author: FINE, J.

text:
    Lisa K. Alberte, Plaintiff-Appellant. v. Anew Health Care Services, Inc., Defendant-Respondent.

    Court of Appeals

      No. 03-2674.

      Submitted on briefs June 2, 2004.

    Decided June 29, 2004.

    2004 WI App 146
    (Also reported in 685 N.W.2d 614.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John D. Uelmen of Fair Employment Legal Services, Milwaukee.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Arthur E. Beck and Katherine L. Williams of Beck, Chaet & Bamberger, S.C., Milwaukee.
    Before Wedemeyer, RJ., Fine and Curley, JJ.

       Petition to review denied 9-16-04.

   FINE, J.

¶ 1. Lisa K. Alberte appeals from an amended judgment entered following the trial court's refusal to include in that amended judgment her reasonable attorney's fees following acceptance by Anew Health Care Services, Inc., of her offer to settle her claim under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17. Alberte contends that her offer of settlement, proffered under Wis. Stat. Rule 807.01(3), included her reasonable attorney's fees in the offer's word "costs." The trial court disagreed. We reverse and remand with directions.

I.

¶ 2. Lisa K. Alberte sued Anew Health Care Services, Inc., contending that it had discriminated against her because of her disability. Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 3, 232 Wis. 2d 587, 589-590, 605 N.W.2d 515, 516. The only thing in dispute on this appeal is whether the offer of settlement proffered by Alberte and accepted by Anew Health Care included Alberte's reasonable attorney's fees. The operative part of Alberte's offer reads in full:

PLEASE TAKE NOTICE that, pursuant to Sec. 807.01(3), Stats., Plaintiff Lisa K. Alberte hereby offers to settle all claims against the Defendant Anew Health Care Services, Inc., for the sum of $20,000.00 (Twenty-thousand dollars) with costs.

The offer of settlement was dated February 13, 2001. Later, on February 22 and 23,2001, the lawyers for each of the parties spoke by telephone and disagreed whether the word "costs" included Alberte's reasonable attorney's fees — Alberte contended that it did; Anew Health Care contended that it did not. Later on February 23, Anew Health Care's lawyer faxed to Alberte's lawyer a document purporting to accept Alberte's offer of settlement, but adding the following underlined language (which was not underlined in the original); "with costs as defined under Wis. Stat. § 814.04 and § 814.16." Alberte's lawyer took this addition as a counter-offer and rejected it.

¶ 3. Subsequently, the parties stipulated that Alberte's original offer of settlement would be deemed to have been accepted and that the dispute of what was encompassed by the word "costs" would be judicially resolved:

It is FURTHER STIPULATED AND AGREED, that the above-captioned matter will be set on for further hearing by the Court for a determination of the amount of costs to be paid by the Defendant under the terms of the settlement, with judgment to be rendered and entered by the Court in accordance with this determination.

Initially, the trial court awarded to Alberte attorney's fees of $22,928, plus what it termed "other disbursements" of $1,535.03, for a total judgment of $44,463.03. On remand, however, following our summary reversal because the trial court appeared to disregard the offer of settlement in awarding judgment, the trial court held that attorney's fees were not included in the offer of settlement's use of the word "costs," and, accordingly, directed entry of an amended judgment for "$20,000.00 plus costs in the amount of $3,123.03, for a total judgment of $23,123.03." No one on this appeal challenges the $3,123.03 figure, except that Alberte contends that her reasonable attorney's fees should be added.

II.

¶ 4. This appeal asks us to apply the terms of Alberte's offer of settlement, and interpret various statutes and rules. This presents issues of law subject to our de novo review. State v. Setagord, 211 Wis. 2d 397, 405-406, 565 N.W.2d 506, 509 (1997) (statutes); Broadhead v. State Farm Mut. Auto. Ins. Co., 217 Wis. 2d 231, 250, 579 N.W.2d 761, 767-768 (Ct. App. 1998) (Wis. Stat. Rule 807.01(3)); Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 51, 586 N.W.2d 41, 51 (Ct. App. 1998) (settlement agreement). Federal statutes are also implicated by this case, and in applying them we are bound only by decisions of the United States Supreme Court, Alberte, 2000 WI 7, ¶ 7, 232 Wis. 2d at 591, 605 N.W.2d at 517, and those decisions of the Wisconsin Supreme Court and precedential decisions of this court that do not conflict with United States Supreme Court decisions, State v. Whitaker, 167 Wis. 2d 247, 261, 481 N.W.2d 649, 655 (Ct. App. 1992). Decisions of other federal courts may, of course, be helpful to our analysis of federal law. Alberte, 2000 WI 7, ¶ 7, 232 Wis. 2d at 591, 605 N.W.2d at 517.

¶ 5. Wisconsin Stat. Rule 807.01(3) provides, as material here:

After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court.... If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.

(Emphasis added.) The phrase "taxable costs" in Rule 807.01(3) means those costs "allowed as items of cost under" Wis. Stat. Rule 814.04. Prosser v. Leuck, 225 Wis. 2d 126, 146, 592 N.W.2d 178, 186 (1999). We are aware of nothing that indicates that the word "costs" in the first part of Rule 807.01(3) means anything other than "taxable costs." Costs recoverable under Rule 814.04 include "fees allowed by law." Rule 814.04(2).

¶ 6. As we show below, a plaintiff who prevails in a suit brought under the Americans with Disabilities Act may recover his or her reasonable attorney's fees. The parties assume, and we accept, that Alberte "prevailed" in her claim of disability discrimination. See Maher v. Gagne, 448 U.S. 122, 129 (1980) (party settling on favorable terms has "prevailed"). When an offer-of-settlement provision is implicated, as it is here, costs are added to any settlement, unless the terms of the settlement provide otherwise. Marek v. Chesny, 473 U.S. 1, 6 (1985) (applying Rule 68 of the Federal Rules of Civil Procedure). As Marek explains:

If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs. In either case, however, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs.

Id., 473 U.S. at 6 (applying Rule 68) (internal citation omitted, emphasis by Marek). Moreover, "where the underlying statute defines 'costs' to include attorney's fees" such fees are "included as costs" under the offer-of-settlement provision. Id., 473 U.S. at 9 (applying Rule 68).

¶ 7. There, are, arguably, three sources of Alberte's right to attorney's fees: (1) the Americans with Disabilities Act itself, under 42 U.S.C. § 12205; (2) under Title VII, 42 U.S.C. § 2000e-5(k), which is made applicable to the Americans with Disabilities Act by 42 U.S.C. § 12117; and (3) under 42 U.S.C. § 1988(b), made applicable to the Americans with Disabilities Act by 42 U.S.C. § 1981a(a)(2). The material parts of these provisions, with the pivotal language placed in italics, are, in sequence:

(1)
42 U.S.C. § 12205:
In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs.
(2)
42 U.S.C. § 12117(a):
The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides ... to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
42 U.S.C. § 2000e-5(k):
In any action or proceeding under this subchapter the court, in its discretion, may
allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs.
(3)
42 U.S.C. § 1981a(a)(2):
In an action brought by a complaining party under the powers, remedies, and procedures set forth in section. . . 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5 ...) (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)),... the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
(Parentheses in original.)
42 U.S.C. § 1988(b):
In any action or proceeding to enforce a provision of section[] . .. 1981a, ... of this title,. .. the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

As can be seen, both § 2000e-5(k) and § 1988(b) permit recovery of "a reasonable attorney's fee as part of the costs." Marek, 473 U.S. at 9 ("where the underlying statute defines 'costs' to include attorney's fees, we are satisfied such fees are to be included as costs") (applying Rule 68). On the other hand, the specific attorney's fee language in the Americans with Disabilities Act, § 12205, does not. Rather, § 12205 refers to two separate components of collateral recovery for the prevailing rights-denied plaintiff: (1) "a reasonable attorney's fee, including litigation expenses," and (2) "costs." Webb v. James, 147 F.3d 617, 622-623 (7th Cir. 1998) ("Congress did not define costs to include [attorney's] fees for the purposes" of the Americans with Disabilities Act). The trial court viewed this distinction to be critical and, following Webb, held that attorney's fees were not an item of costs recoverable under an offer of settlement made under Wis. Stat. Rule 807.01(3). But both Marek and Webb were applying Rule 68 of the Federal Rules of Civil Procedure to the fee-shifting statutes, Marek, 473 U.S. at 9, Webb, 147 F.3d at 619, and Rule 68 does not define "costs," unlike the situation in Wisconsin where, as noted, under the synergism between Rules 807.01(3) and 814.04(2), "costs" includes "[a]ll fees allowed by law." As Hartman v. Winnebago County, 216 Wis. 2d 419, 574 N.W.2d 222 (1998), teaches, this is crucial to our analysis.

¶ 8. Hartman decided that attorney's fees permitted by 42 U.S.C. § 1988(b) were subject to the time limit in Wis. Stat. Rule 806.06 for the taxation of costs and the perfection of the judgment. Hartman, 216 Wis. 2d at 428-434, 574 N.W.2d at 227-229. The decision's fulcrum was that under Wis. Stat. Rule 814.04(2) "taxable costs" included "[a]ll the necessary... fees allowed by law," and that this included the attorney's fees permitted by § 1988(b). Hartman, 216 Wis. 2d at 432, 574 N.W.2d at 228-229. As we have seen, § 1988(b) designates "a reasonable attorney's fee as part of the costs," and Hartman noted that this "plain language . . . specifically provides that § 1988 attorneys' fees are costs." Hart man, 216 Wis. 2d at 430, 574 N.W.2d at 228. But Hartman went further, and explained:

Arguably, because an action for attorneys' fees pursuant to § 1988 is based upon federal substantive law, we need only look to the federal statutory language and this court's interpretation of it to determine that § 1988 attorneys' fees are costs. We recognize, however, that "[t]he fact that a statute incorporates within its text the word 'cost' is not conclusive evidence that the statute in question authorizes the taxation of costs" in accordance with Wisconsin statutes.

Hartman, 216 Wis. 2d at 430-431, 574 N.W.2d at 228 (quoted source omitted). Noting that fee-shifting statutes serve valuable public-policy interests by permitting citizens" 'to recover what it costs them to vindicate [their civil] rights in court,'" id., 216 Wis. 2d at 433, 574 N.W.2d at 229 (quoted source omitted), Hartman held that "§ 1988(b) attorneys' fees are 'necessary fees allowed by law,'" under Rule 814.04(2), Hartman, 216 Wis. 2d at 432, 574 N.W.2d at 228-229. Nothing in Hartman indicates that this holding turned on the specific wording of § 1988(b), because if it had the analysis would have been surplusage. Thus it is binding on us. See Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W 598, 599 (1922) ("[W]hen a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision."). Indeed, we have recognized that Hartman "did not find the use of the word cost in [§ 1998(b)] decisive . . . but focused instead on whether the requested attorneys' fees were allowed by law and whether they represented a necessary cost of litigation to which a prevailing party is entitled under Wis. Stat. § 814.04(2)." Purdy v. Cap Gemini Am., Inc., 2001 WI App 270, ¶ 13, 248 Wis. 2d 804, 814, 637 N.W.2d 763, 768 (claims for attorney's fees permitted by contract are "costs" that must be taxed within the time set by Rule 806.06(4)) (quoting Hartman, 216 Wis. 2d at 432, 574 N.W.2d at 228-229) (internal quotation marks omitted). In light of this, Alberte is entitled to her reasonable attorney's fees as an item of costs under Rule 814.04(2) as provided for by Wis. Stat. Rule 807.01(3). We remand this case to the trial court for taxation of Alberte's reasonable attorney's fees.

By the Court. — Judgment reversed and cause remanded with directions.

       Rule 68 of the Federal Rules of Civil Procedure provides in full:
      At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged hable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

       We therefore need not decide whether the language in both 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988(b) (which provides that a "reasonable attorney's fee [is] part of the costs") trumps 42 U.S.C. § 12205 (which provides that a "reasonable attorney's fee" and "costs" are separate items of recovery), or consider either Alberte's argument that the United States Constitution prohibits denying her reasonable attorney's fees, or whether under the last sentence of Wis. Stat. Rule 807.01(3) reasonable attorney's fees are doubled "[i]f the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment." See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    City of Elkhorn, a Wisconsin municipality, Plaintiff-Appellant, v. The 211 Centralia Street Corporation, a Wisconsin corporation, Defendant, Northbrook Property and Casualty Insurance Company and Northbrook National Insurance Companies, foreign insurance corporations, Zurich American Insurance Company and American Guaranty and Liability Insurance Company, foreign insurance corporations, Defendants-Respondents.
    Court of Appeals

      No. 03-2077.

      Submitted on briefs May 5, 2004.

    Decided June 30, 2004.

    2004 WI App 139
    (Also reported in 685 N.W.2d 874.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark A. Peterson, Marvin I. Strawn and M. Susan Maloney of McNally, Maloney & Peterson, S.C., of Milwaukee.
    On behalf of the defendants-respondents North-brook Property and Casualty Insurance Company and Northbrook National Insurance Companies, the cause was submitted on the briefs of Stacy A. Broman, William M. Hart and Damon L. Highly of Meagher & Geer, P.L.L.P, of Minneapolis, Minnesota.
    On behalf of the defendants-respondents American Guaranty and Liability Insurance Company and Zurich American Insurance Company, the cause was submitted on the brief of Mark M. Leitner of Kravit, Gass, Hovel & Leitner, S.C., of Milwaukee.
    A nonparty brief was filed by Peggy A. Lauten-schlager, attorney general, and Hillary Schwab, assistant attorney general, on behalf of the State of Wisconsin.
    Before Anderson, PJ., Brown and Snyder, JJ.
   BROWN, J.

¶ 1. This case involves contamination in the soil and groundwater at the site of the old Getzen Company, a manufacturer of musical instruments, located at 211 West Centraba Street in the City of Elkhorn. The City filed a complaint against Getzen, arguing that as a result of Getzen's manufacturing operations, the soil and groundwater on Getzen's property is contaminated and the pollution emanating from Getzen's soil and groundwater has contaminated and continues to contaminate groundwater off the property, thus threatening the City's drinking water supply. Getzen, in turn, sought indemnification from its insurers, Northbrook Property and Casualty Insurance Company and Northbrook National Insurance Companies, Zurich American Insurance Company and American Guaranty and Liability Insurance Company.

¶ 2. The issue before us on appeal is whether the circuit court properly concluded that, as a matter of law, there was no coverage for the City's claims under Getzen's comprehensive general liability and umbrella insurance policies because the environmental damage at the Getzen site was not caused by an "occurrence" as that term is defined in the policies. We hold, as a matter of law, that Getzen expected or intended that environmental damage would result from its deliberate dumping of untreated contaminants and, therefore, the environmental damage is not the result of an "occurrence" and coverage is precluded. We affirm the circuit court's grant of summary judgment in favor of Getzen and its insurers.

¶ 3. From 1961 until 1991, Getzen manufactured brass musical instruments at the Centralia Street site. The manufacturing process at the site involved the machining, shaping and plating of a variety of metals into finished musical instruments. The process generated various waste contaminants, including heavy metals such as cyanide, cadmium, chromium, lead and barium and chlorinated solvents such as perchloroeth-ylene ("perc"), which was used for degreasing metal parts. The manufacturing process included at least one acid room and plating room. Each room contained floor drains connected to pipes, and these pipes ran directly into an unlined waste lagoon located behind the property. From 1961 until 1980, Getzen discharged its contaminated process waste water directly into the back-lot waste lagoon through the series of drains and pipes. Beginning in 1980, the waste water discharge into the lagoon was discontinued. The plant's effluent was treated and discharged into the municipal sanitary sewer system. In 1981, Getzen began storing its spent perc in fifty-five gallon drums, which a chemical recycling company picked up every ninety days.

¶ 4. Several former Getzen employees testified about Getzen’s waste disposal practices during this time. Jeffrey Davis, who worked for Getzen during the 1970s and 1980s, testified that before the treatment system was installed, "[a]ny chemicals or wastes from the plating room or the acid room, and any wastewater, any rinse waters" went down the drain into the lagoon. These chemicals included cyanide, sulfuric acid, nitric acid, muriatic acid, electroplate, electroclean and plating solutions. He stated that at least seven hundred to eight hundred gallons of rinse waters were washed down the drain each day; any acid and solution dumps were in addition to this amount of waste.

¶ 5. He testified that while he assumed Getzen was using the same amount of perc before the company started barreling it up in 1981, he did not know whether the perc and another solvent went down the drain along with the rest of the waste prior to 1981. He averred that new perc was initially stored in one or two 250-gallon tanks located near a depression in a floor with a drain and a pipe that led to the outside of the building. The drainage pipe was not attached to anything outside of the building and any fluid going into the depression in the floor would flow onto the ground outside. Davis further testified that a small degreaser tank located in a different room from the 250-gallon tanks was filled with perc as often as five to nine times a day by an employee using open buckets, which were carried throughout the plant. He stated that he never saw the employee spill the buckets. Finally, Davis testified that a larger degreasing tank was filled with perc using a fifty-five gallon drum on wheels. After the drum was rolled into position near the large degreasing tank, perc was drained out of the drum and into buckets through a valve. The filled buckets were emptied into the large degreaser.

¶ 6. According to Davis, after the treatment system was installed in 1981, the perc was stored in a large tank outside the building on a stand that was near the drain. This tank would boil over if overfilled on a hot day.

¶ 7. George Clauer, a longtime employee dating back to the early 1960s, indicated that the company also poured rinse water from the nickel, chrome or silver rinse tanks, cyanide solution, acid solution and alkaline solution down the drain leading to the lagoon. Robert Keegan, another longtime employee who worked at Getzen from 1972 until 1990, also testified. He related that the employees knew the acids discharged down the drain leading to the lagoon were hazardous and by 1979, the employees were aware of the environmental concerns arising out of the use of the lagoon. He stated that he saw spills of perc on the floors and that any spills went down the drains in the acid room and plating room. He also testified that he "assumed [the perc] just went into the lagoon with everything else."

¶ 8. Beginning in 1973, the Wisconsin Department of Natural Resources was in contact with Getzen concerning its waste disposal practices. On June 18, 1973, a DNR employee visited the Getzen site, noting:

The Getzen lagoon continued to overflow. On talking to people inside [the] plant, it was found that the chemicals used in the plating operations at [Getzen] required the use of nickel, chromium, brass, copper, and cyanide .... No treatment of any of the waste is undertaken except for the lagooning, nor does a hauler remove the waste. It was mentioned that land disposal of these wastes was not an acceptable method and that chlorine destruction of the cyanides and other treatment methods should be looked into.

Just over two years later, in July 1975, the DNR again conducted an investigation of the site. The DNR reported:

A meeting was held at the Elkhorn City Hall July 1, 1975 to discuss problems stemming from lagoon overflows at Getzen .... [T]he Milwaukee Road explained that in January, 1968 and January, 1970, pond overflow behind Getzen had caused one-car derailments because of ice over the tracks.
The mayor is the downstream landowner and he has received crop damage to some degree for the past 10 years because of acid pond overflows. Alderman Joe Canastra told of continuing complaints from [a citizen] .... [The citizen] explained ... [a] few years ago [her] son received acid burns from playing near the ponds. The city shares the concern of children getting in or near the ponds.

The report also referenced a previous 1975 visit by the DNR when its representatives "again suggested changes. To date, nothing has been done." According to the DNR representative, "The companies will drag their feet until the last minute." Shortly after this visit, in late July 1975, the DNR wrote Getzen, directing Getzen to "immediately embark on a phased program which will protect the public health as well as ultimately result in satisfactory treatment of your process waste-waters before they are discharged to waters of this State." The letter further instructed Getzen to take several immediate steps to eliminate the "overflow of process wastes to surface waters," but noted that "the [steps] are considered only interim, emergency measures which must be done now and that additional improvements will be essential in the form of controlled waste water treatment preceding any discharge to ground or surface water or to the municipal sewerage system." In July 1975, Getzen sent the DNR a letter indicating that it had been working on the problems internally.

¶ 9. In August 1975, apparently in response to the Getzen letter, the DNR again wrote Getzen:

On June 14, 1973, [an employee] inspected the Getzen Company facility and reported informing the company that land disposal was no longer an acceptable method of getting rid of plating waste. Industry has not recognized this method since the 1940s. He recommended other methods.
During [the] 1974 visit [the DNR] questioned what progress had been made by the Getzen company and was told none. In January of this year, [the DNR] again visited the Getzen Company and again asked of progress and again received none for a reply.

¶ 10. Six months later, in February 1976, the DNR again wrote Getzen concerning its continued use of the waste lagoon: "Your disposal lagoon is, in my opinion, definitely substandard and this has been brought to your attention before. The Getzen Company has chosen not to move forward in this area when other corporations in your municipality have." In July 1976, the DNR issued a permit for waste water disposal into the lagoon. In late 1977, the DNR conducted an inspection at Getzen and concluded that Getzen was discharging quantities of untreated chemicals in excess of permit limits. In April 1978, the DNR issued Getzen a Notification of Non-Compliance for failing to submit discharge monitoring reports, failing to submit groundwater sampling reports and failing to use proper analytical methods for testing waste water.

¶ 11. In August 1978, the DNR recommended referral of the case to the attorney general's office based on numerous violations of environmental laws, including failure to submit discharge monitoring reports, failure to conduct twice monthly sampling, failure to collect samples using the sample type required, failure to use methods required to analyze samples and failure to conduct monitoring of the groundwater wells. The DNR referral noted that Getzen's president Harold Knowlton admitted to a DNR representative that Getzen had not submitted discharge monitoring reports because "[s]ome of the grab samples they had taken were over the permit limits and they didn't want to submit them to the State." Knowlton further admitted to the DNR representative that Getzen had "checked the groundwater wells occasionally and indicated that their test kit [unapproved by the DNR] showed high levels of heavy metals which he felt were due to the fact that they had used the pond for disposal for some twenty years." In September and October 1979, the process of formally referring the Getzen case to the attorney general for prosecution was completed. In the referral, the DNR noted that Getzen had "made little progress" towards correcting the permit violations and it was possible that its failure to attain operational levels had "resulted in contamination of the groundwater."

¶ 12. In August 1980, the department of justice ordered Getzen to close and clean up its lagoon. Thereafter, Getzen installed the aforementioned waste water treatment system. In 1981, the DNR deemed the system adequate, but noted that elevated levels of contaminants in the groundwater could require continued monitoring of the medium. In 1988 and 1989, the DNR again cited Getzen with noncompliance due to high levels of metals in the waste water it disposed into the municipal sewer system. In 1991, the DNR conducted an inspection at the Getzen facility. Inside the waste water pretreatment room, the DNR representative found one inch of waste water and a filter bag dated June 6, 1990, containing waste sludge on the floor. The waste water was being discharged into a sump. There was a steady stream of waste water flowing across a concrete pad and down a hill. The representative returned the next day and found similar conditions.

¶ 13. In 1991, Getzen abandoned its facility due to bankruptcy. In 1996, the City hired Ayers and Associates, an environmental engineering firm, to assess the level of contamination on the Getzen property. The City does not own the property nor does it have a legal duty to clean up the site. The City, which depends exclusively on groundwater for its public and private water supplies, voluntarily incurred expenses to investigate and define the contamination in order to determine whether the City's wells were threatened. All three municipal wells are located within one-half mile of the Getzen plant.

¶ 14. Following the investigation, the City revived Getzen from bankruptcy and filed suit against the company, alleging claims of negligence and nuisance. As stated earlier, Getzen has sought indemnification from its insurers. Northbrook issued primary and excess insurance policies to Getzen for three policy periods: December 1983 to December 1984, December 1984 to December 1985, and December 1985 to December 1986. Zurich issued primary and excess insurance policies to Getzen from December 1979 to December 1980. The issues of coverage and liability were bifurcated; the liability portion of the trial was stayed until the coverage issues were resolved.

¶ 15. The City hired Scott Wilson and Jeffrey Steiner, employees of the firm of Ayers and Associates, to testify as experts on its behalf. Steiner, a hydrogeologist, described Getzen's waste management practices as "suspect." Steiner testified that his analysis revealed that chlorinated solvents had been in the groundwater since the 1970s. He opined that contaminants must have started getting into the soil as soon as the use of the lagoon began in 1961. He stated that the level of chlorinated solvents at the property was "the highest [he had] ever seen in soil." Steiner indicated that he was familiar with the DNR records concerning Getzen's violations. He stated that even back in 1978, a company in Getzen's position, which had been repeatedly approached by the government and told that it was violating the law, would have known that its actions were harming the environment, at least with respect to the dumping of heavy metals on the property. While Steiner limited this conclusion to heavy metals, he did testify that he had no reason to believe that Getzen was treating chlorinated solvents any more carefully than it was the heavy metals.

¶ 16. Scott Wilson, a soil scientist by trade, testified that contamination by chlorinated solvents and metals had been taking place over a period of twenty to thirty years. He stated that he would not attribute the contamination at the site to one big accident; rather, he testified that "there are not all kinds of isolated hot spots; that these releases have all kind of commingled together and it's been an ongoing event for some period of time.... [T]here's been so many releases of such high concentrations." He opined that at the Getzen site there were many sources of contamination that were typical of industry, including cracks in the plating room, dissolution of concrete walls where contaminations had oozed out, through the side of acid bathrooms, outside of doors where people had thrown out solvents, under existing tanks, next to the loading docks, out falls from the building where there were holes and drain pipes that exited the building. He further testified that the waste lagoon was a source, although it might not be a "primary" source, of chlorinated solvent contamination.

¶ 17. The insurance companies filed motions for summary judgment, advancing several alternative arguments in support of their position that the policies did not afford Getzen coverage, including that: (1) the environmental damages to the City resulted from Getzen's routine operation and was not an "occurrence" as that term is defined in the policies, (2) the City's claims were barred by the known-loss doctrines because Getzen knew of the environmental problems at the site when it purchased the policies, (3) the pollution exclusions contained in the policies barred coverage because the contamination was expected and/or intended. In a well-reasoned decision, the circuit court granted the insurance companies' motions for summary judgment, explaining that coverage was excluded under the definition of "occurrence," the pollution exclusion clauses and the known-loss doctrines and that no genuine issues of material fact existed with respect to those issues. The City now appeals.

¶ 18. We review summary judgment determinations de novo, employing the same methodology as the circuit court. Roebke v. Newell Co., 177 Wis. 2d 624, 632, 503 N.W.2d 295 (Ct. App. 1993). Summary judgment is a drastic remedy and is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2) (2001-02); Lecus v. Am. Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241 (1977). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991). "A factual issue is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (citation omitted).

¶ 19. In addition, we are called upon to interpret an insurance contract. Interpretation of an insurance contract is a question of law which this court reviews de novo. Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987); Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984).

¶ 20. On appeal, the City claims, inter alia, that summary judgment was not appropriate because genuine issues of material fact exist as to whether the contamination was a result of an "occurrence," as that term is used in the insurance policies at issue. The policies only provide coverage for damages arising out of an "occurrence" and each defines "occurrence" substantially the same: an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. The term "accident" has been interpreted to mean " '[a]n unexpected, undesirable event' or 'an unforeseen incident' which is characterized by a 'lack of intention.'" Doyle v. Engelke, 219 Wis. 2d 277, 289, 580 N.W.2d 245 (1998) (citation omitted). An "accident" also refers to an "event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result." Kalchthaler v. Keller Constr. Co., 224 Wis. 2d 387, 397, 591 N.W.2d 169 (Ct. App. 1999) (citation omitted). In a similar vein, there is no coverage under the expected or intended language in the definition of "occurrence" when: (1) the allegations plead an intentional act or (2) the insured intended or expected some injury or harm to follow from its act. Raby v. Moe, 153 Wis. 2d 101, 110-11, 450 N.W.2d 452 (1990).

¶ 21. The environmental damage at the Getzen site was no accident. The testimony of former Getzen employees and the DNR records conclusively establish that Getzen's routine practice for disposal of waste chemicals was to deliberately dump at least seven hundred to eight hundred gallons of contaminated waste water and other untreated chemicals down drains and into the unlined waste lagoon every day for some twenty years. The testimony also demonstrates it was Getzen's routine practice to have employees sweep spills and other floor waste, which included solvents, into the drains. The testimony of the City's experts bolsters these conclusions. Both Steiner and Wilson testified that the contaminants had been in the groundwater and soil since at least the 1970s, if not earlier. And, according to Wilson, "the contaminant sources have been a fairly continuous and ongoing event for some period of time," and "there are not all kinds of isolated hot spots; that these releases have all kind of commingled together and it's been an ongoing event for some period of time."

¶ 22. Furthermore, Getzen was well aware of the environmental consequences of its conduct. The paper trail detailing Getzen's history with the DNR began in June 1973 and ends with its bankruptcy in 1991. As early as 1973, after observing that Getzen did not treat any of its waste and a hauler did not remove the waste, the DNR informed Getzen that "land disposal of these wastes was not an acceptable method." In 1975, the DNR reported that a neighbor of the Getzen facility had complained that her son had received acid burns from playing near the lagoon. That same year, the DNR directed Getzen to embark on a program to "protect the public health" by treating its process waste waters "before they are discharged to the waters of this State." Again in 1975, the DNR informed Getzen not only that land disposal was not an acceptable method of getting rid of waste, but also that "[i]ndustry has not recognized this method since the 1940s." (Emphasis added). In the same letter, the DNR reminded Getzen that "[mjodern effluent regulations have eliminated any remaining possibility of continuing to discharge untreated water."

¶ 23. In 1976, the DNR told Getzen that its waste lagoon was "substandard" and admonished Getzen for not "mov[ing] forward in this area when other corporations in [its] municipality have." In 1977, the DNR found that Getzen was discharging quantities of chemicals in excess of permit limits and in 1978, recommended referral of the matter for prosecution based on violations of environmental laws. In a conversation with DNR officials, Knowlton, Getzen's president, admitted conscious violations of the law by telling the DNR representative that Getzen had withheld testing results because "[s]ome of the grab samples they had taken were over the permit limits and they didn't want to submit them to the state." When the DNR finally referred Getzen for prosecution, it wrote, "Getzen.. . has made little progress towards correcting these violations of their permit conditions," and worried "that the company's failure to attain operational levels has resulted in contamination of the groundwater."

¶ 24. As Getzen's lengthy relationship with the DNR demonstrates, there can be no dispute that Getzen knew its methods of disposal were unacceptable and were contaminating the soil and groundwater, but chose not to conform its practices to industry standards. Thus, the record conclusively establishes not only that the dumping of contaminants was deliberate, but also that the environmental damage was an entirely expected, if not intended, result of Getzen's conduct.

¶ 25. In a nonparty brief, the State argues that whether Getzen expected or intended the environmental damage is a question of fact, which cannot be determined as a matter of law. The State contends that the insured must have a subjective intent to cause specific damage. While the State is generally correct that intent has a subjective component and, therefore, can be a question of fact for the jury, there are occasions where intent can be found as a matter of law. See Loveridge v. Chartier, 161 Wis. 2d 150, 169, 468 N.W.2d 146 (1991).

¶ 26. While a court may infer intent to injure as a matter of law only in narrow circumstances, it may do so "if the degree of certainty that the conduct will cause injury is sufficiently great to justify inferring intent to injure as a matter of law." Id. at 169-70 (citation omitted). Thus, it is an objective standard and actual expectation or intent to cause a specific harm is not necessary to preclude coverage. See id. at 169. Whether to infer as a matter of law such intent or expectation is to be determined on a case-by-case basis. Id. at 169-70.

¶ 27. Here, there can be no doubt that Getzen, through its many communications with the DNR, knew that its activities were harming the environment. Indeed, the City's own expert conceded that a party in Getzen's shoes who had been told repeatedly by the DNR that it was violating the law would have been aware that it was causing environmental harm. Given the nature of Getzen's conduct and the extent of its knowledge about the consequences of its actions, we conclude that Getzen's intent to cause environmental damage can be inferred as a matter of law. We, therefore, reject the State's argument.

¶ 28. The City challenges the circuit court's ruling that there was no genuine issue of material fact as to whether the environmental damage was an "accident" on two grounds. First, the City draws a distinction between metal contamination and solvent contamination, asserting that the real danger to the City's drinking water comes from solvent contamination. The City submits that the contamination from the soil and groundwater resulting from the waste lagoon had "very little to do with the solvent contamination." The City then maintains that the evidence demonstrates that the contamination by the solvents actually resulted from "countless accidental spills, during its metal-plating and finishing operations over three decades."

¶ 29. We reject the City's attempt to make relevant the distinction between solvent and metal contamination. In 1973, the DNR reported that Getzen did not undertake treatment of any of the waste, with the exception of the lagoon, and a hauler did not remove the waste. While two of the employees could not testify as to what happened with the spent perc, Keegan testified that he "assumed [the perc] went into the lagoon with everything else." And, Davis testified that used perc or solvent was not shipped off site until after Getzen started to collect spent perc in barrels, which did not occur until after 1981, when Getzen set up the waste water treatment system. Further, the City's own experts testified that the waste lagoon, while maybe not a primary source, was a source of solvent contamination. According to Wilson, the chlorinated solvent contamination occurred over a long period of time and consisted of many releases of "high concentrations." This leads to only one conclusion — that it was Getzen's ongoing and continuous business practices, not a few drips and spills from a bucket or spigot, which caused what Wilson and Steiner conceded were the highest levels of perc-related contamination that they had ever seen in soil.

¶ 30. Next, the City argues that Getzen's practice of disposing its waste into an unlined lagoon was a common and "entirely lawful, industrial practice." Thus, according to the City, Getzen could not have intended to cause environmental damage. The record belies this claim. The record establishes that the DNR repeatedly warned Getzen in the mid-1970s that this method of disposal was unacceptable and had not been an acceptable practice within the industry since the 1940s. Getzen chose not to heed the DNR's warnings and continued to discharge untreated waste water into the lagoon in violation of environmental laws and its permit. Even the employees knew that the acids discharged down the drain leading to the lagoon were hazardous and were aware of the environmental concerns arising out of the use of the lagoon.

¶ 31. In sum, there are no genuine issues of material fact with respect to whether the contamination was the result of an "occurrence" that would require a trial. The record conclusively establishes that Getzen's routine practice was to pipe hundreds of gallons of untreated waste water and other chemicals into an unlined lagoon. The record further establishes that Getzen was well aware that this practice would cause environmental damage. As the circuit court rightly observed, "Getzen's dumping of hazardous materials was not an accident — it was [thirty] years of deliberate dumping." We affirm.

By the Court. — Judgment affirmed.

       When Getzen Musical Instruments, Ltd., the successor to The Getzen Company, Inc., was brought back into good standing, its name was changed to The 211 Centraba Street Corporation to avoid confusion in the community with another company which bought the Getzen name out of bankruptcy. For ease of reference, we will refer to The 211 Centralia Street Corporation as "Getzen."

       There appears to be some dispute about the years in which Zurich provided insurance coverage to Getzen. Because of the decision we reach in this case, we need not address this issue further.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: ANDERSON, EJ.

text:
    In the Matter of Costs and Attorneys Fees in Kathleen Jensen et al. v. David D. McPherson, M.D. et al: Attorney Lee P. Forman, Appellant, v. David D. McPherson and Lakeland Medical Center, Respondents.
    Court of Appeals

      No. 03-2505.

      Submitted on briefs May 5, 2004.

    Decided June 30, 2004.

    2004 WI App 145
    (Also reported in 685 N.W.2d 603.)

      ■ On behalf of the appellant, the cause was submitted on the briefs of Ross Anderson and James P. Denis, III of Whyte Hirschboeck Dudek S.C., Milwaukee.
    On behalf of the respondents, the cause was submitted on the brief of Curtis C. Swanson and David J. Pliner of Corneille Law Group, LLC, Madison.
    Before Anderson, PJ, Brown and Nettesheim, JJ.
   ANDERSON, EJ.

¶ 1. Attorney Lee E Forman appeals the decision and order of the trial court granting Dr. David D. McPherson and Lakeland Medical Center's motion for mistrial and imposing sanctions in the form of costs and attorneys' fees. Forman argues that the trial court failed to engage in "any meaningful consideration" of alternative remedies to a mistrial. Forman also argues that the proof submitted by Dr. McPherson and Lakeland "was completely insufficient to sustain [the specific amount awarded] because the affidavits and bills of costs contained opinions that are conclusory and incomplete." Forman argues that he was entitled to discovery with regard to the fees and costs. Finally, Forman argues that Dr. McPherson's and Lakeland's motions for fees and costs were untimely under Wis. Stat. § 806.06 (2001-02).

¶ 2. We reject Forman's claim that the defendants' motions were untimely. We uphold the trial court's grant of a mistrial and its award of costs and attorneys' fees. However, we agree with Forman that the proof provided by the defendants to sustain the specific amount awarded in costs and attorneys' fees was insufficient. We therefore remand this issue to the trial court with directions to instruct Dr. McPherson's and Lakeland's attorneys to provide more detailed time records and evidence to support the amount claimed owed. Finally, given these remand directions, Forman's discovery argument is a nonissue because the information he seeks will now be provided upon remand.

¶ 3. In early 1997, acting on behalf of Kathleen and Bradley Jensen, Forman filed suit against Dr. McPherson and Lakeland alleging medical malpractice (No. 97CV000704). The Jensens claimed that their minor son Erik was rendered a paraplegic after suffering a spinal cord tear and permanent injury while in útero due to the allegedly negligent efforts of Dr. McPherson to reposition Erik in the womb with a procedure called a "version."

¶ 4. One of the witnesses identified by Forman was pediatric neurologist Dr. Richard Jacobson, Erik's treating physician.

¶ 5. In May 1998, the trial court entered a scheduling order, which stated in relevant part:

[Please note: T]he parties in submitting their experts to oral examinations certify their experts are prepared and their opinions complete unless a disclosure is made at the deposition. Parties have a continuing duty to disclose developing or changing opinions of experts.

¶ 6. The defendants' attorneys deposed Dr. Jacobson on March 17, 1999. At deposition, the following exchange took place between the defense attorneys and the doctor:

[Defense Counsel] Is it fair to state that you have no intention of offering any opinions in this case relating to the standard of care by obstetricians.
[Dr. Jacobson] Yes, that is correct, I do not intend to.
[Defense Counsel] And as far as the mechanism of injury, you have deferred that to someone else?
[Dr. Jacobson] As far as exactly how in útero manipulation would specifically damage the cord, as Dr. Mc-Clone has sort of — McClone has elaborated on it with these documents, I would defer that to him. But I do feel it's likely secondary to — it was the trauma to the cord that caused the injury as opposed to just a spontaneous infarction or a congenital malformation or an AV malformation.
[Defense Counsel] I just want to make sure that I'm understanding the responses that you gave ... earlier about whether or not if you come to trial as a witness you're going to have certain opinions.
[Defense Counsel] So, summarily, I guess what I'm asking is if you were asked at this point to form an opinion for a jury to a medical probability as to when specifically this spinal cord lesion occurred and under what circumstances, before you gave that opinion would you want to read all of those records and depositions in detail as well as search the literature before reaching that definite conclusion? And I'm talking to a medical probability.
[Dr. Jacobson] Yes.
[Defense Counsel] Okay. And you haven't done that up to this point?
[Dr. Jacobson] No.
[Defense Counsel] You haven't reviewed that material, and therefore you don't have an opinion to our legal standard of a medical probability because you'd want to see that material before as a scientist you'd want to reach that definite a conclusion?
[Dr. Jacobson] Yes, that's correct.

¶ 7. Forman also questioned Dr. Jacobson at the deposition and, in so doing, raised an issue that disturbed the defense:

[S]hould the instance come when you review the material and there is nothing new or different displayed by the material, would your opinions expressed here today remain the same?

The defense immediately raised its concern to this line of questioning:

Well, wait a minute. If you're going to — let's put our cards on the table. If you're going to send [Dr. Jacobson] stuff, then we would want to take another deposition of him and reserve the right to object to the manner in which he's been given information.
[I]f [Dr. Jacobson is] going to get more documents and things to look at, in Wisconsin what is usually the course is that the lawyers get told that the doctor now has seen all these things that he didn't see before his deposition and then we have the opportunity to do something about that. Sometimes it's ask for another deposition.

¶ 8. Later, when Forman called Dr. Jacobson as a witness at trial, he elicited the following testimony which formed the basis for the defenses' subsequent motion for a mistrial:

[Forman] All right. Now, doctor, after all of your examinations of Erik and up until January 4, 1997, did you form an opinion as to the cause of Erik's injury?
[Dr. Jacobson] Yes, I did.
[Forman] Okay. Doctor, based upon a reasonable probability of medical certainty, do you have an opinion as to what caused the spinal cord injury to Erik Jensen?
[Dr. Jacobson] Yes, I do.
[Forman] What is your opinion?
[Dr. Jacobson] It's my opinion that the — that his lesion, his deficit, was caused by trauma to the spinal cord; and at the time I first saw him, I did not have any detailed information about — about what the circumstances of his birth were. But in reviewing all the information I had become available to me, it's my opinion that it was manipulation at some time during the birth process that caused the trauma to the spinal cord.
[Forman] Do you have an opinion, based upon a reasonable probability, that the version performed by Dr. David McPherson was the cause of this child's spinal cord injury?
[Defense Counsel] I object and I'd like to be heard on this.
[The Court] Well, first of all, your objection is sustained as to the form of the question. It's also leading. So rephrase the question.
[Forman] Thank you.
[Forman] What were the birth processes that you just referred to?
[Dr. Jacobson] Do you want me to tell you how I came to learn of what the circumstances were?
[Forman] Yes, sir, please.
[Dr. Jacobson] When I first saw him and saw the results of the MRI scan and we performed follow-up MRI scan showing a lesion in the cervical thoracic spinal cord, my first thought was that — what causes a spinal cord problem like this in a young child? And my first thought was trauma, and my second thought was some sort of vascular lesion.
So I asked Erik's mother what had happened during the delivery or whether he was born breech, because breech delivery is a common circumstance where the spinal cord would be injured. And she told me that he was breech and that they had tried a version and then he was delivered by C-section. And that led me to consider the possibility that something about one of those manipulations had been involved in the injury to the cord.
And I have since come to learn other aspects of the way Erik was positioned in the uterus and so forth, and looked at the literature on this particular circumstances, and I've concluded that of all the things that might have happened, that the version is the most likely event that injured his spinal cord.
[Forman] Thank you.
[Defense Counsel] Your Honor, I'd like that marked and reserve it for a later motion.

¶ 9. The defense objected, asking to be heard. Outside of the jury's presence, the defense argued that Dr. Jacobson's trial testimony on causation came as a complete surprise. The defense complained that For-man did not give notice that he had given Dr. Jacobson material to review after the deposition. Additionally, they opined that they were never notified that the doctor's testimony at trial would be different than that at deposition.

¶ 10. Forman countered that he "discussed this in detail with both defense counsel that there would be specific allegations." He argued "[t]hey've had an opportunity at any given time to do any number of things and this does not come as a surprise to them."

¶ 11. Each of the defense attorneys categorically denied Forman's claim of disclosure. And, Forman did not produce documentation to prove otherwise.

¶ 12. The court then allowed both sides to voir dire Dr. Jacobson on the issue. Dr. Jacobson attested that the only information he had reviewed before his deposition was his own records. Dr. Jacobson verified that in his deposition testimony, he communicated that if he were going to give an opinion with respect to the timing of the injury, he would have wanted "to see the information about the version and the medical records surrounding the birthing process and that sort of thing."

¶ 13. Dr. Jacobson acknowledged that, after his deposition, Forman provided him with extensive additional materials to review: "a series of papers that dealt with the issue of fetal hyperextension in breech position and its association with spinal cord injury," articles about versions, transcripts of the depositions of the defense experts, a deposition of one of the plaintiffs experts, and the medical records related to the version. He agreed that the defense had not provided him any new information to review after his deposition.

¶ 14. Dr. Jacobson said that, after reviewing the material provided by Forman, he informed Forman of his opinion approximately one and one-half weeks before trial.

¶ 15. After hearing all the evidence, the trial court concluded that Dr. Jacobson had changed his deposition testimony and that the attorneys for the defense had not been properly notified, in violation of the scheduling order. The trial court and the parties then engaged in lengthy discussions about the options for dealing with Dr. Jacobson's surprise testimony. The court raised its concerns about whether striking the surprise testimony would cure its prejudice or exacerbate it:

[Y]ou strike testimony in front of a jury, that underlines it, outlines it, puts it . in quotations and sticks as an exclamation point at the end. That's the testimony they always remember, the ones you tell them to forget. That's the thing they'll remember.

¶ 16. Despite this risk, the defense initially asked that Dr. Jacobson's offending testimony be stricken because Dr. McPherson simply did not want to live with the case any longer. However, upon further consultation with their clients, defense counsel moved for a mistrial out of concern that the prejudice to the defense from the testimony could not be cured by striking it or by an instruction to the jury.

¶ 17. And, in fact, Forman, on behalf of the Jens-ens, did not oppose a mistrial. To the contrary, while defense counsel were still discussing the option of striking Dr. Jacobson's testimony, Forman effectively moved for a mistrial:

[Forman] Well, if there's been such a reversible error made right now, I don't want to try the case and then have to go. up on a dozen different appeals.... So a mistrial at this point would not, you know — I assume would be assessed costs but would not be improper.
[Forman] Talking about a fatal defect caused by Dr. Jacobson, then let's certainly have our mistrial. So those are my positions on it.
[Forman] That was the — If you're going to mistry the case, mistry it on that error, mistry it. If there isn't that error created and it's just a question specifically of the last thing he said, I still think that I have a right to place that in .... But to strike Dr. Jacobson's testimony is not the correct thing.

¶ 18. Subsequently, after defense counsel also moved for a mistrial, the court requested Forman's input and he stated: "Whatever your Honor pleases, under the circumstances, if you think this is correct."

¶ 19. The court then ordered:

I'm going to grant the mistrial because I think you've made such a mess out of this, Mr. Forman, that this case can't even go forward. Your behavior here is unbelievable. It's reprehensible. And your lack of preparation for this trial and your inability to play within the rules has — it's created every one of these problems.
The mistrial will be granted. I will assess costs against you, Mr. Forman, and I'll expect a motion with regard to that, an affidavit as to what the costs actually are.

¶ 20. Although Forman objected to certain terms imposed by the court as part of the mistrial order {e.g., that the pleadings of all parties were closed), and although he denied that he himself had initially moved for a mistrial, he never objected to the grant of a mistrial or to an award of costs on the record.

¶ 21. The court then issued a detailed Findings of Fact and Order on November 9,1999, summarizing the events and expressly finding:

The new testimony by Dr. Jacobson was prejudicial to the defense in that it was given by a treating pediatric neurologist, it was a critical element of plaintiffs case, and it did not allow defense counsel time to prepare to cross-examine the witness.
The prejudice created by the conduct of Attorney For-man cannot be adequately corrected by an instruction to the jury.

¶ 22. Shortly thereafter, without notice or an opportunity to be heard, the trial court sua sponte entered an order rescinding Forman's permission to appear pro hac vice as counsel for the Jensens. Jensen v. Wis. Patients Comp. Fund, 2001 WI 9, ¶ 9, 241 Wis. 2d 142, 621 N.W.2d 902. The order cited SCR 10.03(4) and stated that Forman "has by his conduct manifested incompetency to represent a client in a Wisconsin court and has not abided by the code of professional responsibility and the rules of decorum of the Court." Jensen, 241 Wis. 2d 142, ¶ 9.

¶ 23. Forman filed a motion for reconsideration, reasserting that Dr. Jacobson's trial testimony was consistent with his deposition testimony. Id., ¶ 10. He argued that the trial court's order deprived him of the right to practice his profession and deprived the Jens-ens of their right to counsel of their choice. Id. He also argued that the order had been entered without notice or an opportunity to respond. Id. The trial court entered its written findings of fact and order granting the mistrial, but did not specifically address Forman's motion for reconsideration of the revocation of his pro hac vice status. Id.

¶ 24. We granted leave to appeal the narrow question of whether there is a right to notice and an opportunity to be heard before a trial court withdraws an attorney's pro hac vice admission. Id., ¶ 11. The Jensens and Forman argued that once an attorney has been admitted pro hac vice in a particular case, the attorney acquires a limited property interest that requires the due process protections of notice and an opportunity to be heard before that status may be revoked. Id., ¶ 14. Upon review, we certified the question to the supreme court and certification was accepted. Id., ¶ 11. The supreme court concluded that, for reasons of policy and sound judicial administration, attorneys should receive notice and some opportunity to respond before pro hac vice admission is revoked. Id., ¶ 16. It did not reach the constitutional question. Id.

¶ 25. Three years later, in May 2003, just prior to resolving the second malpractice action (into which the original action had been consolidated), the defendants filed motions and supporting affidavits to recover from Forman their attorneys' fees and costs arising out of the mistrial. In response, Forman served defendants' trial counsel with subpoenas duces tecum, demanding discovery of records from counsels' files, including billing records. The defense moved to quash the subpoenas.

¶ 26. The trial court heard the motions on July 22, 2003. It held that the fees and costs sought by the defense were reasonable and entered orders awarding the defendants a total of $38,627.

¶ 27. Forman appeals the decision to grant the mistrial and the sanctions imposed against him awarding Dr. McPherson and Lakeland attorneys' fees and costs.

¶ 28. We first dispose of Forman's claim that the defenses' motions for fees and costs were untimely. Forman argues: "Because the case in which costs and attorneys' fees were awarded against Forman was terminated by the consolidation of the two cases on October 16, 2001, the Defendants were required [pursuant to Wis. Stat. § 806.06] to file their bills of costs and affidavits within 30 days of that date." This argument is misguided and is rejected. Section 806.06 governs time limits when a "judgment" has been rendered. An order for consolidation is not a judgment. Unlike a judgment, an order for consolidation does not operate to "disposed of the entire matter in litigation as to one or more of the parties." See Wis. Stat. § 808.03(1).

¶ 29. Next, we reject Forman's claim that the trial court erred in granting the defendants' motion for mistrial. The decision whether to grant a mistrial motion lies within the sound discretion of the trial court. State v. Ross, 2003 WI App 27, ¶ 47, 260 Wis. 2d 291, 659 N.W.2d 122, review denied, 2003 WI 91, 262 Wis. 2d 501, 665 N.W.2d 375 (Wis. June 12, 2003) (No. 02-0121-CR). The trial court must determine, in light of the whole proceeding, whether the claimed error was sufficiently prejudicial to warrant a new trial. Id. The trial court's decision on a motion for a mistrial will be reversed only on a clear showing of an erroneous use of discretion by the trial court. See id.

¶ 30. Forman argues that the trial court granted the defendants' motion for mistrial "without any meaningful consideration of alternative remedies."

¶ 31. We disagree. After the defense objected to Dr. Jacobson's testimony, the court excused the jury, allowed voir dire testimony from Dr. Jacobson, and allowed extensive argument from both sides before making its findings. The court then determined that Forman had violated its scheduling order by providing Dr. Jacobson with materials to review after his deposition, without advising the defendants' counsel. It additionally concluded that Dr. Jacobson's trial testimony was substantially different from his deposition testimony. Finally, it determined that the doctor's new opinion testimony regarding causation from Erik's treating pediatric neurologist was prejudicial to the defense because it was a critical element in the Jensens' case and the defense had not had a fair opportunity to respond.

¶ 32. Once the court made these fundamental findings, it turned to the question of how to handle the situation. Again, the court allowed extensive arguments from counsel regarding the fairest way of dealing with the problem. Contrary to Forman's argument, the court did consider remedies less drastic than a mistrial. The court considered striking Dr. Jacobson's offending opinion testimony; it also entertained whether a curative jury instruction would remedy the prejudice. In the end, it concluded that no other alternatives were viable. We cannot say that this decision was clearly erroneous. Furthermore, from our reading of the record, it was made after allowing ample time for argument and thoughtful consideration of other alternatives.

¶ 33. Next, citing Schultz v. Sykes, 2001 WI App 255, ¶ 48, 248 Wis. 2d 746, 638 N.W.2d 604, Forman argues "before [the court] could impose sanctions personally against Forman, [it] was required to conclude that Forman either acted in bad faith or engaged in egregious conduct."

¶ 34. We disagree. Forman confuses the law. In Schultz v. Sykes, we cited to Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 275, 470 N.W.2d 859 (1991), and noted that the test for imposing the harsh sanction of dismissal is bad faith or egregious conduct. See Schultz v. Sykes, 248 Wis. 2d 746, ¶ 9. Schultz v. Sykes and Johnson involved dismissal of the plaintiffs lawsuit. Unlike Schultz v. Sykes and Johnson, this case does not involve dismissal of the plaintiffs lawsuit. Rather, the underlying sanction here was a mistrial, accompanied by a corresponding award of fees and costs. The Jensens were still able to seek redress for their injuries, and they did so.

¶ 35. We agree with defendants that Schultz v. Darlington Mutual Insurance Co., 181 Wis. 2d 646, 656, 511 N.W.2d 879 (1994), provides the relevant authority-in situations where the underlying sanction is a mistrial. A trial court's "discretionary authority to impose costs enables [the court] to penalize conduct disruptive to the administration of justice." Id.; see also Filppula-McArthur v. Halloin, 2000 WI App 79, ¶ 17, 234 Wis. 2d 245, 610 N.W.2d 201, affirmed by 2001 WI 8, 241 Wis. 2d 110, 622 N.W.2d 436. In Schultz v. Darlington, our supreme court recognized that under Wis. Stat. § 814.036, "circuit courts have the authority to impose costs on an attorney whose actions have resulted in a mistrial." Schultz v. Darlington, 181 Wis. 2d at 656. Here, the mistrial was declared as a direct result of Forman's unwillingness to obey the court's scheduling order. See Filppula-McArthur, 234 Wis. 2d 245, ¶ 17. Accordingly, we conclude that the trial court reasonably exercised its discretion when it assessed costs against Forman. See id.

¶ 36. Forman also argues that the attorneys' fees claimed by the defendants were "excessive, unreasonable and unrelated to the mistrial." Forman points out that the supporting material does not sufficiently detail a breakdown of charges for hours billed, a description of the services rendered and an explanation of the rendered services relationship to the mistrial.

¶ 37. The general rule is that a trial court's findings of fact will not he disturbed on appeal unless clearly erroneous. Fireman's Fund Ins. v. Bradley Corp., 2003 WI 33, ¶ 67, 261 Wis. 2d 4, 660 N.W.2d 666. An exception to this rule exists with respect to determinations of the value of legal services, because the value of legal services is reviewed on appeal by judges who have expert knowledge as to the reasonable value of legal services. Id., ¶ 67. The proper factors to consider when determining reasonable attorneys' fees include:

[T]he amount and character of the services rendered; the labor, time, and trouble involved; the character and importance of the litigation; the amount of money or value of the property affected; the professional skill and experience called for; the standing of the attorney in his [or her] profession; and the general ability of the client to pay and the pecuniary benefit derived from the services.

Id. (citation omitted).

¶ 38. We agree with Forman that the information provided by the defense was not sufficient to enable the trial court or this court to determine a reasonable figure for attorneys' fees in this case. See id., ¶¶ 67-69. Affidavits and bills of costs referencing "trial preparation," "trial attendance," and "work associated with the mistrial" do not give either court enough information to employ the analysis required by Wisconsin law. See id., ¶¶ 68-69. It is not possible to know from the affidavits the character of the work performed, how much time was spent on each type of work, and who performed the work. See id., ¶ 69. Without this information, a court cannot determine whether the fees are reasonable. Consequently, we reverse the trial court's award of attorneys' fees insofar as the amount awarded, but as already noted, we affirm the decision to award costs and fees in and of itself.

¶ 39. We remand the award of attorneys' fees to the trial court for additional evidence and the determination of reasonable attorneys' fees. In order to address the defendants' concerns that providing additional evidence "would invade the attorney-client privilege," the court can look at the defendants' detailed billing in camera or the defendants can redact from their time records any content of substance while still providing for the record the character of the work performed, how much time was spent on each type of work, and who performed the work. See id., ¶ 69. Without this information, a court cannot determine whether the fees are reasonable.

¶ 40. Finally, Forman argues that he was entitled to discovery before the evidentiary hearing regarding the fees and costs claimed by the defendants. Forman's discovery concerns are a nonissue given our remand directions that the court require the defendants to provide proper documentation for a determination whether their fees are reasonable.

CONCLUSION

¶ 41. In short, we reject Forman's claim that the defendants' motions for fees and costs were untimely. We uphold the trial court's grant of a mistrial. We uphold its decision to award costs and attorneys' fees; however, we reverse its decision insofar as the amount awarded because the evidence provided by the defendants was not sufficient for a court to make a reasonableness determination, as is required by Wisconsin law. On remand, the defendants should be instructed to provide more detailed time records and evidence to support the specific amount of fees and costs claimed. Forman's discovery argument need not be addressed because the information he seeks will be provided upon remand.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The court also ordered Forman to pay the fees and costs of the Wisconsin Patients Compensation Fund, an original defendant; the Fund's claim was subsequently resolved and is not at issue.

        Jensen v. Wis. Patients Comp. Fund, No. 97CV000704.

       This court notes that the appendix attached to Forman's appellate brief contains a partial transcript of Dr. Jacobson's deposition. To the best of our knowledge, the appellate record contains only a partial transcript of the deposition and does not even contain some of the relevant portions provided in Forman's appendix. Forman's appellate brief refers extensively to Dr. Jacobson's deposition. Consequently, we remind Forman's appellate counsel that an appellant's brief to this court must contain "a statement of facts relevant to the issues presented for review, with appropriate references to the record," Wis. Stat. § 809.19(l)(d), as well as an "argument on each issue," citing "parts of the record relied on," § 809.19(l)(e).
      Forman's citations to his appendix do not conform to the rules of appellate procedure because they do not inform the court where the facts he asserts may be found in the record. See Miesen v. DOT, 226 Wis. 2d 298, 301 n.5, 594 N.W.2d 821 (Ct. App. 1999); see also Wis. Stat. § 809.19(1)(d), (e).
      It is not this court's responsibility to sift and glean the record in extenso to find facts supporting Forman's argument. See Miesen, 226 Wis. 2d at 301 n.5. Rather, it is the appellant's responsibility to ensure completion of the appellate record and "when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court's ruling." Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).

       The trial court held that Forman, in fact, did move for a mistrial and did so before the defendants.

       In the original 1997 action, Forman had failed to join the child, Erik, as a party plaintiff and had failed to secure the appointment of a guardian ad litem. Jensen v. McPherson, 2002 WI App 298, ¶ 25, 258 Wis. 2d 962, 655 N.W.2d 487. The Jensens retained new counsel, who secured a guardian ad litem, and in 2001 filed a second lawsuit in Walworth county, (No. 01-CV-00411), adding Erik as a party. Id., ¶¶ 4-6. They moved to consolidate the 1997 and 2001 cases. Id., ¶ 6.
      The trial court granted the motion for consolidation and denied the defendants' motion to dismiss the 2001 medical malpractice claim of Erik by his guardian ad litem. Id., ¶ 1.

        In 2002, the case came up to this court by grant of a leave to appeal. Id. The defendants appealed the trial court order denying amotion to dismiss the 2001 medical malpractice claim of Erik by his guardian ad litem. Id. They also appealed the trial court order granting the consolidation motion. Id. The defendants argued that under Wis. Stat. § 802.06(2)(a)10 (1999-2000), the 2001 action should have been dismissed on the grounds that the 1997 action was pending in Walworth county (No. 97-CV-00704) between the same parties for the same cause. Jensen, 258 Wis. 2d 962, ¶ 1. We disagreed and explained that Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01(3)(a), until after the 1997 action was declared a mistrial. Jensen, 258 Wis. 2d 962, ¶ 1. We affirmed the trial court's decision to deny the defendants' motion to dismiss, and we affirmed the trial court's order granting the Jensens' motion to consolidate the 1997 and 2001 actions. Id. We also upheld the trial court's discretionary decision to set a new scheduling order. Id.

       WISCONSIN Stat. § 806.06(4) states in relevant part:
      A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs.

       WisConsin Stat. § 808.03 provides in relevant part:
      (1) Appeals as op eight. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of the following:
      (a) Entered in accordance with s. 806.06(l)(b) or 807.11(2).
      (b) Recorded in docket entries in ch. 799 cases.
      (c) Recorded in docket entries in traffic regulation cases prosecuted in circuit court if a person convicted of a violation may be ordered to pay a forfeiture.
      (d) Recorded in docket entries in municipal ordinance violation cases prosecuted in circuit court.