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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2023AP520 Cir. Ct. No. 2018CV278

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

ALDEN ASSOCIATES,

 PLAINTIFF-COUNTER-DEFENDANT-APPELLANT-CROSS-RESPONDENT,

MARGE ALDEN,

 COUNTER-DEFENDANT-APPELLANT-CROSS-RESPONDENT,

 V.

JACKI CURRY,

 DEFENDANT-COUNTER-CLAIMANT-RESPONDENT-CROSS-APPELLANT,

MAJESTIC WELLNESS SPA,

 DEFENDANT,

MAJESTIC FALLS,INC.,

 COUNTER-CLAIMANT-RESPONDENT-CROSS-APPELLANT.
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 WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Jacki Curry prevailed on her counterclaims filed in 

response to Marge Alden’s suit to recover unpaid rent from Curry, and, pursuant 

to statutory fee-shifting provisions for two of those counterclaims, the circuit court 

awarded Curry $138,202.18 in attorneys’ fees.1 Alden and Curry appeal and 

cross-appeal, respectively, the court’s award of attorneys’ fees on several grounds. 

For the reasons that follow, we 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 proper 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appeal: Alden Associates v. Curry (Alden I), No. 2022AP1280, unpublished slip 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 We cite this unpublished opinion simply for background information and the law of the 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 WIS. STAT. RULE 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 landlord/tenant provisions of WIS.

ADMIN. CODE ch. ATCP 134 (Oct. 2021)3and WIS. STAT. § 100.20. Alden I, 

No. 2022AP1280, ¶10. We affirmed the circuit court’s judgment against Alden’s 

appellate challenges. Id., ¶1.

¶3 After the circuit court entered its judgment following the bench trial, 

Curry submitted her petition for legal fees and costs pursuant to the fee-shifting 

provisions of the civil theft statute, WIS. STAT. § 895.446(3)(b), and the trademark 

infringement statute, WIS. STAT. § 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 “interrelated.” Alden opposed 

Curry’s fee petition on several bases, including Skinner’s alleged limited 

involvement in the case, WIS. STAT. § 814.045(2)(a)’s “3 times” presumption for 

attorneys’ fees, and whether O’Brien’s fees should be limited to only those 

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 work each of Curry’s 

attorneys performed during the trial. On January 27, 2023, the court issued its oral 

 

3

 All references to WIS. ADMIN. CODE 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 reduced that lodestar figure by 

forty-three percent in the case of O’Brien4and fifty percent in the case of Skinner, 

representing Curry’s success on three of seven counterclaims pursued by O’Brien 

and four of eight counterclaims 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 of 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 WIS. STAT. § 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 in the retainer agreement 

was.”
No. 2023AP520

5

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

experience, 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 investigation or 

non-taxable court costs. The court entered its written order granting 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 Pontiac Cadillac, Inc., 2004 WI 112, ¶34, 275 

Wis. 2d 1, 683 N.W.2d 58. Generally 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 erroneous exercise of discretion.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 

demonstrated 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 court replaced that phrase with “erroneous 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 

discretion’ standard of review.” We reiterate that, in Wisconsin, the phrase “erroneous exercise 

of discretion” has replaced any other previously used phrases.
No. 2023AP520

6

of discretion is not the equivalent 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. WIS. STAT. § 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’ presumption under” WIS. STAT.

§ 814.045(2)(a)6 when it awarded Curry $37,712.38 in attorneys’ fees for her 

trademark infringement claim under WIS. STAT. § 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

 WISCONSIN STAT. § 814.045(2) provides:

 (a) In any action in which compensatory damages are 

awarded, the court shall presume 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 sub. (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 “compensatory damages 

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 considering 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, given the award of $100 in nominal damages, the 

reasonable attorneys’ fees should not exceed $300. Thus, Alden asserts the court

erred by concluding “that [WIS. STAT. § 814.045(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 are not the same under the law. Further, 

 

7

 The WIS. STAT. § 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 WIS. STAT. §§ 132.033 and 

814.045, the specific statute controls over the general statute. But 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 right by 

enjoining Alden under [§ 132.033](2)(a), and by awarding the costs and legal fees 

under [§ 132.033](2)(d).”

 

8

 WIS. STAT. § 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 

violation 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, association 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, association 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 purposes of this decision, we will assume, without deciding, that 

WIS. STAT. § 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 considered 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 The record clearly demonstrates that the circuit court considered 

Alden’s argument under WIS. STAT. § 814.045(2)(a)’s language and rejected it. 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 all 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. Thus, 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 

counterclaim under WIS. STAT. § 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.” Sec. 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 erroneously included services 

rendered for the unjust enrichment and conversion claims, which are not 

fee-shifting claims, in its attorneys’ fees award under WIS. STAT. § 895.446(3)(b). 

According to Alden, these claims are not so interrelated that separation would be 

impossible for the purpose of awarding statutorily authorized attorneys’ fees. She 

further asserts that by combining 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 lawsuit bear the cost of 

their own attorney fees absent legislative authorization to shift costs.” Kolupar, 

275 Wis. 2d 1, ¶17. However, the legislature “has authorized courts to award 

costs and attorney fees to successful litigants in many contexts,” including under 

WIS. STAT. § 895.446(3)(b). See Kolupar, 275 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), to 
No. 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 hours expended by a reasonable 

rate” as a starting point to determine the amount of a reasonable fee, and the court

“may then make adjustments” pursuant to the WIS. STAT. § 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 WIS. STAT. § 814.045(1) factors in its oral ruling. Our review of the court’s 

robust discussion of those factors suggests 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 conclusion 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

 WISCONSIN STAT. § 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 Pontiac Cadillac, Inc., 2004 WI 112, ¶¶23-30, 275 Wis. 2d 1, 683

N.W.2d 58.

10

 It does not appear that Alden is challenging the circuit court’s findings as to the WIS.

STAT. § 814.045(1) factors.
No. 2023AP520

12

the trial.” Both Alden and Curry challenge the court’s use of this mathematical 

formula on appeal, but they do so for different reasons.11 

¶19 Alden argues that while the circuit court had discretion to award 

attorneys’ fees under WIS. STAT. §§ 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 reduced to represent only the services 

performed for Curry’s civil theft claim.

¶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.” The 

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 before 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] based on related legal theories,”

[m]uch of counsel’s time will be devoted generally to the 

litigation as a whole, making it difficult to divide the hours 

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 the plaintiff in relation to the hours 

reasonably expended on the litigation.

 Where a plaintiff has obtained excellent results, his [or 

her] attorney should recover 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 

simply because the plaintiff failed to prevail on every 

contention 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, and conversion claims based on its finding that the claims were 

“interrelated and share a common core of facts.” As we outlined previously in 

Alden I, all of Curry’s counterclaims derived from Alden’s act of locking Curry 

out of the premises from which Curry operated a spa business and thereafter 

retaining Curry’s property located on the premises 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, conversion, and 

civil theft—under identical facts without acknowledging that WIS. STAT. § 895.446 required 

Curry to prove that Alden had the ‘specific criminal intent’ 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 causes 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 multiple 

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 in 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, she asserts that the court’s decision improperly abrogates the American 

Rule. According to Alden, the American Rule “must be ‘strictly adhered to,’”

see DeChant v. Monarch Life Ins. Co., 200 Wis. 2d 559, 571, 547 N.W.2d 592 

(1996), and “noticeably absent” from WIS. STAT. § 895.446(3)(b) “is any reference 

to the costs of related claims.” She also faults Curry’s arguments for failing to 

consider the American Rule in drawing a line for awarding fees when at least one 

claim is a fee-shifting claim.

¶24 For several reasons, we conclude that the American Rule does not 

prevent Curry from recovering attorneys’ fees 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 responsible for their own attorney’s fees unless recovery is 

expressly allowed by either contract or statute ....” (emphasis added)). First, 

Alden has not cited any legal authority, aside from general case law defining the 
No. 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 WIS. STAT.

§ 895.446(3)(b). Instead, it recognized that the “costs of investigation and 

litigation” of the civil theft counterclaim 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” drawn 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] fundamental 

[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) (we need not 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 well within the purview of the court to determine, subject to an 

 

13

 We can only assume, 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 legal work 

that Curry’s attorneys performed solely on her statutory civil theft claim.” However, she 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

erroneous 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 enrichment do not require this 

element. 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 distinct 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 the Court did not specifically require that the claims have common elements. 

See Hensley, 461 U.S. at 435. Thus, the Hensley approach is not strictly an 

elements-only analysis. Additionally, Alden has not presented any legal authority 

where a court applied the Hensley approach to different types of claims and 

utilized an elements-only analysis. While elementally, we agree that Curry’s civil 

theft, unjust enrichment, and conversion counterclaims are somewhat different, the 

facts giving rise to the counterclaims 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 established

that conversion occurred and that Alden was unjustly enriched by her wrongful 

actions. Alden fails to show that the court’s determination—i.e., that the 
No. 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 court’s calculation of 

the fee award. She argues that given the court’s findings, the court’s use of the 

mathematical formula to reduce the attorneys’ fees in this case was an erroneous 

exercise of discretion. Curry claims that under Hensley, the court should have 

found that all of her successful 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 

mathematical 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 justify reversing the circuit court’s application of the 

factors under WIS. STAT. § 814.045(1), with its corresponding mathematical 

formula applying those factors to relevant claims.”

¶30 We agree that the circuit court erred by applying a so-called 

“mathematical formula” to its lodestar analysis. After finding that most of the 

WIS. STAT. § 814.045(1) factors supported a fee award, the court failed to use 
No. 2023AP520

18

those factors to adjust the lodestar figure up or down. Instead, the 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); 

Hensley, 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 record 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 that 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, the court’s error stems from its determination that only 

the civil theft, unjust enrichment, and conversion counterclaims were “interrelated 

and share a common core of facts and are not separate and distinct under the facts 

of this case.” Essentially, the 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

shared 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 attempt to steal Curry’s business.” In other words, 

counsels’ work on any one of Curry’s counterclaims was not unrelated to 

counsels’ work on another claim because the facts that Curry was required to 

prove to establish one counterclaim either 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. Therefore, the 

 

14

 Curry concedes that “[i]n the instant case, the only claim which was distinct in all 

respects from the seven counterclaims upon which Curry prevailed was the eighth counterclaim,” 

which asserted a violation of WIS. ADMIN. CODE 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 is also the only counterclaim on which Curry didn’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 submissions. 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 fees 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 

losing 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 those claims was necessitated by fee-shifting 

claims.

¶35 For example, as the Seventh Circuit Court of Appeals explained, 

“For 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 that succeed 

give him [or her] all that he [or she] reasonably could have asked for.” Lenard, 

808 F.2d at 1245-46; see also Hensley, 461 U.S. at 448 (Brennan, J., concurring in 

part; dissenting in part) (“Courts 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 plaintiffs the best possible chance of obtaining 

significant relief.”). Similarly, Curry’s attorneys should not be penalized because 
No. 2023AP520

21

she brought—and was able to prove—additional counterclaims based on facts she 

otherwise would have had to establish to meet her burden on the fee-shifting 

claims.

¶36 In 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 other federal civil rights case.” Alden claims that “the 

concept of ‘interrelatedness’ in civil rights cases, where 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 fee-shifting statute.”

¶37 We disagree that the holding in Hensley is inapplicable. Our 

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, 275 Wis. 2d 171, 684 N.W.2d 141. Further, courts 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 rights. 

See Kolupar, 275 Wis. 2d 1, ¶18.
No. 2023AP520

22

¶38 As to whether “the concept of ‘interrelatedness’ in civil rights cases”

is transferable to this case, we agree with Curry that the public policy purposes 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 from 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 

purposes of the fee-shifting statutes at issue.

b. O’Brien’s Hourly Rate

¶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 entered 
No. 2023AP520

23

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

fee[-]shifting cases should be based on current rates, to compensate for the delay 

in payment.”

¶41 In the fee agreement that Curry originally signed with O’Brien’s 

firm on December 11, 2017, the hourly rate set for representation—with a 

different attorney—was $350 per hour. During the circuit court’s oral ruling, it 

explained that it “reduced O’Brien’s hourly rate to $350 because that’s what the 

contract in the retainer agreement was. WISCONSIN STAT. § 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 to 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 conclude 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 lodestar 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 WIS. STAT.

§ 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 suggested 
No. 2023AP520

24

that compensation for attorneys 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 historic 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 rate was 

signed in 2017; the fee agreement provided 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 WIS. STAT. § 814.045(3) for the 

proposition that the billing rate in a fee agreement is presumptively reasonable, 

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 We acknowledge that when the circuit court fails to explain its 

reasoning, “we may search the record 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. We nevertheless find no discussion in the court’s oral ruling 

from which we can confidently ascertain why it determined 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 with instructions 
No. 2023AP520

25

to the court to explain its reasoning for applying the $350 billing rate to all of 

O’Brien’s time submissions.16

c. Non-taxable Costs

¶45 Finally, Curry argues that the circuit court erred by failing to award 

her “non-taxable costs in the total amount of $3,905.45.” She claims that her 

request for non-taxable costs was “essentially unopposed,” apart from Alden’s 

objection to a $275 federal trademark filing fee. Thus, Curry asserts that the court 

“simply forgot to address [her] request for non-taxable costs, as it did not address 

this issue at all.”

¶46 Alden, in contrast, argues that this issue is “not appealable” because 

“[a]s it stands, there is no ‘final judgment’ or ‘final order’ on this 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 consider 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[ted] this in her summary of testimony 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 this 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 adjusting that figure 

based on the WIS. STAT. § 814.045(1) factors. The court’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 further conclude that 

the court erroneously exercised its discretion by failing to explain its decision to

award O’Brien’s fees at $350 per hour and to address Curry’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 cause 

remanded with directions.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.