Kolupar v. Wilde Pontiac Cadillac, Inc.

Tammy Kolupar, Plaintiff-Appellant-Petitioner,

v. Cadillac, Inc. Pontiac Wilde Defendants-Respondents. Thompson, Randall Court Supreme January 2007. argument Oral No. 2005AP935. July Decided 2007WI 98 93.) (Also N.W.2d reported plaintiff-appellant-petitioner there were For the Erspamer, by Erspamer Lisko M. and & briefs Paul argument by S.C., Paul M. Waukesha, and oral Erspamer. defendants-respondents there a brief

For was Brejcha, Kathryn Sawyer Gutenkunst, M. Brian Hammes, LLP, Cramer, Waukesha, and oral & Multhauf by Kathryn Sawyer argument Gutenkunst. JR., before BUTLER, J. This case is LOUIS B. published opinion a of the court us on a review of appeals1 affirming of costs to a circuit court award Tammy against Kolupar in her Pontiac action Wilde Thompson, employee, Cadillac, its Randall Inc., car. This is the second over sale of a deficient used question this has been us to time case before resolve Kolupar relating v. and costs. In to the award fees Cadillac, Inc., 2d 112, 2004 WI 275 Wis. Wilde Pontiac 1 Cadillac, Inc., 85, App 2006 WI Kolupar v. Wilde Pontiac II). 265, (Kolupar sake of 293 Wis. 716 N.W.2d 547 For the 2d 293 clarity, appeals opinion Kolupar, court in we refer to the II, opinion this 265, Kolupar 2d and to court's Wis. as Cadillac, Inc., 112, 275 WI Kolupar v. Wilde Pontiac 2004 1, 58, designate by do Kolupar 2d I. We not Wis. 683 N.W.2d matter, appeals opinion in this roman numeral the first court of Inc., Cadillac, 175, 266 App Kolupar v. Pontiac WI Wilde it is referred to N.W.2d because opinion. frequently in this

1, I), N.W.2d 58 (Kolupar this court upheld circuit $15,000 court's award of in attorney fees, and remanded this matter to the circuit court for a deter mination of an appropriate award of costs. 2. On remand, Kolupar submitted two sets of

documentation to the court, circuit one showing her expenses $8795.66, totaled and a revised version showing that were they The $9933.44. circuit court instead awarded Kolupar costs, stating $3523.46 was Kolupar entitled to "taxable costs,"2 i.e., those (2005-06).3 enumerated review of the sought order, contending that the circuit court erred by awarding only § 814.04 enumerated costs, and that she was entitled to "actual, reasonable" 218.0163(2).5 costs4 § under Wis. Stat. The court of affirmed appeals the circuit court's award of costs on 2Kolupar and Wilde use the term "taxable costs" to encom pass only those listed items of cost forth set in Wis. Stat. 814.04, § opposed to "actual costs" or "reasonable costs." Kolupar Where costs," Wilde use the term "taxable we use § "costs enumerated in "§ 814.04" or 814.04 enumerated costs" to refer to the concept. same We use "enumerated" because 814.04(2) § provides also recovery necessary for of "[a]ll the by law," disbursements and fees allowed encompassing recovery beyond § those costs listed in provided, 814.04 when otherwise such fee-shifting as under a statute. 3All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

4 court, Before Kolupar argues this that she is entitled to "reasonable," "actual," but litigation not costs. 218.0163(2) The § current Wisconsin previously Stat. was 218.01(9)(b) (1993-94) § numbered Wis. Stat. when the events giving rise to this action operative occurred. The language 218.0163(2) 218.01(9)(b) (1993-94). § § is identical to that of To confusion, avoid we will use the statutory designation current throughout opinion. this 218.0163(2) provide §

grounds not did Stat. that Wis. recovery the circuit costs, and therefore of actual for the in err. "taxable costs" was award of court's App ¶¶ 7-8, Cadillac, Inc., 85, 2006 WI v. WildePontiac II). (Kolupar N.W.2d547 2d 293 Wis. us is whether a retail issue before 3. The narrow 218.0163(2) recovery buyer's under Wis. Stat. of costs § 814.04 or in Wis. Stat. enumerated is limited to costs not enumerated reasonable costs includes all other also 218.0163(2) that Wis. Stat. conclude in 814.04. We provides Because the reasonable costs. the award of appeals in affirm- misconstrued court of ing its costs, we reverse award of

the circuit court's apply circuit court failed decision. Because legal determination, we to its cost standard correct erroneously its discretion de- exercised it conclude termining of costs. amount of the award matter to the cir remand this therefore We § 814.04 enumerated award Wis. Stat. cuit court to determine under its discretion to costs, and to exercise Kolupar's rea the amount Wis. beyond 814.04. those enumerated sonable Castrovinci, v. Shands Consistent with (1983), grant Kolupar's we also 361, 340 N.W.2d 506 request fees and reasonable appeal court to direct the circuit this costs for fees and costs. and award such determine Tammy Kolupar's ¶ arose out of 5. This lawsuit purchase Benz 190E off Wilde 1985 Mercedes of a Pontiac car lot from Wilde's used Pontiac Cadillac's alleged Thompson. Kolupar manager, in Randall sales Thompson complaint received her March 2000 266 Kolupar's exchange 1993 Pontiac Sunbird in for the Kolupar represented Mercedes, and that the Mer- good Kolupar in cedes was mechanical condition. al- leged problems, she soon discovered the car had several including faulty Kolupar brakes and a broken odometer. stated she discovered after the sale that the Mercedes by Thompson per- Wilde, had not been owned but sonally. Kolupar Thompson6

¶ 6. sued Wilde fraud, violations, federal and state odometer law breach express implied warranty and violations of dealership statute, Wisconsin's motor vehicle (1993-94), largely incorporated now within primary litigation Wis. Stat. 218.0116.7A issue Thompson was whether acted under Wilde's actual or apparent authority selling the Mercedes.8 By Kolupar 26, 2001, letter dated December accepted disposing an offer of settlement from Wilde "plus the lawsuit for the taxable costs of the $6660 Notwithstanding action." this reference to "taxable Kolupar's acceptance costs," letter indicated the amount of costs apparently left was unresolved: "Since this offer will plaintiffs primary

resolve claim for dam- ages, appear it would all that would be needed this hearing case is a to determine the reasonableness and necessity plaintiffs attorneys litigation fees and expenses." against The judgment circuit court entered a default I,

Thompson February 25, on Kolupar 2002. See 275 Wis. 2d Thompson party appeal. 7 n.3. is not a to this confusion, Again, to avoid we will use the current statu tory designation throughout opinion. this underlying dispute For additional facts about the in this I, appeal, case and the first see 275 Wis. 7-16. ¶¶ hearing held a on the issue 8. The circuit court Kolupar requested attorney at which of fees costs attorney fees, $11,000 in costs. The $41,000 in County Court, Honorable Thomas Milwaukee Circuit attorney Cooper, $15,000 "reasonable R. awarded declaring and "over- fees," that the case was "over-tried" attorney request Kolupar's pled." asked about When Judge Cooper responded: costs, "Fees and costs, for $15,000." appeals affirmed the circuit 9. The court Kolupar Cadillac, v. Wilde Pontiac

court's award. See App Inc., 668 N.W.2d798. 2003 WI attorney fees, conclud This court affirmed the award provided by ing that on the limited documentation attorney, Kolupar's the determination of award was proper discretion. See exercise of the court's disagreed I, court with the However, 275 Wis. 2d 1. this concluding appeals costs, court of on the issue denied all costs and failed to the circuit court provide effect explanation Id., ¶ decision. 55. Jus an for its majority, explained: writing Prosser, tice for $15,000 finding repre- The court made a formal attorney fee, then the a reasonable but court sented $15,000 aggregated part the cost of the award. award effect, In no costs. court awarded 218.01(9)(b) may not state that the court Section does attorney award costs or fees. Costs and fees linked; costs, are the court is authorized to award including attorney fee. While the court a reasonable may in costs or nominal retain discretion to award $0 costs, Here, explained. a decision to do so must be may explanation. no The court have court offered $6,600 plus taxable party's believed the settlement by Kolupar. requested included the costs Or perhaps the court the costs should not be believed explanation required. An awarded at all. is Id,., This court then remanded the matter to 54-55. ¶¶ the circuit court to address the issue of costs. remand, the circuit court on 10. Before Wilde only

contended that was entitled to "taxable Kolupar costs" enumerated in Wis. Stat. 814.04.9 Kolupar that under Wis. Stat. a fee- argued 218.0163(2), provides, part: Wisconsin Stat. in relevant Except provided [sections here] as in not relevant when allowed costs shall be as follows: fees, (1) (a) Attorney the amount or the When recovered value of property greater the involved is than the maximum amount 799.01(l)(d), attorney $500; specified in s. fees shall be when it is equal specified to or than the maximum amount in less s. 799.01(l)(d), more, $1,000 attorney $300; but is or fees shall be $1,000, attorney it is less than fees be In all other $100. when shall cases in which there is no amount recovered or that do not involve attorney property, $300. fees shall be (c) attorney may any party No fees be taxed on behalf of unless the party appears by an other than himself or herself. (2) necessary Disbursements. All the disbursements and fees law; referees; by compensation of a dis- allowed process papers bursement for the service of or other in an action by person are authorized law other when the same served officer, may than an but the item not exceed the authorized service; actually paid fee for the amounts out for sheriffs same copies papers any public and and in certified other records office;postage, photocopying, telephoning, electronic communica- transmissions, tions, express overnight delivery; facsimile and or depositions including copies;plats photographs, exceeding and item; exceeding expert $300 for each an witness fee not $100 testifies, expert of the witness fee and each who exclusive standard mileage expert; in which shall also be taxed for each actions lands, relating affecting procuring to or the title to the cost of an of title ad litem fees not be abstract to the lands. Guardian shall taxed as a cost or disbursement. (4) 807.01(4), Except provided if Interest on verdict. in s. recovery money, judgment is for the interest at the rate of 12% verdict, per year report judgment or until from the time of decision computed by is entered shall be the clerk and added to costs. statute, entitled to reasonable ex- she was shifting in taxable costs enumerated beyond above penses 10, 2004, submitted a Kolupar § 814.04. On November an ledger letter and detailed award requesting 1, 2004, On December costs.10 $8795.66 a revised with documen- request supporting submitted tation costs. seeking $9933.44 Court, 11. The Circuit Hon- County Milwaukee Donald, orable M. ruled as follows: Joseph legal on the in terms of I think this case issues costs, me, question of clear to and I'm costs is going to rule that in this matter that it is taxable costs. fee-shifting provi- There are different statutes with Court, sions, statute, by the but this as is indicated this matter is back here for costs and that is taxable That's 814 taxable costs. costs. (6) Judgment by judgment by upon default. If the is default or by

voluntary party dismissal the adverse the costs taxed under (1) they had the sub. shall be one-half what would have been matter been contested. (7) accepted. judgment pursuant Judgment offer not If the offer of accepted plaintiff not and the recover a more to s. 807.01 is fails to judgment plaintiff favorable shall not recover costs but the computed defendant full costs to on the demand of shall have be complaint. (8) municipal corporations. brought for In all for Actions actions town, any county, village, city municipal

the benefit of or other corporation taxpayer, plaintiff of this state a citizen shall be plaintiffs use, plaintiff entitled to recover for the own in case the prevail, part the taxable of the shall such action and such reasonable, fees, recovery attorney as the court considers not to recovery, exceed and not to exceed $500. 20% such Kolupar's requests cover letter "an award of $8844.12 litigation expenses." ledger, The actual and reasonable enclosed however, lists as the "amount due." $8795.66 or I have ruled that it's taxable costs

So now that costs, trying figure out I'm now confronted with to costs based on the submissions. And are taxable what it, but there ledger has a lot of entries on this detailed receipts every entry. receipts There were for were entries, at major going and this Court —I'm to least my determination as to what the costs be reasonable in are. hearing after the 12. A written order issued plaintiff

provided "[t]hat under receive taxable costs Chapter Statutes" for the follow- 814 of the Wisconsin investigation ing process lo- server, $68.00; items: Reporting, Thompson, $55.97; $80.00; Gramann cate transcript/Tammy transcript/Susan Kolupar, $74.80; deposition, reporting, Kolupar, $206.90; $393.10; court deposition deposition fees fees, $606.30; $50.00; transcript, deposition fees, $273.45; $208.58; $586.50; process $350.00; server, $117.95; Zick, mediation/Willis transcript, photocopies, process server, $27.76; $164.15; transcript, The order $54.50; and awarded $205.50. request Kolupar's in costs. It denied total of $3523.46 incurred in the remanded for proceeding. fees and costs Kolupar appealed from the order to appeals, asserting the circuit court erred court Chapter awarding only under 814 and taxable costs 218.0163(2). under Wis. Stat. not reasonable costs appeals circuit court based on The court of affirmed the 218.0163(2).11 Kolupar § interpretation II, of See its treating However, analysis begins by appeals' the court of suggests It the interpretation. of contract this case as one agreed to Kolupar letter indicate seek terms of the settlement II, 265, In Kolupar See 2d 4. only 293 Wis. "taxable costs." the court of parties, the intent of the attempting to ascertain costs" to mean "those costs 'allowed appeals construed "taxable appeals ¶¶ 265, 7-8. The court of read 218.0163(2) recovery § providing as not of reasonable paragraph subsection, the same because within 218.0163(lm), § provided costs," for "actual while sub- (2) provided only "costs," section which the court of appeals took to mean "taxable costs" enumerated Wis. 814.04(2). Kolupar petition seeking Stat. filed a re- appeals granted. decision, of the view court which we primary ¶ 14. The issue before us is as follow buyer's recovery s: a retail Is of costs under Wis. Stat. 218.0163(2) limited to costs enumerated Wis. § 814.04, or does it include all other also reason question able costs not enumerated in 814.04? This requires interpret us other rel statutes, evant Wisconsin a matter of law that we Village Haanstad, review de novo. Cross Plains v. ¶16, 2006 WI 288 Wis. 2d 709 N.W.2d447. ¶ 15. Our review of a circuit court's valuation of an limited award of costs is to whether the circuit court 814.04," which, as items of cost under' Wis. Stat. Rule under 814.04(2), necessary "[a]ll includes disbursements and fees Id., by appeals allowed The court law." then considered whether recovery Wis. Stat. allowed of disburse- ments and fees in addition to enumerated in those § 814.04. that the ample

We note settlement letter contains evidence suggesting merely did not intend to seek "taxable costs," parties and that it is unclear what intended Regardless, parties argue use of this term. do not this case interpretation, as one of contract do not and we construe it as such.

properly v. MSI discretion. Anderson exercised its Co., 62, 19, 281 2d 697 2005 WI Wis. Ins. Preferred requires proper of discretion A exercise N.W.2d73. logical employ based on the a rationale court to circuit appropriate legal principles facts of record." Id. and (citations omitted).

HH rH general, "parties bear the cost ¶ In to a lawsuit legislative authoriza- their fees absent own ¶ I, 2d 17. This costs." 275 Wis. tion to shift LIRC, v. "American rule." Watkins is the so-called (1984). 753, 758, 345 N.W.2d forth the items 814.04 sets 17. Wisconsin Stat. plaintiff prevailing be awarded to a of costs that "shall" items of 814.04 introduces the a civil lawsuit.12Section "[e]xcept by stating: under the section cost authorized applicable [statutory provided in sections not here] . . . ." be as follows: . . . when allowed costs shall provides costs "shall be al- Wisconsin Stat. plaintiff upon a matter "of course to the lowed" as recovery." 814.04(2), plaintiff is 18. Under Wis. following a reasonable costs:

entitled to recover papers process other or disbursement for the service actually copies paid records action; amounts an photocopy- public postage, papers office; in a and other ing, telephoning, and fac- communications electronic delivery; overnight express or transmissions; simile depositions, including copies; plats photographs; forth in Wis. Stat. Exceptions general to this rule are set § 814.04. expert including mileage fees, for each witness

expert provides Section witness. further plaintiff necessary "[a] entitled to 11the is disburse- by in ments and fees allowed law" addition to those enumerated in the section. Among "necessary

¶ 19. disbursements and by fees are allowed law" those authorized under fee- shifting statutes. Numerous Wisconsin statutes contain fee-shifting provisions, including relating those to con- protection, privacy sumer frivolous lawsuits and rights.13 Kolupar's against Thomp-

¶ 20. action Wilde and alleged § son 218.0116, violations of Wis. Stat. a con- protection regulating sumer statute motor vehicle deal- salespersons companies. ers, and sales finance Section 218.0163(2) provides "[a]ny buyer that retail . . . suffer- ing pecuniary loss because of a violation a licensee of § may [subsections damages 218.0116] of recover for any jurisdiction competent together court of loss including costs, with reasonable fees." appeal, Kolupar ¶ 21. On contends that the cir- by determining cuit court erred costs under § 814.04, when this remand directed court's the circuit 218.0163(2). § apply argues court to She § fee-shifting because is a statute, she is entitled to recover all costs in addition to § costs enumerated in 814.04. responds judi-

¶ 22. Wilde should be cially estopped contending from that she is entitled to more than Wis. Stat. 814.04 enumerated costs be- complete For a listing 50-plus fee-shifting provi of the law, Sundby sions Wisconsin see 3 Hon. Robert D. & Steven Means, Wisconsin, Damages E Law Chapter 37, Attorney of (Russell Fees, Appendicies ed., 37A and 38B M. Ware 4th ed. 2005). appeal. requested costs" in her first she "taxable cause Additionally, that Wis. Stat. Wilde notes 218.0163(lm) pro- recovery "costs," while allows agrees the court of costs." with vides "actual Wilde legisla- appeals difference indicates that that this recovery of costs under intended actual ture 218.0163(lm), only but 814.04 enumerated costs 218.0163(2). argues Alternately, Wilde that the under of discre- not an erroneous exercise award costs was declared that award because the circuit court tion two items was "reasonable" awarded §in 814.04. enumerated

A turning merits, to the we address 23. Before argument. estoppel note Wilde did not We that Wilde's argument in its briefs to the circuit court advance this arguments Generally, appeals. raised the of for or court e.g., appeal See, State time are deemed waived. first on Camp, 131, N.W.2d 577 144, 2d v. Van Wis. (1997). question Setting waiver, con aside of we the estoppel argument merit. lacks clude Wilde's party precludes estoppel from ¶ a Judicial legal proceeding. asserting positions in inconsistent a Corp., ¶ v. Intra Financial 2005 WI Mrozek equitable is This doctrine 448, 699 N.W.2d 54. against litigant playing protect and 'fast intended "to posi by asserting courts' inconsistent loose with the omitted). (citation asserting judicial party A tions." Id. "(1) clearly position estoppel is later show: the must (2) position; the at the facts inconsistent with earlier (3) party issue are in both cases; the same the to be estopped adopt position." the to convinced first court its (citation omitted). Id. minimum, 25. At a has Wilde the fulfilled requirement estoppel;

third of it cannot that show (or other) Kolupar any convinced this court she only, entitled i.e., was to "taxable costs" § 814.04 enumerated costs. This court remanded circuit court to address the issue costs under Wis. 218.0163(2); it did not remand for the circuit Kolupar court to if, address "taxable in costs," fact, requested only "taxable costs." The record is devoid any Kolupar trying "play evidence that is fast system. estoppel loose" with the Judicial is therefore inappropriate here.

B meaning ¶ 26. We now consider the of Wis. Stat. 218.0163(2). provision contends that including "costs, § fees" should be read to include reasonable costs purpose protections to effectuate of the consumer dealership argues Wisconsin's motor statute. Wilde appeals correctly legislature's court of concluded that the provision § 218.0163(lm), of "actual costs" in as com- pared 218.0163(2), with "costs" indicates legislature recovery intended of 814.04 enumerated only plaintiffs for consumer claims with under Wis. Stat. 218.0116. purpose statutory

¶ "[T]he interpretation 27. of is may to determine what the statute means so that it be given proper its full, and intended effect." State rel. ex

276 Court, ¶58, 44, 271 2d v. 2004 WI Wis. Kalal Circuit "[Statutory language is 110. inter 633, 681 N.W.2d preted in it is not in used; in isolation the context which language part in relation to the of whole; as a of a but closely-related reasonably, surrounding statutes; and or Id,., ¶ "A46. avoid or unreasonable results." to absurd interpreting is to a in statutes favor cardinal rule purpose the the of statute construction that will fulfill object manifest of a that defeats the over construction "[A] plain- Watkins, 2d at 761. the act." meaning Wis. [of statute] interpretation a cannot contra statutory contextually textually manifest a or vene purpose." ¶ Kalal, 271 2d 49. Wis. Additionally, multiple

¶ statutes ad 28. when pari subject in area, read the statutes dress the same we operative. be materia that both statutes will such Dist., 231 v. Bristol School Providence Catholic School (1999). potential If the 2d 159, 178, Wis. N.W.2d present, is we will read conflict the statutes between a if a reasonable to avoid such conflict the statutes Id. exists. construction adopt urges appeals' court of 29. us to the Wilde 218.0163(2).

interpretation The court of Wis. Stat. presented appeals in this case cast the issue legisla- question "[T]he is core whether follows: 218.0163(2)] [§ 'costs' in ture intended that word litigation expenses." II, 293 include actual appeals noted that The court of then only legislature the word "costs" used while recovery 218.0163(2), permitted "actual costs" it 218.0163(lm) prohibited practice affected when a (as buyer opposed a like Kolu- auto to retail an dealer appeals par) The court of took was "willful." paragraph legislature's costs" within use "actual § the same of to subsection 218.0163 mean that the legislature, by 218.0163(2), § of in use "costs" intended recovery only § of Wis. Stat. 814.04 enumerated costs buyers prevail for retail who on claims under Wis. Stat. § 218.0116. appeals' analysis

¶ 30. the We believe court of is incorrect for three reasons. it First, casts the issue as § enumerated between Wis. Stat. 814.04 and "ac considering tual costs" a alternative, without third prevails An "reasonable auto costs." dealer who on a 218.0163(lm) § claim under is entitled to the "actual litigation. legislature costs" of the The has seen fit to distinguish an of "actual from award costs" the "costs" prevailing party is entitled receive under 218.0163(2). McLaughlin, See Nelson v. 2dWis. (1997) ("[W]here legislature 487, 565 N.W.2d 123 the particu uses similar but different in a statute, terms larly presumed within the section, same it is that the legislature intended such terms to have different mean ings."). legislature's Nevertheless, while the choice 218.0163(lm) necessarily the term "actual costs" in precludes a construction of term the "costs" costs," to mean "actual it does not follow legislature precluded recovery also "reasonable costs" its use of the term "costs" 218.0163(2). Kolupar argues, Second, 31. court appeals' interpretation in this conflicts case with the purpose prior manifest of the statute and cases constru- ing fee-shifting remedies. appeals' opinion Third, court of inter-

prets Wis. Stat. 814.04 and Wis. Stat. a manner that renders them inconsistent with each conclude below,14 For reasons set forth we other. 218.0163(2) plainly §§ recovery provide legislative purpose to of the a manifest litigation, expenses that an of the and such necessary interpretation harmonize otherwise is to §§ conflicting provisions Stat. of Wis.

814.04. addressing buyer's

¶ claim under 33. In a retail § 218.0171, the law," "lemon Wis. Wisconsin's (1993-94), this court noted former Wis. Stat. liberally to be construed "remedial statutes should remedy suppress the that the the mischief and advance Chrysler Hughes v. Motors statute intended Corp., afford." (1996); 973, 978, 197 542 148 see 2d N.W.2d Wis. Ind., Inc., 143 Wis. 2d also Hartlaub v. Coachmen 1987) (Ct. (noting App. 422 869 N.W.2d be the "lemon law" should remedial statutes such as problem social towards the construed "with view enacting legislature addressing the the was when which law"). construing provisions of a the award 34. When purposes statute, this examines the remedial court e.g., Hodge underlying See, v. State ex rel. the statute. Lake, 62, 79, 2d 508 N.W.2d603 180 Wis. Town Turtle (1993); Shands, 2d Watkins, 753; 115 2d Wis. Wis. Shands, the mani- concluded that at 358. In this court practices purposes of the unfair trade statute fest in a tenant-landlord entitled a successful claimant attorney appellate dispute of reasonable to an award explicitly address recov- did not fees where the statute ery appellate Shands, First, fees. at 361. provision court discerned that the statute's the Shands See ¶¶ 41-42, infra. attorney encouraged of reasonable fees tenants to en- rights pecuniary force their "the where amount of loss [might compared litigation." be] small with cost of Id. Second, at 358. court Shands noted that a tenant 'private attorney who sues under the general' "acts statute as a rights to enforce the tenants' set forth in the regulations," process enforcing administrative only rights, public's rights their individual but the under Third, statute well. Id. court Shands observed that suits under the statute "have the effect of deterring impermissible by conduct landlords" sub- jecting damages them to double fees. Id. applicable The case, statute in this offering buyers 218.0116, is remedial in nature, retail protection against practices unfair certain of auto deal- salespersons companies. Specifically, ers, and finance the prohibits unsavory practices, a statute number of includ- ing misrepresentation deceptive fraudulent and of use practices, sales in the retail sale or of a lease motor § 218.0116(l)(bm), (c), (cm), (dm), vehicle. See Wis. Stat. (m) (e), (f), (em), (im), (p). and primary sup- The statute's mechanism for pressing prohibited such conduct is to authorize retail 218.0163(2). buyers § damages. to sue for See Wis. Stat. meaningful remedy Thus, Shands, as in a is essential to prohibited deterring effectuating the conduct and the purposes recovery only the case, of statute. In this of Wis. discourage Stat. 814.04 enumerated costs would liti- gants legitimate seeking with claims from relief, and suppress- thus undermine the statute's effectiveness ing prohibited the "mischief." buyer

¶ 37. For the retail with a claim under Wis. litigation may Stat. 218.0116, the of cost the be significant, recovery even, here, as exceed the total may include costs of Such costs under statute. (here, discovery court-imposed costs two failed mediations) If are not enumerated 814.04 costs. litigation or even eliminates recov- cost of reduces buyers likely ery, enforce will less to their retail be rights conclude that under the statute. We therefore recovery of authorizes reason- Wis. Stat. attorney fees, to costs, retail as well reasonable able prevail purchasers on claims under Wis. Stat. who § 218.0116.15 appeals of 38. The court of addressed issue Friendly

recoverability costs in Chmill v. of reasonable Ford-Mercury Janesville, 2d 407, 154 Wis. of (Chmill (Ct. 1990) II), App. under the N.W.2d fee-shifting provision law," "lemon Wis. Wisconsin's 218.015(7) (1987-88),16reaching the same con preceded today. II clusion we reach Chmill was Ford-Mercury Friendly Janesville, 144 v. Chmill 1988) (Ct. App. 424 N.W.2d 747 (Chmill I), plaintiff concluded that was which attorney appellate pro to fees for entitled ceedings appeals to and remanded before court fee the circuit court to "determine reasonable appeal remand, the . .. this court." On for the award litigation costs under Wis. Stat. An of reasonable award beyond above and provides costs, recovery of but not for the double § 814.04 enumerated "Fee-shifting costs. statutes § enumerated Wis. Stat. 814.04 recovering them will be made contemplate those under that any items." They contemplate double awards whole. do not Janesville, 407, Ford-Mercury Wis. 2d Friendly v. 154 Chmill II). 1990) (Chmill (Ct. n.2, App. 197 413 453 N.W.2d 16 (1987-88) 218.015(7) at § is now found Stat. Wisconsin 218.0171(7), pertinent statutory language § and the unchanged. this remains discussion

281 plaintiffs request circuit court denied the for reason- prior appeals proceeding, able in the costs court of attorney denied reasonable fees and costs the re- proceeding. II, manded Chmill 154 Wis. at 411-12. appeals ordering ¶ reversed, 39. The court of the appellate award of reasonable in both the proceedings, attorney remanded and reasonable fees in proceeding. Regarding 413,416-18. remanded Id. at the circuit court's failure to award costs, reasonable appeals court of held that circuit "read court Chmill literally. improperly I too It its exercised discretion ignored because it the context of our statement. That apply context shows that we intended to sec. 218.015(7), permits Stats., which 'costs, an award of attorney just disbursements and fees,' reasonable fees. We intended II, to award the Chmill awardable." 154 at Wis. 2d 413.

¶ 40. Wilde contends that Chmill II is distin- 218.015(7) (1987-88) guishable § because Wis. Stat. provides recovery for the of "costs, disbursements and attorney fees," reasonable while Wis. Stat. 218.0163(2) § provides including "costs, reasonable attorney fees." While the inclusion of the term "dis- 218.015(7) (1987-88) § bursements" Wis. Stat. more clearly legislature's party forth sets intent getting be whole, made there is no around the fact that providing including "costs, fees" 218.0163(2) something very under denominates dif- ferent than enumerated costs under 814.04. reading provisions Moreover, the cost of Wis. pari and Wis. Stat. precludes interpretation materia an recovery limit would to enumerated 814.04 costs. See L.R., State v. Denis n.21, WI (statutes together Wis. 2d 699 N.W.2d154 are read conflicts). any Wis. Stat. pari Both materia to avoid 218.0163(2) attorney § § 814.04 treat Stat. and Wis. Among subcategory the enumerated costs. of fees as a "attorney § fees," are included within costs strictly amount of to a maximum limited are which depending on the amount $500, and between $100 814.04(l)(a). § recovery. Wis. Stat. the total argues, "costs" under the term If, as Wilde 42. 218.0163(2) § only § Stat. 814.04 means Wis. Stat. Wis. attorney only available un- fees costs, the enumerated 218.0163(2) § under those enumerated be der would 218.0163(2) 814.04(l)(a). explicitly provides § § But attorney including reasonable "costs, award of fees." added.) (Emphasis to of "costs" Thus, a construction § only costs would enumerated Stat. 814.04 mean Wis. attorney language providing fees" in put for "reasonable attorney § fee with the in direct conflict § "costs" to provisions A construction of 814.04.17 necessary to har- is therefore costs" mean "reasonable 8l4.04(l)(a).18 § monize 17 attorney include fees § 814.04 costs under Enumerated amount of between to a maximum strictly limited which are recovery. the total $500, the amount of depending on $100 814.04(l)(a). include costs do Enumerated Supra, attorney fees. United States Seventh of the note that a decision We party construes by either Appeals not cited Court of Circuit 218.0163(2) and Stat. identical to that Wis. language here. See the one we reach conclusion than reaches a different Motors, Corp., 872 F.2d v. Motors Inc. General Bob Willow (7th 1989). Motors, appellate the federal In Bob Willow Cir. (1983-84) 218.01(9)(a) language court construed including a reasonable recovery of "costs providing for ordinary than taxable recovery of "no more permit fee" However, Bob note that the Id. we in U.S.C. 1920." as found under 28 U.S.C. awarded costs Willow Motors court IV ¶ 43. We consider next whether the circuit court's represented award of costs an erroneous exercise of its discretion. We examine the record of the remanded proceeding to determine if the circuit court reached its by application appropriate conclusion a reasoned of the legal standard to the relevant Franke, facts. Franke v. ¶8, n.38, WI Wis. 2d 674 N.W2d 832 ("When a circuit discretion, court exercises the record appeal on must reflect the circuit court's reasoned application appropriate legal of the standard to the case.") (citation omitted). relevant facts in the argued Kolupar 44. On remand, Wilde I directed the circuit court to address "taxable costs" § enumerated in Wis. Stat. 814.04 because, it con- § provided only tended, Wis. Stat. these However, costs. Wilde did not concede that was § entitled to 814.04 costs, enumerated but rather con- tended that it was within the circuit court's discretion including § to award costs," "$0 no 814.04 enumerated Kolupar argued costs. that she was entitled to reason- § 218.0163(2), able costs under as well as costs, enumerated because an award of such costs was necessary purposes to effectuate the of the statute. hearing

¶ 45. At the costs, on the circuit court following ruling: made the

which does not include a limited among fee the costs 814.04(l)(a). section, enumerated under that unlike Wis. Stat. Accordingly, unlike Wis. Stat. 814.04(l)(a), 218.01(9)(a) (1983-84) and 28 appear U.S.C. 1920 do not See, conflict with one another. supra, Regardless, 41-42. ¶¶ this court is not bound a federal interpretation court's See, Janssen, e.g., Wisconsin law. Daanen & Cedarapids, Inc. v. Inc., (1998). 395, 400, 216 Wis. 2d 573 N.W.2d 842 with the back to the Court is remanded The matter nominal, zero; be and it can be it can decision that it astronomical, arguments of the buy if I also can be going I'm to do what clear to me that plaintiff. But it's right and fair. I think is in terms of the legal on the issues

I think in this case me, going and I'm costs, costs is clear to question costs. There matter that it is taxable to rule that this fee-shifting provisions, but with are different statutes Court, statute, by the this as is indicated this taxable costs. for costs and that is matter is back here costs. That's 814 taxable recommendation, argu- at least the or

In terms of the zero, buy just I don't it because that it should be ment made that Court could have Supreme I think the they it back here for I think sent determination. reason, to determine costs. and that was taxable costs or 814 I have ruled that it's So now that trying figure to out what costs, I'm with now confronted And this on the submissions. are taxable costs based it, there were a lot of entries on but ledger detailed has for entry. receipts There were every for receipts not at be entries, going to least major and this Court—I'm as to what the costs my in determination reasonable going I'm costs that just going to read off those are. I'm and the ledger on the in this matter based approve to I received. have information that it would the items of costs then detailed The court Among of cost not enu- two items these were award. § fee and the 814.04, a mediation in Wis. Stat. merated Thompson. investigation The court to locate of an cost acknowledge not items were that these two failed why explain § it was costs, or 814.04 enumerated requested awarding Kolu- others costs but not these par. listing

¶ 46. After the items of cost to be awarded, right. the circuit court concluded: "All Those are the I costs that find that are in this matter and awarding ruling I'm in this case, and that's the of the Court."

¶ 47. The written order of costs that followed the ruling provided circuit court's bench as follows: "IT IS plaintiff HEREBY ORDERED: 1. That received tax- Chapter able costs under 814 of the Wisconsin Statutes following [listing supra, for the items cost, 17 items of see plaintiffs 12]. request appeal 2. That for costs on her are denied for those reasons stated on the record."

¶ 48. Because the record does not show that the determination of the amount of the award was based on application appropriate legal a reasoned of the standard, erroneously we conclude the circuit court exercised its calculating discretion the amount of the award. erroneously 49. We note that the circuit court only concluded that was entitled to those costs § enumerated Wis. Stat. 814.04. As we concluded § provides recovery earlier, reasonable costs addition to 814.04 enumerated acknowledge costs. We that this court's remand order did distinguish not between 814.04 enumerated costs and 218.0163(2). reasonable costs under However, noted, the remand ordered a calculation of costs under 218.0163(2), contemplated 814.04, an exer- cise discretion, which an award of 814.04 enumer- contemplate. ated costs does not ¶ 50. We observe that the circuit court stated that my it would "at least be in reasonable determination as "[t]hose to what the costs are" and later declared are the costs that I find that are this matter." We declaring note awarding court, also that the while it that was costs under 814.04, Wis. Stat. then awarded items of two cost not enumerated in that section. Based argued facts, on these it could be that the court, circuit applied appropriate legal by awarding fact, standard reasonable costs under in addition to § 814.04 enumerated costs.19

¶ 51. Our record, however, review of the shows engage that the circuit court did process a considered determining expenses were, which in fact, merely "reasonable." The circuit court stated that it explain would award "reasonable," what was but did not why it was "reasonable" to award certain costs and not Rather, others. awarding the circuit court declared that it was only, 814.04 enumerated costs explanation and then awarded without two costs not included under 814.04. To demonstrate that court properly spite exercised its discretion —in of its mis- legal statements of the standard —the record would engaged process need to show that the circuit court in a actually applied legal in which it the correct standard. Because the record does not demonstrate that applied legal circuit court the correct here, standard we erroneously conclude that it exercised its discretion in determining the amount of the award of costs. prop-

¶ 52. Wilde contends that the circuit court erly calculating exercised its discretion in the amount of Kolupar's requests the cost award because for costs poorly were documented and unclear. Wilde asserts provide many receipts expenses. failed to It Kolupar requested states that 8, 2004, on November expenses in the amount $8844.12, but on December

19We argument sponte. argues address this sua Wilde discretion, proper circuit court's order was a exercise of its but infra, not for the reasons discussed here. See 52-53. ¶¶ for costs request an itemized submitted

2004, Kolupar hearing stated at the the amount of $9933.44. "the ticket big for documentation that she provided of the costs. for items," accounting approximately $8000 for which for items other costs were She adds that available, mileage. not such are receipts typically in the inconsistencies that 53. We conclude ¶ documentation or alleged inadequate requested amounts that the conclusion costs do not support for requested here. exercised its discretion court properly the circuit the circuit court little evidence We note there is of discretion on exercise attempted based its actually re- between a Moreover, the difference grounds. these not a basis for logically is quest $9933.44 $8844.12 conclude, as a Further, we cannot an award of $3523.46. Ko- provided by the documentation law, matter of on the inadequate or otherwise indecipherable is lupar are items of cost individual requested whole. Whether the circuit court is a question documented adequately remand. on of her costs were that much argues 54. Kolupar tactics, and court- litigation

the result of Wilde's of whether Wilde's The expenses. question mandated costs is relevant in fact drove particular tactics litigation of Kolupar's of the reasonableness to a determination an requires This matter costs, other factors.20 among on remand. by the circuit court exercise of discretion litigation Judge Ralph Adam Fine addressed Wilde's appeals decision in this to the first court of tactics in his dissent Inc., Cadillac, App 2003 WI matter, Pontiac Kolupar v. Wilde Judge Fine con- 659, 266 Wis. 2d 668 N.W.2d ¶ 55. What is relevant to the reasonableness pecuniary costs, however, of an award of is the value of compared litigation. the action as with the costs As important purpose fee-shifting discussed, an statutes encourage injured parties is to to enforce their statu- rights tory litigation, when the cost of absent fee-shifting provision, discourage would them from doing e.g., See, Shands, so. 2d at Wis. 358. Provid- ing attorney for reasonable fees and costs ensures that rights provided individuals will enforce the to them legislature, under the statute even when the litigation costs exceed value of the action.

V Finally, Kolupar requests ¶ 56. in her brief-in- attorney chief an award of reasonable fees and reason- appeal. able costs under Stat. for this request We her construe as a motion for reasonable attorney many fees and reasonable costs. For of the requires same reasons that hold that we an award of reasonable costs addition to Wis. plaintiff costs, 814.04 enumerated we that a conclude prevailing on a Wis. Stat. 218.0116 claim is entitled to attorney an award of reasonable and fees appellate proceedings. costs ¶ 57. As this court in noted, Shands resolved the question recoverability attorney of the of reasonable appeal fee-shifting holding for an a statute, fees under purposes of the remedial entitled statute "delayed litigation process" eluded Wilde and obfuscated the and "pursued policy Rambo-litigation scorched-earth that has no justice place system." our attorney in an

plaintiff fees of reasonable to an award today purposes of appeal. that the have concluded We require § 218.0116, statute, Wis. Stat. remedial another pro- in the circuit court costs of reasonable an award ceeding. attorney to award reasonable Likewise, failure plaintiff prevailing under to a reasonable costs fees and discourage proceedings appellate would pursuing litigants legitimate their from claims with appeal, right the effective- thus undermine to an therefore conclude 218.0116. We ness of and reasonable fees to reasonable is entitled appeal, the circuit court and we direct for this reasonable fees and costs an amount of determine and costs. such fees to award

VI Wis. Stat. ¶ sum, we conclude that 58. In 218.0163(2) provides of reasonable costs for the award attorney the court of fees. Because as well as appeals affirming in misconstrued decision. costs, reverse its award of we circuit court's apply the correct failed to the circuit court Because legal it determination, we conclude cost standard to its determining erroneously its discretion exercised award of costs. amount of the circuit court to ¶ remand to the 59. We therefore costs, and to enumerated award determine under Wis. its discretion to exercise Kolupar's reasonable costs the amount of beyond with in 814.04. Consistent those enumerated Kolupar's grant Shands, 361, also 115 2d at we Wis. attorney request fees and reasonable of reasonable appeal to the circuit court and direct costs for this such fees and costs. determine and award

290 By appeals Court.—The decision the court of is reversed and cause is remanded to the circuit proceedings opin- court for further consistent with this ion. Tammy (dissenting). E J. WILCOX, JON

Kolupar permitted received more than she was 218.0163(2). anxiously under Wis. Stat. Rather than awaiting appeal hopes the deadline for that Wilde appeal Pontiac would decide an over was not $430 appeal it, worth filed she an herself. today's Kolupar's litigation decision, 61. With

gamble pays off. She now heads back to the circuit court with a chance recover even more costs. Kolupar's attorneys doing badly

¶ 62. are not too top $15,000 either. On of the in reasonable fees initially majority awarding attorney awarded, the is appeal. fees for this presented

¶ 63. Given the case, issues this proper step. Accordingly, respect- remand is I fully dissent.

f—I Generally, parties ¶ 64. to a their lawsuit bear including attorney costs, own fees and disburse other legislative ments, "absent authorization to costs." shift Cadillac, Inc., 112, v. Wilde Pontiac WI "I). '[T]o (Kolupar ¶ N.W.2d the extent a not statute does authorize the recov ery specific they costs, are recoverable.'" Kleinke Coop.Supply Shipping, v. 138, Farmers and 202 2dWis. (1996) (quoting Foster, 549 714 N.W.2d State v. 100 (1981)). 103, 106, Wis. 2d 192 N.W.2d 218.0163(2) § ¶ 65. Wisconsin Stat. is a fee- shifting provides following: statute. It or suf-

Any buyer, prospective retail lessee lessee by a of a violation licensee fering pecuniary loss because (1) (c), (dm), (e), (em), (f), (bm), (cm), of s. 218.0116 (m) any (im), (p) may damages or recover for loss costs, competent jurisdiction together with court of attorney including reasonable fees. 218.0163(2) Kolupar § costs. See is entitled to ¶

I, 55. 218.0163(2) § not de- does 66. Wisconsin anywhere "costs" fine There not a definition of "costs." is legislature However, ch. has in Wis. Stat. 218. provided chapter costs, fees, on court and an entire § surcharges. 814.04 Wis. Stat. ch Wisconsin Stat. begins specifically It addresses items of costs. with following: 100.195(5m)(b), 93.20, Except provided in ss. 106.60(6)0) (6m)(a), 115.80(9),

100.30(5m), 281.36(2)(b)l., 767.553(4)(d), 769.313, [814.025], 895.035(4), 895.443(3), 802.05, [[814.245]], 895.506, 895.444(2), 895.445(3), 895.446(3), 943.212(2)(b), 943.245(2)(d), 943.51(2)(b), 995.10(3), when al- costs shall be as follows: lowed 218.0163(2) § legislature in the The has not included exempted Therefore, 814.04. list of statutes from pursuant "costs" when a court considers an award of 218.0163(2), it with should award costs consistent § 814.04. 814.04(2) provides 67. Wisconsin Stat. necessary by

"[a]ll fees disbursements and allowed provided by attorney fees law." The reasonable by "fees allowed There- constitute law." pecuniary plaintiff fore, a loss covered that suffers including may costs, recover fees. majority's attorney 68. The contention that fees 814.04(l)(a) "strictly §by supported are limited" is not by § language majority op., ¶ of 814.04. See 42 n.17. contrary, attorney provided by To the fees 814.04(1) § attorney set a minimum amount of fees. 814.04(2) § permits Wisconsin Stat. then a defendant to by recover additional "fees allowed law."Wisconsin Stat. recovery is a law that allows the attorney Attorney type "reasonable fees." fees are a Accordingly, plaintiff recovering fees. a under will recover reasonable fees, 814.04(1). provided by which will be at least those ¶ 69. In case, this the circuit court awarded Kolu- par beyond provided by § costs that went those 814.04. Specifically, Kolupar investigation received for an $80 a locate defendant and for a mediation fee. $350 category provided Neither of these costs fall into Accordingly, grounds 814.04. Wilde Pontiac had an appeal because the award of costs exceeded al- those by lowed law. Why

¶ 70. then should this case not be remanded? Simple appeal. answer: Wilde Pontiac filed an never Kolupar appeal

¶ 71. filed in this case. She sought more costs than were awarded the circuit appeals court, in the form of actual costs. The court properly then concluded that was not entitled appeals to actual costs. The court of did not address the awarding beyond issue related to the circuit court costs scope of 814.04 because Wilde Pontiac never raised it.

¶ 72. Given that the issue related to the circuit awarding beyond scope court of 814.04 was properly appeals, certainly not before the court of it is properly before this court. Wilde Pontiac never filed appeal an in this Nonetheless, case. the court has up a contorted with and come the issue

addressed process. interpretation in the statute of the HH I—! I—i Kolupar court with the circuit ¶ heads back to 73. 218.0163(2): "provides § interpretation it of a new op., Majority ¶ 3. costs." of reasonable the award modify legislature the word did not ¶ The 74. not "reasonable," at least the word "costs" with 218.0163(2). suggest provisions Other it intended. if indeed was what it have could legislature "reasonable" did use the word all, the After 218.0163(3). very provision. See next in the modify legislature Why the word ¶ did the 75. Likely because "reasonable"? with the word "costs" meaning in the statutes. has unmodified word "costs" apply. Specifically, 814.04 will it means that scope majority inflated the ¶ has 76. The arbitrarily inserting "reasonable" as "costs." modifier of the word

IV long. litigation dragged On too With has This 77. sight. today's has is no end decision, there appeal managed prevail one she is the this when on overly generous award of costs. from an that benefited court to to the circuit now heads back The fact that she plain language turns the collect "reasonable" its head. on respectfully forgoing dis- reasons, I ¶ 78. For the sent. Justice DAVID to state that I authorized am joins opinion. this

T. PROSSER

Case Details

Case Name: Kolupar v. Wilde Pontiac Cadillac, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Jul 12, 2007

Citation: 735 N.W.2d 93

Docket Number: 2005AP935

Court Abbreviation: Wis.