Shands v. Castrovinci

Decision Date30 November 1983
Docket NumberNo. 82-730,82-730
Citation340 N.W.2d 506,115 Wis.2d 352
PartiesBrenda SHANDS, Plaintiff-Respondent-Petitioner, v. Joseph CASTROVINCI, d/b/a Central City Housing, Defendant-Appellant.
CourtWisconsin Supreme Court

James A. Gramling, Jr., Louis J. Mestre and Legal Action of Wisconsin, Inc., Milwaukee, for plaintiff-respondent-petitioner.

Joseph Castrovinci, for defendant-appellant, pro se.

Mark E. Smith, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for the Wisconsin Dept. of Justice, amicus curiae.

WILLIAM G. CALLOW, Justice.

This is a review of an order of the court of appeals denying the petitioner's motion for reasonable attorney fees pursuant to sec. 100.20(5), Stats. We reverse the order of the court of appeals.

The issues presented on this appeal are whether sec. 100.20(5), Stats., requires an award of reasonable attorney fees for an appeal in an action for violation of Wis.Adm.Code sec. Ag 134.06; and, if such attorney fees are recoverable, whether a tax supported legal services organization is entitled to receive attorney fees even though the client is not responsible for paying a legal fee.

On February 13, 1981, Brenda Shands filed a small claims action in Milwaukee county circuit court to recover a security deposit of $145 from her former landlord, Joseph Castrovinci, d/b/a Central City Housing. Shands alleged that her landlord had failed within twenty-one days of Shands' vacating her rental unit either to refund her security deposit or to deliver to her a written statement of the claims made against her deposit, as required by Wis.Adm.Code sec. Ag 134.06(2) and (4). 1 Shands sought double her pecuniary loss, together with the costs of the action, including reasonable attorney fees as authorized by sec. 100.20(5), Stats. 2 Castrovinci counterclaimed in the sum of $352 for one month's rent and alleged damage to the rental unit.

The action was tried before the court, Judge John E. McCormick, on April 27, 1981. On February 16, 1982, the court issued a memorandum decision in which it found that Castrovinci had improperly withheld Shands' security deposit and awarded her $290 as damages. The court did not award any amount to Castrovinci on his counterclaim. Shands then made a motion for an award of costs and reasonable attorney fees. After an evidentiary hearing conducted on March 15, 1982, the court on March 26, 1982, entered an order awarding Shands $290 in damages, $287.50 for attorney fees, and costs.

Castrovinci appealed the trial court's order to the court of appeals. On November 10, 1982, the court of appeals, 109 Wis.2d 699, 327 N.W.2d 724, issued a decision affirming the trial court's order because the court's findings were not against the great weight and clear preponderance of the evidence. On November 24, 1982, Shands filed a motion, pursuant to sec. 100.20(5), Stats., with the court of appeals for costs and the sum of $650 as reasonable attorney fees incurred defending the trial court's order on appeal. On December 23, 1982, the court of appeals summarily denied the motion for attorney fees. Shands petitioned this court for review of the court of appeals' order, and we granted the petition 3 on March 8, 1983. At all times during this action Shands has been represented by Legal Action of Wisconsin, Inc. (LAW), a public interest legal services organization.

In interpreting statutes we apply the oft-repeated guiding principles that "[t]he aim of all statutory construction is to discern the intent of the legislature," Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 35, 240 N.W.2d 422 (1976), and that a "cardinal rule in interpreting statutes" is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act. Student Asso., University of Wisconsin-Milwaukee v. Baum, 74 Wis.2d 283, 294-95, 246 N.W.2d 622 (1976). Where one of several interpretations of a statute is possible, the court must ascertain the legislative intention from the language of the statute in relation to its context, subject matter, scope, history, and object intended to be accomplished. State ex rel. First National Bank & Trust Co. of Racine v. Skow, 91 Wis.2d 773, 779, 284 N.W.2d 74 (1979).

Sec. 100.20(1), Stats., declares: "Methods of competition in business and trade practices in business shall be fair. Unfair methods of competition in business and unfair trade practices in business are hereby prohibited." Under the statute the Wisconsin Department of Agriculture, Trade and Consumer Protection is authorized to "issue general orders forbidding ... trade practices ... which are determined by the department to be unfair." Sec. 100.20(2), Stats. Pursuant to this authority, the department promulgated administrative rules governing the rights and duties of landlords and tenants in residential housing. See Wis.Adm.Code Ch. Ag 134. Sec. 100.20(5), Stats., gives any person who suffers damages because of a violation of the administrative regulations, including Ch. 134, a right to recover twice the amount of pecuniary loss, together with costs, including a reasonable attorney fee.

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. Cedarburg Light & Water Comm. v. Glens Falls Ins. Co., 42 Wis.2d 120, 124-25, 166 N.W.2d 165 (1969). In this type of case, however, the use of the word "shall" in the relevant statutory provision indicates attorney fees awards for prevailing tenants are mandatory. In Matter of E.B., 111 Wis.2d 175, 185, 330 N.W.2d 584 (1983). 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.

In order to decide whether the statute requires an award of attorney fees for appeals, we must determine whether such awards would be commensurate with the purposes of the statute and, more generally, with public policy. We discern several purposes and policy interests behind the provisions of sec. 100.20(5), Stats. First, the recovery of double damages and attorney fees encourages injured tenants to bring legal actions to enforce their rights under the administrative regulations. Often the amount 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. While attorneys generally are willing to perform pro bono legal services in appropriate cases, we recognize that practical considerations limit the number of such suits.

Second, the tenant who sues under the statute acts as a "private attorney general" to enforce the tenants' rights set forth in the administrative regulations. Thus, the individual tenant not only enforces his or her individual rights, but the aggregate effect of individual suits enforces the public's rights.

Third, tenant suits have the effect of deterring impermissible conduct by landlords because, if they violate the administrative regulations, they will be subject to double damages and will be responsible for costs, including attorney fees. The deterrent effect of the statute strengthens the bargaining power of tenants in dealing with landlords.

Finally, in an amicus brief the Wisconsin Department of Justice noted that private tenant actions provide a necessary backup to the state's enforcement powers under sec. 100.20, Stats. The department pointed out that the sheer number of violations prevent it from proceeding against all violators. Private tenant actions thus constitute an enforcement mechanism reinforcing that of the justice department.

A tenant action brought under sec. 100.20(5), Stats., is not successful until he or she has actually recovered damages and attorney fees. The trial court's decision may have to be defended, or an adverse decision protested, in an appellate forum. The same purposes and policy interests we identified for the original action attach to the appeals process. To permit the recovery of attorney fees for successful appellate work is simply to recognize that an attorney's effort at that stage is as essential to the tenant's success as is an attorney's work at the trial court level. Furthermore, we recognize that, if attorney fees were not recoverable on appeal, landlords could defeat the statutory purposes by the simple expedient of an appeal, which will be prohibitively expensive for many tenants; similarly, tenants would have little incentive to pursue a meritorious claim on appeal where they had not prevailed at the trial court level. In short, to deny attorney fees to tenants who need to pursue appellate review to enforce their rights would undercut the salutary objectives of the statute.

In light of these important interests, we find no reason to interpret sec. 100.20(5), Stats., as limiting the award of attorney fees to the original trial court litigation. Accordingly, we hold that a tenant who has suffered pecuniary loss because of a violation of Wis.Adm.Code Ch. Ag 134 shall recover reasonable attorney fees for appellate review undertaken to attack or defend a trial court's decision in the suit.

The next issue is whether sec....

To continue reading

Request your trial
104 cases
  • Friends of Frame Park, U.A. v. City of Waukesha
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 de julho de 2022
    ...prohibitions on unfair labor practices and providing for optional fee shifting to successful plaintiffs); Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983) (explaining that a tenant suing under Wis. Stat. § 100.20(5) "acts as a ‘private attorney general’ to enforce the tena......
  • Stuart v. Weisflog's Showroom Gallery, Inc., 2005AP886.
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 de março de 2008
    ...will fulfill the intent of a statute or a regulation, over a construction that defeats its manifest object. Shands v. Castrovinci, 115 Wis.2d 352, 356, 340 N.W.2d 506 (1983). However, for questions of statutory construction, such as this one, our review is de novo. DOR v. River City Refuse ......
  • Hinrichs v. DOW Chemical Company
    • United States
    • United States State Supreme Court of Wisconsin
    • 9 de janeiro de 2020
    ...the statute." Watkins v. Labor and Indus. Review Comm’n, 117 Wis. 2d 753, 764, 345 N.W.2d 482 (1984) (citing Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983) ). Absent such a private right of action and the prospect of attorney fees, many victims of deceptive representatio......
  • Estate of Miller v. Storey
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 de novembro de 2017
    ...position to advance the private and public interest at stake. See Watkins, 117 Wis. 2d at 764, 345 N.W.2d 482 ; Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983) ("Often the amount of pecuniary loss is small compared with the cost of litigation.... The award of attorney fee......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • ABA Antitrust Premium Library Consumer Protection Law Developments (Second) - Volume II
    • 2 de fevereiro de 2016
    ...Assocs. v. Allstate Ins. Co., 559 U.S. 393 (2010), 724 Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87 (1995), 519 Shands v. Castrovinci, 340 N.W.2d 506 (Wis. 1983), 1186 Sharma, 2005 FTC LEXIS 76 (June 1, 2005), 365 Sharma, 139 F.T.C. 343 (2005), 119 Shaw v. CTVT Motors, 300 P.3d 907 (Ariz. C......
  • State Consumer Protection Laws
    • United States
    • ABA Antitrust Premium Library Consumer Protection Law Developments (Second) - Volume II
    • 2 de fevereiro de 2016
    ...a claim under” WDTPA because a nondisclosure is not an “assertion, 3726. WIS. STAT. § 100.20(5); see, e.g. , Shands v. Castrovinci, 340 N.W.2d 506, 511 (Wis. 1983) (awarding attorney fees incurred in connection with appellate review of a trail court’s decision in the underlying lawsuit). 37......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT