COURT OF APPEALS DECISION DATED AND RELEASED October 1, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0520
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
SHERRY MULLIGAN AND
MICHAEL A. WOZNY,
Plaintiffs-Respondents,
v.
BARBARA J. KOEHLER,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIS J. ZICK, Reserve Judge. Reversed.
CURLEY,
J. Barbara J. Koehler, the defendant in a landlord tenant dispute,
seeks reversal of the trial court's order assessing $1,100 in appellate attorney
fees against her, when no request was made of the appellate court for attorney
fees and the remittitur is silent on the issue of fees. Because a review of the relevant statutes
reflects it was the legislature's intent to permit only the Court of Appeals to
authorize appellate attorney fees contributions, the trial court exceeded its
authority by awarding appellate attorney fees.
Accordingly, the trial court order is reversed.[1]
The underlying
controversy in this matter was an action brought by Sherry Mulligan and Michael
A. Wozny (hereinafter, Mulligan) to recover damages and costs for Koehler's
alleged violation of the Wis. Adm. Code
§ Ag 134 dealing with the retention of security deposits. Mulligan prevailed in the trial court and
Koehler appealed the September 28, 1994, judgment to this court in case number
94-2532. Ultimately that appeal was
dismissed by the Court of Appeals on July 7, 1995, because Koehler failed to
file a brief. A remittitur was prepared
by the Court of Appeals on August 8, 1995, and the record was returned to the
Milwaukee County Circuit Court on August 8, 1995. The court made no directives or mandates to the trial court
awarding appellate attorney fees.
On August 16, 1995,
Mulligan filed a motion in the trial court requesting attorney fees from
Koehler incurred solely in the defense of the first appeal. Koehler challenged the trial court's
jurisdiction and argued that the procedure found in Rule 809.25(1)(c), Stats.,
was not followed. Despite the
objection, on November 24, 1995, the trial court entered an order awarding
Mulligan $1,100 in appellate attorney fees from Koehler. This appeal follows.
Under the American
system of jurisprudence, ordinarily a prevailing party is not entitled to be
reimbursed for attorney fees. “We note
at the outset that generally, except for court costs and fees, a plaintiff may
not recover attorney fees and expenses of litigation in his or her claim
against the defendant unless such liability arises from specific statutory
provisions or the contract of the parties.”
Shands v. Castrovinci, 115 Wis.2d 352, 357, 340 N.W.2d
506, 508 (1983). Here, Koehler concedes
that the clear mandate of § 100.20(5), Stats.,
allows for an award of costs and a doubling of the damages, including appellate
attorney fees, to one who prevails in a landlord tenant dispute. While admitting to the legality of the fees,
nevertheless Koehler challenges the trial court's authority for ordering
appellate attorney fees.
To ascertain whether the
trial court had the power to assess appellate attorney fees requires a review
of the relevant statutes. Construction
of a statute in relation to a particular set of facts is a question of law. State v. Clausen, 105 Wis.2d
231, 243, 313 N.W.2d 819, 825 (1982).
We review questions of law de novo.
The determination to be
made in this case is whether § 100.20(5) attorney fees emanating out of an
aborted appeal can be awarded by the trial court or whether this responsibility
falls within the exclusive province of the Court of Appeals.
Rule 809.25,
Stats., sets out the statutory
scheme for the awarding of fees in an appellate setting. Included in the list of occasions when fees
can be awarded by the Court of Appeals is:
“Against the appellant before the court of appeals when the appeal is
dismissed or the judgment or order is affirmed.” Rule 809.25(1)(a)1,
Stats. The statute also enumerates the type of costs that are
allowed. There is a catch-all provision
which permits “other costs as directed by the court,” Rule 809.25(1)(b)5, Stats. The term “court” is defined in Rule 809.01(4), Stats.: “`Court' means the court of appeals or, if the appeal or other
proceeding is in the supreme court, the supreme court.” What can be culled from a reading of the
three statutes is that the Wisconsin Rules of Appellate Procedure permit the
Court of Appeals to both award fees when, as here, a party fails to file an
brief leading to dismissal, and, under the catch-all provision, to assess the
type of fees being sought in this case; that is, § 100.20(5), appellate
attorney fees. Rule 809.25(1)(c), Stats.,
does, however, contain a time limitation on the request for fees. “A party seeking to recover costs in the
court shall file a statement of the costs within 14 days of the filing of the
decision of the court. An opposing
party may file within 7 days of the service of the statement a motion objecting
to the statement of costs.” Rule 809.25(1)(c), Stats.
There is another chapter
giving trial courts and clerks the ability to charge fees and costs. Chapter 814, Stats., titled “Court Costs and Fees,” contains the legal
authority to assess costs in civil actions and special proceedings and to set
court fees at the conclusion of a case.
There are no provisions in this chapter, however, giving the trial court
authority to order costs for appellate matters. In fact, § 814.64, titled “Fees on appeal to court of
appeals or supreme court,” reads: “The
fees on appeal to the court of appeals and the supreme court are prescribed in
s. 809.25(2).” (Referencing the chapter regulating appellate procedure.).
It is a long-recognized
rule that, “[I]n construing a statute, the entire section and related sections
are to be considered in its construction or interpretation.” Clausen, 105 Wis.2d at 244,
313 N.W.2d at 825. Here, there is no
statutory authority for trial courts to order appellate attorney fees, although
there are statutes setting forth the procedure for the Court of Appeals to make
these awards. A harmonious reading of
the statutes leads to the inescapable conclusion that the legislative intent
was to allow only the Court of Appeals the right to award appellate attorney
fees.
Despite the dearth of
statutory authority enabling the trial court to award appellate attorney fees,
Mulligan argues that a reading of §§ 808.08 and 808.09, Stats., allows the trial court to order
appellate attorney fees once the case is returned on remittitur. Mulligan proposes § 808.09, which
reads, “[I]n all cases an appellate court shall remit its judgment or decision
to the court below and thereupon the court below shall proceed in accordance
with the judgment or decision,” permits the trial court to award appellate
attorney fees once the judgment has been remitted. Section 808.09, Stats.
(emphasis added).
Mulligan misreads these
statutes. Although the Court of Appeals
may order the trial court “to take specific action,” see
§ 808.08(1), Stats., which
could encompass the taking of testimony on what constitutes reasonable attorney
fees, these statutes are silent on the issue of whether the trial court can
award appellate fees without a Court of Appeals directive. In any event, it is a well-settled rule of
statutory construction that “specific provisions relating to a particular
subject must govern in respect to that subject as against general provisions in
other parts of the law which might otherwise be broad enough to include
it.” Brennan v. Employment
Relations Comm'n, 112 Wis.2d 38, 43, 331 N.W.2d 667, 670 (Ct. App.
1983). Thus, the specific statutes
governing the appellate procedure for the awarding of fees found in Chapter 809,
Stats., govern over the general
statute found in Chapter 808, Stats.
Finally, Mulligan cites
to Shands, for trial court authority to award appellate attorney
fees under § 100.20(5). The court
in Shands stated:
“Section 100.20(5), Stats.,
on its face contains no instruction regarding at what stage of the litigation
process reasonable attorney fees shall be awarded. Certainly it contains no restrictions.” Shands, 115 Wis.2d at 357, 340 N.W.2d at 509. At first blush, this statement appears to
bolster Mulligan's argument. In Shands,
however, the supreme court was addressing the defendant's argument that
§ 100.20, Stats., did not
permit any appellate attorney fees.
Hence, Shands stands for the proposition that attorney
fees for appellate work fall within the ambit of § 100.20(5), Stats.; it does not authorize the trial
court's awarding appellate attorney fees.
Also telling is the fact that the attorney requesting appellate attorney
fees in Shands addressed his request to the Court of Appeals, not
the trial court. Shands
does not support Mulligan's position.
In conclusion, there is
neither statutory nor case law authority for the trial court to award appellate
attorney fee contributions without a Court of Appeals directive. It is now well-settled law that appellate
fees are available under § 100.20(5), Stats.;
however, the forum for such requests is the appellate court, not the trial
court. A reading of the pertinent
statutes shows that only the Court of Appeals may award appellate attorney
fees. Mulligan may well have been
entitled to fees under § 100.20(5), Stats.,
but the motion should have been filed in the appellate court within the
appropriate time limit.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.