Trusts and Estates — statutory fees

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Wisconsin Court of Appeals

Civil

Trusts and Estates — statutory fees

Where the estate was a prevailing party pursuant to a stipulation, it is entitled to recover statutory fees.

“In this case, the circuit court entered a judgment incorporating the parties’ stipulations that ThedaCare’s negligence was a substantial factor in causing Mr. Radley’s death, and that ThedaCare would pay the Estate $10,052.07 for Radley’s funeral expenses. We conclude that, regardless of the jury’s zero dollar verdict on the question of Radley’s pain and suffering resulting from ThedaCare’s negligence, the Estate made a ‘recovery’ within the meaning of WIS. STAT. § 814.01(1) when the court entered a final judgment that included a recovery in the amount of $10,052.07.”

“ThedaCare next argues that, as a matter of law, WIS. STAT. § 814.01(1) does not apply to claims resolved by ‘stipulation or settlement,’ such as in this case. ThedaCare asserts that the stipulations in this case are ‘akin to a settlement,’ and that in Aul v. Golden Rule Insurance Co., 2007 WI App 165, ¶¶42-44, 304 Wis. 2d 227, 737 N.W.2d 24, we held that costs are not allowed for settlements, which, we said, do not constitute a ‘judicial recovery.’ This is not a correct reading of Aul. The statement that ThedaCare relies on in Aul simply referred to the particular settlement in that case as not being a judicial recovery. Nothing in Aul suggests that settlements in general do not result in a judicial recovery. What is significant in Aul for our purposes here is that there, the settlement did not result in a recovery in a judgment. Here, however, the stipulations resulted in a judgment for the Estate in the amount of $10,052.07. We conclude that nothing in WIS. STAT. § 814.01(1) or the case law interpreting the costs statutes prevents a plaintiff from obtaining costs when the recovery is a result of a stipulation and judgment.”

“Finally, ThedaCare argues that allowing a plaintiff to recover costs based on a payment made as a result of a stipulation violates public policy. It argues that awarding costs against parties who enter into stipulations to narrow the issues to be tried will discourage these types of agreements. ThedaCare also points out that Wisconsin has a “long standing policy in favor of settlements,” and that imposing costs against parties that stipulate conflicts with this policy and will result in piecemeal litigation. This argument lacks merit. We are aware of no authority permitting us to ignore the plain language of a statute and interpret that statute based on our own view of desirable public policy.”

Affirmed.

Recommended for publication in the official reports.

2009AP653 Estate of Radley v. Ives

Dist. IV, Dane County, Flanagan, J., Higginbotham, J.

Attorneys: For Appellant: Leib, Samuel J., Milwaukee; Gaynor, Sean M., Milwaukee; For Respondent: Laufenberg, Lynn R, Milwaukee