Costs upon frivolous claims and counterclaims. 814.025(1)(1)
If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04
and reasonable attorney fees.
The costs and fees awarded under sub. (1)
may be assessed fully against either the party bringing the action, special proceeding, cross complaint, defense or counterclaim or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
In order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivolous under sub. (1)
, the court must find one or more of the following:
The action, special proceeding, counterclaim, defense or cross complaint was commenced, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
History: 1977 c. 209
; 1987 a. 256
Trial court's finding that claim was not frivolous was against great weight and clear preponderance of evidence. Sommer v. Carr, 95 W (2d) 651, 291 NW (2d) 301 (Ct. App. 1980).
This section is not applicable in quasi-criminal actions (ordinance violations) where decision to proceed is based on prosecutorial discretion. City of Janesville v. Wiskia, 97 W (2d) 473, 293 NW (2d) 522 (1980).
Trial court must apply objective test to support finding that claim was frivolous. Sommer v. Carr, 99 W (2d) 789, 299 NW (2d) 856 (1981).
This section does not permit award of attorney's fees for a frivolous appeal. Determination of frivolity discussed. In Matter of Estate of Bilsie, 100 W (2d) 342, 302 NW (2d) 508 (Ct. App. 1981).
Court may not impose joint and several liability under this section. Frivolity discussed. State v. State Farm Fire & Cas. Co. 100 W (2d) 582, 302 NW (2d) 827 (1981).
See note to 799.25, citing Hessenius v. Schmidt, 102 W (2d) 697, 307 NW (2d) 232 (1981).
Motion for relief under 806.07 was frivolous. Court erred by allowing travel expenses as costs. Wengerd v. Rinehart, 114 W (2d) 575, 338 NW (2d) 861 (Ct. App. 1983).
Arguments that "reduction clauses" in uninsured motorist provisions are invalid and that release does not bar subsequent claim against insurer for tort of bad faith were frivolous. Radlein v. Industrial Fire & Cas. Ins. Co. 117 W (2d) 605, 345 NW (2d) 874 (1984).
Denial of defendant's motion for directed verdict did not bar court from finding plaintiff's action to be frivolous. Court may find some claims constituting an action frivolous and others not frivolous. Stoll v. Adriansen, 122 W (2d) 503, 362 NW (2d) 182 (Ct. App. 1984).
Court may award attorney fees if petitioner's claim was frivolously brought before it on review under ch. 227, but may not award attorney fees incurred at various agency levels. Tatum v. LIRC, 132 W (2d) 411, 392 NW (2d) 840 (Ct. App. 1986).
Section penalizes parties who bring frivolous lawsuits and does not penalize parties for unacceptable tactics in course of proceedings. Gagnow v. Haase, 149 W (2d) 542, 439 NW (2d) 593 (Ct. App. 1989).
Trial court erred in finding frivolousness on attorney's part based upon court's assessment of credibility of client. Blankenship v. Computers & Training, 158 W (2d) 702, 462 NW (2d) 918 (Ct. App. 1990).
See note to 809.25 citing Minniecheske v. Griesbach, 161 W (2d) 743, 468 NW (2d) 760 (Ct. App. 1991).
In cases which do not fit squarely within this statute, a trial court has certain inherent powers to sanction parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co. 182 W (2d) 148, 513 NW (2d) 16 (Ct. App. 1994).
Frivolousness under sub. (3) (a) is a high standard typically requiring a finding of bad faith based on some statement or action, such as a threat. The threshold issue under sub. (3) (b) is whether the action may even be brought. If an attorney knows or should have known that the required elements necessary to prove a claim cannot be produced, the claim is frivolous under sub. (3) (b). Stern v. Thompson & Coates, LTD. 185 W (2d) 221, 517 NW (2d) 658 (1994).
The application of this section is not limited to frivolous pleading recognized in ch. 802, but includes any argument by counsel made during the course of a proceeding. Gardner v. Gardner, 190 W (2d) 216, 527 NW (2d) 701 (Ct. App. 1994).
Motions under this section must be filed prior to the entry of judgment. Northwest Wholesale Lumber v. Anderson, 191 W (2d) 278, 528 NW (2d) 502 (Ct. App. 1995).
There is a presumption of non-frivolousness, requiring all doubts to be resolved in favor of non-frivolousness. When there are disputes as to frivolousness, the moving party has the burden to show at an evidentiary hearing that the action is not well grounded in the facts or the law or equity. Kelly v. Clark, 192 W (2d) 633, 531 NW (2d) 455 (Ct. App. 1995).
Claim of intentional infliction of emotional distress was frivolous. Braski v. AH-NE-PEE Dimensional Hardwood, Inc. 630 F Supp. 862 (1986).
Is Wisconsin's frivolous claim statute frivolous? Endress. 68 MLR 279 (1985).
Awarding reasonable attorney fees upon frivolous claims and counterclaims under s. 814.025. Sundby, WBB May 1980.
Costs to defendant. 814.03(1)(1)
If the plaintiff is not entitled to costs under s. 814.01 (1)
, the defendant shall be allowed costs to be computed on the basis of the demands of the complaint.
Where there are several defendants who are not united in interest and who make separate defenses by separate answers, if the plaintiff recovers against some but not all of such defendants, the court may award costs to any defendant who has judgment in the defendant's favor.
Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.03; 1987 a. 345
; 1993 a. 486
Section contemplates awarding of costs only to successful parties. DeGroff v. Schmude, 71 W (2d) 554, 238 NW (2d) 730.
A prevailing defendant is entitled to costs from all plaintiffs including subrogated plaintiffs who elected not participate in the trial. Sampson v. Logue, 184 W (2d) 20, 515 NW (2d) 917 (Ct. App. 1994).
Costs upon counterclaims and cross complaints. 814.035(1)(1)
Except as otherwise provided in this section, costs shall be allowed on counterclaims and cross complaints as if separate actions had been brought thereon.
When the causes of action stated in the complaint and counterclaim and cross complaint arose out of the same transaction or occurrence, costs in favor of the successful party upon the complaint and counterclaim and cross complaint so arising shall be in the discretion of the court.
Costs recovered by opposing parties shall be offset.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.035.
Awarding statutory costs to the lessee and denial of costs to the lessor (whose recovery for unpaid instalments of rent under the agreement was reduced by the damages the lessee sustained) was, under 271.035 (2) and (3), Stats. 1969, a matter within the trial court's discretion, the language of the statute indicating that costs are purely discretionary when both parties recover on their respective claims in one action, and there being no showing that the trial court herein abused its discretion. (So much of the opinion in Zimmerman v. Dornbrook, 6 W (2d) 567, implying that if both parties recover on their claims, as a matter of right costs should be allowed for each side, is modified accordingly.) Mid-Continent Refrigerator Co. v. Straka, 47 W (2d) 739, 178 NW (2d) 28.
Where judgment was ordered for defendant in plaintiff's action and also for defendant on one of several counterclaims, costs were properly awarded to defendant as to each. Arrowhead Growers S. Co. v. Central Sands Prod. 48 W (2d) 383, 180 NW (2d) 567.
Omnibus costs provision.
If a situation arises in which the allowance of costs is not covered by ss. 814.01
, the allowance shall be in the discretion of the court.
History: Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.036.
Prevailing plaintiff in habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke, 79 W (2d) 22, 255 NW (2d) 446.
Circuit courts have authority to impose costs on an attorney whose actions have resulted in a mistrial. Schulz v. Darlington Mut. Ins. 181 W (2d) 646, 511 NW (2d) 879 (1994).
Photocopy and facsimile expenses may be taxed under 814.036. Wausau Medical Center v. Asplund, 182 W (2d) 274, 514 NW (2d) 34 (Ct. App. 1994).
This section only gives a court discretion as to when it may allow costs and not as to what costs may be allowed. Neither s. 814.02 or s. 814.036 grants the trial court the power to allow costs which are not explicitly authorized by statute. Kleinke v. Farmers Coop. Supply & Shipping, 202 W (2d) 138, 549 NW (2d) 714 (1996).
Items of costs.
Except as provided in ss. 93.20
, 106.04 (6) (i)
and (6m) (a)
, 895.035 (4)
, 895.75 (3)
, 895.77 (2)
, 895.79 (3)
, 895.80 (3)
, 943.212 (2) (b)
, 943.245 (2) (d)
and 943.51 (2) (b)
, when allowed costs shall be as follows:
When the amount recovered or the value of the property involved is $1,000 or over, attorney fees shall be $100; when it is less than $1,000 and is $500 or over, $50; when it is less than $500 and is $200 or over, $25; and when it is less than $200, $15.
When no money judgment is demanded and no specific property is involved, or where it is not practical to ascertain the money value of the rights involved, attorney fees under par. (a)
shall be fixed by the court, but shall not be less than $15 nor more than $100.
No attorney fees may be taxed on behalf of any party unless the party appears by an attorney other than himself or herself.
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 copies of papers and records in any public office; postage, telegraphing, telephoning and express; depositions including copies; plats and photographs, not exceeding $50 for each item; an expert witness fee not exceeding $100 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.
(5) Disbursements in timber trespass.
In actions founded upon the unlawful cutting of timber, or such cutting and its conversion, or such cutting and its unlawful detention, when the value of such timber or the damages recovered exceeds fifty dollars, full costs shall be recovered by the plaintiff, and there shall be included therein the actual reasonable expense of one survey and ascertainment of the quantity of timber cut, made after the commencement of the action, by one surveyor and one assistant, if proved as a necessary disbursement. And the defendant shall recover like costs in the same manner in case the plaintiff is not entitled to 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 what they would have been had the matter been contested.
(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.
Sup. Ct. Order, 50 W (2d) vii (1971); 1971 c. 141
; Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.04; 1977 c. 209
; 1979 c. 110
s. 60 (13)
; 1979 c. 271
; 1981 c. 123
; 1985 a. 52
; 1987 a. 348
; 1991 a. 39
; 1993 a. 98
; 1995 a. 24
Comment of Judicial Council, 1971: Guardian ad litem fees shall not be taxed as a cost or disbursement. Present law permits guardian ad litem fees to be taxed as costs or disbursements. [Re Order effective July 1, 1971]
Fees for an expert witness may be taxed only for the day he testifies, even though he was present in court on other days. McLoone Metal Graphics, Inc. v. Robers Dredge, 58 W (2d) 704, 207 NW (2d) 616.
A citizen who obtains an injunction in an action brought for the benefit of a municipality may not recover attorney fees under (8). Cobb v. Milwaukee County, 60 W (2d) 99, 208 NW (2d) 848.
Sub. (4), being a general statute, does not govern the rate of interest on a jury verdict in condemnation because that is dealt with specifically by 32.05 (11) (b) and 138.04. Weiland v. Dept. of Transportation, 62 W (2d) 456, 215 NW (2d) 455.
Sub. (2) allows recovery of costs not exceeding $50 for each individual plat and photograph. Billingsley v. Zickert, 72 W (2d) 156, 240 NW (2d) 375.
Where plaintiff's damages were set by first verdict but the amount plaintiff could recover was not set until second verdict, plaintiff was entitled to interest from date of first verdict. Nelson v. Travelers Ins. Co. 102 W (2d) 159, 306 NW (2d) 71 (1981).
Court erred by taxing guardian ad litem and attorney fees as costs of suit against former guardian as surcharge or penalty. In Matter of Guardianship & Estate of P.A.H. 115 W (2d) 670, 340 NW (2d) 577 (Ct. App. 1983).
Photocopies may not be taxed as photographs. Ramsey v. Ellis 163 W (2d) 378, 471 NW (2d) 289 (Ct. App. 1991).
Discussion of award of attorney fees, disbursements and interest on verdict. Zintek v. Perchik, 163 W (2d) 439, 471 NW (2d) 522 (Ct. App. 1991).
Photocopy and facsimile expenses may be taxed under 814.036. Wausau Medical Center v. Asplund, 182 W (2d) 274, 514 NW (2d) 34 (Ct. App. 1994).
There is no authority for awarding pretrial mediation fees as taxable costs. Kleinke v. Farmers Coop. Supply & Shipping, 202 W (2d) 138, 549 NW (2d) 714 (1996).
Interest on the verdict under (4) does not apply to interest on the amount by which an original condemnation award was increased by a jury verdict under 32.05 (11) (b). 61 Atty. Gen. 114.
Bond premium as costs.
Any party entitled to recover costs or disbursements in an action or special proceeding may include in such disbursements the lawful premium paid to an authorized insurer for a suretyship obligation.
History: 1977 c. 339
Legislative Council Note, 1977: This provision is currently the 2nd sentence of s. 204.11. It has nothing to do with the law of insurance but deals solely with the proper taxing of costs in legal proceedings. As such it belongs in ch. 814 and is transferred there without change of meaning. The language is very slightly edited. [Bill 258-S]
Costs on motion.
Costs may be allowed on a motion, in the discretion of the court or judge, not exceeding $50, and may be absolute or directed to abide the event of the action.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.07.
Costs on appeal from municipal court; certiorari. 814.08(1)(1)
In actions appealed from municipal court, where there is no new trial, if the judgment is affirmed or the appeal dismissed the respondent shall have costs; if reversed, the appellant; if affirmed in part and reversed in part, the court may award the costs or such part thereof as is just to either party. In actions appealed by the defendant from municipal court, where there is no new trial, if the judgment finding the defendant guilty under s. 800.09
is affirmed, or if the defendant's appeal is dismissed, the defendant shall pay the full costs of the transcript prepared under s. 800.14 (5)
, minus the $10 transcript payment under s. 814.65
. Where there is a new trial, costs shall be awarded to the successful party; but if the appeal is from a judgment in favor of the appellant he or she shall have costs only if he or she obtains a more favorable judgment, and otherwise the respondent shall have costs. In all those cases full costs shall be the applicable fee under s. 814.61 (8)
and all disbursements made for return of the judge and officers' and witnesses' fees, together with all costs taxable in the municipal court in the action.
Upon certiorari to municipal court the same costs shall be awarded to the successful party as provided by sub. (1)
, where there is no new trial.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.08; 1977 c. 305
; 1981 c. 317
; 1987 a. 389
Taxation of costs. 814.10(1)(1)
Clerk's duty, notice, review.
The clerk of circuit court shall tax and insert in the judgment and in the judgment and lien docket, if the judgment shall have been entered, on the application of the prevailing party, upon 3 days' notice to the other, the sum of the costs and disbursements as provided in this chapter, verified by affidavit.
(2) Cost bill, service.
All bills of costs shall be itemized and served with the notice of taxation.
(3) Objections, proofs, adjournment.
The party opposing such taxation, or the taxation of any particular item shall file with the clerk a particular statement of the party's objections, and the party may produce proof in support thereof and the clerk may adjourn such taxation, upon cause shown, a reasonable time to enable either party to produce such proof.
(4) Court review.
The clerk shall note on the bill all items disallowed, and all items allowed, to which objections have been made. This action may be reviewed by the court on motion of the party aggrieved made and served within 10 days after taxation. The review shall be founded on the bill of costs and the objections and proof on file in respect to the bill of costs. No objection shall be entertained on review which was not made before the clerk, except to prevent great hardship or manifest injustice. Motions under this subsection may be heard under s. 807.13
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.10; Sup. Ct. Order, 141 W (2d) xxvi; 1987 a. 403
; 1993 a. 486
; 1995 a. 224
Judicial Council Note, 1988: Sub. (4) is amended to allow motions to review costs to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Where the court included excessive attorney's fees in the judgment and the clerk did not tax costs, appellant need not ask for review under sub. (4) and can object on appeal. Running v. Widdes, 52 W (2d) 254, 190 NW (2d) 169.