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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
February 16, 2011
A party may file with the Supreme Court a
A. John Voelker                                                                                                          petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                         Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                         and RULE 809.62.
                                                                                                                         Cir. Ct. No.   2001CV885
Appeal No.                                                            2010AP1221
STATE OF WISCONSIN                                                                                                       IN COURT OF APPEALS
DISTRICT II
IN THE MATTER OF GUARDIAN AD LITEM FEES IN C.J. POLSTER (CAHALA) V.
ANNE M. RIENDL, M.D.:
ROBERT B. MOODIE,
APPELLANT,
V.
WAUKESHA COUNTY,
RESPONDENT.
APPEAL from an order of the circuit court for Waukesha County:
RALPH M. RAMIREZ, Judge.   Affirmed.
Before Brown, C.J., Neubauer, P.J., and Anderson, J.




No.   2010AP1221
¶1                                                                                                     PER CURIAM.    Robert B. Moodie appeals an order denying his
motion to direct Waukesha county to pay his court-appointed guardian ad litem
(GAL) fees.   The circuit court found that Moodie also served as the attorney of
record, thus precluding compensation for his services as GAL.   See WIS. STAT.
§ 757.48(1)(b) (2009-10).1   These findings are not clearly erroneous.   We affirm.
¶2                                                                                                     A minor and his mother were plaintiffs in a birth trauma medical
malpractice action.   Attorney Kenneth A. Stern, of Stern & Associates, a Michigan
law firm, filed the summons and complaint.2   At the same time, a petition was
filed to appoint a GAL for the minor.   Stern & Associates proposed Moodie to
serve as GAL because of their association in similar cases.   The court granted the
petition and Moodie accepted the appointment.
¶3                                                                                                     Four  months  later,  Moodie  moved  for  an  order  that  Attorneys
Terrance J. Cirocco and Euel W. Kinsey of Stern & Associates be admitted pro
hac vice to represent the plaintiffs in the Waukesha county circuit court.   Moodie
stated in the motion that he, on the minor’s behalf, and the mother retained the
services  of  the  law  firm  of  Hippenmeyer,  Reilly,  Moodie  &  Blum,  S.C.,
(“HRM&B”) to serve as counsel representing their interests and that HRM&B
1  All references to the Wisconsin Statutes are to the 2009-10 version unless noted.
2  The  county  claims  the  summons  and  complaint  were                                             “signed  by  attorneys  not
licensed to practice in the State of Wisconsin or otherwise specially admitted to practice.”
Moodie asserts that Stern has been licensed to practice law in Wisconsin since 2000.   According
to the State Bar of Wisconsin website, Stern was admitted in 2000 but his status is “inactive.”   It
does not indicate when his Wisconsin licensure went to inactive status.    See State Bar of
Wisconsin, http://www.wisbar.org (last visited Feb. 3, 2011).
In any event, the summons and complaint are not part of the record on appeal.   We are
bound by the record as it comes to us and assume that anything missing supports the trial court’s
ruling.  Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).
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No.   2010AP1221
requested the law firm of Stern & Associates and Attorneys Terrance J. Cirocco
and Euel W. Kinsey be admitted to practice for this particular matter.   HRM&B is
Moodie’s law firm.
¶4                                                                                        The orders admitting Cirocco and Kinsey pro hac vice provided that
the attorneys would be permitted to appear in the Waukesha county action  “as
long as they associate with [HRM&B] or some other lawyer/Law Firm admitted to
practice law in the State of Wisconsin by the Wisconsin Supreme Court.”   They
associated only with HRM&B.
¶5                                                                                        The jury returned a defense verdict and neither plaintiff was awarded
damages.   With no trial recovery from which the ward could pay, Moodie moved
for an order directing Waukesha county to pay his approximately $73,000 in GAL
fees.   The circuit court, the Honorable Paul F. Reilly presiding, summarily denied
the motion.3   Moodie appealed.   This court remanded for additional fact finding, in
particular  as  to  whether  Moodie  and  out-of-state  counsel  had  a  fee-sharing
agreement.   See Moodie v. Waukesha County, No. 2008AP1042, unpublished slip
op., ¶¶1, 7 (Wis. Ct. App. July 7, 2009).
¶6                                                                                        At the hearing on remand, the circuit court, the Honorable Ralph M.
Ramirez presiding, found that Moodie was attorney of record when the action
commenced, when he brought Cirocco and Kinsey in pro hac vice and throughout
his service as GAL.   The court denied his motion.
¶7                                                                                        Moodie argues on appeal that the circuit court’s determination that
he was both GAL and attorney of record goes against the great weight of the
3  The motion also sought discharge as GAL.  The court granted that part of the motion.
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No.   2010AP1221
evidence; that its denial of fees was an erroneous exercise of discretion; and that
he is entitled to reasonable GAL fees either under WIS. STAT. § 757.48(1)(b) or as
a necessary operating cost of the court.   We disagree.
¶8                                                                                          If a minor’s interests are represented by an attorney of record, the
court shall, except for reasons not relevant here and except upon good cause stated
in  the  record,  appoint  that  attorney  as  the  guardian  ad  litem.    WIS.  STAT.
§ 803.01(3)(a).                                                                             “The guardian ad litem shall be allowed reasonable compensation
for his or her services such as is customarily charged by attorneys in this state for
comparable services.”   WIS. STAT. § 757.48(1)(b).   If the attorney of record also is
the GAL, however, he or she  “shall be entitled only to attorney fees and shall
receive no compensation for services as guardian ad litem.”   Id.
¶9                                                                                          Whether Moodie was attorney of record is a finding of fact.   See
Guthrie v. WERC, 111 Wis. 2d 447, 449, 331 N.W.2d 331 (1983).   We are bound
by a circuit court’s findings of fact unless they are clearly erroneous.   WIS. STAT.
§ 805.17(2).   A finding of fact is clearly erroneous when “it is against the great
weight and clear preponderance of the evidence.”   Phelps v. Physicians Ins. Co.
of  Wis.,  Inc.,                                                                            2009  WI  74,  ¶39,  319  Wis.  2d  1,  768  N.W.2d  615  (citations
omitted).
¶10    Kinsey testified at the fact-finding hearing that it was  “nice and
advantageous” for the plaintiffs  “to have local counsel in Waukesha who was
familiar with the environment as well as geographically … close to the client so
that it would be easier for certain things for him to attend than for us.”   He testified
that Moodie attended depositions where “it was important to have someone there,”
reviewed depositions and provided  “a detailed report of  … his impressions of
those events.”    Moodie personally attended some  depositions Kinsey took by
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No.   2010AP1221
telephone and later provided Kinsey “with his observations of the witness and
what he believed was important in the deposition.”
¶11    Moodie insisted that he was solely the GAL and was not permitted
to make an opening statement or closing argument at trial.    Billing statement
entries  reflect  discussions  Moodie  had  with  Michigan  counsel  about  special
verdicts, jury instructions, closing arguments and what to expect from local juries.
He testified that he kept these statements to track time spent and work performed
for which he would be reimbursed from a favorable recovery, but that he had no
fee arrangement with plaintiffs’ counsel.
¶12    Of   the   exhibits   admitted   into   evidence,   the   court   deemed
“important”  the  pro  hac  vice  motion,  the  order  granting  the  motion,  and  the
accompanying cover letter to the court, all submitted four months after the lawsuit
was filed.    It  also  found  noteworthy the  lack of  a  fee  agreement, written or
otherwise, between Moodie and the county.
¶13    The court stated that, in contrast to a case in which the party needing
the GAL is brought to court by another:
this is a case where a plaintiff came to court and made
certain  decisions.                                                                       Obviously,  I’m  not  faulting  the
plaintiffs,  the  child  or  the  parents,  but                                           …  the  attorneys
made  a  decision,  we’re  going  to  bring  this  case,  we’re
going to bring it in Waukesha County, and it’s necessary to
have a local attorney.   Mr. Moodie was designated to be
that  person,  and  Mr.  Moodie  was,  therefore,  when  he
brought these others in pro hac vice, the attorney of record,
and he never ceased to be that attorney of record in this
case, in addition to fulfilling his role as guardian ad litem.
Applying  WIS.  STAT.  §§ 757.48(1)(b)  and 803.01(3)(a)  to  the  facts,  the  court
found that the case was commenced with Moodie as local counsel, rendering him
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No.   2010AP1221
attorney of record as well as GAL, and concluded that he “never ceased to be that
attorney of record.”
¶14    The evidence may have allowed competing factual inferences.   The
circuit court’s findings that Moodie was both attorney of record and GAL do not
go against the great weight and clear preponderance of the evidence, however.
We therefore must sustain them.   See Phelps, 319 Wis. 2d 1, ¶39.   Accordingly,
Moodie is entitled only to attorney fees and shall receive no compensation for his
services as GAL.   See WIS. STAT. § 757.48(1)(b).
¶15    Having upheld the circuit court’s findings regarding Moodie’s dual
role, we need not address whether compensation might have been warranted under
other scenarios.
By the Court.—Order affirmed.
This   opinion   will   not   be   published.                                        See   WIS.   STAT.
RULE 809.23(1)(b)5.
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