Ziolkowski Patent Solutions Group, S.C. v. Great Lakes Dart Manufacturing, Inc.

2011 WI App 11, 794 N.W.2d 253, 331 Wis. 2d 230, 2010 Wisc. App. LEXIS 1042
CourtCourt of Appeals of Wisconsin
DecidedDecember 22, 2010
DocketNo. 2010AP276
StatusPublished
Cited by5 cases

This text of 2011 WI App 11 (Ziolkowski Patent Solutions Group, S.C. v. Great Lakes Dart Manufacturing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ziolkowski Patent Solutions Group, S.C. v. Great Lakes Dart Manufacturing, Inc., 2011 WI App 11, 794 N.W.2d 253, 331 Wis. 2d 230, 2010 Wisc. App. LEXIS 1042 (Wis. Ct. App. 2010).

Opinion

REILLY, J.

¶ 1. Ziolkowski Patent Solutions Group (Ziolkowski), a Wisconsin intellectual property law firm, sued its former client, Great Lakes Dart Manufacturing, Inc., (GLD) for legal fees and 18% interest on the unpaid fees. Ziolkowski included a clause at the foot of its invoices imposing a finance charge of 1.5% per month on all accounts thirty days past due, but the original contractual engagement letter between Ziolkowski and GLD did not mention interest charges for late payments. The pertinent issue is whether a law firm is entitled to 18% interest on its unpaid legal bills when its attorney fee retainer agreement was silent on interest. The circuit court denied Ziolkowski's request [233]*233for 18% interest and we affirm. We hold that a retainer agreement controls the parties' agreement, not the invoices.

¶ 2. We also reverse the circuit court's decision to award costs to GLD pursuant to Wis. Stat. § 807.01(1) (2007-08),1 as the judgment of the court was higher than GLD's written statutory offer.

BACKGROUND

¶ 3. In 2004, GLD hired Ziolkowski to prosecute and draft patent applications. An engagement letter sent by Ziolkowski and signed and returned by GLD set forth the contractual terms of the relationship. The engagement letter did not include any provision for interest charges on late payments.

¶ 4. GLD took its intellectual property work to a different law firm in 2006. Ziolkowski sued GLD for unpaid legal fees and sought 18% interest on the unpaid bills. Ziolkowski justified its request for 18% interest by pointing to a clause at the bottom of the invoices that stated "[a] finance charge of 1.5% per month will be assessed on all accounts past due 30 days."

¶ 5. On September 3, 2009, the circuit court issued a written decision and order granting summary judgment to Ziolkowski for the unpaid legal fees of $45,656.41, but denying Ziolkowski's claim for 18% interest on the unpaid fees. The circuit court found that the parties did not agree to any interest charges when they entered into their contract. The circuit court made no mention of an award for 5% interest per Wis. Stat. [234]*234§ 138.04.2 The court did not direct which party was to draft the documents perfecting the court's order into a judgment, and neither party did so.

¶ 6. Over a month later, GLD served Ziolkowski with a "statutory offer of judgment" pursuant to Wis. Stat. § 807.01(1).3 GLD's statutory judgment offer was for: "(1) the principal sum of $45,656.41; plus (2) $8,596.04 in interest, computed as 5% annual simple interest rate on each of the invoiced amounts shown in the attached spreadsheet, from the date of each invoice to the date hereof; plus (3) 5% annual simple interest on the total amount of $7.43, from the date hereof until the date of acceptance of this offer; plus (4) costs." GLD acknowledges that its statutory offer should have included the words "per diem" after "$7.43."

¶ 7. Pursuant to an earlier scheduling order, a final pretrial conference was held on October 23, 2009. GLD appeared at the conference, but Ziolkowski did not.4 The [235]*235circuit court commenced the final pretrial conference with the comment, "We're just trying to figure out why we're here today." GLD's attorney concurred, saying "I am too." GLD's attorney indicated to the court that he had spoken to Ziolkowski's attorney and offered to pay the $45,656.41 in three monthly installments, but Ziolkowski refused the offer. GLD informed the court that it then offered Ziolkowski 5% interest on the unpaid bills but Ziolkowski refused. GLD's attorney told the court that it was debatable whether it owed any interest on the unpaid bills, but that GLD included 5% interest in the statutory offer because it wanted the matter resolved.

¶ 8. The circuit court found GLD's statutory offer of judgment to be appropriate and ruled that the court would enter judgment against GLD "in the amount as in your statutory offer of judgment." GLD requested that the circuit court deny costs to Ziolkowski and award costs to GLD because the deadline for Ziolkowski to respond to the statutory offer of judgment had expired and the court's judgment was presumably the same amount as the statutory offer. The court agreed and instructed GLD to put the issue of costs into its order for judgment.

¶ 9. GLD drafted and submitted a proposed judgment to the circuit court. Ziolkowski objected to the proposed judgment on the grounds that it awarded 5% interest instead of 18%. Additionally, Ziolkowski objected to the proposed award of costs to GLD, as the proposed judgment was more than GLD's statutory offer of judgment as written.

¶ 10. On November 6, 2009, the circuit court entered a judgment against GLD for: "(i) $45,656.41 for unpaid bills, plus (ii) 5% annual simple interest on the bills which comprise that amount, from the dates [236]*236thereof to October 12, 2009, which interest comes to $8,596.04, plus (iii) further 5% interest, in the amount of $7.43 per day on the combined amount of $54,252.45, from October 12, 2009 to the date of entry of judgment." The court denied costs to Ziolkowski and awarded costs to GLD pursuant to Wis. Stat. § 807.01(1).

¶ 11. Ziolkowski raises two issues on appeal. It first argues that it is entitled to 18% interest on the unpaid legal bills rather than 5% interest because of the clause at the bottom of its invoices. Second, Ziolkowski argues that GLD is not entitled to recover costs because the circuit court's judgment was more favorable than GLD's statutory offer.

DISCUSSION

Interest Rate

¶ 12. Ziolkowski argues that it is entitled to 18% yearly interest on the unpaid legal bills as each of its invoices to GLD contained a clause stating that "[a] finance charge of 1.5% per month will be assessed on all accounts past due 30 days." GLD counters that Ziolkowski is not entitled to 18% interest as the signed engagement letter contained no provision for interest charges on late payments. This issue requires us to interpret Ziolkowski's engagement letter. The interpretation of a contract is a question of law subject to de novo review. See DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Ltd., 2004 WI 92, ¶ 20, 273 Wis. 2d 577, 682 N.W.2d 839. The circuit court found as a matter of law that Ziolkowski was not entitled to 18% interest on the $45,656.41. We affirm.

[237]*237¶ 13. Attorneys have a burden to clearly draft their legal fee agreements. Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 508, 577 N.W.2d 617 (1998). Wisconsin's Rules of Professional Conduct for Attorneys require that the "scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing." SCR 20:1.5(b)(1) (2010). Ziolkowski's engagement letter reserved the right to withdraw from representation if its fees were not paid, but it did not provide for a penalty for late payments.

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Bluebook (online)
2011 WI App 11, 794 N.W.2d 253, 331 Wis. 2d 230, 2010 Wisc. App. LEXIS 1042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ziolkowski-patent-solutions-group-sc-v-great-lakes-dart-manufacturing-wisctapp-2010.