Tammy Kolupar v. Wilde Pontiac Cadillac, Inc. and Randall Thompson

303 Wis. 2d 258 (Wis. 2007) · Supreme Court of Wisconsin · July 12, 2007 · No. 2005AP935

Summary

The Supreme Court of Wisconsin held that Wis. Stat. § 218.0163(2) authorizes a prevailing retail buyer to recover reasonable costs, including reasonable attorney fees, beyond the taxable costs enumerated in Wis. Stat. § 814.04. The court concluded that the circuit court applied the wrong legal standard when it limited Tammy Kolupar’s award to taxable costs. It reversed and remanded for determination of reasonable costs and fees, including those incurred on appeal.

Holdings

  1. A retail buyer who prevails on a claim under Wisconsin Statutes section 218.0116 may recover reasonable litigation costs under section 218.0163(2), in addition to costs enumerated in section 814.04, but may not obtain a double recovery of the same cost items.
  2. The circuit court erroneously exercised its discretion because it applied the incorrect legal standard by treating Kolupar's recovery as limited to section 814.04 taxable costs and failed to explain why some nonenumerated expenses were reasonable while others were denied.
  3. A retail buyer prevailing on a section 218.0116 claim is entitled to reasonable attorney fees and reasonable costs incurred in appellate proceedings, with the amount to be determined by the circuit court.
  4. Wilde was not entitled to judicially estop Kolupar from seeking reasonable costs beyond section 814.04 enumerated costs.

Questions Presented

  1. Whether costs recoverable by a retail buyer under Wisconsin Statutes section 218.0163(2) are limited to costs enumerated in section 814.04 or include other reasonable litigation costs.
  2. Whether the circuit court properly exercised its discretion when it awarded costs under section 814.04 without applying the reasonable-cost standard under section 218.0163(2).
  3. Whether a prevailing retail buyer under section 218.0163(2) may recover reasonable attorney fees and costs incurred in appellate proceedings.
  4. Whether Kolupar was judicially estopped from seeking reasonable costs beyond section 814.04 enumerated costs.

Disposition

reversed_and_remanded

Cases Cited (20)

  • Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58(followed)
  • Kolupar v. Wilde Pontiac Cadillac, Inc., 2006 WI App 85, 293 Wis. 2d 265, 716 N.W.2d 547(reversed)
  • Village of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d 447(followed)
  • Anderson v. MSI Preferred Insurance Co., 2005 WI 62, 281 Wis. 2d 66, 697 N.W.2d 73(followed)
  • State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997)(followed)
  • Mrozek v. Intra Financial Corp., 2005 WI 73, 281 Wis. 2d 448, 699 N.W.2d 54(followed)
  • State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110(followed)
  • Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984)(followed)
  • Providence Catholic School v. Bristol School District, 231 Wis. 2d 159, 605 N.W.2d 238 (2000)(followed)
  • Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983)(followed)

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