Chapter 814

814.81   Surcharges in ch. 800 forfeiture actions.

814.85   Court support services surcharge.

814.86   Justice information system surcharge and special prosecution clerks surcharge.

subch. I of ch. 814 SUBCHAPTER I

COSTS IN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS

814.01 814.01 Costs allowed to plaintiff.

814.01(1) (1) Except as otherwise provided in this chapter, costs shall be allowed of course to the plaintiff upon a recovery.

814.01(3) (3) In an action for assault and battery, false imprisonment, libel, slander, malicious prosecution, invasion of privacy or seduction, a plaintiff who recovers less than $50 damages shall recover no more costs than damages.

814.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.01; 1981 c. 317.

814.01 Annotation This section does not provide for the awarding of costs to a party in an arbitration proceeding. This section requires a litigated court proceeding. Finkenbinder v. State Farm Mutual Auto Insurance Co., 215 Wis. 2d 145, 572 N.W.2d 501 (Ct. App. 1997), 97-0357.

814.01 Annotation For purposes of sub. (1), a prevailing plaintiff is a plaintiff who is awarded a recovery in a judgment, not a plaintiff who obtains a recovery as a result of a recovery dispute resolved by a trial. In this case, the circuit court correctly entered a judgment incorporating the parties’ stipulations. Regardless of the jury’s zero dollar verdict on the question of the plaintiff’s pain and suffering resulting from the defendant’s negligence, the plaintiff made a “recovery” when the court entered a final judgment that included a recovery in the stipulated amount of $10,052.07. Estate of Radley v. Ives, 2011 WI App 144, 337 Wis. 2d 677, 807 N.W.2d 633, 09-0653.

814.02 814.02 Costs limited, discretionary.

814.02(1) (1) When several actions are brought against parties who might have been joined as defendants and the actions are consolidated under s. 805.05 (1) no costs, other than disbursements, shall be allowed to the plaintiff in excess of what the plaintiff would be entitled to had the plaintiff brought but one action.

814.02(2) (2) In equitable actions and special proceedings costs may be allowed or not to any party, in whole or in part, in the discretion of the court, and in any such case the court may award to the successful party such costs (exclusive of disbursements) not exceeding $100, as the court deems reasonable and just, in view of the nature of the case and the work involved. This subsection refers only to such costs and fees as may be taxed by the authority of the statutes, independent of any contract of the parties upon the subject, which contract shall apply unless the court finds that the provisions thereof are inequitable or unjust.

814.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.02; 1993 a. 486.

814.02 Annotation A stipulation in a note or mortgage to pay certain attorney’s fees other than taxable costs will be enforced when the amount stipulated to be paid is reasonable. Lakeshore Commercial Finance Corp. v. Bradford Arms Corp., 45 Wis. 2d 313, 173 N.W.2d 165 (1970).

814.02 Annotation Neither this section or s. 814.036 grants the trial court the power to allow costs that are not explicitly authorized by statute. Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.02 Annotation The court exercises its discretion under this section by determining what is a necessary cost. Aspen Services, Inc. v. IT Corp., 220 Wis. 2d 491, 583 N.W.2d 849 (Ct. App. 1998), 97-0897.

814.02 Annotation Kleinke, 202 Wis. 2d 138 (1996), instructs that the trial court’s discretion is limited to when the court may allow costs and not what costs are allowed. The trial court erred in awarding costs for the transcription of materials on a computer disk that were made for the convenience of the moving party. Transcripts obtained solely for the convenience of counsel are not necessary disbursements under sub. (2) and thus not taxable costs. Alswager v. Roundy’s Inc., 2005 WI App 3, 278 Wis. 2d 598, 692 N.W.2d 333, 03-2274.

814.03 814.03 Costs to defendant.

814.03(1) (1) If the plaintiff is not entitled to costs under s. 814.01 (1) or (3), the defendant shall be allowed costs to be computed on the basis of the demands of the complaint.

814.03(2) (2) Where there are several defendants who are not united in interest and who make separate defenses by separate answers, if the plaintiff recovers against some but not all of such defendants, the court may award costs to any defendant who has judgment in the defendant’s favor.

814.03(3) (3) Notwithstanding subs. (1) and (2), where the department of health services or a county is joined as a plaintiff pursuant to ss. 49.89 (2) and 803.03 (2) (a) because of the provision of benefits under subch. IV of ch. 49, the department of health services or the county shall not be liable for costs to any prevailing defendant.

814.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.03; 1987 a. 345; 1993 a. 486, 496; 1997 a. 27; 1999 a. 9; 2007 a. 20 s. 9121 (6) (a).

814.03 Annotation This section contemplates the awarding of costs only to successful parties. DeGroff v. Schmude, 71 Wis. 2d 554, 238 N.W.2d 730 (1976).

814.03 Annotation A prevailing defendant is entitled to costs from all plaintiffs including subrogated plaintiffs who elected not to participate in the trial. Sampson v. Logue, 184 Wis. 2d 20, 515 N.W.2d 917 (Ct. App. 1994).

814.03 Annotation This section is mandatory, not discretionary. Taylor v. St. Croix Chippewa Indians of Wisconsin, 229 Wis. 2d 688, 599 N.W.2d 924 (Ct. App. 1999), 98-3334.

814.035 814.035 Costs upon counterclaims and cross complaints.

814.035(1) (1) Except as otherwise provided in this section, costs shall be allowed on counterclaims and cross complaints as if separate actions had been brought thereon.

814.035(2) (2) When the causes of action stated in the complaint and counterclaim and cross complaint arose out of the same transaction or occurrence, costs in favor of the successful party upon the complaint and counterclaim and cross complaint so arising shall be in the discretion of the court.

814.035(3) (3) Costs recovered by opposing parties shall be offset.

814.035 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 814.035.

814.035 Annotation An award of statutory costs to the lessee and denial of costs to the lessor was, under s. 271.035 (2) and (3) [now subs. (2) and (3)], a matter within the trial court’s discretion. Costs are purely discretionary when both parties recover on their respective claims in one action. Mid-Continent Refrigerator Co. v. Straka, 47 Wis. 2d 739, 178 N.W.2d 28 (1970).

814.035 Annotation When judgment was ordered for a defendant in the plaintiff’s action and also for the defendant on one of several counterclaims, costs were properly awarded to the defendant as to each. Arrowhead Growers Sales Co. v. Central Sands Produce, Inc., 48 Wis. 2d 383, 180 N.W.2d 567 (1970).

814.036 814.036 Omnibus costs provision. If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court.

814.036 History History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.036.

814.036 Annotation A prevailing plaintiff in a habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 255 N.W.2d 446 (1977).

814.036 Annotation Circuit courts have authority to impose costs on an attorney whose actions result in a mistrial. Schultz v. Darlington Mutual Insurance Co., 181 Wis. 2d 646, 511 N.W.2d 879 (1994).

814.036 Annotation Photocopy and facsimile expenses may be taxed under this section. Wausau Medical Center, S.C. v. Asplund, 182 Wis. 2d 274, 514 N.W.2d 34 (Ct. App. 1994).

814.036 Annotation This section only gives a court discretion as to when it may allow costs and not as to what costs may be allowed. Neither this section or s. 814.02 grants the trial court the power to allow costs that are not explicitly authorized by statute. Kleinke v. Farmers Cooperative Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.036 Annotation An award of statutory costs after arbitration is not explicitly authorized by statute and is not within the court’s discretion under this section. Lane v. Williams, 2000 WI App 263, 240 Wis. 2d 255, 621 N.W.2d 922, 00-0852.

814.036 Annotation Kleinke, 202 Wis. 2d 138 (1996), addressed what costs may be taxed when this section or s. 814.04 are relied upon; it did not consider what costs may be recovered as a component of damages in a bad faith claim. As with attorney fees, a prevailing plaintiff may recover, as compensatory damages, all reasonable expenses incurred in litigating the bad faith claim. Allied Processors, Inc. v. Western National Mutual Insurance Co., 2001 WI App 129, 246 Wis. 2d 579, 629 N.W.2d 329, 00-1490.

814.04 814.04 Items of costs. Except as provided in ss. 93.20, 100.195 (5m) (b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d), 769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3), 895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3), when allowed costs shall be as follows:

814.04(1) (1) Attorney fees.

814.04(1)(a) (a) When the amount recovered or the value of the property involved is greater than the maximum amount specified in s. 799.01 (1) (d), attorney fees shall be $500; when it is equal to or less than the maximum amount specified in s. 799.01 (1) (d), but is $1,000 or more, attorney fees shall be $300; when it is less than $1,000, attorney fees shall be $100. In all other cases in which there is no amount recovered or that do not involve property, attorney fees shall be $300.

814.04(1)(c) (c) No attorney fees may be taxed on behalf of any party unless the party appears by an attorney other than himself or herself.

814.04(2) (2) Disbursements. All the necessary disbursements and fees allowed by law; the compensation of referees; a reasonable disbursement for the service of process or other papers in an action when the same are served by a person authorized by law other than an officer, but the item may not exceed the authorized sheriff’s fee for the same service; amounts actually paid out for certified and other copies of papers and records in any public office; postage, photocopying, telephoning, electronic communications, facsimile transmissions, and express or overnight delivery; the electronic filing fee prescribed in s. 801.18 (7) (c); depositions including copies; plats and photographs, not exceeding $100 for each item; an expert witness fee not exceeding $300 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each expert; and in actions relating to or affecting the title to lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees shall not be taxed as a cost or disbursement.

814.04(4) (4) Interest on verdict. Except as provided in s. 807.01 (4), if the judgment is for the recovery of money, interest at an annual rate equal to 1 percent plus the prime rate in effect on January 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of that year, as reported by the federal reserve board in federal reserve statistical release H. 15, on the amount of the money judgment from the time of verdict, decision, or report until judgment is entered shall be computed by the clerk and added to the costs.

814.04(6) (6) Judgment by default. If the judgment is by default or upon voluntary dismissal by the adverse party the costs taxed under sub. (1) shall be one-half what they would have been had the matter been contested.

814.04(7) (7) Judgment offer not accepted. If the offer of judgment pursuant to s. 807.01 is not accepted and the plaintiff fails to recover a more favorable judgment the plaintiff shall not recover costs but the defendant shall have full costs to be computed on the demand of the complaint.

814.04(8) (8) Actions for municipal corporations. In all actions brought for the benefit of any county, town, village, city or other municipal corporation of this state by a citizen taxpayer, the plaintiff shall be entitled to recover for the plaintiff’s own use, in case the plaintiff shall prevail, the taxable costs of such action and such part of the recovery as the court considers reasonable, as attorney fees, not to exceed 20 percent of such recovery, and not to exceed $500.

814.04 History History: Sup. Ct. Order, 50 Wis. 2d vii (1971); 1971 c. 141; Sup. Ct. Order, 67 Wis. 2d 585, 761, 780 (1975); Stats. 1975 s. 814.04; 1977 c. 209; 1979 c. 110 s. 60 (13); 1979 c. 271, 355; 1981 c. 123, 317; 1985 a. 52, 311; 1987 a. 348; 1991 a. 39, 65, 189, 295; 1993 a. 98, 326, 486, 490, 491; 1995 a. 24, 27, 133, 149, 262, 417; 1997 a. 55, 164, 254; 1999 a. 32, 82, 122, 190; 2001 a. 6, 16; 2003 a. 138; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2005 a. 155, 325; 2005 a. 443 s. 265; 2005 a. 458; 2007 a. 96; 2009 a. 20; 2011 a. 2, 69, 118, 219; 2013 a. 165; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

814.04 Annotation Comment of Judicial Council, 1971: Guardian ad litem fees shall not be taxed as a cost or disbursement. Present law permits guardian ad litem fees to be taxed as costs or disbursements. [Re Order effective July 1, 1971]

814.04 Annotation Fees for an expert witness may be taxed only for the day that the expert testifies, even though the expert is present in court on other days. McLoone Metal Graphics, Inc. v. Robers Dredge, Inc., 58 Wis. 2d 704, 207 N.W.2d 616 (1973).

814.04 Annotation A citizen who obtains an injunction in an action brought for the benefit of a municipality may not recover attorney fees under sub. (8). Cobb v. Milwaukee County, 60 Wis. 2d 99, 208 N.W.2d 848 (1973).

814.04 Annotation Sub. (4), being a general statute, does not govern the rate of interest on a jury verdict in a condemnation action, which is covered by ss. 32.05 (11) (b) and 138.04. Weiland v. DOT, 62 Wis. 2d 456, 215 N.W.2d 455 (1974). See also Calaway v. Brown County, 202 Wis. 2d 736, 553 N.W.2d 809 (Ct. App. 1996), 95-2337.

814.04 Annotation Sub. (2) allows the recovery of costs, not exceeding $50, for each individual plat and photograph. Billingsley v. Zickert, 72 Wis. 2d 156, 240 N.W.2d 375 (1976).

814.04 Annotation When a plaintiff’s damages were set by the first verdict, but the amount the plaintiff could recover was not set until the second verdict, the plaintiff was entitled to interest from the date of the first verdict. Nelson v. Travelers Insurance Co., 102 Wis. 2d 159, 306 N.W.2d 71 (1981).

814.04 Annotation The court erred by taxing as costs of suit guardian ad litem and attorney fees as a surcharge or penalty against a former guardian. Western Surety Co. v. P.A.H., 115 Wis. 2d 670, 340 N.W.2d 577 (Ct. App. 1983).

814.04 Annotation Photocopies may not be taxed as photographs. Ramsey v. Ellis, 163 Wis. 2d 378, 471 N.W.2d 289 (Ct. App. 1991).

814.04 Annotation The award of attorney fees, disbursements, and interest on a verdict are discussed. Zintek v. Perchik, 163 Wis. 2d 439, 471 N.W.2d 522 (Ct. App. 1991).

814.04 Annotation Photocopy and facsimile expenses may be taxed under s. 814.036. Wausau Medical Center v. Asplund, 182 Wis. 2d 274, 514 N.W.2d 34 (Ct. App. 1994).

814.04 Annotation There is no authority for awarding pretrial mediation fees as taxable costs. Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996), 95-0856.

814.04 Annotation Postverdict, prejudgment interest on a verdict that was overturned by a judgment notwithstanding the verdict, but was ultimately reinstated on appeal, accrued from the date of the original verdict to the entry of judgment following the completion of the appeal. Management Computer v. Hawkins, Ash, Baptie & Co., 224 Wis. 2d 312, 592 N.W.2d 279 (Ct. App. 1998), 97-2470.

814.04 Annotation When multiple plaintiffs are required to bring their claims in a single action pursuant to s. 803.03, sub. (2) does not authorize multiple awards for the same disbursement to multiple plaintiffs. Paulson v. Allstate Insurance Co., 2002 WI App 168, 256 Wis. 2d 892, 649 N.W.2d 645, 01-0991.

814.04 Annotation Photocopies of sworn public documents are not a type of certified copies the cost of which are taxable under sub. (2). Affidavits filed by government workers are not certified copies. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2003 WI App 209, 267 Wis. 2d 688, 671 N.W.2d 346, 02-2961.

814.04 Annotation Affirmed on other grounds. 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 858, 02-2961.

814.04 Annotation When a garnishment summons and complaint recited that the total due on the creditor’s claim was $11,716.16 and advised the garnishee defendant that if it failed to answer, judgment would be entered against it for that amount, the garnishee defendant was entitled to the maximum amount of costs allowable under sub. (1) (a). Hometown Bank v. Acuity Insurance, 2008 WI App 48, 308 Wis. 2d 503, 748 N.W.2d 203, 07-1048.

814.04 Annotation Actual attorney fees in the context of a bad faith claim are not a necessary cost of litigation to which a prevailing party is entitled. Instead, they are an item of damages intended to compensate the victims. In the absence of an express reservation of the right to recover actual attorney fees in an accepted offer of judgment, recovery of fees in a bad faith action is limited to only those plaintiffs who proceed to trial. Stewart v. Farmers Insurance Group, 2009 WI App 130, 321 Wis. 2d 391, 773 N.W.2d 513, 08-1605.

814.04 Annotation The phrase “actually paid out” in sub. (2) modifies the amounts paid “for certified and other copies of papers and records in any public office.” Applying the phrase “actually paid out” as a limitation on other recoverable costs is not supported by the statute. Photocopy charges are not required to be “paid out” to a third-party vendor to be awarded under this section. Mercer v. City of Fond du Lac, 2010 WI App 15, 323 Wis. 2d 67, 780 N.W.2d 188, 09-0505.

814.04 Annotation When plaintiffs join together to file a single complaint, even though they could have commenced separate actions, they may recover their costs as if they had filed their complaints separately. 3301 Bay Road LLC v. Town of Delavan, 2014 WI App 18, 352 Wis. 2d 721, 845 N.W.2d 666, 12-2594.

814.045 814.045 Attorney fees; reasonableness.

814.045(1) (1) Subject to sub. (2), in any action involving the award of attorney fees that are not governed by s. 814.04 (1) or involving a dispute over the reasonableness of attorney fees, the court shall, in determining whether to award attorney fees and in determining whether the attorney fees are reasonable, consider all of the following:

814.045(1)(a) (a) The time and labor required by the attorney.

814.045(1)(b) (b) The novelty and difficulty of the questions involved in the action.

814.045(1)(c) (c) The skill requisite to perform the legal service properly.

814.045(1)(d) (d) The likelihood that the acceptance of the particular case precluded other employment by the attorney.

814.045(1)(e) (e) The fee customarily charged in the locality for similar legal services.

814.045(1)(f) (f) The amount of damages involved in the action.

814.045(1)(g) (g) The results obtained in the action.

814.045(1)(h) (h) The time limitations imposed by the client or by the circumstances of the action.

814.045(1)(i) (i) The nature and length of the attorney’s professional relationship with his or her client.

814.045(1)(j) (j) The experience, reputation, and ability of the attorney.

814.045(1)(k) (k) Whether the fee is fixed or contingent.

814.045(1)(L) (L) The complexity of the case.

814.045(1)(m) (m) Awards of costs and fees in similar cases.

814.045(1)(n) (n) The legitimacy or strength of any defenses or affirmative defenses asserted in the action.

814.045(1)(p) (p) Other factors the court deems important or necessary to consider under the circumstances of the case.