Reasonable
Costs Case Analysis
July
23, 2007
As
a result of the decision, all fee-shifting statutes could be interpreted to allow
for an award of “reasonable costs,” regardless of whether the statute
allows for “actual costs” or just “costs.”
Any
statute which is designed to protect consumers (or tenants, or any other group
deemed to have unequal bargaining power), will be indistinguishable from sec.
218.0163(2). Unless “reasonable costs” are allowed, there will be insufficient
incentive for those protected by the statute to actually enforce it.
The
majority opinion includes a helpful footnote, to guide practitioners. Footnote
13 states as follows: “For a complete listing of the 50-plus fee-shifting
provisions in Wisconsin law, see 3 Hon. Robert D. Sundby & Steven P. Means,
Law of Damages in Wisconsin, Chapter 37, Attorney Fees, Appendicies 37A and 38B
(Russell M. Ware ed., 4th ed. 2005).”
Under
the reasoning in the case at bar, each of those statutes could logically permit
an award of all reasonable costs and attorney fees, even if the statutes could
be interpreted to provide only limited costs and fees.
The
court’s conclusion — “Providing for reasonable attorney fees and
costs ensures that individuals will enforce the rights provided to them under
the statute by the legislature, even when the costs of litigation exceed the value
of the action” — will be equally applicable to any statute designed
to protect any party who has unequal bargaining power.
It
should also be noted that the decision conflicts with a Seventh Circuit opinion,
Bob Willow Motors, Inc., v. General Motors Corp. 872 F.2d 788 (7th Cir. 1989).
The
court there interpreted “costs including a reasonable attorney fee”
to permit an award of costs that includes only ordinary, taxable costs.
In
light of the decision in the case at bar, federal courts must conclude that Bob
Willow Motors is no longer valid law.
Curiously,
however, even though the Supreme Court wrote, “this court is not bound by
a federal court’s interpretation of Wisconsin law,” Westlaw misclassifies
the case at bar as a “Positive Case” that follows Bob Willow Motors,
rather than a “Negative Case” that distinguishes and effectively overrules
it. As a result, attorneys doing research are not immediately alerted that the
case is no longer valid.
Finally,
the court’s method of analysis is noteworthy. At no point in the decision
does the court consider whether “costs” is ambiguous or unambiguous.
The court of appeals concluded that “costs” unambiguously means “taxable
costs,” and thus did not even consider whether such an interpretation furthers
the purpose of the statute.
Since
State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis.2d 633, 681 N.W.2d 110,
124, classification of a disputed statutory term as either ambiguous or unambiguous
has been the starting point of statutory interpretation.
However,
the Supreme Court dispenses with the inquiry altogether, stating only, “A
plain-meaning interpretation of a statute cannot contravene a textually or contextually
manifest statutory purpose.”
It may be that the court is moving away from
the strictures of Kalal, a sea change in how parties write briefs, and courts
decide cases, when statutory interpretation is the issue.
Click
here for Main Story.
David
Ziemer can be reached by email.
