2003 Chapter 814

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.

814.04(4) (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.

814.04(6) (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.

814.04(7) (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.

814.04(8) (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.

814.04 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); 1971 c. 141; Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.04; 1977 c. 209; 1979 c. 110 s. 60 (13); 1979 c. 271, 355; 1981 c. 123, 317; 1985 a. 52, 311; 1987 a. 348; 1991 a. 39, 65, 189, 295; 1993 a. 98, 326, 486, 490, 491; 1995 a. 24, 27, 133, 149, 262, 417; 1997 a. 55, 164, 254; 1999 a. 32, 82, 122, 190; 2001 a. 6, 16; 2003 a. 138.

814.04 Annotation 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]

814.04 Annotation Fees for an expert witness may be taxed only for the day that the expert testifies, even though the expert was present in court on other days. McLoone Metal Graphics, Inc. v. Robers Dredge, Inc. 58 Wis. 2d 704, 207 N.W.2d 616 (1973).

814.04 Annotation A citizen who obtains an injunction in an action brought for the benefit of a municipality may not recover attorney fees under sub. (8). Cobb v. Milwaukee County, 60 Wis. 2d 99, 208 N.W.2d 848 (1973).

814.04 Annotation Sub. (4), being a general statute, does not govern the rate of interest on a jury verdict in a condemnation action, which is covered by ss. 32.05 (11) (b) and 138.04. Weiland v. DOT, 62 Wis. 2d 456, 215 N.W.2d 455 (1974). See also Calaway v. Brown County, 202 Wis. 2d 736, 553 N.W.2d 809 (Ct. App. 1996), 95-2337.

814.04 Annotation Sub. (2) allows the recovery of costs, not exceeding $50, for each individual plat and photograph. Billingsley v. Zickert, 72 Wis. 2d 156, 240 N.W.2d 375 (1976).

814.04 Annotation When a plaintiff's damages were set by the first verdict, but the amount the plaintiff could recover was not set until the second verdict, the plaintiff was entitled to interest from the date of the first verdict. Nelson v. Travelers Insurance Co. 102 Wis. 2d 159, 306 N.W.2d 71 (1981).

814.04 Annotation The court erred by taxing as costs of suit, guardian ad litem and attorney fees as a surcharge or penalty against a former guardian. In Matter of Guardianship & Estate of P.A.H. 115 Wis. 2d 670, 340 N.W.2d 577 (Ct. App. 1983).

814.04 Annotation Photocopies may not be taxed as photographs. Ramsey v. Ellis 163 Wis. 2d 378, 471 N.W.2d 289 (Ct. App. 1991).

814.04 Annotation The award of attorney fees, disbursements, and interest on a verdict are discussed. Zintek v. Perchik, 163 Wis. 2d 439, 471 N.W.2d 522 (Ct. App. 1991).

814.04 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).

814.04 Annotation There is no authority for awarding pretrial mediation fees as taxable costs. Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.04 Annotation Postverdict, prejudgment interest on a verdict that was overturned by a judgment notwithstanding the verdict, but was ultimately reinstated on appeal, accrued from the date of the original verdict to the entry of judgment following the completion of the appeal. Management Computer v. Hawkins, Ash, Baptie & Co. 224 Wis. 2d 312, 592 N.W.2d 279 (Ct. App. 1998).

814.04 Annotation When multiple plaintiffs are required to bring their claims in a single action pursuant to s. 803.03, sub. (2) does not authorize multiple awards for the same disbursement to multiple plaintiffs. Paulson v. Allstate Insurance Company, 2002 WI App 168, 256 Wis. 2d 892, 649 N.W.2d 645.

814.04 Annotation Photocopies of sworn public documents are not a type of certified copies the cost of which are taxable under sub. (2). Affidavits filed by government workers are not certified copies. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2003 WI App 209, 267 Wis. 2d 688, 671 N.W.2d 346, 02-2961.

814.05 814.05  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.

814.05 History History: 1977 c. 339.

814.05 Annotation 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]

814.07 814.07  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.

814.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.07; 2003 a. 138.

814.07 Annotation 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.

814.08 814.08  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.

814.08(2) (2) 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.

814.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.08; 1977 c. 305; 1981 c. 317; 1987 a. 389.

814.10 814.10  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.

814.10(2) (2) Cost bill, service. All bills of costs shall be itemized and served with the notice of taxation.

814.10(3) (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.

814.10(4) (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.

814.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.10; Sup. Ct. Order, 141 Wis. 2d xxvi; 1987 a. 403; 1993 a. 486; 1995 a. 224.