2003 Chapter 814

814.75 Court-imposed surcharges.

814.76 Surcharges in criminal actions.

814.77 Surcharges in ch. 23 forfeiture actions.

814.78 Surcharges in ch. 66 forfeiture actions.

814.79 Surcharges in ch. 345 forfeiture actions.

814.80 Surcharges in ch. 778 forfeiture actions.

814.81 Surcharges in ch. 800 forfeiture actions.

814.85 Court support services surcharge.

814.86 Justice information system surcharge and special prosecution clerks surcharge.

subch. I of ch. 814 SUBCHAPTER I

COSTS IN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS

814.01 814.01  Costs allowed to plaintiff.

814.01(1) (1) Except as otherwise provided in this chapter, costs shall be allowed of course to the plaintiff upon a recovery.

814.01(3) (3) In an action for assault and battery, false imprisonment, libel, slander, malicious prosecution, invasion of privacy or seduction, a plaintiff who recovers less than $50 damages shall recover no more costs than damages.

814.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.01; 1981 c. 317.

814.01 Annotation This section does not provide for the awarding of costs to a party in an arbitration proceeding. This section requires a litigated court proceeding. Finkenbinder v. State Farm Mutual Insurance Co. 215 Wis. 2d 145, 572 N.W.2d 501 (Ct. App. 1997).

814.02 814.02  Costs limited, discretionary.

814.02(1) (1) When several actions are brought against parties who might have been joined as defendants and the actions are consolidated under s. 805.05 (1) no costs, other than disbursements, shall be allowed to the plaintiff in excess of what the plaintiff would be entitled to had the plaintiff brought but one action.

814.02(2) (2) In equitable actions and special proceedings costs may be allowed or not to any party, in whole or in part, in the discretion of the court, and in any such case the court may award to the successful party such costs (exclusive of disbursements) not exceeding $100, as the court deems reasonable and just, in view of the nature of the case and the work involved. This subsection refers only to such costs and fees as may be taxed by the authority of the statutes, independent of any contract of the parties upon the subject, which contract shall apply unless the court finds that the provisions thereof are inequitable or unjust.

814.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.02; 1993 a. 486.

814.02 Annotation Courts can make a determination of the reasonableness of attorney fees even when a note specifies the amount. Lakeshore Commercial Finance Corp. v. Bradford Arms Corp. 45 Wis. 2d 313, 173 N.W.2d 165 (1970).

814.02 Annotation Neither s. 814.02 or 814.036 grants the trial court the power to allow costs that are not explicitly authorized by statute. Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.02 Annotation The court exercises its discretion under this section by determining what is a necessary cost. Aspen Services, Inc. v. IT Corp. 220 Wis. 2d 491, 583 N.W.2d 849 (Ct. App. 1998).

814.025 814.025  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.

814.025(2) (2) 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.

814.025(3) (3) 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:

814.025(3)(a) (a) 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.

814.025(3)(b) (b) 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.

814.025(4) (4) To the extent s. 802.05 is applicable and differs from this section, s. 802.05 applies.

814.025 History History: 1977 c. 209; 1987 a. 256.

814.025 Annotation The trial court's finding that a claim was not frivolous was against the great weight and clear preponderance of evidence. Sommer v. Carr, 95 Wis. 2d 651, 291 N.W.2d 301 (Ct. App. 1980).

814.025 Annotation This section is not applicable in quasi-criminal actions, such as ordinance violation prosecutions, in which the decision to proceed is based on prosecutorial discretion. City of Janesville v. Wiskia, 97 Wis. 2d 473, 293 N.W.2d 522 (1980).

814.025 Annotation The trial court must apply an objective test to support a finding that a claim is frivolous. Sommer v. Carr, 99 Wis. 2d 789, 299 N.W.2d 856 (1981).

814.025 Annotation This section does not permit an award of attorney fees for a frivolous appeal. The determination of frivolousness is discussed. In Matter of Estate of Bilsie, 100 Wis. 2d 342, 302 N.W.2d 508 (Ct. App. 1981).

814.025 Annotation A court may not impose joint and several liability under this section. Frivolousness is discussed. State v. State Farm Fire & Casualty Co. 100 Wis. 2d 582, 302 N.W.2d 827 (1981).

814.025 Annotation A court commissioner lacked jurisdiction over a counterclaim alleging a frivolous action. As such, the commissioner's order finding that the claim was not frivolous was void. Hessenius v. Schmidt, 102 Wis. 2d 697, 307 N.W.2d 232 (1981).

814.025 Annotation A motion for relief from judgment under s. 806.07 is a special proceeding subject to this section and was properly found frivolous on affidavits without a hearing. The court erred by allowing travel expenses as costs. Wengerd v. Rinehart, 114 Wis. 2d 575, 338 N.W.2d 861 (Ct. App. 1983).

814.025 Annotation Arguments that "reduction clauses" in uninsured motorist provisions are invalid and that a release does not bar a subsequent claim against an insurer for the tort of bad faith were frivolous. Radlein v. Industrial Fire & Casualty Insurance Co. 117 Wis. 2d 605, 345 N.W.2d 874 (1984).

814.025 Annotation The denial of a defendant's motion for a directed verdict did not bar the court from finding the plaintiff's action to be frivolous. Courts may find some claims constituting an action frivolous and others not frivolous. Stoll v. Adriansen, 122 Wis. 2d 503, 362 N.W.2d 182 (Ct. App. 1984).

814.025 Annotation A court may award attorney fees if a petitioner's claim is frivolously brought before it on review under ch. 227, but may not award attorney fees incurred at various agency levels. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).

814.025 Annotation This section penalizes parties who bring frivolous lawsuits and does not penalize parties for unacceptable tactics in the course of proceedings. Gagnow v. Haase, 149 Wis. 2d 542, 439 N.W.2d 593 (Ct. App. 1989).

814.025 Annotation The trial court erred in finding frivolousness on an attorney's part based upon the court's assessment of the credibility of the attorney's client. Blankenship v. Computers & Training, 158 Wis. 2d 702, 462 N.W.2d 918 (Ct. App. 1990).

814.025 Annotation Restricting access to courts may be a sanction for a frivolous action if the order is narrowly tailored to balance the interests of public access to the courts, res judicata, and the public's right to not have frivolous litigation be a drain on public resources. Minniecheske v. Griesbach, 161 Wis. 2d 743, 468 N.W.2d 760 (Ct. App. 1991).

814.025 Annotation In cases that 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 Wis. 2d 148, 513 N.W.2d 16 (Ct. App. 1994).

814.025 Annotation 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 Wis. 2d 221, 517 N.W.2d 658 (1994).

814.025 Annotation The application of this section is not limited to frivolous pleadings recognized in ch. 802, but includes any argument by counsel made during the course of a proceeding. Gardner v. Gardner, 190 Wis. 2d 216, 527 N.W.2d 701 (Ct. App. 1994).

814.025 Annotation Motions under this section must be filed prior to the entry of judgment. Northwest Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 528 N.W.2d 502 (Ct. App. 1995).

814.025 Annotation There is a presumption requiring all doubts to be resolved against frivolousness. When frivolousness is disputed, 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 Wis. 2d 633, 531 N.W.2d 455 (Ct. App. 1995).

814.025 Annotation When a party's claim can only be be determined after research and deliberation it is not frivolous. Juneau County v. Courthouse Employees Local 1312, 216 Wis. 2d 283, 576 N.W.2d 565 (Ct. App. 1998).

814.025 Annotation The incorporation of s. 802.05 by this section allows the the trial court, on a motion under this section, to award attorney fees based on both sections. Belich v. Szymaszek, 224 Wis. 2d 419, 592 N.W.2d 254 (Ct. App. 1999).

814.025 Annotation A plaintiff need not, as a matter of course, exhaust outside sources of information before embarking on formal discovery. However, a plaintiff may not rely on formal discovery to establish the factual basis of its cause of action, thereby escaping the mandates of ss. 802.05 and 814.025, when the required factual basis could be established without discovery. Jandrt v. Jerome Foods, Inc. 227 Wis. 2d 531, 597 N.W.2d 744 (1999).

814.025 Annotation An attorney who knows that his or her client is asserting a claim solely to injure or harass the opposing party, and still agrees to proceed with that claim, will be held to have the same motive as the client. Elmakias v. Wayda, 228 Wis. 2d 312, 596 N.W.2d 869 (Ct. App. 1999).

814.025 Annotation As long as fees are sufficiently related to the action before the court, it is their reasonableness, and not the time they were incurred, that determines whether the court has authority to award them in its discretion. Lenhardt v. Lenhardt, 2000 WI App 201, 238 Wis. 2d 535, 618 N.W.2d 218.

814.025 Annotation The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and when a court does so, the limitations of fee awards under s. 814.025 do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604.

814.025 Annotation Sub. (3) (b) encompasses claims that are frivolous because knowledge of the relevant facts that the party knew or should have known would lead a reasonable party or attorney to conclude that the claim is frivolous. The statute assumes and requires an adequate investigation of the facts and law. Paulson v. Allstate Insurance Company, 2002 WI App 168, 256 Wis. 2d 892, 649 N.W.2d 645.

814.025 Annotation A claim of intentional infliction of emotional distress was frivolous. Braski v. AH-NE-PEE Dimensional Hardwood, Inc. 630 F. Supp. 862 (1986).

814.025 Annotation Is Wisconsin's frivolous claim statute frivolous? Endress. 68 MLR 279 (1985).

814.025 Annotation Awarding reasonable attorney fees upon frivolous claims and counterclaims under s. 814.025. Sundby, WBB May 1980.

814.025 Annotation The Effect of Jandrt on Satellite Litigation. Geske & Gleisner. Wis. Law. May 2000.

814.03 814.03  Costs to defendant.

814.03(1) (1) If the plaintiff is not entitled to costs under s. 814.01 (1) or (3), the defendant shall be allowed costs to be computed on the basis of the demands of the complaint.

814.03(2) (2) 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.

814.03(3) (3) Notwithstanding subs. (1) and (2), where the department of health and family services or a county is joined as a plaintiff pursuant to ss. 49.89 (2) and 803.03 (2) (a) because of the provision of benefits under subch. IV of ch. 49, the department of health and family services or the county shall not be liable for costs to any prevailing defendant.

814.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.03; 1987 a. 345; 1993 a. 486, 496; 1997 a. 27; 1999 a. 9.

814.03 Annotation This section contemplates the awarding of costs only to successful parties. DeGroff v. Schmude, 71 Wis. 2d 554, 238 N.W.2d 730 (1976).

814.03 Annotation A prevailing defendant is entitled to costs from all plaintiffs including subrogated plaintiffs who elected not to participate in the trial. Sampson v. Logue, 184 Wis. 2d 20, 515 N.W.2d 917 (Ct. App. 1994).

814.03 Annotation This section is mandatory, not discretionary. Taylor v. St. Croix Chippewa Indians of Wisconsin, 229 Wis. 2d 688, 599 N.W.2d 924 (Ct. App. 1999).

814.035 814.035  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.

814.035(2) (2) 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.

814.035(3) (3) Costs recovered by opposing parties shall be offset.

814.035 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.035.

814.035 Annotation An award of statutory costs to the lessee and denial of costs to the lessor was, under 271.035 [now 814.035] (2) and (3), a matter within the trial court's discretion. Costs are purely discretionary when both parties recover on their respective claims in one action. Mid-Continent Refrigerator Co. v. Straka, 47 Wis. 2d 739, 178 N.W.2d 28 (1970).

814.035 Annotation When judgment was ordered for a defendant in the plaintiff's action and also for the defendant on one of several counterclaims, costs were properly awarded to the defendant as to each. Arrowhead Growers Sales Co. v. Central Sands Produce, Inc. 48 Wis. 2d 383, 180 N.W.2d 567 (1970).

814.036 814.036  Omnibus costs provision. If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court.

814.036 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.036.

814.036 Annotation 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 (1977).

814.036 Annotation Circuit courts have authority to impose costs on an attorney whose actions have resulted in a mistrial. Schulz v. Darlington Mutual Insurance Co. 181 Wis. 2d 646, 511 N.W.2d 879 (1994).

814.036 Annotation Photocopy and facsimile expenses may be taxed under s. 814.036. Wausau Medical Center v. Asplund, 182 Wis. 2d 274, 514 N.W.2d 34 (Ct. App. 1994).

814.036 Annotation 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 that are not explicitly authorized by statute. Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.036 Annotation An award of statutory costs after arbitration is not explicitly authorized by statute and is not within the court's discretion under this section. Lane v. Williams, 2000 WI App 263, 240 Wis. 2d 255, 621 N.W.2d 922.

814.036 Annotation Kleinke addressed what costs may be taxed when s. 814.036 or 814.04 are relied upon; it did not consider what costs may be recovered as a component of damages in a bad faith claim. As with attorney fees, a prevailing plaintiff may recover, as compensatory damages, all reasonable expenses incurred in litigating the bad faith claim. Allied Processors, Inc. v. Western National Mutual Insurance Company, 2001 WI App 129, 246 Wis. 2d 579, 629 N.W.2d 329.

814.04 814.04  Items of costs. Except as provided in ss. 93.20, 100.30 (5m), 106.50 (6) (i) and (6m) (a), 115.80 (9), 281.36 (2) (b) 1., 767.33 (4) (d), 769.313, 814.025, 814.245, 895.035 (4), 895.10 (3), 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:

814.04(1) (1) Attorney fees.

814.04(1)(a) (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.

814.04(1)(c) (c) No attorney fees may be taxed on behalf of any party unless the party appears by an attorney other than himself or herself.

814.04(2) (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.