Actual attorney fees in the context of a bad faith claim are not a necessary cost of litigation to which a prevailing party is entitled. Instead, they are an item of damages intended to compensate the victims. In the absence of an express reservation of the right to recover actual attorney fees in an accepted offer of judgment, recovery of fees in a bad faith action is limited to only those plaintiffs who proceed to trial. Stewart v. Farmers Insurance Group, 2009 WI App 130
, 321 Wis. 2d 391
, 773 N.W.2d 513
The phrase “actually paid out" in sub. (2) modifies the amounts paid “for certified and other copies of papers and records in any public office." Applying the phrase “actually paid out" as a limitation on other recoverable costs is not supported by the statute. Photocopy charges are not required to be “paid out" to a 3rd-party vendor to be awarded under this section. Mercer v. City of Fond du Lac, 2010 WI App 15
, 323 Wis. 2d 67
, 780 N.W.2d 188
When plaintiffs join together to file a single complaint, even though they could have commenced separate actions, they may recover their costs as if they had filed their complaints separately. 3301 Bay Road LLC v. Town of Delavan, 2014 WI App 18
, 352 Wis. 2d 721
, 845 N.W.2d 666
Attorney fees; reasonableness. 814.045(1)(1)
Subject to sub. (2)
, in any action involving the award of attorney fees that are not governed by s. 814.04 (1)
or involving a dispute over the reasonableness of attorney fees, the court shall, in determining whether to award attorney fees and in determining whether the attorney fees are reasonable, consider all of the following:
The novelty and difficulty of the questions involved in the action.
The skill requisite to perform the legal service properly.
The likelihood that the acceptance of the particular case precluded other employment by the attorney.
The fee customarily charged in the locality for similar legal services.
The time limitations imposed by the client or by the circumstances of the action.
The nature and length of the attorney's professional relationship with his or her client.
The experience, reputation, and ability of the attorney.
The legitimacy or strength of any defenses or affirmative defenses asserted in the action.
Other factors the court deems important or necessary to consider under the circumstances of the case.
In any action in which compensatory damages are awarded, the court shall presume that reasonable attorney fees do not exceed 3 times the amount of the compensatory damages awarded but this presumption may be overcome if the court determines, after considering the factors set forth in sub. (1)
, that a greater amount is reasonable.
In any action in which compensatory damages are not awarded but injunctive or declaratory relief, rescission or modification, or specific performance is ordered, reasonable attorney fees shall be determined according to the factors set forth in sub. (1)
This section does not abrogate the rights of persons to enter into an agreement for attorney fees, and the court shall presume that such an agreement is reasonable.
History: 2011 a. 92
Determining Reasonable Attorney Fees. Dudley & Colbert. Wis. Law. Oct. 2012.
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
Among the “necessary disbursements and fees allowed by law" are those authorized under fee-shifting statutes. Numerous statutes contain fee-shifting provisions, including those relating to consumer protection, frivolous lawsuits, and privacy rights. Kolupar v. Wilde Pontiac Cadillac, Inc. 2007 WI 98
, 303 Wis. 2d 258
, 735 N.W.2d 93
Costs on motion.
Costs may be allowed on a motion, in the discretion of the court or judge, not exceeding $300, and may be absolute or directed to abide the event of the action.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.07; 2003 a. 138
Motion costs on motions brought to open judgments entered on forfeiture actions under s. 345.37 may not be imposed by a blanket order. Discretion must be exercised by the court in each case. OAG 1-00
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. 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 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.08; 1977 c. 305
; 1981 c. 317
; 1987 a. 389
; 2013 a. 107
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 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.10; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 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]
When a judgement included attorney fees exceeding the statutory limit and the clerk did not tax costs, an objection under sub. (4) was not required to allow consideration of the issue on appeal. Running v. Widdes, 52 Wis. 2d 254
, 190 N.W.2d 169
Disbursements, how proved.
Charges in a bill of costs for witness fees, or copies of documents or other disbursements, except to officers for services shall not be taxed without an affidavit stating the distance the witnesses respectively traveled and the days they actually attended, and an affidavit that such copies were necessarily obtained for use; nor shall such other disbursements be allowed without an affidavit specifying the items thereof, nor unless they appear to have been necessary and reasonable in amount.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.11.
Costs may be set off.
If, in any action, a recovery be had by one party and costs be awarded to the other the court may set off one against the other and render judgment for the balance.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.12.
Referee; court to fix and allow fees.
After the trial of any issue by a referee pursuant to a compulsory reference for that purpose his or her fees and expenses shall be fixed by the court in which his or her report has been filed and paid by the state as other circuit court expenses are paid. In all other cases the compensation of referees shall be $3 for each day necessarily occupied with the business of the reference; but the parties may agree in writing upon any other rate of compensation.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.13; 1977 c. 449
Taxing costs on compulsory references.
In all cases of compulsory reference in which the fees claimed by the referee exceed $50, the fees shall not be allowed until a hearing is had on the fees, upon 10 days' notice to the district attorney of the county, accompanied by a copy of the bill.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.131; 1997 a. 254
Fiduciary; liability for costs limited; bond premium. 814.14(1)(a)
Except as provided in par. (b)
or unless otherwise specifically provided in any action or proceeding prosecuted or defended in any court in this state by a personal representative, guardian ad litem, trustee of an express trust, general guardian or person expressly authorized by statute, costs may be recovered as in an action by or against a person prosecuting or defending in the person's own right.
Except in cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, costs recovered under par. (a)
shall be chargeable only upon or collected from the estate, fund, or party represented. In cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, the court shall direct that the costs recovered under par. (a)
shall be paid by the plaintiff or defendant personally.
In addition to other costs, all actions or proceedings in which any fiduciary may be entitled to recover costs, the fiduciary may recover any sum that the fiduciary paid to a company, authorized by the laws of this state to act as the fiduciary's surety, for becoming the fiduciary's surety upon any bond or other obligation given by the fiduciary in the fiduciary's representative capacity in the action or proceeding pursuant to law or the order of any court, as may be allowed by the court in which the fiduciary accounts, not exceeding the lesser of 2 percent per year on the amount secured by the obligation or the actual amount paid to the company.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.14; 1979 c. 110
s. 60 (13)
; 1993 a. 486
; 2001 a. 102
Assignee's liability for costs.
In actions in which the cause of action shall, by assignment, after the commencement of the action or in any other manner become the property of a person not a party to the action the person shall be liable for the costs in the same manner as if the person were a party; and payment thereof may be enforced by attachment.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.15; 1993 a. 486
Settlement, costs on.
Except as provided in s. 93.20
, upon settlement of an action no greater sum may be demanded for costs than at the rate prescribed in this chapter.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.16; 1991 a. 39
Records copied not to be taxed for.
No record, writ, return, pleading, instrument or other writing copied into any proceeding, entry, process or suggestion shall be computed as any part of the draft of such proceeding, entry, process or suggestion.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.19.
What county to pay costs when venue changed or jury selected for use in another county, taxation, certification. 814.22(1)(1)
In all proceedings, including criminal actions, if a change of venue is had (except in cases where the change is made because the action was not brought in the proper county), the jury is selected for use in another county under s. 971.225
or an action, occupying a day or more, is tried outside the county wherein pending, the county in which the action was commenced shall pay to the county in which the action is tried or the jury is selected the following expenses arising out of the change of venue or jury selection:
The per diem fees of the clerk or the clerk's deputies, all the taxable costs, disbursements and fees of such clerk on any proceeding or action.
The per diem fees of the petit jurors actually in attendance upon said court.
The per diem fees of the sheriff, undersheriff and deputies in attendance upon said court.
The legal fees of all witnesses in any criminal case or proceedings which are a charge against the county.
All charges for subpoenaing witnesses in any criminal case or proceedings and which are a proper charge against the county. The fees of such officers and jurors shall be estimated for each day and part of a day, not less than half a day, occupied in disposing of any such action.
Such other lawful costs, charges, fees, and disbursements which are chargeable to the county, and all lawful costs, disbursements and charges which any such county may be subjected to or may incur in any such action or proceedings.
The clerk shall make out a correct bill of all the expenses which shall accrue under this section and have the bill taxed and allowed by the presiding judge of the court; and when so taxed shall transmit the bill to the county clerk of the county in which the action was commenced. A county order therefor shall issue in favor of the county in which the action or proceedings were had or tried or in which the jury was selected.
If costs are to be taxed against a county under this section, the district attorney of the county where the action or proceeding was tried or in which the jury was selected shall serve upon the district attorney of the county sought to be charged with the expense a copy of the bill of expenses, together with 8 days notice of the time and place the bill will be taxed before the presiding judge of the court. No such bill of expense may be allowed unless the notice is given or is waived in writing.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.22; 1977 c. 449
; 1981 c. 115
; 1993 a. 486
Actions by or against county.
In all actions by or against a county, and in actions or proceedings by or against county officers in their name of office, costs shall be awarded to the prevailing party as in actions between individuals.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.23.
A prevailing plaintiff in a habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke, 79 Wis. 2d 22
, 255 N.W.2d 446
Action against city, village or town official, cost.
Costs, if any, in an action against a city, village or town officer in his or her official capacity, except an action directly involving the title to the office, and except as provided in s. 814.25
, shall not be awarded against that officer, but may be awarded against the city, village or town.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.24; 1993 a. 246
; 1997 a. 133
Actions by state agencies. 814.245(1)(1)
The legislature intends that courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504
“Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
“Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employees.
“State agency" does not include the citizens utility board.
“Substantially justified" means having a reasonable basis in law and fact.