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),
97-0897.
814.02 Annotation
Kleinke instructs that the trial court's discretion is limited to when the court may allow costs and not what costs are allowed. The trial court erred in awarding costs for the transcription of materials on a computer disk that were made for the convenience of the moving party. Transcripts obtained solely for the convenience of counsel are not necessary disbursements under sub. (2) and thus not taxable costs. Alswager v. Roundy's Inc. 2005 WI App 3,
278 Wis. 2d 598,
692 N.W.2d 333,
03-2274.
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 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 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;
2007 a. 20 s.
9121 (6) (a).
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).
814.035
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,
00-0852.
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,
00-1490.
814.04
814.04
Items of costs. Except as provided in
ss. 93.20,
100.195 (5m) (b),
100.30 (5m),
106.50 (6) (i) and
(6m) (a),
111.397 (2) (a),
115.80 (9),
281.36 (2) (b) 1.,
767.553 (4) (d),
769.313,
802.05,
814.245,
895.035 (4),
895.443 (3),
895.444 (2),
895.445 (3),
895.446 (3),
895.506,
943.212 (2) (b),
943.245 (2) (d),
943.51 (2) (b), and
995.10 (3), when allowed costs shall be as follows:
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; Sup. Ct. Order No.
03-06A, 2005 WI 86, 280 Wis. 2d xiii;
2005 a. 155,
325;
2005 a. 443 s.
265;
2005 a. 458;
2007 a. 96;
2009 a. 20.
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
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),
97-2470.
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,
01-0991.
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. Affirmed on other grounds, 2005 WI 8,
277 Wis. 2d 635,
691 N.W.2d 858,
02-2961.
814.04 Annotation
When a garnishment summons and complaint recited that the total due on the creditor's claim was $11,716.16 and advised the garnishee defendant that if it failed to answer, judgment would be entered against it for that amount, the garnishee defendant was entitled to the maximum amount of costs allowable under sub. (1) (a). Hometown Bank v. Acuity Insurance, 2008 WI App 48,
308 Wis. 2d 503,
748 N.W.2d 203,
07-1048.
814.04 Annotation
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,
08-1605.
814.04 Annotation
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,
09-0505.
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]
814.05 Annotation
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,
05-0935.
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.
814.10 Note
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]
814.10 Annotation
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 (1971).
814.11
814.11
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.
814.11 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.11.
814.12
814.12
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.
814.12 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.12.
814.13
814.13
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.
814.13 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.13;
1977 c. 449.
814.131
814.131
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.
814.131 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.131;
1997 a. 254.
814.14
814.14
Fiduciary; liability for costs limited; bond premium. 814.14(1)(a)(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.
814.14(1)(b)
(b) 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.
814.14(2)
(2) 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% per year on the amount secured by the obligation or the actual amount paid to the company.
814.14 History
History: 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.
814.15
814.15
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.
814.15 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.15;
1993 a. 486.
814.16
814.16
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.
