                                                              2014 WI 66

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2012AP183
COMPLETE TITLE:         Randy L. Betz,
                                  Plaintiff-Appellant,
                             v.
                        Diamond Jim's Auto Sales,
                                  Defendant-Respondent-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 344 Wis. 2d 681, 825 N.W.2d 508
                                   (Ct. App. 2012 – Published)
                                     PDC No.: 2012 WI App 131

OPINION FILED:          July 15, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 9, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Maxine A. White

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., dissents. (Opinion filed.)
   NOT PARTICIPATING:   ROGGENSACK, J., did not participate.

ATTORNEYS:
       For the defendant-respondent-petitioner, there were briefs
by   Lawrence J. Drabot,         Sara C. Mills, and   Crivello Carlson,
S.C., Milwaukee, and oral argument by Lawrence J. Drabot.


       For the plaintiff-appellant, there was a brief by Timothy
J. Aiken, Vincent P. Megna, Susan M. Grzeskowiak, and Aiken &
Scoptur, S.C., Milwaukee, and oral argument by Susan Grzeskowiak
and Timothy J. Aiken.
                                                                              2014 WI 66
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.       2012AP183
(L.C. No.    2010CV2883)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

Randy L. Betz,

              Plaintiff-Appellant,                                          FILED
      v.                                                              JUL 15, 2014
Diamond Jim's Auto Sales,                                                Diane M. Fremgen
                                                                      Clerk of Supreme Court
              Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                        Reversed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.                 This is a review of a

decision of the court of appeals, Betz v. Diamond Jim's Auto

Sales,      2012   WI    App    131,    344     Wis. 2d 681,         825    N.W.2d 508,
reversing an order of the Milwaukee County Circuit Court1 denying

a motion by the attorneys representing Randy L. Betz ("Betz") to

recover statutory attorney's fees from Diamond Jim's Auto Sales

("Diamond Jim's").

      ¶2      In   this       case     we     are   asked       to     determine        the

circumstances         under    which        plaintiff's     counsel        may    recover


      1
          The Honorable Maxine A. White presided.
                                                                            No.    2012AP183



statutory       attorney's       fees     directly        from     a    defendant        when,

without      counsel's     knowledge       or      approval,       the     plaintiff      and

defendant      enter     into     a    settlement         agreement      that     does    not

address attorney's fees.

       ¶3      Betz hired Milwaukee attorney Vincent Megna ("Megna")

to represent him in his dispute with Diamond Jim's.2                         Megna filed

a   lawsuit     on     Betz's    behalf    under     two     fee-shifting         statutes.

During the litigation, Betz and Diamond Jim's met and settled

the case without their attorneys' knowledge or approval.                                  The

settlement       agreement       did    not       reference       payment    of     Megna's

statutory attorney's fees.                Subsequently, Megna filed a motion

with the circuit court seeking to recover his statutory fees

from Diamond Jim's.              The circuit court denied Megna's motion.

The court of appeals reversed, citing public policy concerns

with       enforcing    settlements       made      "behind       the    backs"     of    the

attorneys in cases brought under fee-shifting statutes.

       ¶4      Diamond     Jim's       argues      that     the    right     to     recover

statutory attorney's fees belonged to Betz, and that Betz did
not assign his right to recover those fees to Megna.                                     As a

result,      Diamond     Jim's    argues      that    Megna       cannot    recover      fees

directly from Diamond Jim's.               Further, Diamond Jim's argues that

public       policy     encourages        parties      to     settle       disputes       and



       2
       Several attorneys with the law firm of Aiken & Scoptur,
S.C., including Megna, worked on Betz's case.         All these
attorneys seek to recover statutory attorney's fees from Diamond
Jim's. For the sake of simplicity, this opinion will refer only
to Megna.

                                              2
                                                                               No.     2012AP183



requiring counsel's consent to such settlements in fee-shifting

cases presents a conflict of interest.

         ¶5     Megna argues that Betz did assign his statutory right

to     recover        attorney's        fees,        and    that     the    public       policy

underlying fee-shifting statutes would be undermined if clients

were     allowed        to    settle     fee-shifting          cases    without        ensuring

payment of statutory attorney's fees.                             Megna further asserts

that attorney involvement and consent to settlement agreements

in fee-shifting cases will not serve as a barrier to settlement.

         ¶6     We     conclude        that    the     statutory       right    to      recover

attorney's fees belonged to Betz, and that Betz did not assign

his right to recover those fees to Megna in their fee agreement.

Because        we    conclude     that    Betz       did    not    assign    his     right   to

recover statutory attorney's fees to Megna, we must conclude

that Diamond Jim's could not have had notice of the assignment.

As   a    result,       we    conclude        that   Megna    may    not    seek     statutory

attorney's          fees     directly     from       Diamond       Jim's,   and      that    the

settlement agreement entered into between Diamond Jim's and Betz
is clear, unambiguous, and enforceable.                             We therefore reverse

the court of appeals.

                                  I.     FACTUAL BACKGROUND

         ¶7     On October 19, 2009, Betz purchased a 1999 Cadillac

Escalade        from    Diamond        Jim's.        Betz    paid      $8,705.98       for   the

vehicle, including sales tax, title, and license fee.                                  Over the

following months, Betz experienced problems with the vehicle,

which         Diamond        Jim's     was      unable       to     address       to     Betz's
satisfaction.
                                                 3
                                                    No.   2012AP183



     ¶8   On February 12, 2010, Betz hired Megna to represent

him in his dispute with Diamond Jim's.     The terms of the fee

agreement3 between Betz and Megna provided, in relevant part:

     I understand that I do not have to pay any attorney
     fees unless my attorneys recover money for me in this
     case.

     FEE SHIFTING

     I understand that Sec. 100.18, Wis. Stats., __________
     is a fee[-]shifting statute.   This means if I win at
     trial or settle my case during litigation, the
     defendant is usually responsible for paying my
     attorney fees based on my attorney's hourly rate.    I
     understand that the Law Offices of Vince Megna is
     accepting my case with the agreement that it will look
     to the defendant for payment of attorney fees pursuant
     to the fee[-]shifting provision once a lawsuit has
     been filed.

     . . . .

     SETTLEMENT PRIOR TO LAWSUIT

     If a settlement is reached prior to a lawsuit being
     filed in my case, I understand that the defendant may
     not be responsible for payment of my attorney fees.
     In this event, the Law Offices of Vince Megna agrees
     to charge a flat rate attorney fee in the amount of
     ______.

     COSTS AND EXPENSES

     I understand that the Law Offices of Vince Megna will
     need to pay costs and expenses. In the event my case
     is lost through no fault of my own, I understand that
     the Law Offices [of] Vince Megna will not bring a
     claim against me for these costs and expenses.


     3
       The fee agreement referenced "The Law Offices of Vince
Megna" rather than Megna's firm, Aiken & Scoptur.    The parties
have not addressed the impact, if any, of this distinction, and
we therefore ignore it for purposes of this opinion.

                                   4
                                                                 No.     2012AP183


     I understand that if I do not accept a settlement that
     my attorneys deem reasonable and my case continues
     without settlement, I will be required to immediately
     reimburse the Law Offices of Vince Megna for all costs
     and expenses paid up until that point and then be
     responsible to pay all further costs and expenses as
     same become due.

     TERMINATION

     I understand that my attorney has the right to
     "terminate" me as a client. The Law Offices of Vince
     Megna will be entitled to fees for the work done at
     its hourly rate and its costs, not to exceed 33 1/3%
     of my gross recovery.

     I understand that I have a right to terminate my
     attorneys. However, if I do so, I will be responsible
     for the Law Offices of Vince Megna fees and costs due
     on the date of termination, not to exceed 33 1/3% of
     my gross recovery.

(bolding omitted) (all blanks in original).
     ¶9     On March 1, 2010, Betz sued Diamond Jim's in Milwaukee

County    Circuit   Court.         Betz   asserted     claims      for     false

advertising,     contrary     to   Wis.   Stat.      § 100.18      (2009-10),4

intentional     fraudulent    misrepresentation       and    violations        of

automobile     dealership    regulations,    contrary       to    Wis.     Stat.
§ 218.0116.     In addition to compensatory and punitive damages,

Betz also claimed "actual attorney's fees" from Diamond Jim's

under fee-shifting statutes §§ 100.18(11)(b)2.5 and 218.0163(2).6


     4
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
     5
         Wisconsin Stat.     § 100.18(11)(b)2. provides, in relevant
part:

          Any person suffering pecuniary loss because of a
     violation of this section by any other person may sue
     in any court of competent jurisdiction and shall
                                      5
                                                                  No.     2012AP183



    ¶10    On May 17, 2010, Megna, on behalf of Betz, made a

settlement      offer    pursuant    to      Wis.   Stat.     § 807.01.        The

settlement   offer      sought     $10,750     in   damages    and   $5,900     in

attorney's fees.        The offer stated that the check for attorney's

fees should be made payable to Megna's firm.                     Diamond Jim's

rejected this offer through counsel.

    ¶11    On September 28, 2010, counsel for Diamond Jim's made

a counter-offer to settle the case by repurchasing the vehicle

and paying $2,000 towards Betz's attorney's fees.                       Megna, on

behalf of Betz, rejected this offer.

    ¶12    On April 4, 2011, Betz and Thomas Letizia ("Letizia"),

the general manager of Diamond Jim's, met without counsel and

settled   the    case.       The    settlement      agreement    provided,      in

relevant part:

    The purpose of this Agreement is the Amicable
    Resolution of the Action without the need for further
    litigation, the relinquishment by each of the parties
    of any claim or cause of action arising from or
    relating to the issues in the Action, and the mutual
    release of all liability.

    Therefore, in consideration of the following mutual
    promises and releases made by the Parties as well as
    other good and valuable consideration, the Parties to

    recover such pecuniary loss, together with                       costs,
    including reasonable attorney fees, . . . .
    6
        Wisconsin Stat. § 218.0163(2) provides, in relevant part:

         Any retail buyer, lessee or prospective lessee
    suffering pecuniary loss because of a violation by a
    licensee . . . may recover damages for the loss in any
    court of competent jurisdiction together with costs,
    including reasonable attorney fees.

                                       6
                                                                      No.   2012AP183


     this Agreement agree that this Agreement is entered
     into as a compromise of disputed claims and does not
     constitute of liability [sic] or obligation whatsoever
     on behalf of any of the parties pursuant to the
     respective claims.

     The parties agree to solve the action [sic] pursuant
     to the following specified terms:

            A) James Letizia and Diamond Jim's Auto Sales
               agree to Pay to Randy L. Betz the sum of
               [$15,000] paid in form of check number 7114;

            B) Randy L. Betz hereby agrees that [his suit
               against Diamond Jim's] [s]hall be dismissed.
     ¶13    On April 5, 2011, counsel for Diamond Jim's learned of

the settlement and drafted a letter advising Megna that the case

was resolved.      The letter referenced the parties' "confidential

settlement"      agreement     and    included     a    draft    stipulation      to

dismiss the case.

                             II.    PROCEDURAL POSTURE

     ¶14    On April 21, 2011, Megna filed three motions with the

circuit court.      First, Megna asked the circuit court to compel

Diamond Jim's to pay statutory attorney's fees pursuant to Wis.

Stat. § 100.18(11).7          Megna argued that the right to recover
attorney's fees under the statute belonged to the lawyer and not

the client, and that he and his firm were owed $16,808.50 at the

time of the settlement.            Second, Megna requested leave to amend

the complaint and intervene as a plaintiff, arguing that he had

a   cause   of    action     against     Diamond       Jim's    for    intentional


     7
       While Betz's suit included claims under two different fee-
shifting statutes, Wis. Stat. §§ 100.18 and 218.0163, Megna's
motion referenced only § 100.18.

                                        7
                                                                               No.     2012AP183



interference        with    a    contractual         relationship.             Third,     Megna

sought a court order compelling disclosure of the confidential

settlement between Betz and Diamond Jim's.

      ¶15     Diamond Jim's opposed Megna's motions.                           Diamond Jim's

argued    that      the    statutory      right        to    recover      attorney's       fees

belonged to Betz, and that the settlement agreement was a clear

and   unambiguous         contract       between       the    parties      and       should   be

enforced.      Diamond Jim's asserted that the parties were entitled

to settle the case without counsel if they chose, and that while

Wis. Stat. § 100.18(11) allows for recovery of attorney's fees,

it    does    not    mandate       such     a       recovery      in    the     event    of    a

settlement.          Diamond      Jim's     also       argued      that    the    settlement

agreement should remain confidential unless the parties agreed

to disclose the terms.

      ¶16     On July 26, 2011, the court granted Megna's motion to

require      disclosure      of    the    confidential            settlement      agreement.

The court held all other motions in abeyance for 30 days to

allow the parties the opportunity to negotiate a settlement of
the   attorney's      fee       issue.      On      August     31,     2011,     the    parties

disclosed     to    the    court     that       they   had     failed     to     resolve      the

dispute.      The court then set a briefing schedule for the pending

motions.

      ¶17     On September 30, 2011, Diamond Jim's filed a motion

for    reformation         of     the     contract,          or      alternatively,           for

rescission.          The    filing       included       an    affidavit        from     Letizia

wherein he stated that when he signed the settlement agreement,
he believed it resolved the issue of statutory attorney's fees.
                                                8
                                                                            No.     2012AP183



Diamond Jim's argued that if the settlement agreement did not,

in fact, resolve the fee issue, the agreement did not represent

a meeting of the minds and should be reformed or rescinded.

      ¶18    On December 8, 2011, the circuit court held a motion

hearing.      The     court     determined        that   the     statutory         right    to

recover     attorney's      fees       belonged     to       Betz     and    not    to     his

attorneys.        The    court     further       concluded      that    the    settlement

agreement was a clear, unambiguous, and binding contract between

Betz and Diamond Jim's.                As a result, the court denied Megna's

motions and dismissed the case.8

      ¶19    On January 23, 2012, Megna appealed.9

      ¶20    On appeal, Megna argued that the fee-shifting statute

did   not    permit      Betz     to    settle     his       claims    without      Megna's

knowledge or consent.             Megna asserted that the right to collect

fees under the statute belonged to the attorney and not the

client,     and   that    Diamond       Jim's     had    a    duty    to    refrain      from

settling without Megna's knowledge or consent.                              Megna further

argued that the public policy underlying fee-shifting statutes
would be frustrated if clients were permitted to settle fee-

shifting     cases      without    addressing       statutory         attorney's         fees.

Finally, Megna argued that it would be inequitable to allow

      8
       Although the court stated in its December 8 order denying
Megna's motion that the order was final and appealable, it did
not enter an order dismissing the suit until January 9, 2012.
      9
       Megna's notice of appeal indicated that he was appealing
from the circuit court's December 8, 2011 order denying his
motions, rather than the January 9, 2012 order dismissing the
suit.

                                             9
                                                                       No.    2012AP183



Diamond Jim's to avoid paying statutory attorney's fees in this

case.

      ¶21   Diamond Jim's argued that Betz had a right to settle

his claims and that right was not conditioned on his attorney's

knowledge or consent.            Diamond Jim's asserted that the trial

court properly relied on contract principles in resolving the

issue,   and   that      statutory    attorney's       fees   cannot     be    awarded

under equitable principles.            Diamond Jim's further argued that

Megna should be seeking attorney's fees from his client, Betz,

and not Diamond Jim's.

      ¶22   On October 16, 2012, the court of appeals reversed the

circuit court.      Betz, 344 Wis. 2d 681, ¶1.            The court of appeals

concluded that the settlement agreement, despite being clear and

unambiguous, was void because it was contrary to the public

policy behind fee-shifting statutes.               Id., ¶13.       The court of

appeals therefore ordered Betz to return the settlement payment

and   remanded     the    case   to   the     circuit     court   for        continued

litigation.      Id., ¶14.
      ¶23   Diamond Jim's petitioned this court for review, which

we granted on May 10, 2013.

                             III. STANDARD OF REVIEW

      ¶24   "The      interpretation         of   an     unambiguous          contract

presents a question of law for this court's independent review."

Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶32, 330

Wis. 2d 340, 793 N.W.2d 476 (citing Admanco, Inc. v. 700 Stanton

Drive, LLC, 2010 WI 76, ¶15, 326 Wis. 2d 586, 786 N.W.2d 759).


                                        10
                                                                           No.     2012AP183



       ¶25   "[T]he application of public policy considerations to

a contract" also presents a question of law that this court

reviews de novo.             Northern States Power Co. v. Nat'l Gas Co.,

2000 WI App 30,           ¶7, 232 Wis. 2d 541, 606 N.W.2d 613 (citing

Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 654, 517

N.W.2d 432 (1994)).

                                      IV.     ANALYSIS

       ¶26   "[A]n important purpose of fee-shifting statutes is to

encourage injured parties to enforce their statutory rights when

the cost of litigation, absent the fee-shifting provision, would

discourage     them     from       doing    so."         Kolupar    v.    Wilde    Pontiac

Cadillac, Inc., 2007 WI 98, ¶55, 303 Wis. 2d 258, 735 N.W.2d 93

(citing      Shands     v.     Castrovinci,         115     Wis. 2d 352,         358,    340

N.W.2d 506     (1983)).            Fee-shifting      "encourage[s]         attorneys      to

take cases where the pecuniary loss is small in relation to the

cost of litigation."               Cook v. Pub. Storage, Inc., 2008 WI App

155, ¶85, 314 Wis. 2d 426, 761 N.W.2d 645.                            "For the retail

buyer with a claim under [a fee-shifting statute], the cost of
the    litigation      may    be    significant,         and   even . . . exceed         the

total recovery under the statute."                        Kolupar, 303 Wis. 2d 258,

¶37.

       ¶27   "The     cumulative       effect       of    minor     transgressions        is

considerable,       yet      they    would    not    be     deterred      if     fees   were

unavailable."          Fletcher       v.     City    of    Fort     Wayne,     Ind.,     162

F.3d 975,     976     (7th    Cir.    1998).        "If    the     cost   of   litigation

reduces or even eliminates recovery, retail buyers will be less
likely to enforce their rights under the statute."                         Kolupar, 303
                                             11
                                                                         No.    2012AP183



Wis. 2d 258, ¶37.             Fee-shifting thus prevents "defendants from

inflicting with impunity small losses on the people whom they

wrong."         Orth v. Wisconsin State Employees Union Council 24, 546

F.3d 868, 875 (7th Cir. 2008).

       ¶28       Fee-shifting statutes, and the attorneys who represent

clients         in   such   cases,    are     thus    vital   to   ensuring    that   the

rights of consumers are vindicated in court.                        The importance of

this public policy is not a matter of debate.

       ¶29       Additionally, attorneys who represent clients in fee-

shifting cases already take a significant risk that they will

not be paid, because they may not "win" a case.                             Ordinarily,

fees    are      awarded     only    to   a   "prevailing      party."      See,   e.g.,

Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483

U.S. 711 (1987).             While we recognize the important right of a

client to settle, if a client has an unfettered right to settle

without         counsel's    involvement       when    a   fee-shifting     statute    is

implicated, otherwise qualified attorneys will be discouraged

from practicing in this vitally important area of law.10
       ¶30       Nonetheless, the legislature has determined that an

award of attorney's fees under Wis. Stat. § 100.18(11) belongs

to the "person suffering pecuniary loss."                          Gorton v. Hostak,

Henzl       &   Bichler,     S.C.,    217     Wis. 2d 493,     503,   577     N.W.2d 617

(1998).          Thus, statutory attorney's fees belong to the client

and not the attorney.               Given this legislative determination and

       10
       For example, the record reflects that Megna is one of
only a handful of attorneys in Wisconsin who takes automobile
consumer rights cases.

                                               12
                                                                          No.    2012AP183



the public policy considerations implicated in these matters,

both    the     purpose     of    fee-shifting      statutes        and    the    public

interest      they    promote     are   undermined      when    a    client      settles

without      counsel      and    that   settlement      does    not       provide       for

recovery of statutory attorney's fees.

       ¶31    In Zeisler v. Neese, the Seventh Circuit was presented

with a similar conflict involving a settlement that failed to

address      the    statutory     right    to   recover    attorney's           fees.   24

F.3d 1000 (7th Cir. 1994).                The Seventh Circuit's analysis in

Zeisler informs our conclusions in the case at issue and aids us

in balancing the competing public policy considerations.

       ¶32    In Zeisler the plaintiff, Carol Zeisler ("Zeisler"),

purchased a used car from Neese Motors ("Neese") using dealer

financing.          Id.   at    1001.     Zeisler    became     unhappy         with    the

vehicle       and    contacted     Attorney     Barry     Barash      ("Barash")         to

represent her in her dispute with Neese.                  Id.       Barash agreed to

accept the case on a contingent fee basis, but neglected to

execute a fee agreement with Zeisler.                     Id.       Through Barash,
Zeisler filed suit against Neese under the Truth in Lending Act,

15 U.S.C. §§ 1601 et seq, a fee-shifting statute.11                       Id.

       ¶33    While the suit was pending, Zeisler defaulted on her

financing agreement with Neese, and Neese repossessed the car.

Id.     Neese offered to provide Zeisler with a different, less

expensive vehicle in exchange for her agreement to dismiss the

       11
       The Truth In Lending Act provides that a creditor
violating the statute is liable for "a reasonable attorney's fee
as determined by the court." 15 U.S.C. § 1640(a)(3).

                                           13
                                                                         No.     2012AP183



lawsuit.     Id.     Without consulting Barash, Zeisler agreed to the

settlement.       Id.   The settlement made no reference to attorney's

fees. Id.         The trial court dismissed the suit over Barash's

objections.       Id.

      ¶34    On    appeal     the   Seventh       Circuit      affirmed     the    trial

court.      Id.     The court concluded that the statutory right to

recover     attorney's      fees    belonged      to    the    client    and     not    the

attorney, and that the interests of the client were served by

encouraging       settlement.        Id.        The    court,    acknowledging          the

policy    concerns      involved,    then       addressed      how    attorneys     could

protect their legitimate interest in receiving payment:

           The lawyer can protect himself, moreover, though
      not perfectly, by entering into a written contract
      with his client in which the client assigns his
      statutory right to attorney's fees to the lawyer.
      Then the lawyer can enforce the right without the
      participation of his client, as in Samuels v. American
      Motors Sales Corp., 969 F.2d 573, 576–77 (7th Cir.
      1992).   If the client makes a settlement with the
      defendant, waiving attorney's fees, and the defendant
      has no notice of the assignment——no notice, that is,
      that the entitlement to attorney's fees is not the
      plaintiff's to waive——the lawyer can go against his
      client for breach of contract. If the defendant does
      have notice of the assignment, the lawyer can go
      directly against the defendant.    Salem Trust Co. v.
      Manufacturers' Finance Co., 264 U.S. 182, 194 (1924);
      Production Credit Ass'n v. Alamo Ranch Co., 989 F.2d
      413, 417 (10th Cir. 1993).
Id. at 1002.

      ¶35    Thus, practically speaking, under Zeisler so long as

the   written      contract    between      the       lawyer    and   the      client   so

provides, counsel can seek payment of attorney's fees from the
client.     Moreover, when the written contract between the lawyer

                                           14
                                                                      No.    2012AP183



and the client provides for a valid assignment of the right to

recover statutory attorney's fees, counsel may pursue such fees

from the defendant so long as the defendant had notice of the

assignment.      In other words, if the parties enter into a private

settlement      without       the     involvement      of    counsel,       and      the

settlement fails to provide for statutory attorney's fees,12 the

defendant may be found responsible for plaintiff's attorney's

fees only when the client assigned his or her right to recover

statutory attorney's fees to the attorney and the defendant had

notice of the assignment.

      ¶36   We adopt the standard, as posed in                    Zeisler, as an

appropriate framework to decide whether Megna can recover his

statutory      attorney's     fees    directly       from   Diamond   Jim's        under

these circumstances.

      ¶37   At the      outset, we note that it is undisputed that

neither Megna nor counsel for Diamond Jim's was involved in the

April 4, 2011 settlement agreement with Betz.                     It is likewise

undisputed      that    the     settlement      agreement     between       Betz     and
Diamond     Jim's      failed    to    provide       for    payment    of     Megna's

attorney's fees.         Thus, under the facts presented, the crux of

the   matter    before    the    court,    as   it    was   in   Zeisler,     is     (1)

      12
       Although the Zeisler court used the term "waiver," we
expressly avoid that term in our statement of the standard.
This is because the term "waiver" under Wisconsin law is the
"intentional relinquishment of a known right."       See, e.g.,
Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶37, 325
Wis. 2d 135, 785 N.W.2d 302.   The attorney's right to be paid,
however, was not explicitly addressed in the settlement
agreement in Zeisler, or in the case at issue.

                                          15
                                                                                No.    2012AP183



whether Betz assigned his statutory right to recover attorney's

fees to Megna under the fee agreement, and if so, (2) whether

Diamond Jim's had notice of the assignment at the time of the

settlement.

       ¶38    Given the fact that Betz and Diamond Jim's settled

this   case    without          counsel    and     without       providing      for    Megna's

attorney's     fees,        we    first    address     whether       the   fee        agreement

provided      for     a     valid      assignment      of    the     right       to    recover

statutory      attorney's         fees    from     Betz     to    Megna.     In       order   to

determine whether Betz assigned his right to recover statutory

attorney's fees to Megna under the fee agreement, we look to the

fee agreement itself.                  A fee agreement is a contract.                     "When

construing contracts that were freely entered into, our goal 'is

to ascertain the true intentions of the parties as expressed by

the contractual language.'"                   Town Bank, 330 Wis. 2d 340, ¶33

(quoting      State       ex    rel.    Journal/Sentinel,          Inc.    v.     Pleva,      155

Wis. 2d 704, 711, 456 N.W.2d 359 (1990)).

       ¶39    "In ascertaining the intent of the parties, contract
terms should be given their plain or ordinary meaning."                                Huml v.

Vlazny, 2006 WI 87, ¶52, 293 Wis. 2d 169, 716 N.W.2d 807.                                  "'If

the    contract       is       unambiguous,      our   attempt       to    determine          the

parties' intent ends with the four corners of the contract,

without consideration of extrinsic evidence.'"                             Town Bank, 330

Wis. 2d 340, ¶33 (quoting Huml, 293 Wis. 2d 169, ¶52).                                    "Only

when the contract is ambiguous, meaning it is susceptible to

more   than    one        reasonable      interpretation,          may    the     court    look
beyond the face of the contract and consider extrinsic evidence
                                              16
                                                                                  No.      2012AP183



to resolve the parties' intent."                           Id. (citing Capital Invs.,

Inc. v. Whitehall Packing Co., Inc., 91 Wis. 2d 178, 190, 280

N.W.2d 254 (1979)).

      ¶40    Megna argues that Betz assigned his statutory right to

recover     attorney's       fees         to    Megna         under     the    fee    agreement.

Alternatively,           Megna        argues        that      Betz's     right       to     recover

attorney's fees should be equitably subrogated to Megna.                                           In

either      case,    Megna        argues        that       Betz    lacked       the       right    to

relinquish        statutory       attorney's             fees     against      Diamond       Jim's.

Under the logic of Zeisler, Megna's argument is unpersuasive.

      ¶41    "An assignment is the 'manifestation of the assignor's

intention to transfer' a right so that the assignee acquires the

right to performance by the obligor."                           Stilwell v. Am. Gen. Life

Ins. Co., 555 F.3d 572, 577 (7th Cir. 2009) (quoting Restatement

(Second) of Contracts § 317 (1981)).                              "It is essential to an

assignment of a right that the obligee manifest an intention to

transfer the right to another person without further action or

manifestation        of     intention           by       the    obligee."             Restatement
(Second)     of     Contracts         §   324       (1981).        No    such    manifestation

exists in the fee agreement at issue.

      ¶42    The     terms       of    the     fee       agreement      indicate        that      Betz

understood        that     "the       defendant          is     usually       responsible          for

paying" attorney's fees in suits under Wis. Stat. § 100.18.                                        The

agreement further provided that Betz's attorneys would "look to

the   defendant       for    payment           of    attorney      fees       pursuant      to    the

fee[-]shifting provision once a lawsuit has been filed."                                       These


                                                    17
                                                                             No.     2012AP183



qualified statements, however, cannot be fairly characterized as

a written assignment of Betz's statutory right to recover fees.

       ¶43    The fee agreement further provides for a number of

circumstances where Betz might have to pay for Megna's fees or

costs himself.        For example, if the case had settled prior to

the filing of the lawsuit, Betz would have had to pay a flat

rate    for   Megna's    fees.          Similarly,        if   Betz    had    declined       to

settle the case on terms his attorneys "deem[ed] reasonable," he

would have had to immediately pay all of Megna's costs up to

that point and continue to pay further costs as they became due.

Finally,      the   agreement      provided        that    if    either      Betz     or    his

attorneys      terminated      the       attorney-client            relationship,           Betz

would be responsible for paying both Megna's fees and costs.

These provisions provide evidence that Betz did not assign his

right    to    statutory      attorney's           fees     to      Megna    in     the     fee

agreement.      As a result, traditional principles of contract law

militate      against    finding        that       Betz    assigned         his    right     to

statutory attorney's fees to Megna.
       ¶44    Similarly,      Megna's         argument         that     Betz        equitably

subrogated his right to recover statutory attorney's fees to

counsel is not compelling.

       ¶45    "'Subrogation        is    an    equitable         doctrine         invoked    to

avoid unjust enrichment, and may properly be applied whenever a

person other than a mere volunteer pays a debt which in equity

and good conscience should be satisfied by another.'"                                     Ocwen

Loan    Servicing,      LLC   v.    Williams,        2007      WI    App    229,     ¶7,     305
Wis. 2d 772, 741 N.W.2d 474 (quoting Rock River Lumber Corp. v.
                                              18
                                                                           No.    2012AP183



Universal     Mortg.      Corp.   of     Wis.,    82    Wis. 2d 235,       240-41,      262

N.W.2d 114 (1978)).           Courts are permitted "to grant equitable

remedies to private litigants in situations in which there is no

explicit statutory authority or in which the available legal

remedy is inadequate to do complete justice."                        Breier v. E.C.,

130 Wis. 2d 376, 388, 387 N.W.2d 72, 77 (1986); see also GMAC

Mortg. Corp. of Pa. v. Gisvold, 215 Wis. 2d 459, 479-80, 572

N.W.2d 466 (1998).

      ¶46     In the case at issue, we are presented with specific

statutory authority which grants the right to recover attorney's

fees to the plaintiff.            Wis. Stat. § 100.18(11)(b)2.               If we were

to    conclude     that    the     client's      right     to      recover       statutory

attorney's fees is equitably subrogated to the attorney once

counsel     is    retained,      despite    a    fee    agreement     that       does   not

clearly assign that right, we would undermine the legislature's

explicit      directive     to     the     contrary.         The     legislature        has

concluded that it is the client's right to recover statutory

attorney's fees.          The equitable principles espoused by Megna do
not   trump      the   language    of    the     agreement      or   the     legislative

directive.

      ¶47     Additionally,       Megna     is    not     necessarily        without      a

remedy if he is unable to recover directly from Diamond Jim's.

Megna could seek payment from Betz under their fee agreement.

For these reasons, equitable relief in the form of subrogation

is not appropriate in this case.

      ¶48     Further, to the extent this fee agreement could be
deemed    unclear      regarding       Megna's    right    to      recover       statutory
                                            19
                                                                          No.     2012AP183



attorney's fees from Betz or Diamond Jim's, "the burden is on

the attorney who possesses legal knowledge and who drafts the

agreement to state clearly the terms of the fee agreement and to

address specifically the allocation of court-awarded attorney

fees."       Gorton, 217 Wis. 2d at 508; see also Ziolkowski Patent

Solutions Grp., S.C. v. Great Lakes Dart Mfg., Inc., 2011 WI App

11, ¶13, 331 Wis. 2d 230, 794 N.W.2d 253 (holding that attorneys

have the burden to clearly draft their legal fee agreements).

       ¶49    Given that written fee agreements are required, see

SCR 20:1.5(c), attorneys are cautioned to clearly draft a fee

agreement      so   that       it     unambiguously          assigns     the      client's

statutory right to recover attorney's fees from the defendant

under these circumstances.                As discussed, vital public policy

interests are at stake.

       ¶50    A clear fee agreement not only protects the attorney,

but    also   protects     the       client    and       avoids   conflict.        A   more

clearly drafted fee agreement in the case at issue would have

resolved      the   problem          without       the    necessity      of     additional
litigation.

       ¶51    Because Megna's fee agreement failed to clearly secure

an assignment from Betz in the case at issue, his remedy against

Diamond Jim's is foreclosed.

       ¶52    Finally, because we conclude that the fee agreement

does   not    provide    for     a    valid    assignment         of   Betz's    right   to

recover statutory attorney's fees to Megna, we conclude that the

second Zeisler criterion cannot be met.                       Because there was no
assignment between Betz and Megna, Diamond Jim's could not know
                                              20
                                                                               No.    2012AP183



of the assignment.              As a result, the Zeisler test is not met in

this regard either.

                                        V.     CONCLUSION

         ¶53    We     conclude    that       the     statutory      right      to     recover

attorney's fees belonged to Betz, and that Betz did not assign

his right to recover those fees to Megna in their fee agreement.

Because        we    conclude     that   Betz        did   not   assign    his       right   to

recover statutory attorney's fees to Megna, we must conclude

that Diamond Jim's could not have had notice of the assignment.

As   a    result,       we   conclude        that    Megna   may    not   seek       statutory

attorney's           fees    directly    from        Diamond     Jim's,   and        that    the

settlement agreement entered into between Diamond Jim's and Betz

is clear, unambiguous, and enforceable.                            We therefore reverse

the court of appeals.

         By    the    Court.—The    decision          of   the   court    of     appeals      is

reversed.

         ¶54    PATIENCE DRAKE ROGGENSACK, J., did not participate.




                                                21
                                                                       No.   2012AP183.ssa


      ¶55     SHIRLEY S. ABRAHAMSON, C.J.                (dissenting).         The issue

before the court is whether the written fee agreement between

Randy      Betz,      the    client,       and   Vince     Megna,      the     attorney,

transferred the client's right to statutory attorney fees to the

attorney.          The      majority   opinion,        ¶43,    purports       to   apply

"traditional principles of contract law" to decide the issue.

It does not.

      ¶56     The majority opinion interprets the text of the fee

agreement in a scant three paragraphs, ¶¶41, 42, and 43, without

any       analysis,      proof,      authority,      or       resort     to     contract

principles.

      ¶57     At ¶41, without any analysis, proof, authority, or use

of principles of contract interpretation, the majority opinion

recites the rule that an assignment depends on the assignor's

intention and then pronounces in a single sentence that "no such

manifestation [of the assignor's intention to transfer a right]

exists in the fee agreement at issue."1                   Nothing more to analyze

here.

      1
       The     full      text   of   the    majority      opinion,     ¶41,    reads   as
follows:

      "An assignment is the 'manifestation of the assignor's
      intention to transfer' a right so that the assignee
      acquires the right to performance by the obligor."
      Stilwell v. Am. Gen. Life Ins. Co., 555 F.3d 572, 577
      (7th Cir. 2009) (quoting Restatement (Second) of
      Contracts § 317 (1981)). "It is essential to an
      assignment of a right that the obligee manifest an
      intention to transfer the right to another person
      without further action or manifestation of intention
      by the obligee."    Restatement (Second) of Contracts
      § 324 (1981). No such manifestation exists in the fee
      agreement at issue.

                                             1
                                                                                 No.   2012AP183.ssa


       ¶58       At ¶42, without any analysis, proof, authority, or use

of principles of contract interpretation, the majority opinion

pronounces            that      because     the        "FEE   SHIFTING"          provision       has

"qualified statements" it "cannot be fairly characterized as a

written assignment of Betz's statutory right to recover fees."

       ¶59       At ¶43, without any analysis, proof, authority, or use

of principles of contract interpretation, the majority opinion

pronounces            that      various     parts       of    the    fee     agreement           that

"provide[] for a number of circumstances in which Betz might

have to pay for Megna's fees or costs himself" "provide evidence

that Betz did not assign his right to statutory attorney's fees

to Megna in the fee agreement."

       ¶60       Rather than apply               rules of contract interpretation,

some       of    which       the     majority      opinion       dutifully         recites,       the

majority opinion simply decrees, ipse dixit, that the language

of   the        fee    agreement          does    not    mean    what       it     says.         This

resolution cannot be correct.2                         The fee agreement unambiguously

assigned Betz's right to attorney's fees to Megna.
       ¶61       This court's pronouncements about assignments extend

beyond the instant case.                   Assignments are frequently the subject

of     litigation          in      this    court.         This      court    has       considered

assignments           in     other    cases      and    contexts,     each        with     its   own




       2
       At the circuit court, the attorney moved to intervene to
make a claim against the defendant for tortious interference
with the fee agreement. Neither the parties nor I address this
issue or any potential claim the attorney may have against the
defendant.

                                                   2
                                                            No.   2012AP183.ssa


particularities due to the circumstances of the case.3               Although

each of these cases involves a slightly different fact scenario,

a   central    question   is   the    same——did   the   parties   execute   an

effective assignment?

                                        I

      ¶62     I apply the following principles of contract law to

the instant case.

      ¶63     The Restatement (Second) of Contracts, relied upon by

the majority opinion, ¶41, defines an assignment as follows:

"An assignment is the 'manifestation of the assignor's intention

to transfer' a right so that the assignee acquires the right to

performance by the obligor."4

      ¶64     The   Restatement      does   not   require   any    particular

formalities to be observed to make an effective assignment.5                "No
      3
       See, e.g., Anthony Gagliano & Co. v. Openfirst, 2014 WI
65, ___ Wis. 2d ___, ___N.W.2d ___        (disputing whether a
transfer of property rights constituted an assignment or a
sublease); Dow Family, LLC v. PHH Mortgage Corp., 2014 WI 56,
___ Wis. 2d ___, ___N.W.2d ___ (disputing whether an assignment
of a mortgage deed was valid as to a later purchaser of
property); see also Attorney's Title Guaranty Fund v. Town Bank,
2014 WI 63, ___ Wis. 2d ___, ___N.W.2d ___ (disputing whether
the proceeds of a legal malpractice claim could be assigned).
      4
       Restatement (Second) of Contracts                § 317     (quoted   by
majority op., ¶41 (emphasis added)).
      5
       See 9 Corbin on Contracts § 47.7, at 147-48 (rev. ed.
2007) ("[I]n the absence of statute or a contract provision to
the contrary, there are no prescribed formalities that must be
observed to make an effective assignment.   It is sufficient if
the assignor has, in some fashion, manifested an intention to
make a present transfer of his rights to the assignee.").   See
also Restatement (Second) of Contracts § 2 cmt. b. ("A promisor
manifests an intention if he believes or has reason to believe
that the promisee will infer that intention from his words or
conduct.").
                                        3
                                                                  No.    2012AP183.ssa


words of art are required to constitute an assignment; any words

that fairly indicate an intention to make the assignee owner of

a claim are sufficient."6            The assignment requires only that "the

obligee manifest an intention to transfer the right to another

person without further action or manifestation of intention by

the obligee."7

      ¶65     The    phrase    "manifestation     of    intention"      is    a    basic

concept in contract formation in the Restatement (Second) of

Contracts.         The phrase "adopts an external or objective standard

for interpreting conduct; it means the external expression of

intention as distinguished from undisclosed intention."8

      ¶66     To      determine       the    parties'         "manifestation           of

intention,"         the    courts    apply   other     well-accepted         rules     of

contract      interpretation:          "We   interpret    a    contract       to     give

'reasonable meaning to each provision and without rendering any

portion superfluous.'"9             "A writing is interpreted as a whole"10

and   words         "are    interpreted      in   the     light     of       all     the

circumstances, and if the principal purpose of the parties is
ascertainable it is given great weight."11
      6
           29 Richard Lord, Williston on Contracts § 74:3 (4th ed.
2003).
      7
       Restatement (Second) of Contracts § 324 (1981) (emphasis
added).
      8
           Restatement (Second) of Contracts § 2, cmt. b.
      9
       Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶21, 293
Wis. 2d 458, 471, 718 N.W.2d 631 (internal quotation marks &
citation omitted).
      10
           Restatement (Second) of Contracts § 202(2).
      11
           Restatement (Second) of Contracts § 202(1).
                                    4
                                                                        No.   2012AP183.ssa


     ¶67       "Because the scope of retainer agreements varies from

attorney to attorney and case to case,"                           inquiries about the

meaning of a retainer and fee allocation agreement between an

attorney and a client "are necessarily fact intensive."12

     ¶68       The    meaning     given      to     words    "depends    to     a    varying

extent    on    the     context       and    on    the    prior    experience        of     the

parties."13          In other words, the essence of the meaning of the

words of a contract is found in how a reasonable person would

understand       the    terms,        having       in    mind    the   context       of     the

transaction.           Our   courts         interpret       contracts    to     give       them

"common sense"14 and "realistic"15 meaning.

     ¶69       When    there     is     an     ambiguity,        the   courts       look     to

extrinsic evidence to resolve the parties' intent.16                             Extrinsic

evidence       can     include     the       conduct        of   the    parties,          their

negotiations before and after the execution of the documents,

     12
       Gorton v. Hostak, Henzl & Pichler, S.C., 217 Wis. 2d 493,
505, 577 N.W.2d 617 (1998).
     13
          Restatement (Second) of Contracts § 20, cmt. b.
     14
       See D. Canale & Co. v. Pauly & Pauly Cheese Co., 155
Wis. 541, 145 N.W. 372 (1914) (interpreting a contract's place
of performance clause by viewing the acts of the parties "from a
common sense standpoint"); Mikula v. Miller Brewing Co., 2005 WI
App 92, ¶22, 281 Wis. 2d 712, 701 N.W.2d 613 (interpreting an
insurance contract using a "common sense" reading of the text).
     15
       See Bradish v. British Am. Assur. Co. of Toronto, Canada,
9 Wis. 2d 601, 604-05, 101 N.W.2d 814 (1960) (interpreting a
contract under the more "realistic" connotation of its terms)
(citing Travelers Fire Ins. Co. v. Whaley, 272 F.2d 288, 290-91
(10th Cir. 1959)).
     16
       Majority op., ¶39 (quoting Town Bank v. City Real Estate
Development, LLC, 2010 WI 134, ¶33, 330 Wis. 2d 340, 793
N.W.2d 476.

                                               5
                                                               No.    2012AP183.ssa


the acts and deeds in connection with surrounding circumstances,

and their words.17

                                       II

     ¶70    I now apply these interpretive aids to the text of the

fee agreement.

     ¶71    I have attached a true and correct copy of the fee

agreement to give the full text of the agreement.

     ¶72    The text of the fee agreement at issue is not derived

from a legal form book.          It is written in plain English, a

practice that should be commended.18

     ¶73    The text of the fee agreement, giving meaning to each

provision    read   separately   and    to    the    text   read     as   a   whole,

clearly     manifests   an   intention       in     plain   English       that   the

attorney will look to the defendant for attorney fees in some

circumstances, and to the client in other circumstances.

     ¶74    The circuit court interpreted the agreement as I do.

The circuit court declared:


     17
       See Kernz v. J.L. French Corp., 2003 WI App 140, ¶10, 266
Wis. 2d 124, 667 N.W.2d 751.
     18
       See,   e.g.,  Yauger   v.   Skiing  Enters.,  Inc.,   206
Wis. 2d 76, 87 & n.2, 557 N.W.2d 60 (1996) (noting that
negligence waivers in contracts "should be preceded by a clear,
not misleading, heading and should not be written in legal
jargon"); Commercial Union Midwest Ins. Co. v. Vorbeck, 2004 WI
App 11, ¶¶46-49, 269 Wis. 2d 204, 674 N.W.2d 665 (Brown, J.,
concurring) (deploring the use of jargon in insurance contracts
and citing Wis. Stat. § 631.22, which requires that a consumer
insurance policy be "written in commonly understood language");
Pietroske, Inc. v. Globalcom, Inc., 2004 WI App 142, ¶9, 275
Wis. 2d 444, 685 N.W.2d 884 (noting that whether a contract term
or condition is "in plain English" bears on whether it is
unconscionable).

                                       6
                                                                   No.   2012AP183.ssa

       The fee-shifting provision addresses with whom the
       right to collect attorney fees vests.     It transfers
       the authority from Betz to Attorney Megna.          It
       provides Attorney Megna with the authority to seek
       attorney fees from the Defendant if Betz succeeds with
       his Wis. Stat. § 100.18 claim at trial or during
       settlement with Diamond Jim's.    Thus, Attorney Megna
       may certainly have the right to seek attorney fees in
       the appropriate situation.
The circuit court was correct.

       ¶75   The    words    of     the   agreement      itself      support      this

interpretation.

       ¶76   The agreement is divided into several parts, with a

bold-faced, capitalized heading preceding each part.                       Each part

of the fee agreement explains the allocation of attorney fees

under a particular set of circumstances.

       ¶77   The     headings       are   descriptive        of     four     various

circumstances under which fees are to allocated: "FEE SHIFTING,"

"SETTLEMENT        PRIOR    TO    LAWSUIT,"    "COSTS     AND     EXPENSES,"       and

"TERMINATION."        The purpose of this agreement is to establish

when the client pays the attorney's fees, and when the defendant

pays the attorney's fees.

       ¶78   The    words    that   manifest    an     intention     to    give    the

attorney the right to collect attorney's fees are in the part

labeled "FEE SHIFTING."           The agreement explicitly uses the words

"FEE    SHIFTING"     and    explicitly       refers    to   the     attorney      fee

shifting statute, Wis. Stat. § 100.18.

       ¶79   The agreement states under the heading "FEE SHIFTING"

the following:

       FEE SHIFTING

       I understand that Sec. 100.18, Wis. Stats., _______ is
       a fee shifting statute. This means if I win at trial
                                  7
                                                               No.   2012AP183.ssa

       or settle my case during litigation, the defendant is
       usually responsible for paying my attorney fees based
       on my attorney's hourly rate.   I understand that the
       Law Offices of Vince Megna is accepting my case with
       the agreement that it will look to the defendant for
       payment of attorney fees pursuant to the fee shifting
       provision once a lawsuit has been filed (emphasis
       added).
       ¶80    The "FEE SHIFTING" provision unqualifiedly states the

circumstances under which the attorney will pursue the attorney

fees   from    the    defendant:     In       exchange   for   the   law   firm's

agreement to take the case, the client and attorney agree that
the attorney "will look to the defendant for payment of attorney

fees pursuant to the fee shifting provision once a lawsuit has

been filed" (emphasis added).

       ¶81    The "FEE SHIFTING" provision states that the defendant

is usually responsible for paying the client's attorney's fees

and that the attorney "will" pursue fees from the defendant, not

that the attorney may or could do so.                 Obviously, the attorney

cannot   look    to   the    defendant       for   statutory   attorney's    fees

unless the client agrees that the fees belong to the attorney

and not the client.         By signing the agreement, the client agrees

to this arrangement.

       ¶82    The language in the "FEE SHIFTING" provision states,

in plain English, the basic terms of the transfer (assignment)

of a statutory fee award in litigation from the client to the

lawyer and meets all the requirements of an assignment:

         • Who is entitled to statutory fees?             The client.

         • Who gets the statutory fees?             The attorney.




                                         8
                                                                          No.   2012AP183.ssa


            • What attorney fees are being transferred?                         "[P]ayment

              of attorney fees pursuant to the fee-shifting statute

              once a lawsuit has been filed."

            • Is    there    additional              action    or     manifestation        of

              intention required by the client?                     No.

       ¶83    The    majority        opinion,          ¶42,    dismisses         the      "FEE

SHIFTING" provision as "qualified statements" that "cannot be

fairly characterized as an assignment of Betz's statutory right

to recover fees."           Majority op., ¶42.19               Notably, the majority

opinion does not offer which words "qualify" the last sentence,

which states that in exchange for taking the case, the attorney

will pursue attorney fees from the defendant.

       ¶84    Unable   to     provide       a    qualifier          for   the     key    last

sentence of the "FEE SHIFTING" provision, the majority opinion,

¶42,    instead     focuses     on    the       word     "usually"        in    the     second

sentence,      which   states        that       if     there   is     litigation,        "the

defendant is usually responsible for paying my attorney fees

based on my attorney's hourly rate" (emphasis added).
       ¶85    The word "usually" in the second sentence is a correct

non-legalese statement of the law.                      A court usually holds the

       19
            The majority opinion reads at ¶42 as follows:

       The terms of the fee agreement indicate that Betz
       understood that "the defendant is usually responsible
       for paying" attorney's fees in suits under Wis. Stat.
       § 100.18.   The agreement further provided that Betz's
       attorneys would "look to the defendant for payment of
       attorney fees pursuant to the fee[-]shifting provision
       once a lawsuit has been filed."        These qualified
       statements, however, cannot be fairly characterized as
       a written assignment of Betz's statutory right to
       recover fees.

                                            9
                                                                    No.    2012AP183.ssa


defendant liable for the plaintiff's attorney fees based on the

attorney's hourly rate as stated in the fee agreement.                              But

courts do not always do so.

       ¶86    The    real     problem    the   fee    agreement      faces     in   the

majority      opinion       is   that    the   text    of     the   "FEE     SHIFTING"

provision is not in the typical formalistic assignment language

the majority expects.            It does not use the legalese of generic

boilerplate forms for assignments, nor does it use the legal

jargon of "assign" or "transfer."

       ¶87    "[O]ur       profession    disdains     plain    speech."20       Judges

would probably better understand the agreement in the instant

case    if    it    were    drafted     in   traditional      legalese     assignment

language used in legal form guides that read something like the

following:

       In exchange for value received, I, ________, of
       _________ [address], as assignor, assign and transfer
       to ___________, of ___________[address], as assignee,
       assignee's legal representatives and assigns, for
       assignee   and  their  use   and  benefit,  any   and
       all . . . .21

       20
            United States v. Collins, 510 F.3d 697, 699 (7th Cir.
2007).
       21
       1 Jay E. Grenig, Wisconsin Legal Forms § 8:24 (updated
2014) (available on Westlaw).

     In another recent case, Attorney's Title Guaranty Fund v.
Town Bank, 2014 WI ___, ___ Wis. 2d ___, ___ N.W.2d ___, similar
assignment language was used after a detailed listing of various
legal malpractice claims:

       Now therefore, in order to induce [the assignor] to
       loan [the assignee] $195,000.00, pursuant to the
       provisions of a certain Mortgage Note . . . , [the
       assignor] hereby assigns and transfers his interest
       in . . . the proceeds resulting from each of the above
                                 10
                                                                       No.    2012AP183.ssa


      ¶88    In contrast, the           client probably better understands

the plain English version Attorney Megna used, which states that

Megna, not the client, gets statutory fees from the defendant in

litigation.

      ¶89    The     majority        opinion          ignores         the      rule     of

interpretation       that    no    particular     magic       words    are     needed    to

manifest an intention to assign.                Instead, the majority opinion

sends a message to attorneys who represent clients in cases

where   fee-shifting         statutes     apply:      use     legalese,        not    plain

English.     The majority opinion seems to endorse attorneys who

use the legalese version of assignment, in which the client "in

exchange     for     valuable       consideration,            hereby        assigns     and

transfers    the     right    to    pursue      attorney's      fees,        pursuant   to

[statute], to [attorney] of [address] and all [attorney's] legal

assigns and heirs" and so forth.

      ¶90    The     majority        opinion          ignores         the      rule     of

interpretation that requires us to give reasonable meaning to

each word of the contract.                What reasonable meaning does the
"FEE SHIFTING" provision have if it is not an assignment of

rights to legal fees in the event of a lawsuit?                              The majority

opinion renders this language meaningless and superfluous.

      ¶91    Other    provisions          of    the     fee     agreement         support

interpreting the "FEE SHIFTING" provision as assigning to the

attorney the right to collect attorney's fees from the defendant

if   there   is    litigation.      The    agreement        repeatedly        treats    the


      described Claims to [the assignee] together with its
      successors and assigns . . . .

                                           11
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attorney, not the client, as the owner of the attorneys fees

paid by the defendant and awarded under the fee shifting statute

when litigation ensues.          See, for example, the following:

            • I [the client] understand that the Law Offices of
              Vince Megna will charge the other side its
              current rates that are then charged at the time
              of request for payment of its fees. ["HOURLY
              RATE"] (Emphasis added.)

            • In addition to all other fees paid to the Law
              Offices of Vince Megna by the other side, I agree
              to pay the Law Offices of Vince Megna . . . .
              ["ADDITIONAL RECOVERY"] (Emphasis added.)

            • In addition to all other fees paid to the Law
              Offices of Vince Megna by the other side, I agree
              to pay the Law Offices of Vince Megna 40% of any
              punitive   damages  recovered,   whether  through
              settlement or judgment.     ["PUNITIVE DAMAGES"]
              (Emphasis added.)

            • If a settlement is reached prior to a lawsuit
              being   filed . . . the  defendant  may   not  be
              responsible for payment of my attorney fees. In
              this event,    the Law Offices . . . agrees to
              charge a flat rate attorney fee in the amount of
              ______________ [left blank] ["SETTLEMENT PRIOR TO
              LAWSUIT"]
       ¶92     In each instance, the agreement treats the attorney,
not the client, as the holder of the right to attorney's fees

paid by the defendant.

       ¶93     The fee agreement sets forth various fee allocations

under       differing   circumstances.         The   majority   opinion     asserts

that    these    provisions      for   fee    allocation     under    circumstances

other than litigation "provide evidence that Betz did not assign

his    right    to   statutory    attorney's     fees   to    Megna    in   the   fee

agreement."       Majority op., ¶43.22
       22
            The majority opinion reads at ¶43 as follows:
                                         12
                                                             No.    2012AP183.ssa


      ¶94   The majority does not say, and I cannot figure out,

why   a   provision   requiring     Betz   to   pay   fees   or    costs   under

certain circumstances (for example, if no lawsuit were filed)

means that "principles of contract law militate against finding

that Betz assigned his right to statutory attorney's fees to

Megna."     Majority op., ¶43.

      ¶95   The   assignment   of    attorney    fees   is   thus     effective

under certain circumstances; the assignment does not come into

play should certain other circumstances come to pass.                  There is

nothing unusual about this arrangement.

      ¶96   I conclude, as did the circuit court, that the text of

the "FEE SHIFTING" provision and the text of the agreement as a

whole demonstrate a manifest intention to assign the claim to

legal fees under Wis. Stat. § 100.18 to the attorney in the

event of litigation.



      The fee agreement further provides for a number of
      circumstances where Betz might have to pay for Megna's
      fees or costs himself.   For example, if the case had
      settled prior to the filing of the lawsuit, Betz would
      have had to pay a flat rate for Megna's fees.
      Similarly, if Betz had declined to settle the case on
      terms his attorneys "deem[ed] reasonable," he would
      have had to immediately pay all of Megna's costs up to
      that point and continue to pay further costs as they
      become due.   Finally, the agreement provided that if
      either Betz or his attorneys terminated the attorney-
      client relationship, Betz would be responsible for
      paying both Megna's fees and costs. These provisions
      provide evidence that Betz did not assign his right to
      statutory attorney's fees to Megna in the fee
      agreement.   As a result, traditional principles of
      contract law militate against finding that Betz
      assigned his right to statutory attorney's fees to
      Megna.

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                                              III

      ¶97    This interpretation is supported not only by the text

but also by the context in which the fee agreement was executed

and operates, namely the Wisconsin lemon law allowing claims for

defective     cars       and    Wis.    Stat.       § 100.18    governing        suits   for

misrepresentation.             Words in a contract "are interpreted in the

light of all the circumstances, and if the principal purpose of

the parties is ascertainable it is given great weight."23

      ¶98    A     car    purchase,      next       to   a    home   purchase,      is   the

largest single expenditure of many people.                            When a consumer

purchases a defective car, the lemon law statutes and Wis. Stat.

§ 100.18     are    designed      to     give   the      consumer    a    remedy.        Both

statutes are fee-shifting statutes that modify the American rule

regarding who pays the attorney.24                        Ordinarily in the United

States the prevailing party does not collect attorney fees from

the   opposing      party.25           Thus   plaintiffs        in   relatively      small-

dollar-amount consumer cases often cannot afford to seek relief

if they have to incur and pay attorney fees.                         The lemon law and
Wis. Stat. § 100.18 address this fact of life.26

      ¶99    In cases governed by the lemon law and                             Wis. Stat.

§ 100.18      (explicitly          referenced            in    the       "FEE     SHIFTING"


      23
           Restatement (Second) of Contracts § 202 (1).
      24
       See Cook v. Pub. Storage, Inc., 2008 WI App 155, ¶85, 314
Wis. 2d 426, 761 N.W.2d 645.
      25
       Winkleman v. Beloit Mem'l Hosp., 168 Wis. 2d 12, 28, 483
N.W.2d 211 (1992).
      26
           See majority op., ¶¶26-29.

                                              14
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provision),        payment    for    the    plaintiff's         attorney       fees   shifts

from the plaintiff to the defendant.

      ¶100 The legislature has expressed this vital public policy

of    the        state    favoring        fee        shifting    in    lemon      law    and

misrepresentation          cases     to    ensure        the    rights    of    consumers:

"Fee-shifting statutes, and the attorneys who represent clients

in such cases, are thus vital to ensuring that the rights of

consumers are vindicated in court."27

      ¶101 Attorney Megna holds himself out as, and is known as,

one   of    the     few   attorneys       in     Wisconsin      who    takes     lemon   law

cases.28

      ¶102 This is the context in which the fee agreement at

issue      was    executed.     Indeed,          the    majority      opinion,     ¶¶26-29,

discusses the importance that the legislature has given to the

fee-shifting statutes in enforcing the consumer-protection laws

at issue in the instant case.

      ¶103 The       majority       opinion      acknowledges,         and     rightly   so,

that the defendant should not be able to circumvent the fee-
shifting statute's public policy by cutting attorneys out of

their ability to collect attorney's fees through unfettered out-

of-court settlement:

      While we recognize the important right of a client to
      settle, if a client has an unfettered right to settle
      without counsel's involvement when a fee-shifting
      statute is implicated, otherwise qualified attorneys

      27
           Majority op., ¶28 (emphasis added).
      28
       See majority op., ¶29 n.10 ("For example, the record
reflects that Megna is one of only a handful of attorneys in
Wisconsin who takes automobile consumer rights cases.").

                                                15
                                                                         No.   2012AP183.ssa

    will be discouraged from practicing in this vitally
    important area of law.
Majority op., ¶29.          I agree with the majority opinion's analysis

of the legislature's mandated public policy.

    ¶104 Why         then       does     the        majority     opinion       ignore    the

legislative declaration of public policy in deciding the instant

case?   The majority opinion does not say.

    ¶105 In        sum,      when       I      apply     the     rules     of     contract

interpretation, I conclude that the text and context of the

entire fee agreement demonstrate that the agreement assigned the

statutory     fees       from     the        client     to     the    attorney     in    the

circumstances      listed       in     the    "FEE     SHIFTING"      provision,    namely

litigation.

                                               IV

    ¶106 A few other matters regarding contract interpretation

emerge in the majority opinion.

    ¶107 In the end, the majority opinion never truly decides

whether there are competing reasonable interpretations of the

fee agreement requiring a court to look beyond the four corners

of the contract to interpret its meaning.                       Instead, the majority

opinion waffles.

    ¶108 On        the      one      hand,      the     majority      opinion      can   be

interpreted as treating the agreement as unambiguous, looking

only to the text and never citing any extrinsic evidence to

determine the intent of the parties.

    ¶109 On the other hand, the majority opinion views the fee

agreement     as   potentially           "unclear"       on     the    subject     of    the
assignment of attorney's fees.                 Majority op., ¶48.

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    ¶110 If the fee agreement is "unclear," the intention of

the parties is a question of fact to be determined by the finder

of fact after being presented with extrinsic evidence.

    ¶111 I would recognize the fee agreement for what it is, an

unambiguous assignment of the right to attorney's fees from Betz

to Attorney Megna.

    ¶112 Furthermore, the majority opinion apparently assumes,

without   discussion,     that    the   fee   agreement    is    an   integrated

contract.

    ¶113 Yet this contract on its face                is   not complete        and

therefore is not fully integrated.            There is a blank in the fee

agreement that is not filled in. The amount Attorney Megna will

charge the client in the "SETTLEMENT PRIOR TO LAWSUIT" provision

is left blank.

    ¶114 A blank in a contract on a material matter indicates

that the contract is not fully integrated and that extrinsic

evidence may be used to understand the intention of the parties.

    ¶115 Rather than looking to extrinsic evidence, as dictated
by our rules of contract interpretation for unclear or non-

integrated    contracts,    the    majority    opinion     asserts      that   the

burden is on the attorney "to state clearly the terms of the fee

agreement and to address specifically the allocation of court-

awarded attorney's fees."          Majority op., ¶48 (quoting Gorton v.

Hostak,     Henzl   &   Pichler,    S.C.,     217   Wis. 2d 493,        508,   577

N.W.2d 617 (1998) and citing Ziolkowski Patent Solutions Grp.,

S.C. v. Great Lakes Dart Mfg., Inc., 2011 WI App 11, ¶13, 331
Wis. 2d 230, 794 N.W.2d 253).

                                        17
                                                                       No.     2012AP183.ssa


      ¶116 In the Gorton case, the fee agreement was a contingent

fee   agreement.            The    fee    agreement    was    silent      regarding      the

allocation        of    reasonable         attorney       fees    under      Wis.     Stat.

§ 100.18.      Statutory attorney fees were awarded.                           The Gorton

court held that the distribution of the statutory attorney fee

award was governed by the contract between the parties.29                                The

contingent        fee        agreement       in     Gorton       did     not      "address

specifically" the allocation of statutory attorney's fees, and

the attorney did not receive statutory fees.

      ¶117 In contrast, in the instant case the "FEE SHIFTING"

provision does exactly what the fee agreement in Gorton did not

do——the     fee    agreement         at    issue    addresses      specifically          the

allocation of statutory attorney fees.

      ¶118 Furthermore,            in     Gorton    the     dispute    about      who    was

entitled to the statutory attorney fees pursuant to the fee

agreement between the attorney and the client was between the

attorney     and       the    client.         The     attorney     and       client     were

adversaries.           To    the   extent    that     the    agreement       between     the
attorney and client in Gorton did not specifically address the

allocation of statutory attorney fees, the attorney, who had

obviously drafted the agreement and who had legal expertise,

lost.

      ¶119 In the instant case, no dispute exists between the

attorney (Megna) and the client (Betz) that, pursuant to their

fee agreement, the attorney, not the client, has the right to



      29
           Gorton, 217 Wis. 2d at 508.

                                             18
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any statutory attorney fees.30    The dispute in the instant case

about who is entitled to statutory attorney fees is between

Megna, as Betz's attorney, and Diamond Jim's, as the potential

payor of the statutory attorney fees.    Thus, the rule stated in

Gorton governing interpretation of a fee agreement in a dispute

between the attorney and client does not apply in the present

case.

    ¶120 The interpretation of the fee agreement proposed by

the majority opinion is, unfortunately, troubling on too many

different fronts.

    ¶121 For the foregoing reasons, I dissent.     I would remand

the case to the circuit court to determine whether the defendant

had notice of the assignment.




    30
       Megna continues to represent Betz and has averred that he
has made no claim and plans to make no claim against his client.

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