¶ 35.
(concurring in part; dissenting in part). Kohl asserts that unless we interpret Wis. Stat. § 767.23(3)(a) (2003-04)1 as not permitting the trial court to award attorney fees, that statute violates article I, § 5 of the Wisconsin Constitution. I agree with the majority that § 767.23(3)(a) permitted the court to *309award attorney fees to DeWitt Ross and Stevens. But the majority fails to address whether the statute is unconstitutional. I would address the question presented, and conclude that the statute violates article I, § 5 of the Wisconsin Constitution.
¶ 36. To begin with, the majority misinterprets Kohl's argument. She does not argue that the statute would be constitutional if attorney fees could only be awarded if there was a substitution of attorneys. Nor do I agree with the majority that Kohl has not developed her argument. Kohl's argument is not complex. Article I, § 5 of the Wisconsin Constitution provides: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy...." Kohl asserts that a dispute over attorney fees that leads to a judgment against her is a case at law. That is what the following, easily obtained authority provides. There is little to develop.
¶ 37. The supreme court recently explained the meaning of article I, § 5 in Dane County v. Kenneth R. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890. Though a divided court in McGrew issued two plurality opinions, the opinions do not differ in their description of the analysis we are to use when considering whether a statute violates article I, § 5 of the Wisconsin Constitution. Both cite Village Food and Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, ¶ 11, 254 Wis. 2d 478, 647 N.W.2d 177, for the proposition that " 'a party has a constitutional right to have a statutory claim tried to a jury when: (1) the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and (2) the action was regarded at law in 1848.'" McGrew, 285 Wis. 2d 519, ¶ 18 (Prosser, *310J., joined by Wilcox, J. Roggensack, J.), ¶ 53 (Bradley, J., concurring, joined by Abrahamson, C.J., Crooks, J.).
¶ 38. In Village Food, a motor vehicle fuel seller brought a claim against another motor vehicle fuel seller under Wis. Stat. § 100.30(5m). That provision gives a cause of action to a person who is injured by a violation of other parts of the statute. Likewise, Wis. Stat. § 767.23(3)(a) gives attorneys a cause of action for their fees in actions affecting the family. Both causes of action are contained in larger statutory schemes. Village Food's cause of action is found in Wis. Stat., Ch. 100, entitled "Marketing; Trade Practices." Kohl's is found in Wis. Stat., Ch. 767, entitled "Actions Affecting the Family." Though the regulatory scheme in Ch. 100 did not exist in 1848, the court focused on the private cause of action in § 100.30(5m) and noted: "H & S ha[d] a constitutional right to have its statutory claim tried to a jury because the cause of action created by the statute existed, was known, and was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848." Village Food, 254 Wis. 2d 478, ¶ 30.
¶ 39. Likewise, divorce cases, with certain exceptions not relevant here, have never been tried to juries. Wisconsin Stat. Ch. 79, § 15 (1849), provided that divorce suits "shall be conducted in the same manner as other suits in courts of equity...." Matters in equity are not tried to juries. Stilwell v. Kellogg, 14 Wis. 499, 503-04 (1861). While section 16 of the chapter permitted courts to require husbands to pay "any sums necessary to enable the wife to carry on or defend the suit, during its pendency, and it may decree costs against *311either party, and award execution for the same," Wis. Stat. Ch. 79, § 16 (1849), attorney fees, not costs, are at issue here.
¶ 40. Using the Village Foods test, I conclude that the cause of action created by the statue existed, was known or was recognized at common law in 1848. It would seem intuitive to lawyers that we have been suing for fees since the time the profession became known. And predictable that twenty percent of the sections in West's Wisconsin Key Number Digest under the heading "Attorney and Client" are devoted to "Fees and other remuneration." While I find no attorney fee cases from 1848, the existence of the cause of action appears well settled by 1862 when the supreme court decided Butler v. Mitchell, 15 Wis. 389, [*355] (1862), an action to recover attorney fees. I conclude that the first prong of the Village Foods test is met.
¶ 41. The second prong of the Village Foods analysis is whether the action was regarded at law in 1848. I conclude that it was. The distinction was described in Gaston v. Babcock, 6 Wis. 490, [*503], 494, [*506] (1857): "We think that 'cases at law' as these words are used in the constitution, are not [proceedings for the appointment of a guardian]. Cases at law are properly controversies between parties, and not the appointment of guardians for minors or insane persons." The distinction between cases where money damages are alleged and those where other relief is sought was discussed in McLennan v. Church, 163 Wis. 411, 416, 158 N.W. 73 (1916):
In case of an action having been commenced in good faith to obtain equitable relief, and it subsequently appearing that such rebef cannot, or ought not to be, *312granted, but the facts disclosed by the evidence show that plaintiff has suffered a remediable wrong in the transaction forming the groundwork of the action, entitling him to be compensated by money damages, the court may, and where justice clearly requires it under the circumstances, should retain the cause and afford such relief, and make the same efficient by provisions for a recovery as in an ordinary legal action ....
¶ 42. A suit for attorney fees seeks money damages, and asserts a contractual right to those damages. In Dilger v. Estate of McQuade, 158 Wis. 328, 331, 148 N.W. 1085 (1914), the court noted: "An action for damages for breach of a contract is triable by jury in the circuit court as a matter of right."
¶ 43. I conclude that a suit for attorney fees was regarded as "at law" in 1848 because it was a suit on contract or quasi-contract, and because such a suit seeks money damages. Both prongs of the analysis of an asserted article I, § 5 right to a jury trial having been met, I would reverse and remand to permit the trial court to empanel a jury to hear Kohl's defenses to DeWitt, Ross and Stevens's claim for attorney fees. Since the majority does not do so, though I concur in much of its opinion, I dissent from its refusal to address the issue of Kohl's right to a jury trial on Dewitt, Ross & Stevens's claim for attorney fees.