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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86360
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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How to object to proposed order for costs? Lost a summary

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How to object to proposed order for costs? Lost a summary judgment hearing, opposing side drafted order including a finding for costs. There was no discussion at ruling at to costs. How should I best respond (object) to order proposing costs?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

1) Is this in state or federal court, and
2) What state is this in?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Wisconsin state court (small claims)

Expert:  Ely replied 1 year ago.
Thank you, friend. What was the case about?
Customer: replied 1 year ago.

Sorry for delay. JA has been problematic for me much of the day. I was plaintiff, brought small claims suit against municipality. Judge (to my surprise) acted as advocate for defendant, assuming facts not in evidence (no affidavit in support) and raising points which defendant did not raise in its own motion. Judge granted SJ, orally dismissed case, asked defendant to draft order. No mention by judge of with/without prejudice; no mention of costs. Not clear to me, under state law, whether statutory costs are even available in a dismissal of small claims action.

Expert:  Ely replied 1 year ago.
Friend - I am in receipt of your follow up but am currently away from the site. I will reply as soon as I can later on tonight. No need to reply this communique.
Expert:  Ely replied 1 year ago.
My apologies for the wait - I was offline for most of the day and away from a computer. I had earlier sent a quick message using my smart phone, just so you know that I was not ignoring you.

The court has ultimate discretion for awarding attorney fees. Standard Theatres v. Transportation Dept., 349 NW 2d 661 - Wis: Supreme Court 1984.

The statute behind it may be seen here.

Ergo, someone in your situation may wish to argue the above (or put it into motion response, as below, a sample):

[caption] - TITLE AND PARTIES (just copy of their filing)

DEFENDANT'S RESPONSE TO MOVANT’S MOTION FOR ATTORNEY FEES (centered)

NOW COMES Defendant, YOUR NAME, named Plaintiff in the above-entitled and numbered cause, and files this Response to Movant’s Motion for Attorney Fees, and shows the Court:

Defendant denies each and every allegation of Plaintiff's Motion for Attorney Fees, and demands strict proof thereof as required by rules of evidence and procedure for the State of Wisconsin.

Under WIS. STAT. § 814.045, the Court may consider many factors. But also, the Court should consider whether the other party has caused additional fees by overtrial, (Johnson v. Johnson, 199 Wis. 2d 367, 376-77, 545 N.W.2d 239 (Ct. App. 1996); or because the other party refuses to provide information which would speed the process along. See Lellman v. Mott, 204 Wis. 2d 166, 175, 554 N.W.2d 525 (Ct. App. 1996).

Not only none of these factors apply, but also, the attorney’s fees are extravagant. Ergo, movant’s motion for attorney fees should be denied.

PRAYER
Defendant prays the Court, after notice and hearing or trial, enters judgment in favor of Plaintiff, awards Plaintiff the costs of court, and such other and further relief as Plaintiff may be entitled to in law or in equity.

Respectfully submitted,
Your Signature
Your name


(NEW PAGE)

CERTIFICATE OF SERVICE (centered)

I certify that on (date filed) a true and correct copy of Plaintiff’s Response to Movant’s Motion for Attorney Fees was served to the opposing party.

Your Signature
Your name


AGAIN, this is just a sample to inspire and give an example.

Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86360
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Absolutely superb! Perhaps the most thorough response I have received from any JA expert.

Expert:  Ely replied 1 year ago.

Thank you - that comment definitely has made my day. PS, please note that one of the first lines should read:

 

Plaintiff denies each and every allegation of Defendant's Motion for Attorney Fees, and demands strict proof thereof as required by rules of evidence and procedure for the State of Wisconsin.


Also, the title would read:

 

PLAINTIFF'S RESPONSE TO MOVANT’S MOTION FOR ATTORNEY FEES

 

In other words, it is prudent to ensure that the Plaintiff/Defendant verbiage matches one's case.

Customer: replied 1 year ago.

Yes. I noticed that immediately.


 


Does it work in my favor that AT NO TIME prior to the Defendant's submission of proposed order did it make a request for costs? The MSJ requests - as relieve sought - only dismissal. It did not request costs. Costs were never mentioned during the MSJ hearing - not by Def. not by court.


 


Does that work in my favor? If you were a betting man?

Expert:  Ely replied 1 year ago.
Hello again friend - I hope you are well today.

Does it work in my favor that AT NO TIME prior to the Defendant's submission of proposed order did it make a request for costs? The MSJ requests - as relieve sought - only dismissal. It did not request costs. Costs were never mentioned during the MSJ hearing - not by Def. not by court.

It neither works for or against you, in this case. The parties have the discretion to ask for fees at motion, or at judgment.

Does that work in my favor? If you were a betting man?

I am risk-averse, friend.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86360
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Thanks for the reminder on the rating... I thought I already had.


 


Expert:  Ely replied 1 year ago.

Friend, Sorry, that should not have been added already - it was a default 'signature' block - you did accept once already.

Customer: replied 1 year ago.

Guess I have to ask for clarification...


You said:


"The parties have the discretion to ask for fees at motion, or at judgment."


 


I interpret this, breaking the sentence down, as:


1. The Def had the option to ask for fees IN its motion... or during the oral argument on its motion. and,


2. The Def. had the option to ask for fees at the time the court rendered judgment. (presumably before the court requested Def to draft order consistent with his judgment just pronounced and hearing adjourned).

 


I suspect that in order to be awarded such costs it is necessary to request them BEFORE the judge signs the order... or, alternatively to suggest a hearing on costs. Do I have that right?


 


Now, in my case, Def. did not request costs in or during motion hearing and did not request costs before, during, or immediately after judgment was rendered. Def did not mention costs until its proposed order drafted the following day - and without details (itemization).


 


 

Expert:  Ely replied 1 year ago.
Hello,

1. The Def had the option to ask for fees IN its motion... or during the oral argument on its motion. and,

2. The Def. had the option to ask for fees at the time the court rendered judgment. (presumably before the court requested Def to draft order consistent with his judgment just pronounced and hearing adjourned).


Yes, except in #1, the request would be in the motion if requested. But yes, it may be asked at motion, or, at/after judgment.

I suspect that in order to be awarded such costs it is necessary to request them BEFORE the judge signs the order... or, alternatively to suggest a hearing on costs. Do I have that right?

They can always attempt to bring a motion to costs AFTER judgment, but, it is generally assigned AT judgment, and if not, then it is likely to be denied.

Now, in my case, Def. did not request costs in or during motion hearing and did not request costs before, during, or immediately after judgment was rendered. Def did not mention costs until its proposed order drafted the following day - and without details (itemization).

The fact that they did not ask for it before does not matter. However, the lack of itemization may be a weak point - one can attack it, arguing that the fees lack justification and may be ballooned for no reason.
Customer: replied 1 year ago.

Perhaps I failed to express my thought properly when I used the word "details" as to costs. No details of costs are in the proposed order. No summary of costs is in the proposed order. No total of costs is in the proposed order. No specific requested value. There is no "$", nor word "dollar" in the proposed order. Simply... "with costs".

Expert:  Ely replied 1 year ago.
Ah, I see.

This is a bit unusual, because normally it would have a specific cost. One can counter the proposed order with THEIR OWN order that deletes the costs. The Court would choose whichever one fits the court's earlier verbal decision best.
Customer: replied 1 year ago.

Yes. That's precisely what I did. I pointed out that the Def had not at any time prior to the day FOLLOWING judgment made any reference to costs. And that the proposed order was not accurate. I submitted my own proposed order, perfectly formatted, with "without costs to either party."

So I guess we'll see what happens.


 


thx!

Expert:  Ely replied 1 year ago.
No problem.

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