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‘Costs’ does not include ‘actual costs’

What the court held

Case: Kolupar v. Wilde Pontiac Cadillac, Inc., No. 2005AP935

Issue: Can a retail buyer alleging fraud by a motor vehicle dealer recover actual costs, or only taxable costs?

Holding: Only taxable costs. The Legislature’s use of the term, "costs" for fraud against a consumer, compared with its use of "actual costs" earlier in the same statute, unambiguously precludes recovery for actual litigation expenses.

Counsel: Erspamer, Paul M., Waukesha; Lisko, David J., Waukesha, for appellant; Gutenkunst, Kathryn S., Waukesha; Brejcha, Brian M., Waukesha; Atinsky, Philip L., Milwaukee, for respondent.

A victim of fraud by an auto-dealer can only recover taxable costs, not actual litigation expenses.

The Wisconsin Court of Appeals on April 25 concluded that, because subsection (2) of sec. 218.0163 only references “costs,” unlike subsec. (1), which refers to “actual costs,” the statute limits the recovery to taxable costs pursuant to Rule 814.04.

In 1994, Tammy Kolupar bought a used Mercedes based on representations by Wilde Pontiac Cadillac, Inc., and a salesman, Randall Thompson, that the car was in good mechanical condition. In 2000, she sued Wilde and Thompson, alleging a number of federal and state claims, including violations of Wisconsin’s motor vehicle statute, sec. 218.01 (1993-94), now renumbered as sec. 218.0163(2).

In 2001, the claim was settled for $6,600, plus costs. By that point, Kolupar had accumulated approximately $41,000 in attorney fees and almost $11,000 in litigation expenses.

At a hearing to determine the reasonableness of the fees and costs, Milwaukee County Circuit Court Judge Thomas R. Cooper awarded only $15,000 in fees and costs combined. A divided court of appeals affirmed in a published decision, Kolupar v. Wilde Pontiac Cadillac, Inc., 2003 WI App 175, 266 Wis.2d 659, 668 N.W.2d 798.

The Supreme Court accepted review, and affirmed in part, and reversed in part. 2004 WI 112, 275 Wis.2d 1, 683 N.W.2d 58. The court held that Kolupar failed to properly appeal the issue of whether the reduction in attorney fees was appropriate. However, the court remanded the case to the circuit court to award costs.

Back in circuit court, Judge M. Joseph Donald awarded only taxable costs, not actual litigation expenses. Kolupar appealed, but the court of appeals affirmed in a decision by Judge Ralph Adam Fine.

The court noted that the Legislature used the term “costs” in sec. 218.01(9)(b), while, in sec. 218.01(9)(am), it permitted the recovery of “actual costs” when a prohibited practice affected another licensee (rather than a retail buyer) and was found to be “willful.”

From this, the court concluded, “in the absence of any evidence in the Record that the Legislature’s use of distinctive characterizations was inadvertent, we are bound by the distinction.”

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Case Analysis

Citing State ex rel. Kalal v. Circuit Court, 2004 WI 58, par. 44, 271 Wis.2d 633, 681 N.W.2d 110, the court found the term, “costs” unambiguously refers only to taxable costs under Rule 814.04.

The court added, “where the Legislature uses different words or phrases to describe something that could be construed as congruent absent the difference in language, we assume that the legislature intended a distinction based on that difference in language.”

Accordingly, the court held, “the Legislature did not intend by its bare use of the word ‘costs’ in sec. 218.01(9)(b) to encompass ‘actual costs,’ and affirmed.

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David Ziemer can be reached by email.

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