No Supreme Court precedent authorizes recovery of actual attorney fees, costs for frivolous lawsuits.

• Author: Ziemer, David

Byline: David Ziemer

Suppose you've won a case at the circuit court level, and the court held the plaintiff's case frivolous, awarding actual attorney fees and costs. Then the plaintiff appeals, and the court of appeals affirms, holding the appeal per se frivolous, pursuant to Riley v. Isaacson, 156 Wis.2d 249, 262, 456 N.W.2d 619 (Ct.App.1990). Then, the plaintiff petitions the Supreme Court for review. Can you recover attorney fees for the time you spend responding to the petition? No rule or Supreme Court precedent explicitly authorizes the recovery, but it can be ordered, as was done in a recent denial of review by the court on Aug. 14. The case has a long and tortured history. William E. Deutsch, Jr. brought suit against Margaret L. Kline, alleging false imprisonment, malicious prosecution, and defamation. The circuit court awarded Kline attorney fees and costs, as a sanction against Deutsch's attorney, Alan D. Eisenberg, for commencing a frivolous lawsuit. Eisenberg appealed, but the court of appeals affirmed and remanded, in an unpublished decision. Deutsch v. Kline, 2006 WI App 20, 289 Wis.2d 218, 709 N.W.2d 111 (Table), 2005 WL 3488418 (Wis.App., Dec. 22, 2005). Eisenberg petitioned the Supreme Court for review, but the petition was denied. After the petition was filed, Kline's attorney, Raymond E. Krek of Krek & Associates, PC, in Jefferson, took the unusual step of asking the court for attorney fees incurred in responding to the petition. However, the motion was denied. On...