Kolupar v. Wilde Pontiac Cadillac, Inc.

2004 WI 112, 683 N.W.2d 58, 275 Wis. 2d 1, 2004 Wisc. LEXIS 488
CourtWisconsin Supreme Court
DecidedJuly 13, 2004
Docket02-1915
StatusPublished
Cited by66 cases

This text of 2004 WI 112 (Kolupar v. Wilde Pontiac Cadillac, Inc.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 683 N.W.2d 58, 275 Wis. 2d 1, 2004 Wisc. LEXIS 488 (Wis. 2004).

Opinions

[6]*6DAVID T. PROSSER, J.

¶ 1. This is a review of a published decision of the court of appeals.1 In the beginning this case involved a suit by Tammy Kolupar (Kolupar) against Wilde Pontiac Cadillac (Wilde) and one of Wilde's employees, Randall Thompson, over the sale of an unsatisfactory used car. Kolupar's underlying claims are no longer at issue; Kolupar and Wilde settled, and the circuit court entered a default judgment against Thompson. The primary question in this review is whether the circuit court properly exercised its discretion in awarding reasonable attorney fees and costs.

¶ 2. Kolupar argues that the circuit court failed to apply the proper legal analysis when it concluded that $15,000 was an appropriate award for fees and costs. In her view, the circuit court: (1) failed to expressly consider factors approved by this court for determining reasonable attorney fees; (2) failed to apply the "lodestar" method for determining reasonable attorney fees; and (3) erred by considering the recommendation of a discovery referee appointed by the court. Kolupar asserts that if the court had considered and applied the appropriate law, it would have determined that a substantially higher award of attorney fees was appropriate.

¶ 3. Wilde counters that the circuit court did in fact undertake an appropriate analysis and therefore did not erroneously exercise its discretion. Wilde posits that this court should defer to the circuit court's decision.

¶ 4. The circuit court's primary explanation for the $15,000 award for fees and costs indicates that the court believed Kolupar pleaded an excessive number of claims in her complaint. The court also stated that this "over-pleading" at the outset caused the case to be [7]*7"over-tried" and discovery to be "well over-done." While both Kolupar and Wilde seem to acknowledge that each spent more time litigating this small case than the case deserved, they each pin the blame on the other side's unreasonableness as the source of the excessive litigation.

¶ 5. We uphold the circuit court's decision to award $15,000 in attorney fees. The court's explanation mirrored the sparse information it had available to make its decision. If Kolupar had properly submitted the documentation supporting the number of hours reasonably expended, then the court's explanation would likely not withstand scrutiny. However, the circuit court's explanation comported with the type and amount of information it had in the absence of such documentation. As a result, the circuit court's explanation reflected Kolupar's unmet burden to demonstrate the reasonableness of the requested award. By contrast, although the circuit court understood that substantial costs were incurred, it did not explain why it concluded that no costs were appropriate. We therefore remand the issue to the circuit court to address the issue of costs.

BACKGROUND

¶ 6. On March 29, 2000, Kolupar sued Wilde and Thompson in Milwaukee County Circuit Court to recover damages allegedly incurred in connection with the purchase of a 1985 Mercedes Benz 190E. According to Kolupar's civil complaint, Thompson, Wilde's new car manager, accepted Kolupar's 1993 Pontiac Sunbird in exchange for the Mercedes, and represented that the Mercedes was in good mechanical condition. The transaction took place in March of 1994 at the Wilde dealership, but a court has never formally determined [8]*8whether Thompson was acting as an agent of Wilde or whether he was "curbing cars" on his own.

¶ 7. Kolupar asserted that both Wilde and Thompson were liable for fraud, federal and state odometer law violations, breach of express and implied warranties, and violations of Wisconsin's motor vehicle statute, Wis. Stat. § 218.01 (1993-94).2 Wilde responded to the complaint by denying any involvement in the transaction.3 In May 2001, Kolupar dropped the federal odometer claim — which permitted treble damages— when Wilde moved for summary judgment based upon the federal claim's two-year statute of limitation. If the case had gone to trial, the main factual issue likely would have been whether Thompson acted under Wilde's actual or apparent authority.

¶ 8. There was no trial. In December of 2002, two and one-half years after Kolupar initiated suit, Wilde and Kolupar settled the underlying claim for $6,600 dollars plus taxable costs. Between the inception of litigation and this settlement, the parties litigated the suit vigorously through numerous motions, near-constant correspondence, and headstrong, sometimes obstinate behavior regarding discovery matters that ultimately necessitated the appointment of a discovery referee.

[9]*9¶ 9. By the time the parties settled, Kolupar asserted that she had accumulated approximately $41,000 in attorney fees and almost $11,000 in litigation expenses. Along with the $6,600 settlement, Wilde offered $15,000 in attorney fees, but Kolupar rejected that offer. Thus, the settlement left unresolved the issue of attorney fees. Since the $6,600 plus taxable costs for the underlying claim encompassed Kolupar's § 218.01(9) claim, and since that section provides that a court has authority to award "actual costs, including a reasonable attorney fee," Milwaukee County Circuit Judge Thomas R. Cooper, concluded that attorney fees were appropriate in this case.

¶ 10. Judge Cooper held hearings on May 13 and May 14, 2002, in order to resolve the issue of attorney fees and costs. The court received testimony from Frank T. Crivello (a former circuit judge who served as a discovery referee), Kolupar, Paul Erspamer (Kolupar's attorney), and Patrick Donahue (vice-president of Wilde). The testimony focused primarily on establishing each party's culpability for the escalating litigation expenses incurred by the parties.

¶ 11. Near the conclusion of the hearing, Judge Cooper addressed the billing documentation submitted by Kolupar. Wilde asked that Judge Cooper refuse to consider the written information because Kolupar filed the billing information in violation of a local rule. Milwaukee County Circuit Court Rule 365 directs that a party who wishes to submit any documents in support of a motion (other than a motion for summary judgment or dismissal) must provide opposing counsel with the materials no later than 10 days before the hearing date. Wilde did not receive the invoice until Friday, May [10]*1010, 2002, for a Monday, May 13, 2002, hearing. See Milwaukee Cty. Ct. R. 365(a).4

¶ 12. Judge Cooper agreed with Wilde, holding that Kolupar's submission failed to comport with local rules. As a sanction for noncompliance, Judge Cooper declined to consider the untimely filed material in his decision.

¶ 13. At the conclusion of the hearing, Judge Cooper awarded Kolupar $15,000 in fees and costs. Judge Cooper stated that he was relying, at least in part, on the recommendation of Crivello. Crivello testified at the hearing that:

In thirty years in [the] practice of law, as well as fifteen years as a circuit judge myself[J I have never seen a $6,000.00 case grow barnacles the way this one has.
I have served as special master in cases on numerous occasions here in Milwaukee County since leaving the bench. The only case that I have ever seen that approached this magnitude was...

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Cite This Page — Counsel Stack

Bluebook (online)
2004 WI 112, 683 N.W.2d 58, 275 Wis. 2d 1, 2004 Wisc. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolupar-v-wilde-pontiac-cadillac-inc-wis-2004.