Tammy Kolupar v. Wilde Pontiac Cadillac, Inc.
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2007 WI 98 SUPREME COURT CASE NO.: OF WISCONSIN 2005AP935 COMPLETE TITLE: Tammy Kolupar, Plaintiff-Appellant-Petitioner, v. Wilde Pontiac Cadillac, Inc. and Randall Thompson, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 85 Reported at: 293 Wis. 2d 265, 716 N.W.2d 547 (Ct. App. 2006 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 12, 2007 January 5, 2007 Circuit Milwaukee Martin J. Donald WILCOX, J., dissents (opinion filed). PROSSER, J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant-petitioner there were briefs by Paul M. Erspamer and Lisko & Erspamer, S.C., Waukesha, and oral argument by Paul M. Erspamer. For the defendants-respondents there was a brief by Kathryn Sawyer Gutenkunst, Brian M. Brejcha, and Cramer, Multhauf & Hammes, LLP, Waukesha, and oral argument by Kathryn Sawyer Gutenkunst. 2007 WI 98 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP935 (L.C. No. 2000CV2571) STATE OF WISCONSIN : IN SUPREME COURT Tammy Kolupar, FILED Plaintiff-Appellant-Petitioner, v. JUL 12, 2007 Wilde Pontiac Cadillac, Inc. and Randall Thompson, David R. Schanker Clerk of Supreme Court Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and remanded. ¶1 LOUIS B. BUTLER, JR., J. This case is before us on a review of a published opinion of the court of appeals1 affirming a circuit court award of costs to Tammy Kolupar in her action 1 Kolupar v. Wilde Pontiac Cadillac, Inc., 2006 WI App 85, 293 Wis. 2d 265, 716 N.W.2d 547 (Kolupar II). For the sake of clarity, we refer to the court of appeals opinion in Kolupar, 293 Wis. 2d 265, as Kolupar II, and to this court's opinion in Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58, as Kolupar I. We do not designate by roman numeral the first court of appeals opinion in this matter, Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, 266 Wis. 2d 659, 668 N.W.2d 798, because it is not referred to frequently in this opinion. No. 2005AP935 against Wilde Pontiac Cadillac, Inc., and its employee, Randall Thompson, over the sale of a deficient used car. This is the second time this case has been before us to resolve a question relating to the award of fees and costs. In Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58 (Kolupar I), this court upheld the circuit court's award of $15,000 in attorney fees, and remanded this matter to the circuit court for a determination of an appropriate award of costs. ¶2 to On remand, Kolupar submitted two sets of documentation the circuit court, one showing that her expenses totaled $8795.66, and a revised version showing that they were $9933.44. The circuit court instead awarded Kolupar $3523.46 in costs, stating those that Kolupar enumerated in was entitled to "taxable Wis. Stat. § 814.04 costs,"2 i.e., (2005-06).3 Kolupar sought review of the order, contending that the circuit court erred by awarding only § 814.04 enumerated costs, and that she 2 Kolupar and Wilde use the term "taxable costs" to encompass only those listed items of cost set forth in Wis. Stat. § 814.04, as opposed to "actual costs" or "reasonable costs." Where Kolupar and Wilde use the term "taxable costs," we use "costs enumerated in § 814.04" or "§ 814.04 enumerated costs" to refer to the same concept. We use "enumerated" because § 814.04(2) also provides for recovery of "[a]ll the necessary disbursements and fees allowed by law," encompassing recovery beyond those costs listed in § 814.04 when otherwise provided, such as under a fee-shifting statute. 3 All references to the Wisconsin Statutes are to the 200506 version unless otherwise indicated. 2 No. was entitled to "actual, 2005AP935 costs4 reasonable" under Wis. Stat. § 218.0163(2).5 The court of appeals affirmed the circuit of court's award Wis. Stat. § 218.0163(2) actual costs, "taxable and costs" was did not therefore not costs in on provide for the err. circuit grounds the recovery court's Kolupar v. that award Wilde of of Pontiac Cadillac, Inc., 2006 WI App 85, ¶¶7-8, 293 Wis. 2d 265, 716 N.W.2d 547 (Kolupar II). ¶3 The narrow issue before us is whether a retail buyer's recovery of costs under Wis. Stat. § 218.0163(2) is limited to costs enumerated in Wis. Stat. § 814.04 or also includes other reasonable costs not enumerated in § 814.04. that Wis. Stat. § 218.0163(2) reasonable costs. provides for the all We conclude award of Because the court of appeals misconstrued § 218.0163(2) in affirming the circuit court's award of costs, we reverse its decision. Because the circuit court failed to apply the correct legal standard to its cost determination, we conclude it erroneously exercised its discretion in determining the amount of the award of costs. 4 Before this court, Kolupar argues that she is entitled to "reasonable," but not "actual," litigation costs. 5 The current Wisconsin Stat. § 218.0163(2) was previously numbered Wis. Stat. § 218.01(9)(b) (1993-94) when the events giving rise to this action occurred. The operative language of § 218.0163(2) is identical to that of § 218.01(9)(b) (1993-94). To avoid confusion, we will use the current statutory designation throughout this opinion. 3 No. ¶4 2005AP935 We therefore remand this matter to the circuit court to award Wis. Stat. § 814.04 enumerated costs, and to exercise its discretion to determine under Wis. Stat. § 218.0163(2) the amount of Kolupar's reasonable costs beyond those enumerated in § 814.04. Consistent with Shands v. Castrovinci, 115 Wis. 2d 352, 361, 340 N.W.2d 506 (1983), we also grant Kolupar's request of reasonable attorney fees and reasonable costs for this appeal and direct the circuit court to determine and award such fees and costs. I ¶5 This lawsuit arose out of Tammy Kolupar's purchase of a 1985 Mercedes Benz 190E off Wilde Pontiac Cadillac's used car lot from Kolupar received Wilde's alleged Pontiac in Kolupar's her 1993 sales March manager, 2000 Pontiac Randall complaint Sunbird in that exchange Thompson. Thompson for the Mercedes, and represented to Kolupar that the Mercedes was in good mechanical condition. the car had several broken odometer. Kolupar alleged she soon discovered problems, including faulty brakes and a Kolupar stated she discovered after the sale that the Mercedes had not been owned by Wilde, but by Thompson personally. ¶6 Kolupar sued Wilde and Thompson6 for fraud, federal and state odometer law violations, breach of express and implied warranty and violations of Wisconsin's motor vehicle dealership 6 The circuit court entered a default judgment against Thompson on February 25, 2002. See Kolupar I, 275 Wis. 2d 1, ¶7 n.3. Thompson is not a party to this appeal. 4 No. 2005AP935 statute, Wis. Stat. § 218.01 (1993-94), now largely incorporated within Wis. Stat. § 218.0116.7 was whether Thompson acted A primary issue in the litigation under Wilde's actual or apparent authority in selling the Mercedes.8 ¶7 By letter dated December 26, 2001, Kolupar accepted an offer of settlement from Wilde disposing of the $6660 "plus the taxable costs of the action." lawsuit for Notwithstanding this reference to "taxable costs," Kolupar's acceptance letter indicated the amount of costs was left unresolved: offer will apparently resolve plaintiff's "Since this primary claim for damages, it would appear all that would be needed in this case is a hearing to determine the reasonableness and necessity of plaintiff's attorneys fees and litigation expenses." ¶8 The circuit court held a hearing on the issue of attorney fees and costs at which Kolupar requested $41,000 in attorney fees, and $11,000 in costs. The Milwaukee County Circuit Court, Honorable Thomas R. Cooper, awarded $15,000 in "reasonable attorney fees," declaring that the case was "overtried" and "over-pled." When Kolupar's attorney asked about the request for costs, Judge Cooper responded: "Fees and costs, $15,000." ¶9 award. The court of appeals affirmed the circuit court's See Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 7 Again, to avoid confusion, we will statutory designation throughout this opinion. 8 use the current For additional facts about the underlying dispute in this case and the first appeal, see Kolupar I, 275 Wis. 2d 1, ¶¶7-16. 5 No. 175, 266 Wis. 2d 659, 668 N.W.2d 798. award of attorney fees, 2005AP935 This court affirmed the concluding that on the limited documentation provided by Kolupar's attorney, the determination of the award was a proper exercise of the court's discretion. See Kolupar I, 275 Wis. 2d 1. However, this court disagreed with the court of appeals on the issue of costs, concluding that the circuit court in effect denied all costs provide an explanation for its decision. and failed Id., ¶55. to Justice Prosser, writing for the majority, explained: The court made a formal finding that $15,000 represented a reasonable attorney fee, but then the court aggregated the cost award as part of the $15,000 award. In effect, the court awarded no costs. Section 218.01(9)(b) does not state that the court may award costs or attorney fees. Costs and attorney fees are linked; the court is authorized to award costs, including a reasonable attorney fee. While the court may retain discretion to award $0 in costs or nominal costs, a decision to do so must be explained. Here, the court offered no explanation. The court may have believed the party's settlement for $6,600 plus taxable costs included the costs requested by Kolupar. Or perhaps the court believed the costs should not be awarded at all. An explanation is required. ¶¶54-55. Id., This court then remanded the matter to the circuit court to address the issue of costs. ¶10 Before the circuit court on remand, Wilde contended that Kolupar was entitled to only "taxable costs" enumerated in Wis. Stat. § 814.04.9 9 Kolupar argued that under Wisconsin Stat. § 814.04 provides, in relevant part: Except as provided in [sections not here] when allowed costs shall be as follows: 6 relevant No. 2005AP935 (1) Attorney fees. (a) When the amount recovered or the value of the property involved is greater than the maximum amount specified in s. 799.01(1)(d), attorney fees shall be $500; when it is equal to or less than the maximum amount specified in s. 799.01(1)(d), but is $1,000 or more, attorney fees shall be $300; when it is less than $1,000, attorney fees shall be $100. In all other cases in which there is no amount recovered or that do not involve property, attorney fees shall be $300. (c) No attorney fees may be taxed on behalf of any party unless the party appears by an attorney other than himself or herself. (2) Disbursements. All the necessary disbursements and fees allowed by law; the compensation of referees; a reasonable disbursement for the service of process or other papers in an action when the same are served by a person authorized by law other than an officer, but the item may not exceed the authorized sheriff's fee for the same service; amounts actually paid out for certified and other copies of papers and records in any public office; postage, photocopying, telephoning, electronic communications, facsimile transmissions, and express or overnight delivery; depositions including copies; plats and photographs, not exceeding $100 for each item; an expert witness fee not exceeding $300 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each expert; and in actions relating to or affecting the title to lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees shall not be taxed as a cost or disbursement. (4) Interest on verdict. Except as provided in s. 807.01(4), if the judgment is for the recovery of money, interest at the rate of 12% per year from the time of verdict, decision or report until judgment is entered shall be computed by the clerk and added to the costs. (6) Judgment by default. If the judgment is by default or upon voluntary dismissal by the adverse party the costs taxed under sub. (1) shall be one-half 7 No. Wis. Stat. § 218.0163(2), a fee-shifting 2005AP935 statute, she was entitled to reasonable expenses above and beyond taxable costs enumerated in § 814.04. On November 10, 2004, Kolupar submitted a letter and detailed ledger requesting an award of $8795.66 in costs.10 On December 1, 2004, Kolupar submitted a revised request with supporting documentation seeking $9933.44 in costs. ¶11 The Milwaukee County Circuit Court, Honorable M. Joseph Donald, ruled as follows: I think in this case on the legal issues in terms of the costs, the question of costs is clear to me, and I'm going to rule that in this matter that it is taxable costs. There are different statutes with feeshifting provisions, but this statute, as is indicated by the Court, that this matter is back here for costs and that is taxable costs. That's 814 taxable costs. what they contested. would have been had the matter been (7) Judgment offer not accepted. If the offer of judgment pursuant to s. 807.01 is not accepted and the plaintiff fails to recover a more favorable judgment the plaintiff shall not recover costs but the defendant shall have full costs to be computed on the demand of the complaint. (8) Actions for municipal corporations. In all actions brought for the benefit of any county, town, village, city or other municipal corporation of this state by a citizen taxpayer, the plaintiff shall be entitled to recover for the plaintiff's own use, in case the plaintiff shall prevail, the taxable costs of such action and such part of the recovery as the court considers reasonable, as attorney fees, not to exceed 20% of such recovery, and not to exceed $500. 10 Kolupar's cover letter requests "an award of $8844.12 in actual and reasonable litigation expenses." The enclosed ledger, however, lists $8795.66 as the "amount due." 8 No. 2005AP935 . . . . So now that I have ruled that it's taxable costs or 814 costs, I'm now confronted with trying to figure out what are taxable costs based on the submissions. And this detailed ledger has a lot of entries on it, but there were not receipts for every entry. There were receipts for major entries, and this Court I'm going to at least be reasonable in my determination as to what the costs are. ¶12 A written order issued after the hearing provided "[t]hat plaintiff receive taxable costs under Chapter 814 of the Wisconsin Statutes" for the following items: $68.00; investigation Reporting, $55.97; transcript/Tammy reporting, $586.50; to transcript, $206.90; deposition transcript, mediation/Willis $3523.46 in costs. $606.30; process server, $54.50; and transcript, $205.50. Kolupar, deposition $350.00; process $80.00; deposition, fees, $208.58; Zick, $164.15; Thompson, transcript/Susan Kolupar, $50.00; locate process server, Gramann $74.80; $393.10; court deposition fees fees, $273.45; server, $117.95; $27.76; photocopies, The order awarded a total of It denied Kolupar's request for attorney fees and costs incurred in the remanded proceeding. ¶13 Kolupar appealed from the order to the court of appeals, asserting that the circuit court erred in awarding only taxable costs under Chapter 814 and not reasonable costs under Wis. Stat. § 218.0163(2). The court 9 of appeals affirmed the No. circuit court based on its interpretation See Kolupar II, 293 Wis. 2d 265, ¶¶7-8. of 2005AP935 § 218.0163(2).11 The court of appeals read § 218.0163(2) as not providing recovery of reasonable costs because a paragraph within the same subsection, § 218.0163(1m), provided for "actual costs," while subsection (2) provided for only "costs," which the court of appeals took to mean "taxable costs" enumerated in Wis. Stat. § 814.04(2). Kolupar filed a petition seeking review of the court of appeals decision, which we granted. II ¶14 The primary issue before us is as follows: Is a retail buyer's recovery of costs under Wis. Stat. § 218.0163(2) limited to the costs enumerated in Wis. Stat. § 814.04, or does it also include all other reasonable costs not enumerated in § 814.04? This question requires us to interpret § 218.0163(2) 11 However, the court of appeals' analysis begins by treating this case as one of contract interpretation. It suggests that the terms of the settlement letter indicate Kolupar agreed to seek only "taxable costs." See Kolupar II, 293 Wis. 2d 265, ¶4. In attempting to ascertain the intent of the parties, the court of appeals construed "taxable costs" to mean "those costs 'allowed as items of cost under' Wis. Stat. Rule 814.04," which, under § 814.04(2), includes "[a]ll the necessary disbursements and fees allowed by law." Id., ¶6. The court of appeals then considered whether Wis. Stat. § 218.0163(2) allowed recovery of disbursements and fees in addition to those enumerated in Wis. Stat. § 814.04. We note that the settlement letter contains ample evidence suggesting that Kolupar did not intend to merely seek "taxable costs," and that it is unclear what the parties intended by the use of this term. Regardless, the parties do not argue this case as one of contract interpretation, and we do not construe it as such. 10 No. 2005AP935 and other relevant Wisconsin statutes, a matter of law that we review de novo. Village of Cross Plains v. Haanstad, 2006 WI 16, ¶9, 288 Wis.2d 573, 709 N.W.2d 447. of costs Our review of a circuit court's valuation of an award is limited to whether exercised its discretion. the circuit court properly Anderson v. MSI Preferred Ins. Co., 2005 WI 62, ¶19, 281 Wis. 2d 66, 697 N.W.2d 73. ¶15 A proper exercise of discretion requires the circuit court to employ a logical rationale based on the appropriate legal principles and facts of record." Id. (citations omitted). III ¶16 their own In general, "parties to a lawsuit bear the cost of attorney shift costs." fees absent legislative authorization Kolupar I, 275 Wis. 2d 1, ¶17. called "American rule." to This is the so- Watkins v. LIRC, 117 Wis. 2d 753, 758, 345 N.W.2d 482 (1984). ¶17 Wisconsin Stat. § 814.04 sets forth the items of costs that "shall" be awarded to a prevailing plaintiff in a civil lawsuit.12 Section 814.04 introduces authorized under the section by stating: the items of cost "[e]xcept as provided in [statutory sections not applicable here] . . . when allowed costs shall be as follows: . . . ." Wisconsin Stat. § 814.01 provides costs "shall be allowed" as a matter "of course to the plaintiff upon recovery." 12 Exceptions to Wis. Stat. § 814.04. this general 11 rule are set forth in No. ¶18 2005AP935 Under Wis. Stat. § 814.04(2), a plaintiff is entitled to recover the following costs: a reasonable disbursement for the service of process or other papers in an action; amounts actually paid for copies of records and other papers in a public office; postage, photocopying, telephoning, electronic communications and facsimile transmissions; express or overnight delivery; depositions, including copies; plats and photographs; and expert witness. witness fees, including mileage for each expert Section 814.04(2) further provides that a plaintiff is entitled to "[a]ll the necessary disbursements and fees allowed by law" in addition to those enumerated in the section. ¶19 Among the "necessary disbursements and fees allowed by law" are those authorized under fee-shifting statutes. Wisconsin statutes contain fee-shifting provisions, Numerous including those relating to consumer protection, frivolous lawsuits and privacy rights.13 ¶20 Kolupar's violations of action against Wilde Wis. Stat. § 218.0116, and a Thompson consumer alleged protection statute regulating motor vehicle dealers, salespersons and sales finance companies. retail buyer . . . suffering violation recover by a damages Section 218.0163(2) licensee for the of provides pecuniary [subsections loss 13 in any loss of that because "[a]ny of § 218.0116] court of a may competent For a complete listing of the 50-plus fee-shifting provisions in Wisconsin law, see 3 Hon. Robert D. Sundby & Steven P. Means, Law of Damages in Wisconsin, Chapter 37, Attorney Fees, Appendicies 37A and 38B (Russell M. Ware ed., 4th ed. 2005). 12 No. 2005AP935 jurisdiction together with costs, including reasonable attorney fees." ¶21 On appeal, Kolupar contends that the circuit court erred by determining costs under Wis. Stat. § 814.04, when this court's remand directed Wis. Stat. § 218.0163(2). is a fee-shifting the circuit court to apply She argues that because § 218.0163(2) statute, she is entitled to recover all reasonable costs in addition to costs enumerated in § 814.04. ¶22 estopped Wilde that Kolupar contending from responds that she Wis. Stat. § 814.04 enumerated should is costs "taxable costs" in her first appeal. be entitled because to judicially more she than requested Additionally, Wilde notes that Wis. Stat. § 218.0163(2) allows recovery of "costs," while § 218.0163(1m) provides for "actual costs." Wilde agrees with the court of appeals that this difference indicates that the legislature intended recovery § 218.0163(1m), but only § 218.0163(2). Alternately, of § 814.04 Wilde actual costs enumerated argues that costs the under under award of costs was not an erroneous exercise of discretion because the circuit court declared that the award was "reasonable" and awarded two items of costs not enumerated in § 814.04. A ¶23 Before turning estoppel argument. to the merits, we address Wilde's We note that Wilde did not advance this argument in its briefs to the circuit court or court of appeals. Generally, arguments raised for the first time on appeal are See, e.g., State v. Van Camp, 13 ¡ §¦ &%# ¥ ¥£¥ ©¦§¥£¡ $ "! ¢ ¢ ¤¢ ¡ ¨ ¤¢ deemed waived. No. (1997). 2005AP935 Setting aside the question of waiver, we conclude ' ¥! ' Wilde's estoppel argument lacks merit. ¶24 Judicial estoppel precludes a party inconsistent positions in a legal proceeding. from asserting Mrozek v. Intra Financial Corp., 2005 WI 73, ¶22, 281 Wis. 2d 448, 699 N.W.2d 54. This equitable doctrine is intended "to protect against a litigant playing 'fast and loose with the courts' by asserting inconsistent positions." Id. (citation asserting judicial estoppel must show: omitted). A party "(1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position." Id. (citation omitted). ¶25 At a minimum, Wilde has not fulfilled the third requirement of estoppel; it cannot show that Kolupar convinced this court (or any other) that she was entitled to "taxable costs" only, i.e., Wis. Stat. § 814.04 enumerated costs. This court remanded for the circuit court to address the issue of costs under Wis. Stat. § 218.0163(2); it did not remand for the circuit court to address "taxable costs," if, in fact, Kolupar requested only "taxable costs." The record is devoid of any evidence that Kolupar is trying to "play fast and loose" with the system. Judicial estoppel is therefore inappropriate here. B ¶26 We now Wis. Stat. § 218.0163(2). consider the meaning of Kolupar contends that the provision of "costs, including reasonable attorney fees" in § 218.0163(2) 14 No. 2005AP935 should be read to include reasonable costs to effectuate the purpose of the consumer dealership statute. protections in Wisconsin's motor Wilde argues the court of appeals correctly concluded that the legislature's provision of "actual costs" in § 218.0163(1m), indicates that as the compared with legislature "costs" intended in § 218.0163(2), recovery of § 814.04 enumerated costs only for consumer plaintiffs with claims under Wis. Stat. § 218.0116. ¶27 "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as a part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." "A cardinal rule in interpreting statutes is to Id., ¶46. favor a construction that will fulfill the purpose of the statute over a construction that defeats the Watkins, 117 Wis. 2d at 761. manifest object of the act." "[A] plain-meaning interpretation [of a statute] cannot contravene a textually or contextually manifest statutory purpose." ¶28 Kalal, 271 Wis. 2d 633, ¶49. Additionally, when multiple statutes address the same subject area, we read the statutes in pari materia such that both statutes will be operative. Bristol (1999). School Dist., 231 Providence Catholic School v. Wis. 2d 159, 178, 605 N.W.2d 238 If the potential for conflict between the statutes is 15 No. 2005AP935 present, we will read the statutes to avoid such a conflict if a reasonable construction exists. ¶29 Wilde interpretation appeals cast urges of the us Id. to adopt the court Wis. Stat. § 218.0163(2). issue presented in this of The case appeals' court as of follows: "[T]he core question is whether the legislature intended that the word 'costs' in [§ 218.0163(2)] to include actual litigation expenses." Kolupar II, 293 Wis. 2d 265, ¶7. The court of appeals then noted that while the legislature used only the word "costs" in § 218.0163(2), it permitted the recovery of "actual costs" in § 218.0163(1m) when a prohibited practice affected an auto dealer (as opposed to a retail buyer like Kolupar) and was "willful." The court of appeals took the legislature's use of "actual costs" in a paragraph within the same subsection of § 218.0163 to mean that the legislature, by use of "costs" in § 218.0163(2), intended recovery of only Wis. Stat. § 814.04 enumerated costs for retail buyers who prevail on claims under Wis. Stat. § 218.0116. ¶30 for We believe the court of appeals' analysis is incorrect three reasons. First, it casts the issue as between Wis. Stat. § 814.04 enumerated costs and "actual costs" without considering a third alternative, "reasonable costs." An auto dealer who prevails on a claim under § 218.0163(1m) is entitled to the "actual costs" of the litigation. The legislature has seen fit to distinguish an award of "actual costs" from the "costs" a prevailing § 218.0163(2). party is entitled to receive under See Nelson v. McLaughlin, 211 Wis. 2d 487, 565 16 No. 2005AP935 N.W.2d 123 (1997) ("[W]here the legislature uses similar but different terms in a statute, particularly within the same section, it is presumed that the legislature intended such terms to have different legislature's meanings."). choice of Nevertheless, the term while costs" "actual the in § 218.0163(1m) necessarily precludes a construction of the term "costs" in § 218.0163(2) to mean "actual costs," it does not follow that "reasonable the legislature costs" by also use its precluded of the the recovery of term "costs" in § 218.0163(2). ¶31 Second, as Kolupar argues, the court of appeals' interpretation in this case conflicts with the manifest purpose of the statute and prior cases construing fee-shifting remedies. ¶32 Third, the Wis. Stat. § 814.04 court and of appeals' opinion Wis. Stat. § 218.0163(2) that renders them inconsistent with each other. in interprets a manner For the reasons set forth below,14 we conclude that Wis. Stat. §§ 218.0116 and 218.0163(2) plainly manifest a legislative purpose to provide recovery of the reasonable expenses of the litigation, and that such an interpretation is necessary to harmonize otherwise conflicting provisions of Wis. Stat. §§ 218.0163(2) and 814.04. ¶33 "lemon In addressing a retail buyer's claim under Wisconsin's law," Wis. Stat. § 218.0171, the former Wis. Stat. § 218.015 (1993-94), this court noted that "remedial statutes should be liberally construed to suppress the mischief 14 See ¶¶41-42, infra. 17 No. 2005AP935 and advance the remedy that the statute intended to afford." Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996); see also Hartlaub v. Coachmen Ind., Inc., 143 Wis. 2d 791, 801, 422 N.W.2d 869 (Ct. App. 1987) (noting that remedial statutes such as the "lemon law" should be construed "with a view towards the social problem which the legislature was addressing when enacting the law"). ¶34 When construing the award statute, this court statute. See, e.g., State ex rel. Hodge v. Town of Turtle Lake, examines the provisions purposes of of a the remedial underlying 180 Wis. 2d 62, 79, 508 N.W.2d 603 (1993); Watkins, 117 Wis. 2d 753; Shands, concluded 115 that Wis. the 2d at manifest 358. In purposes Shands, of court unfair the this trade practices statute entitled a successful claimant in a tenantlandlord dispute to an award of reasonable appellate attorney fees where the statute did not explicitly address recovery of appellate fees. Shands, 115 Wis. 2d at 361. court that discerned the statute's First, the Shands provision of reasonable attorney fees encouraged tenants to enforce their rights where "the amount of pecuniary loss [might be] small compared with the cost of litigation." Id. at 358. noted who that a tenant sues Second, the court in Shands under the statute "acts as a 'private attorney general' to enforce the tenants' rights set forth in the administrative regulations," in the process enforcing not only their individual rights, but the public's rights under the statute as well. Id. Third, the court in Shands observed that suits under the statute "have the effect of 18 No. 2005AP935 deterring impermissible conduct by landlords" by subjecting them to double damages and attorney fees. ¶35 The applicable Wis. Stat. § 218.0116, is buyers protection Id. statute remedial against in certain in unfair prohibits fraudulent a number of misrepresentation unsavory and case, offering nature, retail practices dealers, salespersons and finance companies. statute this of Specifically, the practices, use auto of including deceptive sales practices, in the retail sale or lease of a motor vehicle. See Wis. Stat. § 218.0116(1)(bm), (c), (cm), (dm), (e), (em), (f), (im), (m) and (p). ¶36 The statute's primary mechanism for suppressing such prohibited damages. conduct is to authorize retail See Wis. Stat. § 218.0163(2). meaningful remedy is essential to buyers to recovery of only for Thus, as in Shands, a deterring the prohibited conduct and effectuating the purposes of the statute. case, sue Wis. Stat. § 814.04 In this enumerated costs would discourage litigants with legitimate claims from seeking relief, and thus undermine the statute's effectiveness in suppressing the prohibited "mischief." ¶37 For the Wis. Stat. § 218.0116, retail the buyer cost of with the a claim litigation under may be significant, and even, as here, exceed the total recovery under the statute. Such costs may include costs of discovery and court-imposed costs (here, two failed mediations) that are not enumerated § 814.04 costs. If the cost of litigation reduces or even eliminates recovery, retail buyers will be less likely to 19 No. enforce their rights under the statute. 2005AP935 We therefore conclude that Wis. Stat. § 218.0163(2) authorizes recovery of reasonable costs, as well as reasonable attorney fees, to retail purchasers who prevail on claims under Wis. Stat. § 218.0116.15 ¶38 The court of appeals addressed the issue of recoverability of reasonable costs in Chmill v. Friendly FordMercury of Janesville, 154 Wis. 2d 407, 453 N.W.2d 197 (Ct. App. 1990) (Chmill Wisconsin's II), "lemon under law," the fee-shifting provision of (1987-88),16 Wis. Stat. § 218.015(7) Chmill II was reaching the same conclusion we reach today. preceded by Chmill v. Friendly Ford-Mercury of Janesville, 144 Wis. 2d 796, 809, 424 N.W.2d 747 (Ct. App. 1988) (Chmill I), which concluded that the plaintiff was entitled to reasonable attorney appeals fees and reasonable court." request for appellate remanded attorney to fee the proceedings circuit before court award . . . for the to the court "determine appeal to of a this On remand, the circuit court denied the plaintiff's for reasonable costs in the prior court of appeals 15 An award of reasonable litigation costs under Wis. Stat. § 218.0163(2) provides for costs above and beyond Wis. Stat. § 814.04 enumerated costs, but not for the double recovery of Wis. Stat. § 814.04 enumerated costs. "Fee-shifting statutes contemplate that those recovering under them will be made whole. They do not contemplate double awards of any items." Chmill v. Friendly Ford-Mercury of Janesville, 154 Wis. 2d 407, 413 n.2, 453 N.W.2d 197 (Ct. App. 1990)(Chmill II). 16 Wisconsin Stat. § 218.015(7) (1987-88) is now found at Wis. Stat. § 218.0171(7), and the statutory language pertinent to this discussion remains unchanged. 20 No. 2005AP935 proceeding, and denied reasonable attorney fees and costs in the remanded proceeding. ¶39 Chmill II, 154 Wis. 2d at 411-12. The court of appeals reversed, ordering the award of reasonable costs in both the appellate and remanded proceedings, and reasonable attorney fees in the remanded proceeding. 413, 416-18. Id. at Regarding the circuit court's failure to award reasonable costs, the court of appeals held that the circuit court "read Chmill I too literally. It improperly exercised its discretion context because it ignored the of our statement. That context shows that we intended to apply sec. 218.015(7), Stats., which permits an award of 'costs, reasonable attorney fees,' not just fees. the awardable." ¶40 because Wilde disbursements and We intended to award Chmill II, 154 Wis. 2d at 413. contends that Chmill Wis. Stat. § 218.015(7) II is (1987-88) distinguishable provides for the recovery of "costs, disbursements and reasonable attorney fees," while Wis. Stat. § 218.0163(2) reasonable attorney fees." "disbursements" in provides While the for "costs, inclusion Wis. Stat. § 218.015(7) of including the (1987-88) term more clearly sets forth the legislature's intent that the party be made whole, there is no getting around the fact that providing "costs, including reasonable attorney fees" under § 218.0163(2) denominates something very different than enumerated costs under § 814.04. ¶41 Moreover, reading the cost provisions of Wis. Stat. § 218.0163(2) and Wis. Stat. § 814.04 in pari materia precludes an interpretation of § 218.0163(2) that would limit 21 No. recovery to enumerated § 814.04 costs. 2005AP935 See State v. Denis L.R., 2005 WI 110, ¶57 n.21, 283 Wis. 2d 358, 699 N.W.2d 154 (statutes are read together in pari materia to avoid any conflicts). Both Wis. Stat. § 218.0163(2) and Wis. Stat. § 814.04 treat attorney fees as a subcategory of costs. Among the enumerated costs included within § 814.04 are "attorney fees," which are strictly limited to a maximum amount of between $100 and $500, depending on the amount of the total recovery. ¶42 If, as Wilde argues, costs, the the means Wis. Stat. § 218.0163(2) enumerated Wis. Stat. § 814.04(1)(a). only only attorney § 218.0163(2) would be those enumerated But provides § 218.0163(2) explicitly including reasonable attorney fees." construction of "costs" to mean term "costs" under Wis. Stat. § 814.04 fees available under for under § 814.04(1)(a). of "costs, (Emphasis added.) Thus, a only award Wis. Stat. § 814.04 enumerated costs would put language providing for "reasonable attorney fees" in § 218.0163(2) in attorney fee provisions of § 814.04.17 17 direct conflict with the A construction of "costs" Enumerated costs under § 814.04 include attorney fees which are strictly limited to a maximum amount of between $100 and $500, depending on the amount of the total recovery. Wis. Stat. § 814.04(1)(a). Enumerated costs do not include reasonable attorney fees. Supra, ¶41. 22 No. 2005AP935 to mean "reasonable costs" is therefore necessary to harmonize § 218.0163(2) and § 814.04(1)(a).18 IV ¶43 We consider next whether the circuit court's award of costs represented an erroneous exercise of its discretion. We examine the record of the remanded proceeding to determine if the circuit court reached its conclusion by a reasoned application of the appropriate legal standard to the relevant facts. Franke v. Franke, 2004 WI 8, ¶55 n.38, 268 Wis. 2d 360, 674 N.W.2d 832 ("When a circuit court exercises discretion, the record on appeal must reflect the circuit court's reasoned application of the appropriate legal standard to the relevant facts in the case.") (citation omitted). 18 We note that a decision of the United States Seventh Circuit Court of Appeals not cited by either party construes language identical to that of Wis. Stat. § 218.0163(2) and reaches a different conclusion than the one we reach here. See Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788, 799 (7th Cir. 1989). In Bob Willow Motors, the federal appellate court construed language in Wis. Stat. § 218.01(9)(a) (1983-84) providing for recovery of "costs including a reasonable attorney fee" to permit recovery of "no more than ordinary taxable costs as found in 28 U.S.C. § 1920." Id. However, we note that the Bob Willow Motors court awarded costs under 28 U.S.C. § 1920, which does not include a limited attorney fee among the costs enumerated under that section, unlike Wis. Stat. § 814.04(1)(a). Accordingly, unlike Wis. Stat. § 218.0163(2) and § 814.04(1)(a), § 218.01(9)(a) (1983-84) and 28 U.S.C. § 1920 do not appear to conflict with one another. See, supra, ¶¶41-42. Regardless, this court is not bound by a federal court's interpretation of Wisconsin law. See, e.g., Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 400, 573 N.W.2d 842 (1998). 23 No. ¶44 circuit 2005AP935 On remand, Wilde argued that Kolupar I directed the court to Wis. Stat. § 814.04 address "taxable because, costs" it enumerated contended, § 218.0163(2) provided for only these costs. in Wis. Stat. However, Wilde did not concede that Kolupar was entitled to § 814.04 enumerated costs, but rather contended that it was within the circuit court's discretion to award "$0 costs," including no § 814.04 enumerated costs. reasonable costs Kolupar under argued that § 218.0163(2), she as was well entitled as to § 814.04 enumerated costs, because an award of such costs was necessary to effectuate the purposes of the statute. ¶45 At the hearing on costs, the circuit court made the following ruling: The matter is remanded back to decision that it can be zero; it it also can be astronomical, if I the plaintiff. But it's clear to do what I think is right and fair. the Court with the can be nominal, and buy the arguments of me that I'm going to I think in this case on the legal issues in terms of the costs, the question of costs is clear to me, and I'm going to rule that in this matter that it is taxable costs. There are different statutes with feeshifting provisions, but this statute, as is indicated by the Court, that this matter is back here for costs and that is taxable costs. That's 814 taxable costs. In terms of the recommendation, or at least the argument that it should be zero, I just don't buy it because I think the Supreme Court could have made that determination. I think they sent it back here for a reason, and that was to determine costs. So now that I have ruled that it's taxable costs or 814 costs, I'm now confronted with trying to figure out what are taxable costs based on the submissions. And this detailed ledger has a lot of entries on it, 24 No. 2005AP935 but there were not receipts for every entry. There were receipts for major entries, and this Court I'm going to at least be reasonable in my determination as to what the costs are. I'm just going to read off those costs that I'm going to approve in this matter based on the ledger and the information that I have received. The court then detailed the items of costs that it would award. Among these were two Wis. Stat. § 814.04, investigation to a items of mediation locate cost fee not enumerated and The Thompson. the cost court in of an failed to acknowledge that these two items were not § 814.04 enumerated costs, or explain why it was awarding these costs but not others requested by Kolupar. ¶46 After listing the items of cost to be awarded, the circuit court concluded: "All right. Those are the costs that I find that are reasonable in this matter and I'm awarding in this case, and that's the ruling of the Court." ¶47 court's ORDERED: The written order of costs that followed the circuit bench ruling provided as follows: "IT IS HEREBY 1. That plaintiff received taxable costs under Chapter 814 of the Wisconsin Statutes for the following items [listing 17 items of cost, see supra, ¶12]. 2. That plaintiff's request for costs on her appeal 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 a reasoned application of the appropriate legal standard, we conclude the circuit court erroneously exercised calculating the amount of the award. 25 its discretion in No. ¶49 We note that the circuit court erroneously concluded that Kolupar was entitled Wis. Stat. § 814.04. As § 218.0163(2) to for provides only we those concluded recovery of addition to § 814.04 enumerated costs. court's 2005AP935 remand enumerated order costs did and not costs earlier, in Wis. Stat. reasonable costs in We acknowledge that this distinguish reasonable enumerated costs between under § 814.04 § 218.0163(2). However, as noted, the remand ordered a calculation of costs under § 218.0163(2), not § 814.04, and contemplated an exercise of discretion, which an award of § 814.04 enumerated costs does not contemplate. ¶50 We observe that the circuit court stated that it would "at least be reasonable in my determination as to what the costs are" and later declared "[t]hose are the costs that I find that are reasonable in this matter." while declaring Wis. Stat. § 814.04, that it then We note also that the court, was awarded enumerated in that section. awarding two items costs of under cost not Based on these facts, it could be argued that the circuit court, in fact, applied the appropriate legal standard by awarding reasonable costs under § 218.0163(2) in addition to § 814.04 enumerated costs.19 ¶51 circuit Our review court did of not the record, engage 19 in however, a shows considered that process the of We address this argument sua sponte. Wilde argues that the circuit court's order was a proper exercise of its discretion, but not for the reasons discussed here. See infra, ¶¶52-53. 26 No. 2005AP935 determining which expenses were, in fact, "reasonable." The circuit was court merely stated that it would award what "reasonable," but did not explain why it was "reasonable" to award certain costs and not others. declared that it was awarding Rather, the circuit court Wis. Stat. § 814.04 enumerated costs only, and then awarded without explanation two costs not included under § 814.04. To demonstrate that the court properly exercised its discretion in spite of its misstatements of the legal standard the record would need to show that the circuit court engaged in a process in which it actually applied the correct legal standard. Because the record does not demonstrate that the circuit court applied the correct legal standard here, we conclude that it erroneously exercised its discretion in determining the amount of the award of costs. ¶52 Wilde contends that the circuit court properly exercised its discretion in calculating the amount of the cost award because Kolupar's documented and unclear. requests for costs were poorly Wilde asserts that Kolupar failed to provide receipts for many expenses. It states that on November 8, 2004, Kolupar requested expenses in the amount of $8844.12, but on December 1, 2004, Kolupar submitted an itemized request for costs in the amount of $9933.44. hearing that she provided documentation Kolupar stated at the for "the big ticket items," accounting for approximately $8000 of the costs. She adds that other costs were for items for which receipts are typically not available, such as mileage. 27 No. ¶53 We conclude that inconsistencies requested or alleged inadequate costs not support the do in documentation conclusion properly exercised its discretion here. that the the for 2005AP935 amounts requested circuit court We note there is little evidence that the circuit court actually based its attempted exercise of difference discretion between a on these request of grounds. $8844.12 Moreover, and logically not a basis for an award of $3523.46. cannot conclude, as a matter of law, that the $9933.44 the is Further, we documentation provided by Kolupar is indecipherable or otherwise inadequate on the whole. Whether requested individual items of cost are adequately documented is a question for the circuit court on remand. ¶54 Kolupar argues that much of her costs were the result of Wilde's litigation tactics, and court-mandated expenses. The question of whether Wilde's litigation tactics in fact drove particular costs is relevant to a determination of reasonableness of Kolupar's costs, among other factors.20 the This matter requires an exercise of discretion by the circuit court on remand. 20 Judge Ralph Adam Fine addressed Wilde's litigation tactics in his dissent to the first court of appeals decision in this matter, Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, ¶23, 266 Wis. 2d 659, 668 N.W.2d 798. Judge Fine concluded Wilde "delayed and obfuscated the litigation process" and "pursued a scorched-earth Rambo-litigation policy that has no place in our justice system." 28 No. ¶55 of costs, compared important 2005AP935 What is not relevant to the reasonableness of an award however, with is the purpose the costs of pecuniary of value fee-shifting the action as As litigation. of discussed, an statutes is to encourage injured parties to enforce their statutory rights when the cost of litigation, absent the fee-shifting discourage them from doing so. at 358. Providing for provision, would See, e.g., Shands, 115 Wis. 2d reasonable attorney fees and costs ensures that individuals will enforce the rights provided to them under the statute by the legislature, even when the costs of litigation exceed the value of the action. V ¶56 Finally, Kolupar requests in her brief-in-chief an award of reasonable attorney fees and reasonable costs under Wis. Stat. § 218.0163(2) for this appeal. We construe her request as a motion for reasonable attorney fees and reasonable costs. For many of the same reasons that we hold that § 218.0163(2) requires an award of reasonable costs in addition to Wis. Stat. § 814.04 plaintiff prevailing enumerated on a costs, we conclude Wis. Stat. § 218.0116 that claim a is entitled to an award of reasonable attorney fees and reasonable costs for appellate proceedings. ¶57 As noted, this court in Shands resolved the question of the recoverability of reasonable attorney fees for an appeal under a fee-shifting statute, holding that the purposes of the remedial statute entitled the plaintiff reasonable attorney fees in an appeal. 29 to an award of We have concluded today No. that the purposes of another remedial 2005AP935 statute, Wis. Stat. § 218.0116, require an award of reasonable costs in the circuit court proceeding. Likewise, failure to award reasonable attorney fees and reasonable costs to a prevailing plaintiff under § 218.0116 in appellate proceedings would discourage litigants with legitimate claims from pursuing their right to an § 218.0116. appeal, and thus undermine the effectiveness of We therefore conclude that Kolupar is entitled to reasonable attorney fees and reasonable costs for this appeal, and we direct the circuit court to determine an amount of reasonable fees and costs and to award such fees and costs. VI ¶58 In sum, we conclude that Wis. Stat. § 218.0163(2) provides for the award of reasonable costs as well as reasonable attorney fees. Because the court of appeals misconstrued § 218.0163(2) in affirming the circuit court's award of costs, we reverse its decision. Because the circuit court failed to apply the correct legal standard to its cost determination, we conclude it erroneously exercised its discretion in determining the amount of the award of costs. ¶59 We therefore Wis. Stat. § 814.04 discretion to remand to enumerated determine the costs, under circuit and to court to award exercise its Wis. Stat. § 218.0163(2) the amount of Kolupar's reasonable costs beyond those enumerated in § 814.04. grant Consistent with Shands, 115 Wis. 2d at 361, we also Kolupar's request of reasonable 30 attorney fees and No. 2005AP935 reasonable costs for this appeal and direct the circuit court to determine and award such fees and costs. By the Court. The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 31 No. ¶60 received JON P. WILCOX, more costs J. (dissenting). than Wis. Stat. § 218.0163(2). she Rather was than 2005AP935.jpw Tammy Kolupar permitted anxiously under 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 pays off. With today's decision, Kolupar's litigation gamble 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. I ¶64 including Generally, parties to a lawsuit bear their own costs, attorney fees and other disbursements, legislative authorization to shift costs." "absent Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶17, 275 Wis. 2d 1, 683 N.W.2d 58 (Kolupar I). not authorize recoverable.'" the "'[T]o the extent that a statute does recovery of specific costs, they are not 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 statute. Wisconsin Stat. § 218.0163(2) is a fee-shifting It provides the following: Any 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 1 No. 2005AP935.jpw 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), 106.50(6)(i) and (6m)(a), 115.80(9), 281.36(2)(b)1., 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 considers exempted an award from of § 814.04. "costs" Therefore, pursuant to when a court § 218.0163(2), it should award costs consistent with § 814.04. ¶67 necessary Wisconsin Stat. § disbursements and reasonable attorney fees "fees allowed by law." pecuniary loss covered 814.04(2) fees provided provides allowed by for by "[a]ll law." § 218.0163(2) the The constitute Therefore, a plaintiff that suffers a by § 218.0163(2) may recover § 814.04 costs, including reasonable attorney fees. ¶68 The majority's contention that attorney fees are "strictly limited" by § 814.04(1)(a) is not supported by the language of § 814.04. See majority op., ¶42 n.17. 2 To the No. contrary, the attorney fees minimum amount of attorney provided fees. by 2005AP935.jpw § 814.04(1) set a 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." type of fees. Accordingly, a Attorney fees are a plaintiff recovering under § 218.0163(2) will recover reasonable attorney fees, which will be at least those provided by § 814.04(1). ¶69 that In this case, the circuit court awarded Kolupar costs 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 answer: ¶71 Why then should this case not be remanded? Simple Wilde Pontiac never filed an appeal. 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 circuit court Pontiac never raised it. ¶72 Given that the issue related to the awarding costs beyond the scope of § 814.04 was not properly before the court of appeals, it certainly is not properly before 3 No. this court. 2005AP935.jpw Wilde Pontiac never filed an appeal in this case. Nonetheless, the court has addressed the issue and come up with a contorted interpretation of the statute in the process. III ¶73 Kolupar heads back to the circuit court with a new interpretation of § 218.0163(2): it "provides for the award of reasonable costs." ¶74 Majority op., ¶3. The legislature did not modify the word "costs" with the word "reasonable," at least not in § 218.0163(2). provisions of § 218.0163 suggest indeed was what it intended. the word "reasonable" in that it could have Other if that After all, the legislature did use 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. decision, there is no end in sight. With today's 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. 4 No. 2005AP935.jpw ¶78 For the forgoing reasons, I respectfully dissent. ¶79 I am authorized to state that Justice DAVID T. PROSSER joins this opinion. 5 No. 1 2005AP935.jpw
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