Justia.com Opinion Summary: Steven Kilian leased a Mercedes-Benz vehicle with financing by Mercedes-Benz Financial. After the car required numerous repairs, Kilian returned the car to Mercedes-Benz USA and sought a refund under Wisconsin's Lemon Law. Mercedes-Benz USA accepted the returned vehicle and refunded $20,847 to Kilian. Because Mercedes-Benz USA did not immediately pay off the lease with Mercedes-Benz Financial, Mercedes-Benz Financial commenced collection actions to obtain payment from Kilian. Kilian filed suit under the Lemon Law to stop enforcement of the lease. While Kilian's action was pending in circuit court, Mercedes-Benz paid off the lease to Mercedes-Benz Financial. The circuit court granted summary judgment in favor of Mercedes-Benz Financial, finding that Kilian did not suffer a pecuniary loss when Mercedes-Benz Financial continued to enforce the lease after the vehicle was returned. The court of appeals affirmed. The Supreme Court reversed, holding (1) Kilian could maintain an action for equitable relief under the Lemon Law and Mercedes-Benz Financial's actions violated the Lemon Law; and (2) Kilian prevailed in his action when Mercedes-Benz Financial voluntarily ceased enforcement of the lease after Kilian filed suit, and as the prevailing party, Kilian was entitled to attorney fees, disbursements, and costs. Remanded.
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2011 WI 65
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP538
Steven T. Kilian,
Plaintiff-Appellant-Cross-Respondent-Petitioner,
v.
Mercedes-Benz USA, LLC and Daimler Chrysler
Financial Services Americas, LLC d/b/a MercedesBenz Financial,
Defendants-Respondents-Cross-Appellants.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 324 Wis. 2d 583, 785 N.W. 2d 687
(Ct. App. 2010 – Unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
July 12, 2011
January 5, 2011
Circuit Court
Waukesha
Ralph Ramirez
ROGGENSACK, J. concurs (Opinion filed).
ZIEGLER, J. did not participate.
ATTORNEYS:
For
the
plaintiff-appellant-cross-respondent-petitioner
there were briefs and oral argument by Vincent P. Megna and
Timothy J. Aiken, Aiken & Scoptur, S.C.
For the defendants-respondents-cross-appellants there was a
brief by Patrick L. Wells and Owen Armstrong, Von Briesen &
Roper, S.C. and oral argument by Patrick L. Wells.
2011 WI 65
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP538
(L.C. No.
2007CV1869)
STATE OF WISCONSIN
:
IN SUPREME COURT
Steven T. Kilian,
Plaintiff-Appellant-Cross-RespondentPetitioner,
FILED
v.
Mercedes-Benz USA, LLC and Daimler Chrysler
Financial Services Americas, LLC d/b/a
Mercedes-Benz Financial,
JUL 12, 2011
A. John Voelker
Acting Clerk of Supreme
Court
Defendants-Respondents-CrossAppellants.
REVIEW of a decision of the Court of Appeals.
Reversed and
cause remanded.
¶1
MICHAEL J. GABLEMAN, J.
Steven Kilian seeks review of
an unpublished decision of the court of appeals1 that affirmed
the
order
of
the
circuit
court
for
Waukesha
County,
the
Honorable Ralph M. Ramirez presiding, granting summary judgment
1
Kilian
v.
Mercedes-Benz
USA,
LLC,
No.
unpublished slip op. (Wis. Ct. App. Mar. 24, 2010).
2009AP538,
No.
to
defendants
Mercedes-Benz
USA,
LLC,
and
2009AP538
Daimler
Chrysler
Financial Services Americas, LLC, d/b/a Mercedes-Benz Financial.
¶2
Kilian
Mercedes-Benz
USA
leased
a
Mercedes-Benz
manufactured
the
vehicle
vehicle
Financial provided the lease financing.
and
in
2006.
Mercedes-Benz
In the first year of
the lease, the car required repairs on seven occasions and was
out of service for an aggregate of approximately forty days.
Kilian returned the car to Mercedes-Benz USA and sought a refund
under Wisconsin's Lemon Law.2
Mercedes-Benz USA accepted the
returned vehicle and refunded $20,847.87 to Kilian.
However,
Mercedes-Benz USA did not immediately pay off the lease with
Mercedes-Benz
Financial
and,
as
a
result
of
this
failure,
Mercedes-Benz Financial commenced efforts to obtain payment on
the lease from Kilian even though he had returned the car to
Mercedes-Benz USA and had received a refund from them.
¶3
Kilian
retained
counsel
to
assist
Mercedes-Benz Financial's collection efforts.
in
stopping
Kilian's counsel
informed Mercedes-Benz Financial that the car had been returned
to, and Kilian had received a refund from, Mercedes-Benz USA.
Mercedes-Benz Financial does not dispute that it received actual
2
See Wis. Stat. § 218.0171 (2007-08).
"Wisconsin's Lemon
Law is a remedial statute enacted to protect buyers [and
lessees] of new [motor] vehicles if they experience certain
types of problems with their purchases. Vehicles with problems
covered under the statute are known as 'lemons.'"
Tammi v.
Porsche Cars N. Am., Inc., 2009 WI 83, ¶1 n.2, 320 Wis. 2d 45,
768 N.W.2d 783 (internal citations omitted).
All subsequent
references to the Wisconsin Statutes are to the 2007-08 version
unless otherwise indicated.
2
No.
notice of these facts.
Benz
Financial
that
2009AP538
Kilian's counsel also informed Mercedesno
person
may
enforce
a
lease
after
a
consumer has received a refund from the manufacturer under Lemon
Law
§ 218.0171(2)(cm)3.
Kilian's
counsel,
enforcement
Despite
the
Mercedes-Benz
actions.
Kilian
assurances
Financial
filed
suit
it
gave
continued
under
to
its
Lemon
Law
subsection (7) in order to stop enforcement of the lease.
¶4
We conclude that Kilian may maintain an action for
equitable relief under Lemon Law subsection (7).
hold
that
after
it
Mercedes-Benz
was
informed
Financial's
by
Kilian's
enforcement
attorney
Further, we
of
that
the
lease
Kilian
had
received a refund, and after it assured Kilian that collections
efforts would cease, violated the Lemon Law.
We also conclude
that Kilian prevailed in his action when Mercedes-Benz Financial
voluntarily ceased enforcement of the lease after Kilian filed
suit.
We conclude that Kilian, as the prevailing party, is
entitled to his costs, disbursements, and reasonable attorney
fees, but that Kilian is not entitled to an award for pecuniary
loss.
the
As a result, we reverse the court of appeals and remand
cause
to
appropriate
the
amount
circuit
of
court
Kilian's
for
a
costs,
determination
of
disbursements,
the
and
reasonable attorney fees.
I.
¶5
BACKGROUND
On March 21, 2006, Steven Kilian signed a thirty-nine
month motor vehicle lease agreement with Concours Motors, Inc.
Concours Motors is an authorized dealer for Mercedes-Benz USA,
3
No.
the
vehicle's
manufacturer,
and
Mercedes-Benz
2009AP538
Financial,
the
lease financing company.3
¶6
During the first year of the lease, Kilian's vehicle
required repairs on seven occasions and was out of service for
an aggregate of approximately forty days.
of
problems
with
his
new
car,
Kilian
rights under Wisconsin's Lemon Law.4
Because of the number
decided
to
assert
his
On April 11, 2007, Kilian
offered to return the car to the manufacturer, Mercedes-Benz
USA, and concurrently demanded a refund in accordance with Lemon
Law § 218.0171(2)(b).
¶7
On May 10, 2007, Kilian returned the car to Concours
Motors, Inc.
refund.5
Kilian then stopped making payments to Mercedes-Benz
Financial.
vehicle
On the same day, Kilian received a $20,847.87
to
He did so because he believed that returning the
Mercedes-Benz
USA
had
satisfied
his
remaining
obligations under the lease.
3
Mercedes-Benz Financial was described in the record as
the "financing arm" of Mercedes-Benz USA.
The record does not
provide a description of the precise corporate relationship
between the companies.
4
See Wis. Stat. § 218.0171.
5
See Wis. Stat. § 218.0171(2)(b)3. This amount equaled the
sum of Kilian's lease payments and other collateral costs from
March 2006 through April 2007, less an allowance for reasonable
use.
Kilian made fourteen payments of $1,826.12, totaling
$25,565.68.
After adjusting the refund pursuant to Wis. Stat.
§ 218.0171(2)(b)3,
including
a
($4,050.99)
adjustment
for
Kilian's reasonable use of the vehicle, the final refund totaled
$20,847.87.
4
No.
¶8
2009AP538
The dispute leading to this case began when Mercedes-
Benz USA (1) failed to pay off Kilian's lease with Mercedes-Benz
Financial and (2) failed to notify Mercedes-Benz Financial that
the vehicle had been returned under the Lemon Law.
Mercedes-
Benz Financial, left unaware, began contacting Kilian to collect
on what it viewed as unpaid lease installments, beginning with
the installment due May 20.
These contacts included numerous
phone calls and letters demanding payment.
Kilian repeatedly
informed Mercedes-Benz Financial that the car had been returned
under
the
Lemon
Law.
continued
contacting
considered
Kilian
had
Nonetheless,
Kilian
Mercedes-Benz
about
"missed."
the
By
payments
June,
Kilian
Financial
that
it
retained
counsel in order to stop Mercedes-Benz Financial's collection
efforts.
¶9
Kilian's
On June 15, 2007, Attorney Megna wrote a letter on
behalf
informing
Mercedes-Benz
Financial
that
the
vehicle had been returned to Mercedes-Benz USA, that Kilian had
received a refund under the Lemon Law, and that therefore Lemon
Law § 218.0171(2)(cm)3. precluded enforcement of the lease.
On
June 20, Mercedes-Benz Financial responded with a letter from
its Executive Referral Manager, Glen Bieler.
In the letter,
Bieler acknowledged receipt of Attorney Megna's June 15 letter
and assured Attorney Megna that Mercedes-Benz Financial would
refrain from further contact with Kilian regarding the lease.
¶10
After
receiving
Bieler's
letter,
Attorney
Megna
contacted the collections department of Mercedes-Benz Financial
and was advised that the lease account remained open and active.
5
No.
2009AP538
On June 26, Attorney Megna sent a second letter to Mercedes-Benz
Financial.
In the second letter, Attorney Megna inquired as to
whether the lease had in fact been cancelled by Mercedes-Benz
Financial.
¶11
Notice"
On
July
from
1,
2007,
Mercedes-Benz
Kilian
received
Financial.
a
This
"Federal
document
Legal
warned
Kilian of consequences he could face after his payments became
thirty
or
cautioned:
credit
more
"We
days
may
bureaus.
defaults
on
your
past
report
Late
due.
Specifically,
information
payments,
account
may
be
about
missed
the
your
account
payments,
reflected
in
notice
or
your
to
other
credit
report."
¶12
The following day, July 2, Kilian received an account
statement
reflecting
$5,478.36.
a
total
amount
due
on
the
lease
of
This amount reflected the aggregate of three months
of lease payments, presumably for the months of May, June, and
July.
The statement listed July 21 as the payment due date.
¶13
On July
10, 2007,
Kilian
filed
a
complaint
in
the
circuit court for Waukesha County naming both Mercedes-Benz USA
and Mercedes-Benz Financial as defendants.
Mercedes-Benz
specifically
Financial
Wis. Stat.
violated
Kilian alleged that
Wisconsin's
§ 218.0171(2)(cm)3.,
by
Lemon
Law,
continuing
to
enforce the lease after the vehicle was returned and he had
6
No.
received a refund from the manufacturer.6
2009AP538
Kilian's claim for
relief included a demand for twice the amount of all pecuniary
losses, rescission of the lease, prejudgment interest, attorney
fees, costs, and disbursements.
¶14
in
the
On August 29, 2007, while Kilian's action was pending
circuit
court,
Mercedes-Benz
USA
sent
a
check
for
$95,252.37 to Mercedes-Benz Financial in order to pay off the
lease.
After this point, Mercedes-Benz Financial considered the
account closed and the lease cancelled because the lease had no
remaining balance due.
¶15
In an order dated January 28, 2009, the circuit court
addressed Mercedes-Benz Financial's motion for summary judgment.
The
circuit
court
found
no
genuine
related to Kilian's Lemon Law claim.
issue
of
material
fact
Further, the circuit court
found that Kilian did not suffer a pecuniary loss when MercedesBenz Financial continued to enforce the lease after the vehicle
was returned.
The circuit court found no pecuniary loss existed
because it found that Kilian did not make any lease payments to
Mercedes-Benz Financial after returning the car.
6
As a result,
Kilian also alleged that Mercedes-Benz USA violated Lemon
Law § 218.0171(2)(b)3.a. by failing to pay off the lease with
Mercedes-Benz Financial.
On December 15, 2008, the circuit
court granted Mercedes-Benz USA's motion to dismiss this cause
of action, thus dismissing Mercedes-Benz USA as a defendant.
The court of appeals affirmed the dismissal.
Kilian did not
petition this court for review on this issue.
We therefore
express
no
opinion
concerning
Kilian's
Wis.
Stat.
§ 218.0171(2)(b)3.a. cause of action.
7
No.
2009AP538
the circuit court granted summary judgment in favor of MercedesBenz Financial.
¶16
The
court
of
appeals,
affirmed the circuit court.7
in
an
unpublished
decision,
The court of appeals first held
that claims for attorney fees, defamation, and inconvenience did
not qualify as pecuniary loss, and that a claim for pecuniary
loss was required in order to recover under Lemon Law subsection
(7).
Kilian
v.
Mercedes-Benz
USA,
LLC,
No.
2009AP538,
unpublished slip op., ¶¶10-13 (Wis. Ct. App. Mar. 24, 2010).
Second, the court of appeals held that Kilian did not seek any
type
of
equitable
relief
in
his
complaint.
Id.,
¶14.
Consequently, the court of appeals concluded that the complaint
against Mercedes-Benz USA was properly dismissed.
¶17
Id.
We granted review and now reverse the decision of the
court of appeals.
II.
¶18
This case
judgment.
de
novo,
95,
comes
before
us
on
a
motion
for
summary
"We review the grant of a motion for summary judgment
and
§ 802.08."
WI
STANDARD OF REVIEW
¶11,
apply
the
methodology
specified
in
Wis.
Stat.
Borek Cranberry Marsh, Inc. v. Jackson County, 2010
328
Wis. 2d 613,
785
N.W.2d 615.
"That
is,
we
determine whether there is any genuine issue as to any material
fact, and if not, which party is entitled to judgment as a
matter of law."
Id.
7
Kilian, No. 2009AP538, unpublished slip op. (Wis. Ct. App.
Mar. 24, 2010).
8
No.
¶19
This
case
also
involves
the
2009AP538
interpretation
Wisconsin's Lemon Law, found in Wis. Stat. § 218.0171.
of
"The
interpretation of a statute is a question of law that we review
de novo."
Hocking v. City of Dodgeville, 2010 WI 59, ¶17, 326
Wis. 2d 155, 785 N.W.2d 398.
III.
¶20
In
1983,
the
DISCUSSION
legislature
enacted
Law, codified in Wis. Stat. § 218.0171.8
"one of Wisconsin's preeminent
Tammi
v.
Porsche
Cars
N.
Am.,
Wis. 2d 45, 768 N.W.2d 783.
consumer
protection
manufacturers
of
consequences
for
by
new
consumer
Inc.,
Wisconsin's
Lemon
It has since become
protection
2009
WI
statutes."
83,
¶28,
320
The Lemon Law serves the goal of
creating
motor
violations
"standards
vehicles . . . as
of
those
of
conduct
well
standards."
as
for
potent
Id.
In
addition, it broadly prohibits any person from enforcing a lease
after
a
refund
is
received
by
the
consumer——regardless
of
whether that person is a manufacturer, lease financing company,
or a dealer.
¶21
under
§ 218.0171(2)(cm)3.
A consumer who leases a vehicle may request a refund
the
Lemon
Law
if
warranty
nonconformities
cause
the
vehicle to be out of service for an aggregate of thirty or more
days
during
the
first
year
of
the
§ 218.0171(1)(b)4., (1)(h)2., (2)(b)3.
lease.
See
Wis.
Stat.
Assuming the statutory
criteria are met, the manufacturer must provide the consumer a
refund within thirty days of the consumer's offer to return the
8
See 1983 Wis. Act 48, § 1.
9
No.
vehicle.
§ 218.0171(2)(c).
2009AP538
The refund is equal to "the amount
the consumer paid under the written lease plus any sales tax and
collateral
costs,
less
§ 218.0171(2)(b)3.a.
refund,
"[n]o
consumer."
¶22
may
a
reasonable
allowance
for
use."
Once the consumer has received his or her
person
may
enforce
the
lease
against
the
§ 218.0171(2)(cm)3.
Consumers aggrieved by a violation of the Lemon Law
maintain
an
action
under
Wis.
Stat.
§ 218.0171(7).
Subsection (7) states:
In addition to pursuing any other remedy, a consumer
may bring an action to recover for any damages caused
by a violation of this section. The court shall award
a consumer who prevails in such an action twice the
amount of any pecuniary loss, together with costs,
disbursements and reasonable attorney fees, and any
equitable relief the court determines appropriate.
Id.9
¶23
Applying subsection (7) to the instant case requires
us to consider four issues: (1) whether Kilian may maintain a
cause of action; (2) whether Mercedes-Benz Financial violated
9
The Lemon Law is clear as to its intent to hold automobile
manufacturers accountable, and to provide remedies to those
consumers who have incurred damages as a result of conduct which
the statute proscribes.
While the Lemon Law's general purpose
is clear, the particular terms and provisions contained in the
statute are sometimes opaque.
In subsection (7), for example,
no definition is provided for the term "damages."
And while
§ 218.0171(2)(cm)1. prescribes specific actions a manufacturer
must
take
when
issuing
the
consumer
a
refund,
§ 218.0171(2)(cm)3., by
contrast,
makes only
the
blanket
statement that "no person" may enforce a lease after a refund
has been issued. This case centers on these ambiguities, which
we intend to clarify today in a fashion consistent with the
legislature's intent.
10
No.
2009AP538
the Lemon Law; (3) whether Kilian prevailed in his action; and
(4) whether recovery of pecuniary loss, costs, disbursements,
reasonable
attorney
fees,
appropriate in this case.
and
other
equitable
relief
See Wis. Stat. § 218.0171(7).
is
We
consider these four issues in turn.
A.
Kilian May Maintain a Cause of Action Under Lemon Law
Subsection (7)
¶24
We first must determine whether Kilian may maintain an
action under Lemon Law subsection (7).
subsection
(7)
provides
that
"[i]n
The first sentence of
addition
to
pursuing
any
other remedy, a consumer may maintain an action to recover for
any damages caused by a violation of this section."
Wis. Stat.
§ 218.0171(7).
¶25
Both
parties
argue
that
this
interpretation of the word "damages."
case
turns
on
our
Mercedes-Benz Financial
argues that Kilian could maintain an action only if his damages
included pecuniary loss.
According to Mercedes-Benz Financial's
theory, since Kilian suffered no pecuniary loss, he could not
maintain an action under Lemon Law subsection (7).
Kilian, by
contrast, argues that the word "damages" encompasses more than
11
No.
just pecuniary loss.10
2009AP538
According to Kilian's theory, because he
sought equitable relief, he could properly maintain an action
under Lemon Law subsection (7).
¶26
word
These two theories on the proper interpretation of the
"damages"
address
one
underlying
issue:
whether
it
is
proper for Kilian to maintain an action under the Lemon Law.
We
therefore now consider whether Kilian may maintain his action
under Lemon Law subsection (7)'s first sentence.
¶27
The court of appeals held that a consumer must suffer
a pecuniary loss in order to maintain an action under Lemon Law
subsection (7).
Kilian, No. 2009AP538, ¶¶9-10, unpublished slip
op. (Wis. Ct. App. Mar. 24, 2010).
Because Kilian suffered no
pecuniary loss,11 the court of appeals rejected his claim.
conclude
that
the
holding
of
the
court
of
appeals
is
We
not
10
Kilian argued that he suffered defamation damages as a
result of Mercedes-Benz Financial's negative reports to credit
agencies, and that those damages were sufficient to bring an
action under Lemon Law subsection (7). We do not agree. Lemon
Law subsection (7) claims do not include personal injury
damages. Gosse v. Navistar Int'l Transp. Corp., 2000 WI App 8,
¶14, 232 Wis. 2d 163, 605 N.W.2d 896 (holding that a consumer
was not entitled to recover personal injury damages under the
Lemon Law).
Nothing precluded Kilian from alleging defamation
as an independent cause of action in his complaint. No evidence
indicates the legislature intended to include such claims under
the Lemon Law.
Therefore, we conclude that Kilian may not
bootstrap a defamation claim to his Lemon Law subsection (7)
claim.
For the purposes of this decision, we also assume,
without deciding, that pre-suit attorney fees and unspecified
"inconvenience" damages do not qualify as pecuniary loss under
subsection (7).
11
In Part III.D.1. of this opinion, we explain that Kilian
suffered no pecuniary loss because he had already received a
properly calculated refund from Mercedes-Benz Financial.
12
No.
2009AP538
consistent with the plain language of subsection (7), prior case
law, and accepted principles of statutory interpretation.
¶28
First,
the
court
of
appeals
decision
overlooks
plain language of subsection (7)'s introductory clause.
the
The
broad language of the introductory clause allows Kilian, as a
consumer,
"to
pursu[e]
any
.
.
§ 218.0171(7) (emphasis added).
.
remedy."
Wis.
Stat.
A remedy is defined as "[t]he
means of enforcing a right or preventing or redressing a wrong;
legal
or
equitable
relief."
Burbank
Grease
Servs.,
LLC
v.
Sokolowski, 2006 WI 103, ¶23, 294 Wis. 2d 274, 717 N.W.2d 781
(citation omitted) (emphasis added).
Further, subsection (7)'s
second sentence explicitly permits a court to award a prevailing
party "any equitable relief the court determines appropriate."
§ 218.0171(7).
Therefore, the plain language of subsection (7)
supports our conclusion that Kilian may maintain an action for
equitable relief under subsection (7).
¶29
Second,
the
only
appellate
decision
interpreting
identical statutory language permits consumers to seek equitable
relief. See Cuellar v. Ford Motor Co., 2006 WI App 210, ¶22, 296
Wis. 2d 545, 723 N.W.2d 747.
In Cuellar, a consumer brought an
action under the Motor Vehicle Adjustment Programs Act (MVAPA)
against the Ford Motor Company.
consumer
(Cuellar)
brought
his
Id., ¶1.
action
under
Specifically, the
MVAPA
subsection
(4), Wis. Stat. § 218.0172(4), a statute which contains language
identical to Lemon Law subsection (7).
with § 218.0171(7).
Compare § 218.0172(4),
The court of appeals held that Cuellar did
not have to show pecuniary loss in order to maintain an action
13
No.
2009AP538
under MVAPA subsection (4), noting that "the plain language of
the statute provides that the court 'shall award . . . any
equitable relief the court determines appropriate.'"
296
Wis. 2d 545,
¶22.
Thus,
Cuellar,
the
only
Cuellar,
appellate
decision interpreting statutory language identical to Lemon Law
subsection (7), supports our conclusion that pecuniary loss is
not required for a consumer to maintain an action under the
Lemon Law.
¶30
Third,
the
absence
of
any
legislative
amendment
to
MVAPA supports the conclusion that Cuellar's interpretation of
MVAPA subsection (4), Wis. Stat. § 218.0172(4), is consistent
with
the
Electric
legislature's
Power
Co.,
38
intent.
See
Wis. 2d 626,
Zimmerman
633-34,
v.
157
Wisconsin
N.W.2d 648
(1968) ("The legislature is presumed to know that in absence of
its changing the law, the construction put upon it by the courts
will
remain
unchanged . . . .
Thus,
when
the
legislature
acquiesces or refuses to change the law, it has acknowledged
that
the
correct.").
court's
interpretation
of
legislative
intent
is
In the five years since Cuellar, the legislature
has made no modifications to MVAPA subsection (4) or any other
14
No.
identical
statute,
Therefore,
we
such
presume
as
that
Lemon
the
Law
subsection
legislature
has
2009AP538
(7).12
accepted
the
court of appeals' interpretation of this language as permitting
consumers to maintain an action seeking equitable relief.
¶31
clause,
In
light
the
court
of
of
subsection
appeals
(7)'s
decision
in
broad
introductory
Cuellar,
and
the
legislature's tacit acceptance of Cuellar's holding, we conclude
that
Kilian
may
maintain
an
action
under
the
Lemon
Law
for
equitable relief without alleging any pecuniary loss.13
12
"Legislative failure to act is ordinarily weak evidence
of legislative intention to acquiesce in or countenance a
judicial or executive branch interpretation. . . . Under proper
circumstances, however, inaction by the legislature may be
evidence of legislative intent."
Schill v. Wisconsin Rapids
School Dist., 2010 WI 86, ¶124, 327 Wis. 2d 572, 786 N.W.2d 177.
In the instant case, we conclude the "presumption of tacit
adoption and ratification" is relevant insofar as it is
consistent with the plain language contained in subsection (7)'s
broad introductory clause.
See Green Bay Packaging, Inc. v.
Dep't of Industry, Labor and Human Relations, 72 Wis. 2d 26, 35,
240 N.W.2d 422 (1976).
13
While we do not rely on legislative history when a
statute is unambiguous on its face, this court, on occasion,
will "consult legislative history to show how that history
supports our interpretation of a statute otherwise clear on its
face."
Seider v. O'Connell, 2000 WI 76, ¶52, 236 Wis. 2d 211,
612 N.W.2d 659.
15
No.
2009AP538
B. Mercedes-Benz Financial Violated the Lemon Law
¶32
We have concluded that Kilian may bring suit under the
Lemon Law for equitable relief.
Lemon
Law
subsection
(7),
In order to obtain relief under
however,
Kilian
must
prove
that
Mercedes-Benz Financial violated some part of the Lemon Law.
Wis. Stat. § 218.0171(7).
¶33
Kilian
argues
that
Mercedes-Benz
Lemon Law § 218.0171(2)(cm)3.
Financial
violated
This claim highlights an inherent
tension in the statute because Mercedes-Benz Financial is the
lease financing company, and not the manufacturer.
The Lemon
Law is primarily focused on imposing duties on manufacturers.
However,
it
just
as
clearly
precludes
"[any]
person"
from
enforcing a lease once the manufacturer has issued a refund.
§ 218.0171(2)(cm)3. ("No person may enforce the lease against
the consumer . . . .").
¶34
enforce
We agree with Kilian that a lender who continues to
a
lease
after
the
consumer
returns
the
vehicle
and
receives a refund from the manufacturer may be held to violate
the plain language of the statute prohibiting "[any] person"
In the instant case, the legislative history of the Lemon
Law supports our interpretation of the term "damages." The
legislative drafting notes from 1983 show that the term
"pecuniary loss" was originally used in place of the term
"damages."
Subsection (7) initially provided that "any person
suffering a pecuniary loss because of a violation of this
section may bring a civil action . . . ."
However, the final
bill was amended to state that "a consumer damaged by a
violation of this section may bring an action . . . ."
See
LRBs0091/1; WLCS:92/1 (March 4, 1983).
This amendment suggests
the legislature intended to provide a broader range of remedies
under this provision than merely pecuniary loss.
16
No.
from doing so.14
conduct
2009AP538
We now turn to an examination of the specific
undertaken
by
Mercedes-Benz
Financial
after
Kilian
received his refund.
¶35
On May 10, 2007, Kilian returned the leased vehicle
pursuant to the Lemon Law and that same day received from the
manufacturer a $20,847.87 refund.
collections
department
of
It
is
Mercedes-Benz
undisputed
Financial
that
the
contacted
Kilian and attempted to obtain payment on the lease after May
10.15
¶36
Financial,
Moreover,
Kilian's
in
his
attorney
June
15
informed
letter
to
Mercedes-Benz
Mercedes-Benz
Financial
that Kilian had returned the vehicle to the manufacturer and had
14
The Lemon Law imposes no duty on the manufacturer to
inform the lease financing company of a vehicle's return under
the Lemon Law.
This absence is disconcerting as Justice
Roggensack discusses in her thoughtful concurrence.
Without
such a duty, a consumer may incur damages as a result of a
manufacturer's failure to provide such notice.
We leave open
the question of whether the Lemon Law imposes a duty of good
faith on a manufacturer which would require it to give notice of
the refund to a lease financing company. We do not reach this
question because Kilian has not alleged that Mercedes-Benz USA
acted in bad faith when it failed to inform Mercedes-Benz
Financial of the refund.
15
Kilian asserts that he received daily phone calls from
Mercedes-Benz
Financial
collections
employees.
Bieler
(Mercedes-Benz Financial's agent) stated in his deposition "I
don't know for sure if it's daily.
I really couldn't answer
that."
The precise extent of Mercedes-Benz Financial's early
enforcement efforts is not discernible from the record. It is,
however, undisputed that Kilian received at least two documents
attempting to enforce the lease after Mercedes-Benz Financial
(1) had been explicitly informed by Attorney Megna that Kilian
had received a refund under the Lemon Law and (2) had assured
Kilian that its collection efforts would cease.
17
No.
obtained a refund.
2009AP538
In his June 20 reply, Bieler acknowledged
receipt of the June 15 letter and assured Kilian's attorney that
Mercedes-Benz Financial would stop contacting Kilian.
However,
on July 1, Kilian received a document entitled "Federal Legal
Notice"
from
Mercedes-Benz
Financial
and,
on
July
2,
Kilian
received a bill for three months of payments from Mercedes-Benz
Financial.
The notice threatened that Mercedes-Benz Financial
"may report information about your account to credit bureaus.
Late
payments,
missed
payments,
or
other
defaults
account may be reflected in your credit report."
on
your
The bill was
obviously a demand for payment.
¶37
Mercedes-Benz
Financial
attempts
to
defend
its
enforcement of the lease by arguing that there was "no way" for
it to stop these notices from being mailed by its automated
collections system.
that
it
made
an
In essence, Mercedes-Benz Financial alleges
innocent
mistake
penalized under the Lemon Law.
and
therefore
cannot
be
This argument ignores the fact
that the Lemon Law unambiguously prohibits enforcement of the
lease following the issuance of a refund to the consumer, and
nothing
in
accidental
its
plain
enforcement
language
of
a
provides
lease.
an
This
exception
argument
for
for
a
"mistaken enforcement" exception is unpersuasive in light of the
letter from Kilian's attorney informing Mercedes-Benz Financial
of Kilian's receipt of a Lemon Law refund, the assurances by
Bieler
Kilian's
that
further
contacts
representations
for
with
over
18
Kilian
a
month
would
to
cease,
and
Mercedes-Benz
No.
2009AP538
Financial collections employees that he had received a refund
under the Lemon Law.
¶38
repeated
Therefore, in light of (1) Mercedes-Benz Financial's
efforts
to
enforce
the
lease
for
two
months
after
Kilian received his refund, (2) the notice of the refund that
Mercedes-Benz
attorney,
Financial
and
Financial's
(3)
received
Bieler's
collection
from
both
assurances
efforts
would
Kilian
that
cease,
and
his
Mercedes-Benz
we
hold
that
Mercedes-Benz Financial violated Lemon Law § 218.0171(2)(cm)3.
C. Kilian Prevailed in His Lemon Law Action
¶39
maintain
We
a
have
cause
concluded
of
action
that
Kilian
under
Lemon
may
Law
appropriately
subsection
(7)
seeking equitable relief for Mercedes-Benz Financial's violation
of Wis. Stat. § 218.0171(2)(cm)3.
an
action",
relief.
then
Kilian
is
If Kilian prevails in "such
entitled
Wis. Stat. § 218.0171(7)
to
certain
enumerated
Specifically, Kilian would be
entitled to "twice the amount of any pecuniary loss, together
with costs, disbursements and reasonable attorney fees, and any
equitable relief the court determines appropriate."
¶40
Id.
We determine the precise nature of Kilian's claim for
relief by examining its substance and not merely the label he
affixed to it.
We do so in order to determine whether Kilian
received the relief he actually sought.
We consider two issues
in this regard: (1) whether we are limited by the fact that
Kilian sought only one type of equitable relief, and (2) whether
Kilian prevailed in his action seeking equitable relief.
19
No.
¶41
2009AP538
First, we consider whether we are limited by the fact
that the only equitable remedy Kilian sought in his complaint
was
rescission
of
his
lease
with
Mercedes-Benz
Financial.
Rescission is an equitable remedy, the effect of which is to
"restore the parties to the position they would have occupied if
no
contract
had
ever
been
made
between
them."
Seidling
v.
Unichem, Inc., 52 Wis. 2d 552, 557-58, 191 N.W.2d 205 (1971).
We
are
aware
relief,
i.e.
substance
of
of
the
label
Kilian
"rescission."
his
assigned
However,
request,
we
determine
to
upon
his
requested
review
that,
in
of
the
actuality,
Kilian sought to prevent Mercedes-Benz Financial from further
enforcement
of
the
§ 218.0171(2)(cm)(3).
lease
The
in
violation
equitable
remedy
of
Lemon
Kilian
Law
actually
sought could be more appropriately labeled an action seeking an
injunction.
Black's Law Dictionary 788 (7th ed. 1999).
an action.
¶42
An injunction is an order commanding or preventing
Regardless of the precise label Kilian affixed to his
request, it is well settled that a court sitting in equity has
the "power to enlarge the scope of the ordinary forms of relief,
and even to contrive new ones adapted to new circumstances."
Mulder v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct.
App. 1984) (internal quotation omitted).
limited
by
the
fact
that
Kilian
labeled
Therefore, we are not
his
action
one
for
rescission, nor are we required to determine whether he sought
an
injunction.
seeking
cessation
Rather,
of
we
construe
Mercedes-Benz
20
Kilian's
action
Financial's
as
one
efforts
to
No.
2009AP538
enforce the lease after Kilian received a refund from MerecedsBenz USA.
¶43
We
now
turn
to
consideration
of
the
second
issue,
whether Kilian prevailed in receiving the equitable remedy he
actually sought.
In a typical case, it is clear which party
prevails because that party will have a final judgment granted
in its favor.
Obtaining final judgment is not, however, the
only way a party may be considered a prevailing party.
While
Mercedes-Benz Financial had provided assurances to Kilian prior
to the filing of his lawsuit that its enforcement efforts would
stop,
it
was
only
after
Kilian
commenced
his
lawsuit
that
Mercedes-Benz Financial ceased its efforts to enforce the lease.
¶44
In order to prevail in a consumer protection action,
it is sufficient that a consumer satisfy one of two tests.
address
each
of
these
two
tests
in
turn.
The
first
We
test
requires that the consumer show (1) a causal link between his or
her
lawsuit
and
the
relief
obtained,
and
(2)
that
the
defendant's conduct in response to the lawsuit was required by
law.
Cmty. Credit Plan, Inc. v. Johnson, 228 Wis. 2d 30, 35,
596 N.W.2d 799 (1999) (referring to this test as the "catalyst
test").
¶45
A direct causal link exists between Kilian's lawsuit
and the equitable relief he obtained——that is, cessation of the
enforcement of the lease by Mercedes-Benz Financial after he
received a refund from Mercedes-Benz USA.
Kilian's
lawsuit
which
compelled
21
It was, after all,
Mercedes-Benz
Financial
to
No.
2009AP538
recognize its error and stop its efforts to enforce the lease.16
Second, Mercedes-Benz Financial's enforcement of the lease was
prohibited
by
enforcement
the
Lemon
efforts
was
Law,
and
required
so,
by
cessation
law.
As
of
these
previously
discussed, "no person" may enforce a lease after a refund is
received by a consumer pursuant to the Lemon Law.
§ 218.0171(2)(cm)3.
Mercedes-Benz
Financial
Wis. Stat.
was
therefore
required by law to grant Kilian the relief he sought in his
lawsuit.
We conclude that Kilian has satisfied both prongs of
the first test that the Community Credit Plan court applied.
¶46
The
second
applied was also
test
the
a two-prong
Community
test:
(1)
Credit
whether
Plan
the
court
consumer
received a significant benefit sought in litigation, and (2)
whether there was a violation of a consumer protection statute
by the defendant.
met as well.
228 Wis. 2d at 35.
We find this test to be
First, Kilian received the exact benefit he sought
in his litigation——the cessation
of
Mercedes-Benz
Financial's
efforts to enforce the lease after Kilian received a refund from
Mercedes-Benz USA.
Based upon the record before us, it is clear
that this was a significant benefit to Kilian as it served as
the
primary
discussed,
basis
for
his
Mercedes-Benz
complaint.
Financial
Second,
violated
as
we
have
Lemon
Law
§ 218.0171(2)(cm)3. when it enforced the lease against Kilian
after receiving notice of Kilian's refund.
16
See id.
We conclude
Nothing in the record indicates that either Mercedes-Benz
USA or Mercedes-Benz Financial intentionally violated the Lemon
Law.
22
No.
2009AP538
that, under either test articulated by the Community Credit Plan
court, Kilian is the prevailing party under subsection (7).
D. Recovery of Pecuniary Loss, Costs, Disbursements, Reasonable
Attorney Fees, and Other Equitable Relief
¶47
We have determined that Kilian may maintain an action
against Mercedes-Benz Financial for its violation of the Lemon
Law
and
that
Kilian
subsection (7).
qualifies
as
a
prevailing
party
under
Because of his status as a prevailing party,
Kilian is entitled to "twice the amount of any pecuniary loss,
together with costs, disbursements and reasonable attorney fees,
and
any
equitable
relief
Wis. Stat. § 218.0171(7).
the
court
determines
appropriate."
We now discuss each remedy enumerated
in subsection (7) and whether it is available to Kilian.
1.
¶48
Twice Kilian's Pecuniary Loss
Under the Lemon Law, a consumer may seek relief for
his or her purchase or lease of a "lemon" vehicle by requesting
See Wis. Stat. § 218.0171(2).
a refund from the manufacturer.
This refund typically equals the sum of the consumer's lease
payments
and
other
reasonable use.
collateral
costs,
less
See § 218.0171(2)(b)3.a.
an
allowance
for
The refund must be
provided to the consumer within thirty days after the consumer
makes
a
proper
offer
to
return
the
vehicle.
See
§ 218.0171(2)(cm)1.
¶49
If the consumer's refund is delayed, miscalculated, or
withheld, the consumer may commence litigation under Lemon Law
subsection (7).
See Wis. Stat. § 218.0171(7).
The consumer may
sue for twice his or her pecuniary loss, in addition to other
23
No.
relief.
car.
Id.
2009AP538
Pecuniary loss includes the purchase price of the
Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 983, 542
N.W.2d 148 (1996).17
pecuniary
loss
was
The legislature's purpose in doubling the
to
"persuade
manufacturers
to
settle
legitimate warranty disputes so that consumers are not forced to
litigate."
Id.
at
purpose——encouraging
litigation——is
984
(internal
legitimate
instructive
to
our
citations
refunds
omitted).
and
This
discouraging
interpretation
of
the
term
"pecuniary loss."
¶50
On May 10, 2007, Kilian received a timely refund from
See Wis. Stat.
Mercedes-Benz USA in the amount of $20,847.87.
§ 218.0171(2)(b)3.b.
This amount equaled the sum of Kilian's
lease payments and other collateral costs paid by him between
March 2006 and April 2007, less an allowance for his reasonable
use.
See id.
After receiving this refund, Kilian filed suit
because Mercedes-Benz Financial continued to enforce the lease
against
him.
Kilian’s
Mercedes-Benz
Financial
motivation
for
was
related
not
filing
suit
against
any
delay,
to
miscalculation, or withholding of his refund.
¶51
The legislature did not intend that consumers who have
already received a proper refund should also recover twice the
amount they paid under the lease as pecuniary loss.
This would
not serve subsection (7)'s purpose——to encourage manufacturers
to provide consumers proper Lemon Law refunds without resorting
17
Pecuniary loss incorporates "a reasonable allowance for
use" before being doubled. Tammi, 320 Wis. 2d 45, ¶61.
24
No.
2009AP538
to litigation——because Kilian had already received a $20,847.87
refund.
would
Such a result would amount to a windfall to Kilian but
not
advance
a
central
purpose
of
subsection
(7)——
discouraging manufacturers from withholding legitimate refunds.
¶52
We conclude that, because Kilian has already received
a properly calculated and timely refund, he did not suffer any
pecuniary loss within the meaning of subsection (7).
Therefore,
we turn to a discussion of other relief available to Kilian
under subsection (7).
2.
¶53
Kilian
is
Costs and Disbursements
entitled
to
an
award
for
his
costs
disbursements caused by a violation of the Lemon Law.
Stat. § 218.0171(7).
and
Wis.
Wisconsin Stat. § 814.04 sets forth the
particular items which may be included in an award for costs and
disbursements.
These costs and disbursements are then taxed by
the circuit court clerk against the losing party pursuant to
Wis. Stat. § 814.10.18
The costs and disbursements which may be
awarded on appeal are set forth in Wis. Stat. § 809.25.
and
disbursements
on
appeal
are
then
taxed
Costs
according
to
§ 809.25(1)(d).19
18
"This action may be reviewed by the court on motion of
the party aggrieved made and served within 10 days after
taxation." Wis. Stat. § 814.10(4).
19
Wis. Stat. § 809.25(1)(d) states:
Costs allowed by the court are taxed by the clerk of
the court of appeals, irrespective of the filing by a
party of a petition for review in the supreme court.
In the event of review by the supreme court, costs are
taxed by the clerk of the supreme court . . . . The
25
No.
¶54
Wisconsin's
Lemon
Law
is
a
fee
shifting
2009AP538
statute.20
"Fee shifting statutes contemplate that those recovering under
them will be made whole."
Chmill v. Friendly Ford-Mercury of
Janesville, Inc., 154 Wis. 2d 407, 413 n.2, 453 N.W.2d 197 (Ct.
App. 1990).
In order to fulfill the Lemon Law fee-shifting
statute's purpose that those recovering be made whole, we have
held that under subsection (7), costs and disbursements also
include "reasonable expenses incurred in litigation above and
beyond . . . those taxed as costs by a court clerk . . . ."
Id.
Therefore, in addition to the normal costs and disbursements
awarded to Kilian under § 814.04 and § 809.25, the holding in
Chmill
also
allows
Kilian
to
recover
expenses incurred in litigation."21
¶55
The
circuit
court
did
Kilian's costs and disbursements.
any
other
"reasonable
Id.
not
determine
the
amount
of
We therefore remand the cause
to the circuit court to determine the appropriate amount.
3.
clerk of
remittitur
of circuit
accordance
Reasonable Attorney Fees
the supreme court shall include in the
the costs allowed in the court. The clerk
court shall enter the judgment for costs in
with s. 806.16.
20
A "fee-shifting statute" is a statute that provides for
an award of attorney fees for a prevailing plaintiff.
See 11
Wisc. Prac., Trial Handbook for Wis. Lawyers § 37:04 (3rd ed.).
21
These
"reasonable
expenses"
exclude
costs
and
disbursements already allowed to Kilian under § 814.04 so that
Kilian receives no double recovery for overlapping items.
Chmill v. Friendly Ford-Mercury of Janesville, Inc., 154
Wis. 2d 407, 413 n.2, 453 N.W.2d 197 (Ct. App. 1990).
26
No.
¶56
Kilian
is
also
entitled
to
an
award
of
2009AP538
reasonable
attorney fees caused by Mercedes-Benz Financial's violation of
the Lemon Law.
Wisconsin
Wis. Stat. § 218.0171(7).
follows
the
"American
Rule,"
As a general rule,
pursuant
to
litigants are required to pay their own attorney fees.
which
DeChant
v. Monarch Life Ins. Co., 200 Wis. 2d 559, 571, 547 N.W.2d 592
(1996).
This general rule does not apply when the legislature
has chosen to award attorney fees to a prevailing party through
a fee-shifting statute.
¶57
We
have
Id.
held
that
"an
important
purpose
of
fee-
shifting statutes is to encourage injured parties to enforce
their statutory rights when the cost of litigation, absent the
fee-shifting provision, would discourage them from doing so."
Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶55, 303
Wis. 2d 258, 735 N.W.2d 93.
Such fee-shifting statutes ensure
"that individuals will enforce the rights provided to them under
the
statute
by
the
legislature,
even
when
litigation exceed the value of the action."
subsection (7)
is such a
fee-shifting
exception to the American Rule.
Mercury
of
Janesville,
Inc.,
the
Id.
statute,
and
costs
of
Lemon Law
thus,
an
See Chmill v. Friendly Ford144
Wis. 2d
796,
809,
424
N.W.2d 747 (Ct. App. 1988).
¶58
As a result, Kilian may recover reasonable attorney
fees caused by Mercedes-Benz Financial's violation of Lemon Law
§ 218.0171(2)(cm)3.22
The circuit court did not determine the
22
This includes "attorney fees for appellate work essential
to the consumer's success." Chmill, 144 Wis. 2d 796, at 809.
27
No.
amount
of
instance.
Kilian's
reasonable
attorney
fees
in
2009AP538
the
first
Therefore, we remand the cause to the circuit court
to determine the appropriate amount.
4.
¶59
Other Appropriate Equitable Relief
The final remedy allowed under subsection (7) permits
the court to award Kilian "appropriate" equitable relief.
Stat. § 218.0171(7).
Wis.
Because we held in Part III.C. that Kilian
has already obtained the equitable relief he sought, cessation
of the enforcement of the lease by Mercedes-Benz Financial, it
is not appropriate to grant Kilian any other equitable relief in
this case.
IV.
¶60
equitable
CONCLUSION
We conclude that Kilian may maintain an action for
relief
under
Lemon
Law
subsection
(7)
and
that
Mercedes-Benz Financial's enforcement of the lease after it was
informed by Kilian's attorney that Kilian had received a refund,
and
after
it
assured
Kilian
that
cease, violated the Lemon Law.
collections
efforts
would
We also conclude that Kilian
prevailed in his action when Mercedes-Benz Financial voluntarily
ceased enforcement of the lease after Kilian filed suit.
As the
prevailing party, we conclude that Kilian is entitled to his
costs,
disbursements,
and
reasonable
attorney
fees,
but
Kilian is not entitled to an award for pecuniary loss.
that
As a
result, we reverse the court of appeals and remand the cause to
the circuit court for a determination of the appropriate amount
of Kilian's costs, disbursements, and reasonable attorney fees.
28
No.
By
the
reversed,
Court.—The
and
the
decision
cause
of
remanded
the
to
court
the
of
circuit
2009AP538
appeals
is
court
for
further proceedings consistent with this opinion.
¶61
ANNETTE KINGSLAND ZIEGLER, J., did not participate.
29
No.
¶62
2009AP538.pdr
PATIENCE DRAKE ROGGENSACK, J. (concurring).
I join
the majority opinion, but I write in concurrence in order to
point out a gap in Wisconsin's Lemon Law, Wis. Stat. § 218.0171
(2009-10),1 and to urge the Wisconsin Legislature to close this
gap.2
Namely, the Lemon Law does not require the manufacturer to
notify
a
financing
institution
that
finances
a
lease
or
a
purchase when the owner has returned the car to the manufacturer
under the law.
case.
This gap has caused concerns in the present
I foresee that the lack of such a notice requirement has
the potential to cause adverse effects both to the consumer and
to financing institutions.
¶63
First,
as
the
majority
underscores,
without
a
requirement that the manufacturer notify financing institutions
that a vehicle has been returned pursuant to the Lemon Law, a
consumer
may
be
adversely
affected.3
Without
notice
of
the
return, the financing institution will likely continue in its
efforts to collect payments that it believes the consumer owes
under
the
financing
agreement.
For
example,
the
financing
institution could harm a consumer's credit rating by reporting
the missed payments or, in an attempt to prevent harm to his
credit rating,
a consumer
may
be
forced
to
incur
litigation
expenses in order to stop enforcement efforts.
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
A referral to the legislature's law review committee of
the Legislative Council may be of assistance in this matter.
3
Majority op., ¶35 n.14.
1
No.
¶64
Second, without
a
requirement
that
the
2009AP538.pdr
manufacturer
notify financing institutions that the vehicle has been returned
pursuant
to
the
Lemon
adversely affected.
Law,
financing
institutions
may
be
Pursuant to Wis. Stat. § 218.0171(2)(cm)3.,
"[n]o person may enforce the lease against the consumer after
the consumer receives a refund."
under
this
subdivision,
liable for enforcing a
a
The majority holds today that
financing
lease
after
institution
the
can
consumer
be
held
returns
vehicle to the manufacturer and receives a refund.4
the
Moreover,
the majority holds that, if the consumer prevails in an action
against the financing institution for enforcing a lease after
the vehicle has been returned, the consumer may receive costs,
disbursements,
and
reasonable
attorney's
fees.5
This
is
in
addition to any other damages incurred.
¶65
In
the
case
at
hand,
these
conclusions
are
not
troublesome because Kilian informed Mercedes-Benz Financial that
he had returned his car under the Lemon Law, and therefore,
Mercedes-Benz Financial was on notice that it was improper to
continue
collection
conclusions
we
efforts
reach
today
against
Kilian.
become
However,
troublesome
where
the
the
financing institution has not had notice that the consumer has
returned the vehicle to the manufacturer.
¶66
In order to avoid unwarranted adverse consequences to
consumers and to financing institutions, it would be helpful if
the Wisconsin Legislature amended Wis. Stat. § 218.0171 to add
4
Id., ¶34.
5
Id., ¶¶53-58.
2
No.
2009AP538.pdr
two notice requirements to Wisconsin's Lemon Law upon the return
of the vehicle:
(1) that the consumer notify the manufacturer
of the current financing information for the vehicle6 and (2)
that the manufacturer notify the financing institution of the
vehicle's return.
Accordingly, I respectfully concur.
6
Not surprisingly, the standard Lemon Law notice form
provided by the Department of Transportation already asks the
consumer to provide the manufacturer with this information and
to
authorize
the
manufacturer
to
contact
the
financing
institution.
See Motor Vehicle Lemon Law Notice, available at
http://www.dot.wisconsin.gov/safety/consumer/rights/lemonlaw.htm
(scroll down to "What should a lemon owner do?" and click on
"Motor Vehicle Lemon Law Notice" pdf link).
However, the
statutes do not so require.
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No.
1
2009AP538.pdr
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