source: Caselaw Access Project

author: CURLEY, J. FINE, J.

license: Public Domain

text:
    Tammy Kolupar, Plaintiff-Appellant, v. Wilde Pontiac Cadillac, Inc. and Randall Thompson, Defendants-Respondents.
    Court of Appeals

      No. 02-1915.

      Submitted on briefs May 6, 2003.

      Decided July 22, 2003.

    2003 WI App 175
    (Also reported in 668 N.W.2d 798.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí Paul M. Erspamer of Lisko & Erspamer, S.C., of Waukesha.
    On behalf of defendant-respondent Wilde Pontiac Cadillac, Inc., the cause was submitted on the brief of Brian M. Brejcha and Kathryn Sawyer Gutenkunst of Cramer, Multhauf & Hammes, LLP, of Waukesha.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review granted 10-21-03.

   CURLEY, J.

¶ 1. Tammy Kolupar appeals from the order and judgment awarding her $15,000 in attorney fees and costs, rather than the $53,000 in fees and costs requested, in her action against Wilde Pontiac, Cadillac, Inc. (Wilde) and its employee Randall Thompson, alleging that Thompson fraudulently sold Kolupar a substandard vehicle. Kolupar contends that the trial court: (1) erroneously exercised its discretion in failing to admit into evidence an invoice itemizing Kolupar's attorney's fees and litigation expenses; (2) erred in relying upon the recommendation of the discovery referee; (3) failed to apply the correct legal standard in refusing to award $53,000 in fees and costs; and (4) erred in denying taxable costs. We disagree with Kolupar and affirm.

I. Background.

¶ 2. On March 30, 1994, Kolupar traded in her used 1993 Pontiac Sunbird for a 1985 Mercedes Benz 190E at Wilde. Nine months earlier, Kolupar had purchased the Sunbird from Wilde upon her graduation from high school. On March 30, 1994, Kolupar still owed $10,300 on a loan for the Sunbird. Wilde offered Kolupar $8,995 for the Sunbird, and she paid off the balance of her debt for the Sunbird in cash. Kolupar then financed $8,600, the purchase price of the Mercedes, with another loan from a local lender. Thompson was her salesperson for all transactions.

¶ 3. Kolupar later discovered that the Mercedes had not been owned by Wilde, but by Thompson personally. Although the Mercedes was on Wilde's lot, Thompson had purchased the vehicle from Wilde approximately six months earlier for a little over $5,700. Wilde had no policy prohibiting its sales representatives from selling their personally-owned vehicles on its lot.

¶ 4. After purchasing the Mercedes, Kolupar soon found that the vehicle had a number of mechanical problems, including starting and stalling problems. She also discovered that the odometer operated only intermittently, resulting in an inaccurate mileage display. Kolupar finally sold the Mercedes late in the summer of 1994 for $2,000. On March 29, 2000, Kolupar sued Wilde and Thompson alleging fraud, violations of federal and state odometer laws, breach of express and implied warranties, and violations of Wisconsin's motor vehicle statute, Wis. Stat. § 218.01 (1993-94). A special discovery referee was appointed by the trial court to oversee any discovery disputes if they should arise. Eventually, the parties were able to reach an agreement and settle the case. On December 13, 2001, Kolupar accepted $6,600 plus taxable costs to settle her substantive claims against Wilde and Thompson.

¶ 5. Unfortunately, between the time of the filing of the complaint and entry of the final judgment, this case ballooned into a morass of discovery disputes, ineffective communication, and general inefficiency. Throughout these discovery disputes, Kolupar's attorney's fees continued to swell, eventually amounting to nearly $53,000 in attorney fees and costs, and, after the settlement had been reached, she and her counsel requested that the defendants reimburse these fees and costs pursuant to Wis. Stat. § 218.01(9)(b) (1993-94).

¶ 6. The trial court was left with the daunting task of untangling the messy record in order to determine the amount of reasonable attorney fees and costs to which Kolupar and her counsel were entitled. A hearing was scheduled to determine Kolupar's attorney's fees. It was set for May 13, 2002, and May 14, 2002. At the outset of the hearing, Kolupar offered into evidence an invoice itemizing her attorney's fees and litigation expenses. The trial court refused to accept this document into evidence because it concluded that its submission did not comply with Milwaukee County Local Rule 365(a), which states:

If a movant desires to file a brief, affidavit, or other documents in support of a motion other than one for summary judgment or dismissal, such motion and supporting materials shall be received by all counsel of record and/or parties not represented by counsel of record and filed with the deputy court clerk of the assigned judge no later than ten (10) calendar days (including Saturdays, Sundays and holidays) before the time specified for the hearing.

The trial court refused to accept the invoice into evidence because opposing counsel had not received a copy of the document until Friday, May 10, 2002, for the hearing being held on Monday, May 13, 2002. Although the trial court would not accept the invoice into evidence, it did not dispute the amount of time that Kolupar's attorney spent on her case. During the hearing on May 13, 2002, the trial court acknowledged: "I want to make it [ ] perfectly clear [that] I am absolutely certain that counsel put in exactly the amount of time on this case that he says. That is not in doubt.... I am satisfied counsel put in every second that he said he put in on this case."

¶ 7. At the conclusion of the attorney fees hearing, the trial court awarded Kolupar $15,000 in fees and costs. In rendering its decision, the trial court relied, in part, on the recommendation of the discovery referee. The discovery referee, Frank T. Crivello, a former circuit court judge, gave the following testimony:

[THE COURT]: You are appointed... to serve as special master and corral some of the discovery issues here.
[THE WITNESS]: Yes, your Honor.
[THE COURT]: And you are aware of what the plaintiff is asking for attorney's fees?
[THE WITNESS]: My understanding is that it is $53,000.00
[THE COURT]: Can you give me some of your observations, please?
[THE WITNESS]: Judge, I conducted three formal discovery hearings in this case .... Between those hearings I also dealt with a flurry of correspondence and telephone calls from counsel regarding the wording of orders following those hearings.
In thirty years in [the] practice of law, as well as fifteen years as a circuit judge myselff,] 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 seen that approached this magnitude was ... a multi-million dollar insurance case with fifteen defendants, including one British defendant. So without. . . going through every page of the several thousand pages I have in my possession, I recall three or four instances where I sanctioned [Kolupar's attorney] myself by barring the presentation of testimony, or documents, or witnesses.
Having examined the case in terms of discovery and evidence over the course of three hearings and months of correspondence, I think that the discovery and evidentiary issues in this case were grossly inflated. This was a two-person transaction for an automobile ....
... So I would. . . adopt the offer in judgment and award the plaintiff the $6,600.00, which apparently she has accepted, and I would award $15,000.00 from the defendant to the plaintiff in fees. And that is how I would dispose of this case if I were asked to.
I am troubled - and I don't mean to be offensive to these lawyers, who[m] I have a great deal of professional respect for... . And I don't think this case is worth much more than [$] 15,000 in fees. Although I know both sides spent a lot more time than that.
When lawyers decide to do that, then they bear the onus of that decision.

In rendering its decision, the trial court stated:

Like [counsel] said, this matter was over-tried. The long and short of it, it comes down to -1 appreciate [the discovery referee's] recommendation. I think it's appropriate. I happen to concur with it.
In my discretion I believe that there is entitlement for reasonable attorney's fees on behalf of the plaintiff. Reasonable attorney's fees in my mind of $15,000 ....

On June 3, 2002, Kolupar filed a motion for reconsideration, which was later denied by the trial court.

II. Analysis.

A. The trial court correctly excluded the invoice.

¶ 8. "The admissibility of evidence is directed to the sound discretion of the trial court, and we will not reverse the trial court's decision ... if there is a reasonable basis for the decision and it was made in accordance with accepted legal standards and in accordance with the facts of record." State v. Brewer, 195 Wis. 2d 295, 305, 536 N.W.2d 406 (Ct. App. 1995) (citation omitted). Milwaukee County Local Rule 365(a) clearly requires that any papers in support of the moving party's position must be filed at least ten days before the scheduled motion hearing. This rule is "valid, and enforceable." Community Newspapers, Inc. v. City of West Allis, 158 Wis. 2d 28, 33, 461 N.W.2d 785 (Ct. App. 1990) ("We conclude that Local Rule 365 reasonably furthers the courts' interest in efficient judicial administration and is, therefore, valid and enforceable.").

¶ 9. Kolupar contends that Local Rule 365 applies only to motion hearings, and because the proceedings in question were the result of the request for attorney fees rather than in furtherance of any motion, Local Rule 365 is inapplicable. Kolupar first requested attorney fees in her complaint; however, she scheduled a hearing seeking a determination of attorney fees on May 10, 2002, over two years after filing the initial complaint. The petition for a hearing was accompanied by a written request, stating:

PLEASE TAKE NOTICE that the plaintiff named above, Tammy Kolupar, will, on the 13th day of May, 2002 at 10:00 a.m. (the date and time set by the Court for consideration of this issue) request an award to her, as the prevailing party, of her attorney's fees and the litigation expenses necessitated by the prosecution of this action, at a hearing to be conducted before the Honorable Thomas R. Cooper, Circuit Court Judge, presiding.

¶ 10. A "motion" has been defined as an "application for an order." State ex rel. Webster Mfg. Co. v. Reid, 177 Wis. 612, 616, 188 N.W 67 (1922). Thus, we conclude that the trial court properly applied Local Rule 365 because Kolupar's May 10, 2002 petition for attorney fees was a motion seeking a court order requiring Wilde to pay her attorney's fees. Thus, no error occurred in refusing to consider the invoice. Furthermore, the implicit rationale of the local rule supports the trial court's decision. The rule attempts to insure that the parties are completely prepared to argue their positions prior to the hearing and guards against the possibility that one side will be "ambushed" by new material.

¶ 11. Moreover, we also conclude that any potential error in refusing to admit the invoice into evidence was harmless. "An erroneous exercise of discretion in admitting or excluding evidence does not necessarily lead to a new trial." Martindale v. Ripp, 2001 WI 113, ¶ 30, 246 Wis. 2d 67, 629 N.W.2d 698. Wisconsin Stat; § 805.18(2) (2001-02) provides:

805.18 Mistakes and omissions; harmless error.
(2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of selection or misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

Wisconsin Stat. § 901.03 (2001-02) also provides:

901.03 Rulings on evidence. (1) Effect of ERRoneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.

Here, the trial court, as well as the discovery referee, never disputed Kolupar's counsel's claim that he worked sufficient hours to amass $53,000 in fees and costs. Rather, the question presented was whether the fees claimed were reasonable. Thus, any potential error in excluding the invoice was harmless.

B. The trial court did not err in relying on the referee's recommendation.

¶ 12. Kolupar next claims that the trial court erred in relying on the discovery referee's recommendation. Kolupar concludes that the "[trial] court's reliance on [the discovery referee] was risky not only because of his limited familiarity with the proceedings, but also because [his] legal reasoning was flawed." We disagree.

¶ 13. First, our review of the record indicates that the discovery referee was quite familiar with the discovery disputes about which he was questioned. Second, the discovery referee was also able to offer insight into the general demeanor of the attorneys and their efficiency, or lack thereof. Third, and finally, Wis. Stat. § 805.17 (2001-02) explicitly allows a trial court to rely upon the findings of a referee:

805.17 Trial to the court.
(2) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the ultimate facts and state separately its conclusions of law thereon. The court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court.... Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee may be adopted in whole or part as the findings of the court....

(Emphasis added.)

¶ 14. "The findings of the referee when confirmed by the court become the findings of the court." MacPherson v. Strand, 262 Wis. 360, 366, 55 N.W.2d 354 (1952). Because the findings of the trial court are not to be disturbed unless against the great weight and clear preponderance of the evidence, and the record here contains sufficient evidence to support the findings of the referee as adopted by the court, under the rule cited above, we will not disturb the trial court's reliance on the referee's findings. See id.

C. The trial court applied a correct legal standard.

¶ 15. "[Cjourts have the inherent power to determine the reasonableness of attorney's fees." Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 182, 214 N.W.2d 401 (1974). "Our review of the circuit court's determination of the value of attorney's fees is limited to determining whether the circuit court properly exercised its discretion." Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 204, 496 N.W.2d 57 (1993).

[T]he supreme court [has] recognized that the trial court is in an advantageous position to decide the reasonableness of requested attorney's fees. It is the trial court that observes the quality of legal services rendered, it is aware of the costs incurred in operating a law practice, and it knows or can readily find out the going rate for legal services in the community. Accordingly, we will give deference to the trial court's exercise of discretion.

Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 495, 583 N.W.2d 849 (Ct. App. 1998) (footnote and citations omitted).

¶ 16. A trial court has discretion to hold a hearing to determine the amount of fees and expenses to be awarded. See Narloch v. DOT, 115 Wis. 2d 419, 437, 340 N.W.2d 542 (1983). "[I]n awarding only reasonable fees, the court may consider whether costs could have been avoided by a reasonable and prudent effort." Aspen, 220 Wis. 2d at 499. "This premise has been interpreted to mean that [a] plaintiff may not unnecessarily run up its legal bill in the expectation that the breaching party will ultimately pick up the entire tab." Id. (citation omitted). Furthermore, the trial court may consider whether the final judgment is out of proportion to the attorneys fees that were generated in the case and whether the resultant verdict justifies the amount of money expended. See id. at 497 n.5. Finally, SCR 20:1.5 lists additional factors that may help a trial court determine the reasonableness of an attorney's fee. See Steinberg, 174 Wis. 2d at 205. SCR 20:1.5(a) states:

A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

¶ 17. In rendering its decision, the trial court aptly summarized the situation and properly applied many of the relevant factors:

There is no formula - kind of thumbnail or formula that I operate under. .. . [T]he state legislature clearly intended in a number of different areas for fee-shifting statutes to cover those situations where a little guy can take on the big guy. And this is one of those cases where the fee-shifting statute comes into play and creates [an] obligation on behalf of Wilde Pontiac.
There is no question [that] this case was over-tried. Discovery was over - well over-done. It was over-[pled] right from the get-go on the complaint. There was the shotgun pleading where everything was [pled] against Wilde short of conquering Europe during World War II.
.. . [T]he daunting discovery mountain was created right from the get-go ....
I am satisfied that.. . the majority of [the discovery deadlines that were missed] were missed by plaintiffs counsel. I think that is what [the discovery referee] intimated in his discussions and his recommendation ....
I am persuaded that the state legislature wants the little guy to be able to ... go against the big guys, but at the same time that statute doesn't create a blank check where whatever is spent must be covered by the wrongdoer.
... [T]his matter was over-tried. ... [I] appreciate [the discovery referee's] recommendation. I think it's appropriate. I happen to concur with it.
.. . Reasonable attorney's fees in my mind [are] $15,000.00.1 am ordering $15,000.00 ... for attorney's fees and costs....

Thus, the trial court properly considered many of the relevant factors, including the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the amount involved, and the results obtained. The trial court also properly considered whether the costs could have been avoided by a reasonable and prudent effort.

¶ 18. In Aspen, we approved the trial court's decision to reduce fees, observing that deference to the trial court's award was appropriate because the award was reduced to promote the civility of litigation. Aspen, 220 Wis. 2d at 495-96. Like the dispute in Aspen, the case at hand was "a relatively simple contract case [that] 'burgeoned' into something in which the attorney's fees were out of proportion to the result." Id. at 496. The finding that there was excessive litigation justifies the trial court's reduction of Kolupar's requested attorney fees and costs. See id. at 497.

D. The trial court did not deny taxable costs.

¶ 19. Finally, Kolupar contends that the trial court denied her taxable costs despite the offer of judgment made and accepted pursuant to Wis. Stat. § 807.01(1), which provided that Wilde would pay "the sum of Six Thousand Six Hundred ($6,600) Dollars plus the taxable costs of the action." (Emphasis added.) Ko-lupar concludes that the trial court ordered a judgment that contravened this settlement because the resulting judgment expressly excluded taxable costs. While we agree with Kolupar that the June 24, 2002 final judgment expressly excluded costs, we conclude that this exclusion was the result of a clerical error, in that both the trial court's May 14, 2002 oral decision and its June 6, 2002 order for judgment expressly provided that the $15,000 award included both attorney fees and costs.

¶ 20. When Kolupar accepted the defendant's offer of settlement, she also explained via correspondence filed on January 2, 2002, that the amount of costs, including attorney fees and litigation expenses, would be determined at a later date:

[PJursuant to Sec. 218.01(9) (1994). . . awards of "costs [include] a reasonable attorney fee."
Since this offer will apparently resolve plaintiffs primary claim for damages, it would appear all that' would be needed in this case is a hearing to determine the reasonableness and necessity of plaintiffs attorneyl's] fees and litigation expenses ....
Therefore. . . plaintiff accepts defendant's offer of judgment in the amount of $6,600.00, subject only to a determination of plaintiffs costs including a reasonable attorney fee....

¶ 21. Following this correspondence, the trial court held hearings to determine the amount of costs, including reasonable attorney fees. At the conclusion of the hearings, the trial court clarified that the $15,000 judgment included both attorney fees and costs: "Reasonable attorney's fees in my mind [are] $15,000.00.1 am ordering $15,000.00 fee to plaintiff for attorney's fees and costs that was originally submitted as an offer of judgment." (Emphasis added.) Counsel for Kolupar then further clarified the trial court's decision:

[KOLUPAR'S ATTORNEY]: As to the costs?
[THE COURT]: Fees and costs, $15,000.00.

In the June 6, 2002 order for judgment, the trial court again made it very clear that the $15,000 judgment included both fees and costs: "That judgment be entered in favor of plaintiff and her attorneys ... in the amount of $15,000.00, which sum represents attorney fees and costs .. . ."

¶ 22. The judgment entered on June 24, 2002, however, does not accurately reflect the trial court's order. It states: "The Court having issued its Order for Judgment, judgment is hereby entered in favor of plaintiff, Tammy L. Kolupar, and her attorneys ... in the amount of Fifteen Thousand Dollars ($15,000.00), but no costs." Therefore, although the trial court clearly ordered $15,000 in fees and costs, the final judgment misstates the order as $15,000 in fees without costs. Accordingly, we affirm the judgment and remand this matter to the clerk of circuit courts for correction of this error.

By the Court. — Judgment affirmed and cause remanded with directions.

FINE, J.

¶ 23 (dissenting). Wilde Pontiac Cadillac, Inc., and its employee Randall Thompson not only took advantage of an eighteen-year-old woman but they also delayed and obfuscated the litigation process. Indeed, from my review of the record, I believe that they pursued a scorched-earth Rambo-litigation policy that has no place in our justice system.

¶ 24. Kolupar submitted a fee and cost request for approximately $53,000, of which only $41,000 was for attorneys fees. Moreover, of the approximately $12,000 in costs, $3,600 was for the following expenses that, in all but extraordinary cases, the justice system should provide to litigants without cost: mediation expenses of $1,250, and $2,350 as payment to the discovery master. Significantly, neither the Majority nor the trial court disputes that Kolupar's lawyer both:

(1) spent the time (and incurred the expenses) working on the case as reflected by the fee request, and
(2) that the fee request represents a fair hourly rate for the lawyer's time.

Yet, the Majority defers to the unfocused musings by both a former judge, appointed to oversee a small part of the discovery disputes in this case, and the trial court.

¶ 25. Kolupar sought her attorneys fees under a fee-shifting statute. The purpose of fee-shifting statutes is to level the litigation playing field so that aggrieved citizens like Kolupar are not barred at the courthouse door by the daunting prospect that the legal costs will outweigh any recovery. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 985, 542 N.W.2d 148, 152 (1996). If the Majority's decision is allowed to stand, persons like Kolupar will justifiably not only pause with trepidation at the courthouse entrance but, indeed, only the most stalwart will not turn and go away. Thus, despite what they have done, Wilde and Thompson and those like them will have won. I respectfully dissent.

A. Wilde and Thompson forced Kolupar's lawyer to spend the time on the case that he did.

¶ 26. As the Majority recounts, the former judge was appointed to be discovery master. He served for four months. When the tri'al court asked him to give an opinion on the fee request, the former judge replied that the case grew "barnacles." It did. It did because Wilde and Thompson threw obstacles in Kolupar's path that would make James Bond and his nails- and oil-disgorging Astin-Martin green with envy. Some examples:

Before Kolupar brought this action she offered to settle the case for $13,000, which was, essentially, her out-of-pocket costs at the time. Wilde did not make any counteroffer. Thus, Kolupar had to sue in order to get justice.
Once suit was brought, Wilde answered, alleging that Kolupar's complaint was frivolous within the meaning of Wis. Stat. § 814.025. In my view, the charge that Kolupar filed a frivolous complaint is, itself, frivolous.
Kolupar's action was brought in Milwaukee County, which was an appropriate venue. Wilde filed a motion to change venue to Waukesha County. That motion was denied.
The motion by Wilde to change venue argued that the "only . . . rationale" for filing the case in Milwaukee County was because jury verdicts, as argued in the motion, are more "generous" in Milwaukee County than Waukesha county. This is not a recognized ground to change venue, and the Majority does not contend that it is. Moreover, Kolupar had not even demanded a jury trial.
The trial court held a hearing on the motion by Wilde to change venue. Kolupar and Wilde filed briefs before and after the hearing.
In its answer, Wilde denied that Thompson was a Wilde manager as Kolupar had alleged in her complaint. Understandably, Kolupar then sought from Wilde via discovery Thompson's employment file with Wilde. Kolupar also sought Wilde's files concerning a car that Kolupar had purchased from Wilde several years earlier and had used as a trade-in for the car that is the subject of this lawsuit, as well as Wilde's file in connection with Kolupar's purchase of the second car. In the face of these perfectly reasonable discovery requests, Wilde and Thompson stonewalled. Kolupar requested the documents in mid-July of 2000. Kolupar was forced to file two motions to compel discovery, which were heard on September 25, 2000, and November 27, 2000. On October 13, 2002, the trial court granted the motion to compel, and the order required that all the documents be produced within thirty days. They were not. At the second hearing, on November 27, Wilde's attorney angrily exclaimed to the trial court that "this is ridiculous that we're here. I have produced every document." Yet, by letter dated December 7, 2000, Wilde's lawyer finally produced the missing documents.
An egregious, and sleazy, example of the Rambo tactics Wilde used is that Wilde's lawyer deposed one of Kolupar's friends about Kolupar's employment as a topless dancer and Kolupar's desire to have breast-augmentation implant surgery.
• Wilde filed a motion for summary judgment, to which Kolupar had to respond. The trial court denied the motion.
• The trial court ordered the parties to attend two mediation sessions. This, too, added to the time and expense. Wilde let the first mediation session go by without making any settlement offer. After the second mediation session, it made its first offer, for $6,600. Kolupar accepted this offer after she was able to persuade the bank that held the security interest in her first cár (the trade-in) to accept the $6,600 as payment in full of the bank's judgment for $10,000 plus accruing interest, which, apparently, by the time of the' settlement, approached approximately $20,000.

B. The trial court never considered the factors governing the setting of attorneys fees under a fee-shifting statute.

¶ 27. In ¶ 16, the Majority opinion sets out the factors governing a trial court's exercise of discretion in awarding attorneys fees. It is true, of course, that an award of attorneys fees is within the trial court's discretion, but that discretion "must, in fact, be exercised." Stathus v. Horst, 2003 WI App 28, ¶ 14, 260 Wis. 2d 166, 173-174, 659 N.W.2d 165, 168. This was not done here. The trial court here never considered on the record any of the factors. Rather, it deferred to the off-hand assessment of the former judge who, as the Majority notes, was only appointed to be a discovery master. The trial court's abdication of its responsibility was palpable, as reflected by the transcript in the record:

I am going to ask Mr. Crivello [the former judge] to make a recommendation to the Court in front of you folks as to how I should handle this because I think that is his — I can ask for that as the special master, and because of his rather detailed greater information than this Court has.

And on what did the discovery master rely in making his recommendation? Well, the Majority sets it all out in ¶ 7:

• His "thirty years in [the] practice of law, as well as fifteen years as a circuit judge." The , retired judge graduated from law school in 1973, http://www.wisbar.org/lawyersearch/ resdetails.asp?ID=1008232 (last accessed June 04, 2003), so the "fifteen years as a circuit judge" is included in the "thirty years."
• He "conducted three formal discovery hearings in this case," plus the ancillary correspondence and telephone calls. He did not preside over and was not involved in the change-of-venue hearing or the summary-judgment proceeding.
• The former judge admitted that his involvement in the case was limited and that he only was involved for some four months.
• Wilde suggested the $15,000 figure, and the former judge adopted it without any analysis beyond his view that more was not warranted because, with Kolupar's acceptance of the $6,600 offer of settlement, the case was "just barely above a small claims case."

¶ 28. In accepting the former judge's off-the-cuff "recommendation," the trial court refused to look at the extensive documentation submitted by Kolupar in support of her request for attorneys fees and related costs. The trial court relied on Milwaukee County Circuit Court Local Rule 365, and the Majority validates that reliance. The rule, however, governs "motions"; it does not apply to exhibits offered at trials or evidentiary hearings. Kolupar never filed a motion for attorneys fees; the statute permits them and she demanded them in her complaint. Indeed, the trial court sua sponte set the hearing on the attorney-fees matter: "We'll all meet back here on the date set for trial to the court on May 13th and we'll consider the attorneys' fee issue."

¶ 29. The Majority approves of the trial court's acceptance of the former judge's recommendation because, in its view, such acceptance is sanctioned by Wis. Stat. Rule 805.17. But Rule 805.17(2) provides that a referee's "findings . . . may be adopted in whole or part as the findings of the [trial] court." The former judge was appointed to be a discovery master only — he was not appointed to assess Kolupar's fee request; he held no hearings, examined no evidence, and made no "findings."

¶ 30. As we have seen, the former judge based his recommendation in part on his view that Kolupar's acceptance of the belated $6,600 settlement offer made the matter "just barely above a small claims case." But the amount of recovery is not a measure of what the fee-shifting award should be in these types of cases:

Often the ámount of pecuniary loss is small compared with the- cost of litigation. Thus, it was necessary to make the recovery large enough to give tenants an incentive to bring suit. The award of attorney fees encourages attorneys to pursue tenants' claims where the anticipated monetary recovery would not justify the expense of legal action.

Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506, 509 (1983).

¶ 31. The trial court also justified its minimal award of attorneys fees to Kolupar because "[t]he flip side is Wilde has to swallow whatever fees they have." Neither the trial court nor the Majority cites any authority for this startling proposition — that a rich defendant can frustrate at every turn a poor plaintiffs quest for justice and then say when the fee-shifting day of reckoning has arrived, "I have substantial attorneys fees myself, I shouldn't also have to pay the plaintiffs."

¶ 32. The trial court's adoption of the former judge's "just barely above a small claims case" rationale, as well as the trial court's consideration of the "flip side" of Wilde's own fees will, because the Majority has sanctioned it in a decision that is recommended for publication, gut the fee-shifting statutes. The statutes, as noted by Shands, were designed to keep open the courthouse doors to persons whose claims do not justify the retention of a lawyer unless, by prevailing, that person can recover his or her attorneys fees.

¶ 33. In my view, the trial court not only erroneously exercised its discretion in setting the attorneys fees and related costs at $15,000, it did not exercise any discretion. Neither the former judge nor the trial court pointed to anything that Kolupar's lawyer did that was not justified by the case — beyond their imbricating hunches. The law requires more.

¶ 34. No one disputes that Kolupar's lawyer did what he said he did and that his hourly rate was reasonable. In light of this, I would reverse the judgment and award to Kolupar the fees and costs she requested.

¶ 35. I respectfully dissent.

       WISCONSIN Stat. § 218.01(9)(b) (1993-94) states, in relevant part: "Any retail buyer suffering pecuniary loss . .. may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees." WISCONSIN Stat. § 218.01(9)(b) has been renumbered as Wis. Stat. § 218.0163(2) (2001-02).

       We remand the matter to the clerk of the circuit court for correction of the June 24, 2002 final judgment to correspond with the language of the order for judgment dated June 6, 2002.

       During the evidentiary hearing held by the trial court on the attorneys-fee issue, when Kolupar's lawyer asked her why she filed the lawsuit, the trial court interrupted: "Let's get to the point, counsel. I know what the case is about. She got defrauded." Randall Thompson's lawyer interjected "[ajllegedly," and the trial court repeated that word, "[ajllegedly." Neither the trial court's tone nor its demeanor is, of course, a matter of record.


author: PETERSON, J.

text:
    Mid Wisconsin Bank, Plaintiff-Respondent, v. Forsgard Trading, Inc. and Richard K. Forsgard, Defendants, Lakeshore Truck & Equipment Sales, Inc., Defendant-Appellant.
    Court of Appeals

      No. 03-0123.

      Submitted on briefs June 16, 2003.

      Decided July 22, 2003.

    2003 WI App 186
    (Also reported in 668 N.W.2d 830.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Douglas R. Ross of Strasser & Yde, S.C., Wausau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael D. Shiffler of Jensen, Scott & Grünewald, S.C., Medford.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Lakeshore Truck and Equipment Sales, Inc., appeals from a summary judgment granted in favor of Mid Wisconsin Bank. Lakeshore argues Mid Wisconsin was not a holder in due course of a check written by Lakeshore because the bank did not take the check in good faith. We disagree and affirm the judgment.

BACKGROUND

¶ 2. On May 7, 2001, Lakeshore wrote a check to Forsgard Trading in the amount of $18,500. The check was drawn on a bank in Ironwood, Michigan. Forsgard deposited the check in its checking account at Mid Wisconsin Bank on May 8, 2001. The Bank gave Fors-gard immediate credit on the deposit.

¶ 3. Also on May 8, Lakeshore issued a stop-payment order on the check. Mid Wisconsin received notice on May 16 that payment on the check had been stopped. The $18,500 was deducted from Forsgard's account. Due to checks written on and transfers from the account between May 8 and May 16, the deduction resulted in a negative balance in the account. There has been no further activity on the account and, as a result, Forsgard has not covered the stopped check.

¶ 4. Forsgard opened the checking account in July 1999. The account was overdrawn twenty-four times before this incident. On each of those occasions,, however, Forsgard deposited money to cover the overdrafts when the Bank contacted the company.

¶ 5. Regarding deposits, Mid Wisconsin's agreement with Forsgard states, "Any items, other than cash, accepted for deposit (including items drawn 'on us') will be given provisional credit only until collection is final.. . ."

¶ 6. Mid Wisconsin's practice is to give immediate credit on deposits, but its employees may place holds on checks. For example, it may hold funds if it has reasonable doubt about a check. Examples include the depositor's account being repeatedly overdrawn within the previous six months and more than $5,000 being deposited in one day. No holds were applied to Forsgard's deposit in this case.

¶ 7. On January 8, 2002, Mid Wisconsin commenced this action against Richard Forsgard, Forsgard Trading, and Lakeshore. Mid Wisconsin claimed it was a holder in due course and therefore Lakeshore, as the drawer of the check, was responsible for the bank's losses resulting from the stop-payment order. Mid Wisconsin moved for summary judgment against Lake-shore, which was granted. Lakeshore appeals.

STANDARD OF REVIEW

¶ 8. We review summary judgments independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 NW2d 816 (1987). We affirm the trial court's decision granting summary judgment if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Here, the facts are undisputed, so the only question is whether, as a matter of law, Mid Wisconsin was a holder in due course of the check.

DISCUSSION

¶ 9. Lakeshore claims Mid Wisconsin was not a holder in due course of the check Forsgard deposited. Wisconsin Stat. § 403.305 gives a holder in due course the right to recover from a drawer who places a stop-payment order on a check. According to Wis. Stat. § 403.302(1), a holder in due course is one who takes an instrument for value and in good faith. There is no dispute Mid Wisconsin took the check for value. Lake-shore argues, however, that Mid Wisconsin did not take the check in good faith. Wisconsin Stat. § 403.103(l)(d) defines good faith as "honesty in fact and the observance of reasonable commercial standards of fair dealing." Lakeshore concedes that Mid Wisconsin took the check with honesty in fact, but contends Mid Wisconsin did not observe reasonable commercial standards of fair dealing.

¶ 10. First, Lakeshore contends that Mid Wisconsin's banking agreement with Forsgard did not allow it to give immediate credit, so that the Bank was not observing reasonable commercial standards when it granted the credit. The banking agreement states, "Any items, other then cash, accepted for deposit (including items drawn 'on us') will be given provisional credit only until collection is final. . . ." Lakeshore contends that this means Mid Wisconsin could not grant immediate credit. Lakeshore misinterprets the agreement. In fact, Mid Wisconsin complied with the agreement. Mid Wisconsin gave Forsgard provisional credit, which the agreement allows. When Lakeshore stopped payment on the check, the Bank deducted the amount of the check from Forsgard's account. This also was in accordance with the agreement. However, Forsgard did not cover the negative balance that resulted from the deduction.

¶ 11. Next, Lakeshore maintains that under the circumstances, reasonable commercial standards of fair dealing should have led Mid Wisconsin to place a hold on the check instead of giving immediate credit. Lake-shore notes that Richard Forsgard was a foreign citizen, the check was drawn on an out-of-state account, the check was for greater than $5,000, and Forsgard's account had been overdrawn many times in the past.

¶ 12. To begin with, Wisconsin courts have approved of the practice of extending immediate credit on deposited checks. In Shaller v. Marine Nat'l Bank; 131 Wis. 2d 389, 402, 388 N.W.2d 645 (Ct. App. 1986), we determined that extending immediate credit is consistent with reasonable banking standards. We stated:

A non-cash deposit becomes available for withdrawal as of right only when final settlement is made for the item and a reasonable time for the bank to learn of the settlement has passed. Of course, a bank is free to give provisional credit for a deposit, retaining a right of charge-back if final settlement for the deposited item is not received.

Id. at 397, n.2 (citations omitted).

¶ 13. Further, we are persuaded by the reasoning of the New Jersey Superior Court in a case with similar facts. In Citizens Nat'l Bank v. Fort Lee S&L Ass'n, 218 A.2d 315 (N.J. Super. Ct. Law div. 1965), a bank issued immediate credit on a check. The facts were more egregious because the account into which the check was deposited was overdrawn at the time of the deposit. The drawer placed a stop-payment order on the check, and argued that the Bank was not a holder in due course because it failed to act in good faith when it issued immediate credit.

¶ 14. The court concluded that the fact the account was overdrawn did not constitute bad faith. Id. at 319. The court stated:

It would hinder commercial transactions if depository banks refused to permit the withdrawal prior to the clearance of checks. Apparently banking practice is to the contrary. It is clear that the Uniform Commercial Code was intended to permit the continuation of this practice and to protect banks who have given credit on deposited items prior to notice of a stop payment order....

Id. Furthermore,

a depository bank may properly charge an account by honoring a check drawn by a depositor even though it creates an overdraft. It would be anomalous for a bank to lose its status as a holder in due course merely because it has notice that the account of its depositor is overdrawn.

Id. at 317-18.

¶ 15. These cases teach that extending immediate credit is not contrary to reasonable commercial standards of fair dealing. Moreover, it does not matter whether, as here, the account had been overdrawn previously. Mid Wisconsin's policy is to place holds on checks when it has reasonable doubt about the check based on the depositor's history. Here there was no reasonable doubt. Whenever Forsgard had been overdrawn previously, it always deposited funds to cover the overdraft when the bank alerted it to the problem. Mid Wisconsin had no reason to suspect there would be any problem if immediate credit was extended for this check. Consequently, we conclude that Mid Wisconsin observed reasonable commercial standards of fair dealing and therefore was a holder in due course. Under Wis. Stat. § 403.305, Mid Wisconsin has the right to recover its losses from Lakeshore.

By the Court. — Judgment affirmed.

       Richard Forsgard, the owner of Forsgard Trading, has fled to Sweden and is therefore beyond the reach of these proceedings. In this opinion, "Forsgard" refers to Forsgard Trading while Richard Forsgard will be referred to by his full name.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       WisconsiN Stat. § 403.301(1) also lists other factors for determining whether a holder of an instrument is a holder in due course. Only the good faith element is disputed in this case.

       Lakeshore also argues that the right of a drawer to stop payment on a check should trump a bank's right to recover for its losses. However, Mid Wisconsin never challenged Lakeshore's right to stop payment on the check. Lakeshore was entitled to exercise its right to stop payment, but in doing so it must accept the consequences that result under Wis. Stat. § 403.305.


author: NETTESHEIM, PJ.

text:
    Ronald Ricco and Belinda Ricco, Plaintiffs-Appellants, v. Daniel Riva, Barbara Riva, John Hashek, Hashek Real Estate, Sue Reske and Realty Executives, Defendants-Respondents.
    Court of Appeals

      No. 02-2621.

      Submitted on briefs May 21, 2003.

    Decided July 23, 2003.

    2003 WI App 182
    (Also reported in 669 N.W.2d 193.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Daniel W. Stevens of Stevens & Kroenig, LLC. of Brookfield.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Eric S. Darling of Schmidt, Darling & Erwin of Milwaukee.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. In their complaint, Ronald and Belinda Ricco alleged that Daniel and Barbara Riva had misrepresented the condition of real estate they had sold to the Riccos. At summary judgment, the trial court determined that the Riccos expert witness, John Wantz, had misrepresented his qualifications both in this action and in a prior unrelated action. Based on that determination and further ruling that Wantz's summary judgment affidavit was untimely, the court struck the affidavit, dismissed the Riccos' misrepresentation claims, and barred Wantz from testifying at the trial as to the Riccos' remaining claims. In addition, the court dismissed the Riccos fraudulent misrepresentation claim under Wis. Stat. § 100.18 (2001-02) on the basis that the parties had already entered into the contract at the time of any misrepresentation.

¶ 2. The Riccos brought a motion asking the trial court to reconsider its rulings. The court denied this motion, and we previously granted the Riccos' petition for leave to appeal this nonfinal order. We reverse the order and remand for further proceedings on the Rivas' summary judgment motion.

BACKGROUND

¶ 3. We take the facts from the summary judgment record. On October 16, 2000, the Riccos contracted to purchase real estate from the Rivas. After the closing, the Riccos discovered various defects in the property resulting in this lawsuit. The complaint alleged the following claims against the Rivas: (1) breach of warranty, (2) intentional misrepresentation, (3) misrepresentation contrary to Wis. Stat. §§ 895.80 and 943.20(l)(d), (4) fraudulent representation contrary to Wis. Stat. § 100.18, (5) strict misrepresentation, and (6) negligent misrepresentation. The Riccos sought money damages or, alternatively, rescission and restitution.

¶ 4. After issue was joined, the Rivas moved for summary judgment seeking dismissal of all of the Riccos' claims. In addition, the motion contended that the evidence did not support the Riccos misrepresentation claims regarding certain specific categories of alleged damage (the roof, the siding, the heating, ventilating and air conditioning system, the indoor swimming pool and the. stereo system). In response, the Riccos supplied affidavits from Belinda Ricco and their expert, John Wantz. Wantz's affidavit represented that he was a licensed home inspector who had conducted thousands of home inspections and that he was familiar with construction standards and building defects relating to home construction. At the summary judgment hearing, the Riccos conceded that their claims for strict and negligent misrepresentation "[were] not viable."

¶ 5. Following arguments by the parties, the trial court sua sponte addressed the role of Wantz, making the following observations. The court had encountered Wantz as an expert in a previous unrelated trial. During the cross-examination of Wantz in that proceeding, "[Wantz] acknowledged what I think were misrepresentations in his resume." Wantz referred to himself as a "Master Home Inspector," a designation he attained by making it his "corporate or trade name," which "deceive [s]" people into thinking that he is licensed or certified as such. Wantz represents himself as a graduate of MSOE, although he does not have a diploma or a degree from MSOE. In support of this claim, Wantz cites to the dictionary definition that "graduate" means to move from one class to another. Wantz represents on his website that he has never been challenged in a lawsuit when, in fact, he has lawsuits challenging his "holding himself out as being a licensed building or home inspector."

¶ 6. Ultimately, the trial court held:

Now ordinarily credibility at a summary judgment motion hearing is reserved to the fact finder and not something to be considered in deciding summary judgment, because obviously the court is aware, we're all aware, there is a wide variance in the accuracy, frankness, and honesty of witnesses. And, generally, that is sorted out hy the fact finder at trial, not on cold affidavits or depositions. However, it is the court's view that the court has an inherent power to protect the administration of justice and the integrity of the judicial process, and that includes the authority of the court to bar testimony from individuals where the court has a substantial and reasonable basis to conclude that the testimony would encompass lies or other attempts to mislead the fact finder ....
Having all of that in mind, considering the information presented about John Wantz and his testimony in this case, and also considering his prior testimony before me where I had a chance to observe him in a jury trial, the court is going to take the extremely unusual step as a prophylactic to protect the integrity of the judicial process in this case of barring John Wantz from testifying in this case. His affidavits are stricken as untimely, and for the prophylactic reasons stated.

¶ 7. Having struck Wantz's affidavit, the trial court then addressed the merits of the Riccos1 claims. As to the Wis. Stat. § 100.18 fraudulent representation claim, the court held that "these representations were no longer to the public" because the parties had already-entered into a contract. Finally, the court dismissed the claims regarding specific items of damage stating, "Without Mr. Wantz there is not even a whiff of any proof that the homeowners knew, or should have known that there was a defect in these matters."

¶ 8. Following the trial court's rulings, the Riccos complained that the court had acted sua sponte without any request by any of the defendants to strike Wantz's affidavit or to strike Wantz as a witness. The Riccos additionally argued that the court had relied on inaccurate information about Wantz and that the deadline for naming experts had passed, leaving the Riccos without an expert necessary to prove their case. The court noted the objections, but adhered to its rulings.

¶ 9. The Riccos followed with a formal motion for reconsideration. Following a hearing, the trial court confirmed its prior rulings. In addition, the court ruled that its dismissal of the fraudulent representation claim under Wis. Stat. § 100.18 was warranted on a further ground. The court observed that the statute does not apply to a broker who makes a representation not knowing that the assertion or representation was untrue, deceptive or misleading. Sec. 100.18(12)(b). Noting that the Riccos' claim against the Rivas was based on a representation made by the broker, the court held that the Riccos were improperly attempting to hold the Rivas vicariously liable for the broker's conduct.

¶ 10. The Riccos then filed a petition for leave to appeal, which we granted. However, our order expressly limited the issues to "whether the circuit court erred in excluding the Riccos' expert and in dismissing their Wis. Stat. § 100.18 claim." Our order further stated, "We will not consider other grounds for granting summary judgment on the numerous claims dismissed by the circuit court. . . and the respondents may not raise other grounds for affirming the circuit court. . . ."

DISCUSSION

Exclusion of Expert Witness

1. Basis of the Trial Court's Ruling

¶ 11. We see the trial court's ruling as resting on three possible grounds: (1) Wantz was incredible as a matter of law, (2) Wantz was unqualified as a matter of law, and (3) Wantz's affidavit was untimely.

2. Incredible as a Matter of Law

¶ 12. Wisconsin Stat. § 907.02 governs expert testimony. It provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Id. The determination of whether an expert is qualified to testify is within the circuit court's discretion. State v. Sprosty, 2001 WI App 231, ¶ 27, 248 Wis. 2d 480, 636 N.W2d 213, review denied, 2002 WI 2, 249 Wis. 2d 581, 638 N.W.2d 590 (Wis. Now. 27, 2001) (No. 00-2404).

¶ 13. The Riccos argue that the trial court erroneously determined that Wantz was incredible as a matter of law. They contend that Wantz is a qualified expert pursuant to Wis. Stat. § 907.02 and that his credibility was a matter for the jury to determine. Both the Riccos and the Rivas cite to our decision in Sprosty, a Wis. Stat. ch. 980 case, which addressed the admission of expert testimony despite the expert's past misconduct and misleading testimony. Sprosty, 248 Wis. 2d 480, ¶ 33. In that case, Sprosty challenged the trial court's refusal to strike testimony of the State's expert witness on grounds that the expert (1) lied about his credentials, which was contrary to the ethical standards of the American Psychological Association, and had been terminated from his current position because of such conduct, (2) lied about the circumstances surrounding his termination from a former job, (3) altered two Wis. Stat. ch. 980 reexamination reports (unrelated to Sprosty) without knowledge of the original authors, and (4) made an unauthorized deposit of state money. Sprosty, 248 Wis. 2d 480, ¶ 31. The trial court determined that the deposit was irrelevant to the case and that the witness's "misconduct" and misleading aspects of his testimony did not undermine his basic qualifications to give an expert opinion. Id., ¶ 32.

¶ 14. We held that the question was addressed to the trial court's discretion, and we upheld the court's discretionary ruling. Id., ¶ 2. We concluded that while the expert's "past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law." Id., ¶ 33. We reasoned that while the expert may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there was no dispute that he was a licensed psychologist or that he had experience evaluating sexually violent persons. Id. Further, we were not convinced that the expert's dishonesty regarding his curriculum vitae rendered his opinion unreliable. Id.

¶ 15. Although Sprosty reached the opposite result from the ruling in this case, the Rivas argue that we are duty bound to uphold the trial court's exercise of discretion. However, an exercise of discretion based upon an error of law can constitute an erroneous exercise of discretion. Juneau County Dep't of Human Servs. v. James B., 2000 WI App 86, ¶ 9, 234 Wis. 2d 406, 610 N.W.2d 144. Here, the trial court correctly acknowledged that summary judgment is generally not a proper forum for weighing the credibility of a witness. Pomplun v. Rockwell Int'l Corp., 203 Wis. 2d 303, 306-07, 552 N.W2d 632 (Ct. App. 1996).

¶ 16. While it is not beyond a trial court's authority to declare a witness, expert or otherwise, incredible as a matter of law, we conclude that the summary judgment record does not support the trial court's declaration that Wantz was incredible as a matter of law. While Wantz's claims regarding some of his credentials are suspect and likely untrue, the summary judgment record nonetheless establishes that he is a "licensed home and building inspector," who has "inspected thousands of homes in the Milwaukee area," and that he is "familiar with construction standards building defects and problems relating to home construction." For the moment at least, these assertions are not in dispute. If the more aggravated conduct in Sprosty did not warrant striking the expert witness's testimony, it surely follows that the conduct in this case does not warrant that sanction.

¶ 17. We share the trial court's concerns about Wantz playing fast and loose with his qualifications. But we part ways with the trial court on its holding that Wantz's specious claims about his credentials render his testimony incredible as a matter of law. In order to make that statement, we would have to hold that Wantz's testimony would be in conflict with the uniform course of nature or with fully established or conceded facts. Chapman v. State, 69 Wis. 2d 581, 583, 230 N.W2d 824 (1975). Wantz's inflated estimation of himself and his credentials, while obnoxious to us, does not satisfy this test. The weight and credibility to be given to the opinions of expert witnesses are uniquely within the province of the fact finder. Bloomer Hous. Ltd. P'ship v. City of Bloomer, 2002 WI App 252, ¶ 12, 257 Wis. 2d 883, 653 N.W2d 309. Here, as in Sprosty, Wantz's misleading testimony as to certain of his qualifications does not render his opinion as to defects in the Riccos' property incredible as a matter of law. See Sprosty, 248 Wis. 2d 480, ¶ 33.

3. Unqualified as a Matter of Law

¶ 18. Although we are not certain, it may be that the trial court's ruling represents a determination that Wantz was unqualified as a matter of law. In the interests of completeness, we address this possibility.

¶ 19. As we have already noted, Wis. Stat. § 907.02 allows for expert testimony when such evidence will "assist the trier of fact to understand the evidence or to determine a fact in issue." As one commentator has noted, this statute "continues the tradition of liberally admitting expert testimony." Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 702.202 (2d ed. 2001); see also State v. St. George, 2002 WI 50, ¶ 39, 252 Wis. 2d 499, 643 N.W2d 777. Formerly, some jurisdictions conditioned the admissibility of expert testimony upon the "Frye" test, which required the trial court to determine on a threshold basis whether the expert evidence had gained "general acceptance in the particular field to which it belongs." State v. Peters, 192 Wis. 2d 674, 686, 534 N.W.2d 867 (Ct. App. 1995). In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court held that the Frye test was superseded by Rule 702 of the Federal Rules of Evidence, which mirrors Wis. Stat. § 907.02. See Peters, 192 Wis. 2d at 686. Although departing from Frye, Daubert still required a trial court to assure that the expert testimony was reliable. Peters, 192 Wis. 2d at 687.

¶ 20. However, Wisconsin was not among the jurisdictions that applied the Frye test. Instead, Wisconsin applied a relevancy test. Peters, 192 Wis. 2d at 687. Therefore, Daubert did not change the standard for the admissibility of expert testimony in Wisconsin. Peters, 192 Wis. 2d at 687. "Thus, the rule remains in Wisconsin that the admissibility of [expert testimony] is not conditioned upon its reliability. Rather, [such evidence] is admissible if: (1) it is relevant, § 904.01, Stats.; (2) the witness is qualified as an expert, § 907.02, Stats.; and (3) the evidence will assist the trier of fact in determining an issue of fact, § 907.02." Peters, 192 Wis. 2d at 687-88 (citations omitted; footnotes omitted).

¶ 21. This approach has served to reduce the "gatekeeper" role of the Wisconsin trial court when it comes to expert testimony. Reliability is not part of the trial court's function. Rather, "[r]eliability is an issue for the trier of fact, not the trial judge as a predicate for admissibility." Blinka, Wisconsin Practice: Wisconsin Evidence, § 702.202. "[T]he reliability of expert testimony is an issue for the trier of fact, not the circuit court as a predicate for admissibility." State v. Davis, 2002 WI 75, ¶ 22, 254 Wis. 2d 1, 645 N.W.2d 913, reconsideration denied, 2002 WI 121, 257 Wis. 2d 123, 653 N.W.2d 894 (Wis. Sept. 20, 2002) (No. 00-2916-CR). Instead, Wisconsin relies on the vehicle of cross-examination to test the reliability of an expert witness. As the supreme said in State v. Walstad, 119 Wis. 2d 483, 518-19, 351 N.W2d 469 (1984):

The fundamental determination of admissibility comes at the time the witness is "qualified" as an expert. In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment. Whether a scientific witness whose testimony is relevant is believed is a question of credibility for the finder of fact, but it clearly is admissible.

¶ 22. To the extent that the trial court may have held that Wantz's testimony was unreliable as a matter of law and therefore concluded that Wantz was not qualified, the court exceeded its limited "gatekeeper" function.

4. Timeliness

¶ 23. At both the summary judgment and reconsideration hearings, the trial court also indicated that Wantz's affidavit was untimely. However, the court did not cite to a statute or rule in support of this statement. In addition, as with the issue concerning Wantz, the court raised this issue sua sponte, without any motion or claim from any of the defendants challenging the timeliness of the Riccos' response to the Rivas' summary judgment motion. Nor have the Rivas defended this statement by the trial court on appeal.

¶ 24. The record indicates that the Rivas filed their summary judgment motion on June 28, 2002. The Riccos filed their response, including Wantz's affidavit, on July 16, 2002. The trial court conducted the summary judgment hearing on July 29, 2002. Wisconsin Stat. § 802.08(2) requires that the opposing party must file opposing affidavits "at least 5 days before the time fixed for the hearing." Wantz's affidavit was clearly timely under this statute.

¶ 25. We have also considered that the trial court's statement may have been premised on the local Waukesha County Circuit Court Rule which requires that "[a] respondent shall have fifteen (15) days from the service of the movant's motion within which to serve and file [responsive materials]." Rule 5.4(a) WI Rules: Local Court Rules, Waukesha County Cir. Ct. Under this rule, Wantz's affidavit was two days late. However, the Judicial Council Note accompanying the enactment of the current Wis. Stat. § 802.08(2) makes clear that the statute was enacted to make uniform the time requirements for responding to a motion for summary judgment and to bar the application of local rules that imposed different time requirements:

The prior sub. (2), allowing service of affidavits opposing summary judgment up to the date of hearing, afforded such minimal notice to the court and moving party that a plethora of local rules resulted. Requiring such affidavits to be served at least 5 days before the hearing is intended to preclude such local rules and promote uniformity of practice. Courts may require earlier filing by scheduling orders, however.

Judicial Council Note, 1992, Wis. Stat. § 802.08(2) (citation omitted).

¶ 26. In summary, Wis. Stat. § 802.08(2), not the local rule, governs this issue. The Wantz affidavit was timely.

5. The Appellate Remedy

¶ 27. Next, we address the appropriate remedy in light of our holdings. Separate and apart from the striking of Wantz's affidavit, the Rivas offer alternative reasons for upholding the trial court's dismissal of the Riccos' misrepresentation claims and their claims relating to certain specific categories of property. The Rivas also made these arguments to the trial court. However, our order granting leave to appeal expressly stated that "[w]e will not consider other grounds for granting summary judgment on the numerous claims dismissed by the circuit court in August, and the [Rivas] may not raise other grounds for affirming the circuit court, e.g. arguing that summary judgment would have been granted notwithstanding the decision to exclude the Riccos' expert."

¶ 28. The trial court's bench decision is ambiguous as to whether the dismissal of the Riccos' claims rested solely on the striking of Wantz's affidavit or whether the court was adopting the Rivas' different arguments in support of their motion. We conclude it was the former because the court opened its bench decision with the ruling striking Wantz's affidavit, and only thereafter proceeded to dismiss the Riccos' claims, stating, "Without Mr. Wantz there is not even a whiff of any proof that the [Rivas] knew, or should have known that there was a defect in these matters."

¶ 29. Except for the strict misrepresentation and negligent misrepresentation claims which the Riccos conceded were "not viable," we reinstate all of the Riccos' misrepresentation claims which are dependent upon Wantz's affidavit. We remand with directions that the trial court again address the Rivas' motion for summary judgment as to these claims. When doing so, the court shall consider the Wantz affidavit together with the other summary judgment evidence.

The Riccos' Wis. Stat. § 100.18 Claim

¶ 30. The Riccos' complaint alleged that the Rivas violated Wis. Stat. § 100.18 when they, through their agents, attempted to sell their home by placing an advertisement in a periodical stating that there were "[l]iving quarters above stable" and stating in the MLS listing and real estate data sheet that there was an apartment with a full bath over the barn. The trial court dismissed this claim on the basis that the Riccos had already entered into an offer at the time of the representations. At the reconsideration hearing, the court broadened its ruling, noting that the statute immunizes a broker who makes a representation without knowing that the assertion is untrue, deceptive or misleading. Since the Riccos1 claim was premised upon a representation made by the Rivas' broker, the court concluded that the Rivas could not be vicariously liable under the statute.

¶ 31. We review summary judgments independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). We will affirm the trial court's decision granting summary judgment if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 32. Wisconsin Stat. § 100.18(1) governs fraudulent representations and provides in relevant part:

No person, firm, corporation or association, or agent or employee thereof, with intent to sell. . . real estate . .. or with intent to induce the public in any manner to enter into any contract or obligation relating to the purchase ... of any real estate .. . shall make, publish, disseminate, circulate, or place before the public ... in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase ... of such real estate... which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

However, the statute does not apply to real estate brokers who directly made a representation but did not know that the assertion or representation of fact was untrue, deceptive or misleading. Sec. 100.18(12)(b).

¶ 33. The Riccos argue that the trial court erred in its determination that they had already entered an offer at the time of the representations. They point to the affidavit of Belinda Ricco stating that she had reviewed the written materials supplied by the brokers and had relied on the representations in those materials when purchasing the property. This evidence clearly created a material issue of fact as to whether the Riccos relied on the information prior to purchasing the property. The trial court erred by granting summary judgment on this basis.

¶ 34. At the reconsideration hearing, the Rivas also argued that they could not be liable under Wis. Stat. § 100.18 for the representations of their broker. They argue that "[b]ecause the Rivas themselves did not make any representations to the Riccos with respect to the horse barn, and because the Riccos cannot and do not seek to hold the real estate agents liable for those representations under [§] 100.18," the Rivas cannot be held statutorily liable for the representations.

¶ 35. Whether Wis. Stat. § 100.18 could apply to the Rivas even though their realtors are exempt from statutory liability presents a question of law that we review de novo. See Nunez ex rel. Poulos v. Am. Family Mut. Ins., 2003 WI App 35, ¶ 23, 260 Wis. 2d 377, 659 N.W.2d 171, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (No. 02-1041) (issues of statutory construction are questions of law subject to de novo review). When we interpret a statute, our goal is to ascertain and give effect to the intent of the legislature. Id., ¶ 24. The first step in construing a statute is to look to the language of the statute itself and attempt to interpret it based on the plain meaning of its terms. Id. If the language of the statute is clear and unambiguous, we generally apply it to the facts at hand without further analysis. Id. However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results. Id. We presume that "the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute." Id. (citation omitted).

¶ 36. Wisconsin Stat. § 100.18(1) expressly states that a "person" can violate its provisions by making untrue, deceptive or misleading representations in an effort to sell real estate. Clearly, the Rivas are "persons" within the meaning of the statute. Contrary to the Rivas' assertions, they are not exempt from application of the statute simply because the legislature made the policy decision to exempt realtors from operation of the statute as long as the false representations were not knowingly made. The purpose of § 100.18 is to deter sellers of property from making false representations in order to induce a sale. See Kailin v. Armstrong, 2002 WI App 70, ¶ 44, 252 Wis. 2d 676, 643 N.W.2d 132. Were we to accept the Rivas' argument, sellers of property could simply, "launder" their false representations through their realtor, thereby contravening the purpose of the statute. See Nunez, 260 Wis. 2d 377, ¶ 24.

¶ 37. The summary judgment evidence submitted by the parties on this issue was in conflict as to the Rivas' contribution to the alleged misrepresentation by the broker. Daniel Riva testified in his deposition that he had not told the realtors that it was a living area, that it was never intended to be used as a living area and that he and his wife kept horse equipment in the area. However, Belinda Ricco stated in her affidavit that when looking at the property there were bunk beds there, an efficiency kitchen with a sink and kitchen table and a bathroom that contained a toilet and a shower. This evidence allows for the inference that the broker's representation that there was an apartment above the stable emanated from the Rivas. In addition, the Riccos submitted correspondence from the City of Muskego that "[the] separate quarters away from the main house is not allowed without Plan Commission approval. There were no building permits issued for work done on the living quarters above the stable." We hold that the summary judgment evidence reveals a material issue of fact as to whether the Rivas contributed to the broker's representation regarding the area above the stable.

¶ 38. In conclusion, we hold that Wis. Stat. § 100.18 may be applied to the Rivas and that there is a genuine issue of material fact as to whether and, if so, when the Rivas made false representations to the Riccos. We reverse the trial court's grant of summary judgment on the Riccos' § 100.18 claim. See Wis. Stat. § 802.08(2).

CONCLUSION

¶ 39. We hold that the trial court erred in striking the Wantz affidavit, in striking Wantz as a witness at the trial, and in dismissing the Riccos' Wis. Stat. § 100.18 claim. Except for the negligent misrepresentation and strict misrepresentation claims, we reinstate the Riccos' remaining misrepresentation claims and their fraudulent representation claim under § 100.18. We remand for further proceedings on the Rivas’ motion for summary judgment. At the remand hearing, the trial court shall consider all of the summary judgment evidence, including the Wantz affidavit.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The Riccos also alleged claims of negligence and misrepresentation against the two brokers and sales agents who were involved in the transaction. In addition, the Riccos alleged a breach of contract claim against their home inspector.

       The Rivas' summary judgment motion also sought a declaratory ruling relating to the measure of damages.

       Noting the Riccos' concession that their claims for strict and negligent misrepresentation were not viable, the court dismissed those two claims and those matters are not before us.

       The real estate brokers and their respective agents had also moved for summary judgment. The trial court granted this motion as to the negligence claims, but denied the motion as to the misrepresentation claims. These rulings are not before us.

        Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

       The time limits in Wis. Stat. § 802.08(2) apply unless a different time limit is set out in the scheduling order. Here, the scheduling order did not prescribe a different time limit for a response to a summary judgment motion. In fact, it was the Rivas' motion for summary judgment that was not timely under the scheduling order, which directed that such a motion was to be filed no later than February 1, 2002. The Rivas' motion was filed on June 28, 2002. The Riccos raised this issue in their written brief filed in response to the summary judgment motion. However, they did not pursue this argument in their oral presentations at the summary judgment hearing. Presumably that explains why the trial court did not address this issue in its ruling. We also note that the Riccos do not renew this issue on appeal.

       This issue is unrelated to the issues concerning Wantz or his claimed area of expertise. The alleged misrepresentation regarding the stable does not concern any claimed defect in the structure. Rather, the alleged misrepresentation concerns the use of the structure. We do not understand the Riccos to rely on Wantz regarding this claim.

       The Rivas argue that we should not address this issue since the Riccos did not raise it in their motion for reconsideration. We disagree. The Riccos' written motion expressly contended that they had been provided documents pertaining to the property prior to entering into the contract. In addition, the oral arguments at the hearing on the motion addressed the Rivas' contention that they could not be held liable under Wis. Stat. § 100.18 based upon a representation made by their broker — an argument adopted by the trial court in its reconsideration ruling.