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Review Case Analysis

The decision is unfortunate, for, as the dissent notes, Kolupar has indeed been victimized twice — once by the defendants, and once by the judicial system.

Nevertheless, the decision is not as bad for consumers as the court of appeals’ decision was, and logical inconsistencies in the decision may be exploitable.

First, at least Kolupar obtained remand on the issue of costs. According to the decision, this totals $11,000 of the requested $53,000.

In addition, the fact that the court remanded the matter for a determination of costs suggests that, had the court not found the Rule 365 issue to have been waived, it would have remanded the decision for consideration of attorney fees as well.

The May 13, 2002 hearing in this case was not scheduled by the court until May 10, 2002. If, in fact, the court believed that a request for attorney fees and costs is subject to the 10-day requirement in Rule 365, the motion simply should never have been scheduled for that date. Plaintiffs in future cases can protect themselves merely by objecting when courts sua sponte schedule hearings less than 10 days into the future.

The inconsistency in the decision is that the motion requested both attorney fees and costs. If the circuit court was within its discretion to refuse to consider the attorney fees, because of insufficient notice, then logically, it should have been free to disregard any request for statutory costs on the same ground.

By remanding for consideration of costs, the court’s decision could be interpreted as holding that, if the Rule 365 argument had not been waived with respect to the request for attorney fees, the court may have ruled in Kolupar’s favor on the issue of attorney fees, as well.

Another aspect in consumers’ favor is that, from reading the court of appeals’ decision, it appeared that Kolupar obtained excellent results as a result of litigation.

She paid $8,600 for a car that was only worth $2,000, and obtained a settlement of $6,600, plus taxable costs. Pars. 2-4. The court of appeals made no mention of the treble damages she would have been entitled to had the federal odometer tampering claim not been barred by the statute of limitations.

The Supreme Court decision, on the other hand, amplifies the total damages sought to more than $50,000.

The Supreme Court’s opinion thus stands for the proposition that a plaintiff who recovers only a small percentage of what was originally sought did not obtain very good results: “While we do not approve a bright-line rule under which courts imply apply a strict ratio of the amount claimed and the amount of settlement to arrive at a reasonable fee, we do find it significant that the fee in this case constituted a higher percentage of the total sought than the same ratio between the requested damages and the settlement.”

Had the court of appeals’ decision remained the final word on this case, it would be arguable that, even if a plaintiff recovers 100 percent of the damages, actual attorney fees could be denied or reduced if the amount was not much to begin with, and the fees sought were large.

The court’s adoption of the federal methodology for awarding attorney fees under fee-shifting statutes — the lodestar approach adopted in Hensley v. Eckerhart, 461 U.S. 424 (1983) — is also probably beneficial for consumers.

In subsequent cases — in which plaintiffs are careful to allot more than 10 days between filing motions for fees and the hearing — the arbitrary reduction in fees that occurred in this case should not be possible. In the case at bar, the court may have been justified in reducing the fees for any time spent on the federal odometer claim, because the statute of limitations had expired years before filing.

But as for the allegation of “overtrying” the case, the court would have to actually put on the record what the plaintiff did that constitutes discovery abuse. A court could not merely adopt the recommendation of a discovery master who did no more than conduct “three formal discovery hearings,” plus ancillary correspondence and telephone calls. Kolupar, 2003 WI App 175, par. 7.

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Issues for review must
be specifically stated

The court stated that, because the court did not consider the submitted documentation, it could have awarded no fees, at all. Nevertheless, assuming proper documentation, the lodestar approach will make it difficult for courts to reduce fees out of caprice.

However, attorneys should be aware of a recent court of appeals decision recommended for publication, Jensen v. McPherson, 2004 WL 1534145 (No. 03-2505, Wis.Ct.App., June 30, 2004). The court held that the following itemizations in a request for attorney fees were insufficiently vague to determine whether they were reasonable: “trial preparation”; “trial attendance” and “work associated with the mistrial.”

While it is unfathomable how a request could be more specific than “trial attendance,” counsel should know that “trial preparation” and “work associated with …” are suspect.

Finally, al
l attorneys in Wisconsin need to be careful, in light of this decision, to carefully frame issues when seeking review in the Supreme Court.

The issue presented in the petition for review was, “Did the trial court erroneously exercise its discretion by failing to apply and consider the correct legal standard?”

The issue is vaguely stated, but not uncommonly vague, relative to other issues frequently stated by other attorneys. Attorneys need to be aware that issues should be more specifically framed, lest the court evade issues, even though they are fully briefed, by citing vagueness in the petition.

– David Ziemer

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David Ziemer can be reached by email.

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