP520

20 hours reported by Curry’s attorneys were “devoted generally to the litigation as a whole

. ” See Hensley , 461 U.S. at 435. Importantly, the circuit court did not find that its inability to identify the legal work expended for each claim was the result of counsels’ sloppy or imprecise time submission s. Further, the court stated that it could “absolutely” “understand the hours that were put into this case as contained in the time sheets produced by the attorneys[.]”
¶ 34 As addressed above, where a party’s claims “arise out of a common core of facts,” a “losing party is not entitled to a reduction in attorney’s fe es for time spent on unsuccessful claims, if the winning party achieved substantial success and the unsuccessful claims were brought and pursued in good faith.” Radford v. J.J.B. Enters., Ltd. , 163 Wis. 2d 534, 550, 472 N.W.2d 790 (Ct. App. 1991) ; Hensley , 461 U.S. at 435

- 36 . It seems reasonable, then, to this court that a losi ng party

— Alden

— is similarly not entitled to a reduction in Curry’s attorneys’ fees for time spent on successful claims which were not subject to a fee

- shifting
statute , provided the time spent on t hose claims was necessitated by fee

- shifting claims

. ¶ 35 For example, as t he Seventh Circuit Court of Appeals explained, “F or tactical reasons and out of caution lawyers often try to state their client’ s claim in a number of different ways, ” but the client is not “ penalized just because some, or even all but one, are rejected, provided that the one or ones t hat succeed give him [or her] all that he [or she] reasonably could have asked for. ” Lenard , 808 F.2d at 1245

- 46; see a lso Hensley , 461 U.S. at 448 (Brennan, J., concurring in part; dissenting in part ) (“C ourts should recognize that reasonable counsel in a civil rights case, as in much litigation, must often advance a number of related legal claims in order to give plainti ffs the best possible chance of obtaining significant relief. ”). Similarly, Curry’s attorneys should not be penalized becauseNo. 2023AP520

21 she brou ght

— and was able to prove

— additional counter claims based on facts she otherwise would hav e had to establish to meet her b urden on the fee

- shifting claims.
¶ 36 I n response, Alden challenges the application of Hensley , as well as other federal civil rights decisions cited by Curry , to the circumstances of this

case. According to Alden, “the fee

- shifting provided for by [42 U.S.C. ] § 1988 is allowable because such litigation serves a greater purpose than that of a private dispute,” but “[t]here is no compelling reason why the [circuit] court here should have cited Hensley , or any oth er federal civ il rights case.” Alden claims that “the concept of ‘interrelatedness’ in civil rights cases, wher e all claims are subject to fee

- shifting, simply is not automatically transferable to cases such as this where the majority of claims are not subject to any f ee
- shifting statute.”
¶ 37 We disagree that the holding in Hensley is inapplicable. O ur supreme court expressly adopted Hensley ’s lodestar methodology and directed the circuit courts to follow its logic when explaining how a fee award has been determined. See Kolupar , 275 Wis. 2d 1 , ¶30. 15 By that token, other federal cases applying or explaining the lodestar methodology can provide persuasive authority for this court

. See Lynch v. Crossroads Counseling Ctr., Inc. , 2004 WI App 114, ¶39, 2 75 Wis. 2d 171, 684 N.W.2d 141

. Further, c ourts in this jurisdiction have applied Hensley ’ s reasoning in various fee

- shifting cases where Wisconsin
statutes are at issue

. See Lynch , 275 Wis. 2d 171, ¶39 (collecting cases).

15 We also note that Kolupar involved a fee

- shifting statute providing recovery for pecuniary loss for retail buyers of motor vehicles and, thus, was not a case enforcing civil ri ghts. See Kolupar , 275 Wis. 2d 1 , ¶18.No. 2023AP520

22 ¶ 38 As to whether “ the concept of ‘interrelated ness’ in civil rights cases” is transferable to this case, we agree with Curry that the public policy purpose s for fee

- shifting provisions remain the same whether civil rights, civil theft, or trademark infringement is at issue

. For example, our supreme court has held that

“ an important purpose of fee

- shifting statutes is to encourage injured parties to enforce their statutory rights when the cost of litigation, absent the fee

- shifting provision, would discourage them f rom doing so,” “even when the costs of litigation exceed the value of the action.” Kolupar v. Wilde Pontiac Cadillac, Inc. , 2007 WI 98, ¶55, 303 Wis. 2d 258, 735 N.W.2d 93

. Other goals of fee

- shifting provisions are to make the victim whole, see Standard Theatres , Inc.

v. DOT , 118 Wis. 2d 730, 744

- 45, 349 N.W.2d 661 (1984) ; Johnson , 346 Wis. 2d 612, ¶32 , and to attract competent counsel to represent individuals in these cases ,
see Lynch , 275 Wis. 2d 171, ¶ 45; Betz v. Diamond Jim’ s Auto Sales , 2014 WI 66, ¶26, 355 Wis. 2d 301, 849 N.W.2d 292

. ¶ 39 In consideration of these public policy objectives, Hensley recognized that attorneys should be compensated for all time reasonably expended on a matter. Alden provides no legal authority stating that the Hensley “concept of interrelatedness” does not apply under the circumstances presented here, and we
see no reason to diverge from its instruction when to do so would defeat the purpose s of the fee

- shifting statutes at i ssue.
b. O’Brien’ s Hourly R ate ¶ 40 Curry next challenges the circuit court’s reduction of O’Brien’s hourly rate from $375 per hour to $350 per hour

. She asserts that “well

- settled law regarding fee

- shifting calculations does not support the [circuit] court’s reduction of

... O’Brien’s hourly rate to $350, based on a fee agreement enteredNo. 2023AP520

23 into years before trial.” Instead, Curry claims that “compensation for attorneys in fee [

- ] shifting cases should be based on current rates, to compens ate for the delay in payment.”
¶ 41 In the fee agreement that Curry originally signed with O’Brien’s firm on Dece mber 11, 2017, the hourly rate set for representation

— with a different attorney

— was $350 per hour. During the circuit court’s oral ruli ng , it explained that it “ r educed O’Brien’s hourly rate to $350 because that’ s what the contract in the retainer agreement was. W ISCONSIN S TAT

. § 814.045(3) says this section does not abrogate the rights of persons to enter into an agreement for attorney’ s fees. And the [c] ourt shall presume that such an agreement is reasonable. ” As Curry argues, however, the fee agreement also provided: “We may make reasonable adjustments t o these rates once each year.” Accordingly, Curry submitted O’Brien’s affidavit explaining that his billing rate increased to $375 per hour on October 1, 2019. Further, Curry also submitted affidavits from other attorneys practicing in the area who opined that O’Brien’s rate of $375 per hour was reasonable.
¶ 42 We co nclu de that the circuit court erroneously exercised its discretion by failing to explain its reason for reducing O’Brien’s hourly fee, beyond stating that $350 was established as his hourly rate in the fee agreement

. The lo destar method instructs the court to determine a reasonable hourly rate

. See Hensley , 461 U.S. at 433. A reasonable hourly rate is the prevailing market rate for an attorney with a similar skill level and experience who is providing similar services in the same community. See Crawford County v. Masel , 2000 WI App 172, ¶8, 238 Wis. 2d 380, 617 N.W.2d 188 ; see also W IS

. S TAT

. § 814.045(1)(e) ( instructing courts to consider “ [t] he fee customarily charged in the locality for similar legal services ”). The Supreme Court has also suggestedNo. 2023AP520

24 that compensation for attorn eys in fee

- shifting cases be based on current rates due
to a delay in payment. Missouri v. Jenkins , 491 U.S. 274, 283

- 84 (1989) (“[A]n appropriate adjustment for delay in payment

— whether by the application of
current rather than histor ic hourly rates or otherwise

— is within the contemplation of [42 U.S.C. § 1988]

. ”).
¶ 43 In this case, Curry

— as the party with the burden

— submitted evidence to the circuit court that the fee agreement with the $350 billing r ate was signed in 2017 ; the fee agreement provide d for that billing rate to be adjusted once per year ; O’Brien’s billing rate increased to $375 in October 2019 ; and a $375 hourly rate was consistent with the current market rate for comparably skilled and experienced attorneys

. It does not appear that Alden submitted contrary evidence on this issue. Although the court cited W IS

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. § 814.045(3) for the proposition that the billing rate in a fee agreement is presumptively reasona ble, nothing in § 814.045(3) requires a court to accept that rate, especially when a party is arguing that a higher rate is appropriate.
¶ 44 W e acknowledge that when the circuit court fails to explain its reasoning, “we may search the rec ord to determine if it supports the court’s discretionary decision.” Randall v. Randall , 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737

. W e nevertheless find no discussion in the court’s oral ruling from which we can confidently ascertain why it deter mined that Curry failed to meet her burden to show the reasonableness of O’Brien’s $375 billing rate or why it determined that a lower fee was reasonable under the circumstances of the case. Given that we are remanding on a separate basis, we also remand w ith instructionsNo. 2023AP520

25 to the court to explain its reasoning for applying the $350 billing rate to all of O’Brien’s time s ubmissions. 16

c. Non

- taxable Costs
¶ 45 Finally , Curry argues that the circuit court erred by failing to award her “non

- taxabl e costs in the total amou nt of $3,905.45.” She claims that her request for non
- taxable costs was “essentially unopposed,” apart fro m Alden’s objection to a $275 federal trademark filing fee

. Thus, Curry asserts that the court “simply forgot to address [h er] request for non

- taxable costs, as it did n ot address this issue at all.”
¶ 46 Alden, in contrast, argues that th is issue is “not appealable” because “[a]s it stands, there is no ‘final judgment’ or ‘final order’ on thi s issue that could provide the [circuit] [c] ourt jurisdiction.” According to Alden, “[i]f Curry believes [the court forgot to address non

- taxable costs], she should advise the circuit court so that it may render a decision related to non

- taxable costs.”
¶ 47 We disagree that we lack jurisdiction to address this issue. The circuit court’s order on Curry’s petition for attorneys’ fees and costs was a final order for purposes of appeal. Curry requested non

- taxable costs in her petition, but the court did not co nsider those costs in response to Curry’s request. Therefore, they were denied. The court did not, however, exercise its discretion

16 Curry also claims that O’Brien’s fees were further improperly reduced because the circuit court “assum[ed] incorrectly that

... O’Brien had not worked on the trademark claim, only the” civil theft, unjust enrichment, and conversion counterclaims. She argues that “O’Brien handled the testimony of several witnesses regarding trademark infringement” and that “Alden admit[ t ed] this in her summary of test imony requested by the court.” This issue should also be addressed by the court on remand.No. 2023AP520

26 by denying Curry’s request for non

- taxable costs. Accordingly, we also remand for the court to consider th is issue and to explain its reasoning.

CONCLUSION
¶ 48 In conclusion , the circuit court erred in this case by applying a “mathematical formula” to the lodestar figure rather than adj usting that figure based on the W IS

. S TAT

. § 814.045 (1) factors. The cour t’s “mathematical formula” also failed to account for the fact that all of Curry’s successful counterclaims were interrelated and based on a common core of facts such that the counterclaims could not be viewed as discrete claims. We fu rther conclude that the court erroneously exercised its discretion by fa iling to explain its decision to award O’Brien’s fees at $350 per hour and to address C ur ry’s request for

non
- taxable costs. Accordingly, we reverse the court’s order awarding attorneys’ fees in part and remand the matter for the court to apply the correct legal standard and to provide an adequate explanation for its decision

. ¶ 49 No costs are awarded to any party.
By the Court.

— Order affirmed in part ; reversed in part and caus e remanded with directions.

This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)5.