Kolupar v. Wilde Pontiac Cadillac, Inc.

JON E WILCOX, J.

¶ 60. (dissenting). Tammy Kolupar received more costs than she was permitted under Wis. Stat. § 218.0163(2). Rather than anxiously awaiting the deadline for appeal in hopes that Wilde Pontiac would decide an appeal over $430 was not worth it, she filed an appeal herself.

¶ 61. With today's decision, Kolupar's litigation gamble pays off. She now heads back to the circuit court with a chance to recover even more costs.

¶ 62. Kolupar's attorneys are not doing too badly either. On top of the $15,000 in reasonable attorney fees initially awarded, the majority is awarding attorney fees for this appeal.

¶ 63. Given the issues presented in this case, remand is not the proper step. Accordingly, I respectfully dissent.

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¶ 64. Generally, parties to a lawsuit bear their own costs, including attorney fees and other disbursements, "absent legislative authorization to shift costs." Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 17, 275 Wis. 2d 1, 683 N.W.2d 58 (Kolupar I). " '[T]o the extent that a statute does not authorize the recovery of specific costs, they are not recoverable.'" Kleinke v. Farmers Coop. Supply and Shipping, 202 Wis. 2d 138, 147, 549 N.W.2d 714 (1996) (quoting State v. Foster, 100 Wis. 2d 103, 106, 301 N.W.2d 192 (1981)).

¶ 65. Wisconsin Stat. § 218.0163(2) is a fee-shifting statute. It provides the following:

*292Any retail buyer, lessee or prospective lessee suffering pecuniary loss because of a violation by a licensee of s. 218.0116 (1) (bm), (c), (cm), (dm), (e), (em), (f), (im), (m) or (p) may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees.

Kolupar is entitled to § 218.0163(2) costs. See Kolupar I, 275 Wis. 2d 1, ¶ 55.

¶ 66. Wisconsin Stat. § 218.0163(2) does not define "costs." There is not a definition of "costs" anywhere in Wis. Stat. ch. 218. However, the legislature has provided an entire chapter on court costs, fees, and surcharges. Wis. Stat. ch 814. Wisconsin Stat. § 814.04 specifically addresses items of costs. It begins with the following:

Except as provided in ss. 93.20, 100.195(5m)(b), 100.30(5m), 106.60(6)0) and (6m)(a), 115.80(9), 281.36(2)(b)l., 767.553(4)(d), 769.313, [814.025], 802.05, [[814.245]], 895.035(4), 895.506, 895.443(3), 895.444(2), 895.445(3), 895.446(3), 943.212(2)(b), 943.245(2)(d), 943.51(2)(b), and 995.10(3), when allowed costs shall be as follows:

The legislature has not included § 218.0163(2) in the list of statutes exempted from § 814.04. Therefore, when a court considers an award of "costs" pursuant to § 218.0163(2), it should award costs consistent with § 814.04.

¶ 67. Wisconsin Stat. § 814.04(2) provides for "[a]ll the necessary disbursements and fees allowed by law." The reasonable attorney fees provided by § 218.0163(2) constitute "fees allowed by law." Therefore, a plaintiff that suffers a pecuniary loss covered by § 218.0163(2) may recover § 814.04 costs, including reasonable attorney fees.

*293¶ 68. The majority's contention that attorney fees are "strictly limited" by § 814.04(l)(a) is not supported by the language of § 814.04. See majority op., ¶ 42 n.17. To the contrary, the attorney fees provided by § 814.04(1) set a minimum amount of attorney fees. Wisconsin Stat. § 814.04(2) then permits a defendant to recover additional "fees allowed by law." Wisconsin Stat. § 218.0163(2) is a law that allows the recovery of "reasonable attorney fees." Attorney fees are a type of fees. Accordingly, a plaintiff recovering under § 218.0163(2) will recover reasonable attorney fees, which will be at least those provided by § 814.04(1).

¶ 69. In this case, the circuit court awarded Kolu-par costs that went beyond those provided by § 814.04. Specifically, Kolupar received $80 for an investigation to locate a defendant and $350 for a mediation fee. Neither of these costs fall into a category provided in § 814.04. Accordingly, Wilde Pontiac had grounds for an appeal because the award of costs exceeded those allowed by law.

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

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

¶ 72. Given that the issue related to the circuit court awarding costs beyond the scope of § 814.04 was not properly before the court of appeals, it certainly is not properly before this court. Wilde Pontiac never filed an appeal in this case. Nonetheless, the court has *294addressed the issue and come up with a contorted interpretation of the statute in the process.

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¶ 73. Kolupar heads back to the circuit court with a new interpretation of § 218.0163(2): it "provides for the award of reasonable costs." Majority op., ¶ 3.

¶ 74. The legislature did not modify the word "costs" with the word "reasonable," at least not in § 218.0163(2). Other provisions of § 218.0163 suggest that it could have if that indeed was what it intended. After all, the legislature did use the word "reasonable" in the very next provision. See Wis. Stat. § 218.0163(3).

¶ 75. Why did the legislature not modify the word "costs" with the word "reasonable"? Likely because the word "costs" unmodified has meaning in the statutes. Specifically, it means that § 814.04 will apply.

¶ 76. The majority has inflated the scope of § 218.0163(2) by arbitrarily inserting "reasonable" as a modifier of the word "costs."

IV

¶ 77. This litigation has dragged On too long. With today's decision, there is no end in sight. Kolupar has managed to prevail on this appeal when she is the one that benefited from an overly generous award of costs. The fact that she now heads back to the circuit court to collect "reasonable" costs turns the plain language of § 218.0163(2) on its head.

¶ 78. For the forgoing reasons, I respectfully dissent.

¶ 79. I am authorized to state that Justice DAVID T. PROSSER joins this opinion.