Lynne A. Layber v. Estate of Ronald Ziolkowski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 31, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1397 Cir. Ct. No. 2012CV13059

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE AWARD OF ATTORNEY FEES IN THE ESTATE OF RONALD
ZIOLKOWSKI V. WMK, LLC D/B/A MOBILITY WORKS, LLC:

ATTORNEY LYNNE A. LAYBER,

APPELLANT,

V.

ESTATE OF RONALD ZIOLKOWSKI AND JULIE ZIOLKOWSKI,

RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM S. POCAN, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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).
No. 2019AP1397

¶1 PER CURIAM. Attorney Lynne A. Layber appeals the circuit court
order denying reconsideration of its determination of reasonable attorney fees she
earned representing Julie Ziolkowski and the Estate of Ronald Ziolkowski
(collectively, “Ziolkowski”) in their case against WMK, LLC d/b/a Mobility
Works, LLC and Navigator Insurance Company. Layber additionally appeals the
monetary sanction imposed by the court for failing to attend a hearing. We affirm
the circuit court.

BACKGROUND

¶2 This case arises out of an automobile accident suffered by Ronald1 in
December 2009 while driving his van configured for wheelchair operation. In
December 2012, Ronald and Julie brought a negligence action against the
installers and manufacturers of the equipment that locked his wheelchair in place
in his van. At the trial in December 2015, the jury found the defendants negligent
and awarded the Estate $3,850,000 for past pain, suffering, and disability, past
health care expenses, and personal nursing care. It further awarded $2,000,000 to
Julie for loss of consortium. The defendants appealed and we affirmed the
judgment and the damages awarded to the Estate and Julie in 2017. See Estate of
Ronald Ziolkowski v. WMK, LLC d/b/a/ Mobility Works, LLC, No. 2016AP947,
unpublished slip op. ¶82 (WI App Sept. 19, 2017).

¶3 In March 2018, the defendants fully satisfied the judgment against
them with a payment of over six million dollars deposited into Layber’s trust

1
For the purposes of this appeal, Ronald and Julie Ziolkowski will be referred to
separately by their first names. During the pendency of the action, in October 2015, Ronald
passed away and the Estate of Ronald Ziolkowski (the Estate) was named as a party.

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account. Layber transferred $2,000,000 into Julie’s bank account and $50,000
into the Estate’s bank account.

¶4 In June 2018, Layber initiated the action underlying this appeal, in
which she moved the court for an order approving the distribution of attorney fees
and costs under the contingency fee agreement she entered into with Julie.
Ziolkowski, by new counsel, opposed the motion on the grounds that the
contingency fee was unreasonable and unconscionable and that an earlier
agreement with Ronald should control any payments.

¶5 At a November 28, 2018 hearing, the circuit court determined the
reasonable attorney fees under the contingency agreement based on relevant law
and community norms and established that costs and the medical lien should be
subtracted from the gross settlement before the attorney fees were paid as a
percentage of the settlement.

¶6 On December 12, 2018, Ziolkowski filed a motion for
reconsideration of the court’s oral order based on newly discovered evidence of a
third, unsigned contingency fee agreement. In Ziolkowski’s notice of motion to
reconsider, Layber was notified about the hearing scheduled for February 14,
2019. Six days later, Layber responded to Ziolkowski’s motion in a letter to the
circuit court. She disputed the application of the unsigned agreement.

¶7 Layber did not attend the February 14, 2019 hearing on the motion
for reconsideration. The court noted that “this is not the first time she has been
late for a hearing.” The court concluded that the order on attorney fees drafted by
Ziolkowski accurately represented its oral ruling from November, and it entered
the written order that same day. The court invited Ziolkowski to bring a motion

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for sanctions against Layber for her failure to appear at the hearing, to seek
attorney fees, and to accrue interest on the money not disbursed.

¶8 In March 2019, Layber filed a motion to vacate or reconsider the
February 14, 2019 order on attorney fees. Layber argued she did not have notice
of the February hearing date and that the order incorrectly stated the calculation of
reasonable attorney fees based on the court’s oral ruling. Ziolkowski responded
that the hearing was properly noticed through the court’s e-filing system.

¶9 At a hearing on April 24, 2019, the court addressed Ziolkowski and
Layber’s separate motions for reconsideration and Ziolkowski’s motion for
sanctions. The circuit court denied Layber’s motion for reconsideration. The
court stated that the order accurately stated its determination of reasonable
attorney fees. The court concluded that the February 14, 2019 hearing “had no
bearing on the underlying matters” regarding the calculation of attorney fees that
“the [c]ourt had already decided on November 28th, of 2018.” The court
concluded that even if Layber “had not received electronic notification of the
hearing, her nonappearance would not entitle her to reconsideration” under WIS.
STAT. § 806.07(1)(a) or (h) (2019-20).2 The circuit court denied Ziolkowski’s
motion for reconsideration, deciding that the February 2016 contract was not
newly discovered evidence entitling Ziolkowski to relief under § 806.07(1)(b).

¶10 The court granted Ziolkowski’s motion for sanctions against Layber.
It concluded that it was “impossible that someone exercising reasonable diligence
would not have been aware of that hearing date.” The court commented that

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Layber had arrived late to previous hearings as well. The court ordered that
because the disbursal of funds was stayed for sixty-nine days during the pendency
of the decision, Layber should pay interest for the time Ziolkowski lost use of their
funds.

¶11 After the hearing, on May 1, 2019, the court entered a written order
stating that this new written order “supplements, but does not replace, the order
signed on February 14, 2019, concerning attorneys’ fees.” It denied both parties’
reconsideration motions and granted sanctions against Layber, requiring her to pay
Ziolkowski’s attorney fees and sixty-nine days of interest on the balance owed to
Ziolkowski at 1.25% interest.

¶12 Layber filed a notice of appeal on July 30, 2019, indicating that she
was appealing the circuit court’s May 1, 2019 order. The notice of appeal stated
that the May 1 order reduced Layber’s attorney fees and sanctioned her. However,
the written order that reduced Layber’s attorney fees in this manner, was ordered
by the circuit court on November 28, 2018, and entered on February 14, 2019.
Prior to briefing, this court determined that we did not have jurisdiction over the
appeal from the February 14, 2019 order because the notice of appeal was not filed
within 90 days. We issued an order on November 27, 2019, limiting the appeal to
new issues raised in Layber’s March 25, 2019 motion for reconsideration and to
her appeal of the sanctions ordered on May 1, 2019. See WIS. STAT.
§ 809.10(1)(e).

DISCUSSION

¶13 Layber challenges the circuit court’s attorney fee award and the
sanctions against her. We consider each issue in turn.

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¶14 We begin with Layber’s challenge to the amount of attorney fees
awarded to her. She argues that the circuit court erred in three ways: (1) it
erroneously applied the factors considered in the determination of reasonable
attorney fees; (2) it erroneously concluded that the contractual contingency fee
rate was unreasonable; and (3) it erroneously deducted costs and medical expenses
from the gross settlement before attorney fees were awarded. Although this court
previously indicated that it lacked jurisdiction over the February 14 order and that
only new issues raised in Layber’s motion for reconsideration would be
considered, Layber’s arguments relate to the merits of the circuit court’s
November 28, 2018 decision, which was memorialized in the February 14, 2019
order, rather than a new issue that was raised in her motion for reconsideration.

¶15 “No right of appeal exists from an order denying a motion to
reconsider which presents the same issues as those determined in the order or
judgment sought to be reconsidered.” Silverton Enters., Inc. v. General Cas. Co.
of Wis., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988). Here, Layber’s
arguments are clearly based on the determination of attorney fees set forth in the
February 14, 2019 order. Therefore, since we have already concluded that we do
not have jurisdiction over her appeal as it relates to attorney fees, we will not
consider the merits of her argument on that issue.3

¶16 We now turn to the remaining issue on appeal: the issuance of
sanctions against Layber. Layber argues that the circuit court erroneously
exercised its discretion when it issued sanctions against her. Ziolkowski argues

3
Ziolkowski presents another basis for concluding that we lack jurisdiction to address
the merits of Layber’s arguments concerning her attorney fees. Because we have concluded that
we lack jurisdiction over that issue, we do not address Ziolkowski’s alternative argument.

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that the sanctions were warranted and were not an erroneous exercise of
discretion.

¶17 The “failure of any party to comply with the statutes governing
procedure in civil actions or to obey any order of court” may result in the circuit
court imposing sanctions “as are just.” WIS. STAT. § 805.03. “The decision to
impose sanctions and the decision of which sanctions to impose … are within a
circuit court’s discretion.” Industrial Roofing Servs., Inc. v. Marquardt, 2007
WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898. The circuit court has authority
under WIS. STAT. §§ 802.10(7) and 805.03 “to impose sanctions on attorneys who
are tardy to scheduled court appearances[.]” Anderson v. Circuit Ct. for
Milwaukee Cnty., 219 Wis. 2d 1, 11-12, 578 N.W.2d 633 (1998). “We will
sustain a circuit court’s order imposing sanctions under [§] 805.03 unless the court
erroneously exercised its discretion.” Id. at 9. We will not disturb the circuit
court’s exercise of discretion where “the [circuit] court examined the relevant
facts, applied a proper standard of law, and, using a demonstrated rational process,
reached a conclusion that a reasonable judge could reach.” See Loy v. Bunderson,
107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

¶18 Layber argues she lacked notice of the February 14 hearing;
however, the record reflects that in the hearing on April 24, 2019, the circuit court
thoroughly examined Layber on what information was available to her through the
court’s e-filing system and concluded that it was only through an absence of
diligence that Layber was not aware of the hearing date. Layber asserts that she
was not on notice that she could be sanctioned for missing a court appearance and

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questions the court’s authority to do so.4 We disagree that prior notice is
dispositive to this issue. The circuit court held a hearing on the motion for
sanctions before imposing them and the court narrowly tailored the sanction to fit
the disruption to its judicial administration. See Latham v. Casey & King Corp.,
23 Wis. 2d 311, 316, 127 N.W.2d 225 (1964) (holding that due process requires a
“notice of the imposition of the sanctions or penalties to be invoked for the failure
to comply with a court order. Lacking such forewarning, a hearing should be had
on the imposition of a penalty.”)

¶19 Layber contends that Ziolkowski inflamed the court by stating that
Layber was late to four hearings in addition to missing the February 14 hearing
entirely. Conversely, Ziolkowski denies inflaming the court. Layber argued that
imposing interest for sixty-nine days was unreasonable because the delay in
disbursing the funds was due to the court’s stay on disbursing the funds.
Ziolkowski argues that the delay in disbursing the funds was directly caused by
Layber missing the hearing because the court wanted to decide the reconsideration
issue with Layber present. The record reflects that the court stated that it was only
through an absence of diligence that Layber was not aware of the February 14
hearing and that she responded to Ziolkowski’s motion to reconsider, which gave

4
Layber questions the court’s authority to impose a sanction without notice, relying on
City of Sun Prairie v. Davis, in which our supreme court extensively discussed the inherent
authority of the court and the limitations on that authority. Id., 226 Wis. 2d 738, 760, 595
N.W.2d 635 (1999). However, our supreme court distinguished between municipal courts,
created by the legislature, and the circuit courts, authorized in the judicial branch of our state
constitution. See Flynn v. DOA, 216 Wis. 2d 521, 548, 576 N.W.2d 245 (1998). Here, the
circuit court issued the sanctions and Sun Prairie does not diminish the court’s authority to do so.

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notice of the hearing date.5 Further, the court itself observed Layber’s tardiness on
the record. The circuit court crafted a sanction it considered fitting. There is no
evidence in the record that this sanction was an erroneous exercise of discretion.

¶20 Because the court considered the relevant facts, applied the
appropriate standard of law, and employed rational decision making, it reasonably
exercised its discretion when it issued the sanctions against Layber. See Loy, 107
Wis. 2d at 414-15. Therefore, we conclude that the court’s order was not an
erroneous exercise of its discretion.

CONCLUSION

¶21 We affirm the circuit court’s order in its entirety. Although we do
not reach the merits of the issues raised in Layber’s motion for reconsideration, we
affirm the circuit court order. Because we conclude that the circuit court acted
within its discretion when it ordered sanctions against Layber, we affirm that
decision as well.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5
Although the circuit court acted within its authority and discretion to craft an
appropriate sanction, the record reflects that the court commented on and considered the
credibility of counsel in its actions. See Teubel v. Prime Dev., Inc., 2002 WI App 26, ¶20, 249
Wis. 2d 743, 641 N.W.2d 461 (holding that when the record reflected that “the opposing
attorneys [were] pointing fingers at each other [] the court was in the best position to judge
credibility” and determine fact finding and draw appropriate inferences). We conclude that the
circuit court’s findings were not clearly erroneous.

9