Shands v. Castrovinci, 82-730

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: WILLIAM G. CALLOW; STEINMETZ
• Citation: 340 N.W.2d 506,115 Wis.2d 352
• Parties: Brenda SHANDS, Plaintiff-Respondent-Petitioner, v. Joseph CASTROVINCI, d/b/a Central City Housing, Defendant-Appellant.
• Docket Number: No. 82-730,82-730
• Decision Date: 30 November 1983

Page 506

340 N.W.2d 506 115 Wis.2d 352 Brenda SHANDS, Plaintiff-Respondent-Petitioner,
v.
Joseph CASTROVINCI, d/b/a Central City Housing, Defendant-Appellant. No. 82-730. Supreme Court of Wisconsin. Submitted on Briefs Oct. 31, 1983.
Decided Nov. 30, 1983.

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[115 Wis.2d 354] 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) [115 Wis.2d 355] 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

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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.

[115 Wis.2d 356] 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).

[115 Wis.2d 357] 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

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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 [115 Wis.2d 358] whether such awards would be commensurate with the purposes of the statute and, more...