Wisconsin Supreme Court rules 'costs' includes 'reasonable costs'.

Byline: David Ziemer

The buyer of a motor vehicle who is the victim of fraud can recover reasonable litigation expenses, not just statutory costs, the Wisconsin Supreme Court held on July 12. The decision reverses a published decision of the court of appeals, Kolupar v. Wilde Pontiac Cadillac, Inc., 2006 WI App 85, 293 Wis.2d 265, 716 N.W.2d 547 (Kolupar II). In 1994, Tammy Kolupar bought a used Mercedes based on representations by Wilde Pontiac Cadillac, Inc., and a salesman, Randall Thompson, that the car was in good mechanical condition. In 2000, she sued Wilde and Thompson, alleging a number of federal and state claims, including violations of Wisconsin's motor vehicle statute, sec. 218.01 (1993-94), now renumbered as sec. 218.0163(2). In 2001, the claim was settled for $6,600, plus costs. By that point, Kolupar had accumulated approximately $41,000 in attorney fees and almost $11,000 in litigation expenses. At a hearing to determine the reasonableness of the fees and costs, Milwaukee County Circuit Court Judge Thomas R. Cooper awarded only $15,000 in fees and costs combined. A divided court of appeals affirmed in a published decision, Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, 266 Wis.2d 659, 668 N.W.2d 798. The Supreme Court accepted review, and affirmed in part, and reversed in part. 2004 WI 112, 275 Wis.2d 1, 683 N.W.2d 58 (Kolupar I). The court held that Kolupar failed to properly appeal the issue of whether the reduction in attorney fees was appropriate. However, the court remanded the case to the circuit court to award costs. Back in circuit court, Judge M. Joseph Donald awarded only taxable costs, not actual litigation expenses. Kolupar appealed, but the court of appeals affirmed (Kolupar II). The Supreme Court accepted review, and reversed, in a decision by Justice Louis B. Butler, Jr. Justice Jon P. Wilcox dissented, in an opinion joined by Justice David T. Prosser Jr. Section 814.04 sets forth the limited items of costs that must be awarded to a prevailing party in a civil lawsuit generally. Section 218.0163(2) provides that "[a]ny retail buyer ... suffering pecuniary loss because of a violation by a licensee of [subsections of sec. 218.0116] may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees." The court rejected the argument of Wilde -- accepted by the court of appeals -- that the Legislature's use of the word "costs," while allowing...