Garrick Griswold v. Janine Tracy

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 27, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1847 Cir. Ct. No. 2024SC114

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

GARRICK GRISWOLD,

PLAINTIFF-APPELLANT,

V.

JANINE TRACY,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Iowa County:
LISA A. RINIKER, Judge. Affirmed.

¶1 GRAHAM, J.1 Garrick Griswold appeals a small claims judgment
in his favor, challenging a circuit court order that denied some of the costs and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2024AP1847

disbursements that he requested pursuant to WIS. STAT. §§ 799.25 and 814.02. I
reject Griswold’s arguments and affirm.2

¶2 Griswold had a dispute with Janine Tracy about whether Griswold
was entitled to payment related to repairs that Griswold made to Tracy’s RV.
Griswold filed a small claims action against Tracy, and Tracy counterclaimed.
The case proceeded to a jury trial, with the jury finding that both parties breached
the contract and awarding Griswold damages in the amount of unpaid invoices,
approximately $213. Griswold then filed multiple motions seeking costs and
disbursements pursuant to WIS. STAT. §§ 799.25 and 814.04(2). The items of
costs that Griswold requested included, among other things, a $106.50 “expert
witness fee” related to testimony provided by Griswold’s father and $52.65 in
photocopying and postage costs.

¶3 The circuit court entered an order that granted some of the requested
costs and denied others. Among other things, the court determined that Griswold
was entitled to a $16 witness fee and travel expenses of $12, both pertaining to the
role that Griswold’s father played as a trial witness. However, the court declined
to tax Tracy for the expert witness fee because, the court explained, Griswold’s
father was a lay witness, and his testimony did not qualify as expert testimony
under WIS. STAT. § 907.02(1). The court also declined to tax the photocopying
fees because it determined that the itemized list of photocopied documents that
Griswold provided was overbroad and unreasonable.

2
In her response brief, Janine Tracy argues that the jury reached the wrong verdict.
However, Tracy did not timely cross-appeal the judgment, and this omission precludes my review
of the sufficiency of the trial evidence to sustain the verdict. See WIS. STAT. § 809.10(1)(e) (“The
filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.”).

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No. 2024AP1847

¶4 On appeal, Griswold’s primary argument is that the circuit court did
not have jurisdiction or competency to issue a decision on his motions for costs.
Rather, he argues, it was the exclusive role of the clerk of courts to decide the
motions pursuant to WIS. STAT. §§ 799.25 and 814.04.

¶5 I reject Griswold’s argument because it is contrary to the language of
the statutes on which he relies. It is true that WIS. STAT. § 799.25 provides that
“[t]he clerk shall without notice to the parties tax and insert [certain costs] in the
judgment ….” (Emphasis added.) However, Chapter 814 addresses the expert
witness and copying fees that are the subject of Griswold’s appeal, and
§ 799.25(13) specifically provides that “[t]he court may permit additional costs
and disbursements to be taxed pursuant to [WIS. STAT.] ch. 814.” (Emphasis
added.) Thus, the statutes plainly give the circuit court a role in deciding whether
to tax those disbursements as costs.

¶6 Griswold may also be arguing that, even if the decision was for the
circuit court to make, the court did not have discretion to deny any of the costs he
requested. I reject this argument for two reasons. First, Griswold has explicitly
acknowledged that the court has discretion to determine the amount of costs based
on whether any particular disbursement is necessary. In the brief that he filed with
the court, Griswold argued:

While WIS. STAT. § 814.04(2) enumerates the types
of disbursements that may be taxed as costs, it “does not
constrain the circuit court’s exercise of discretion in
determining the amount of costs.” Aspen Servs., Inc. v. IT
Corp., 220 Wis. 2d 491, 511, 583 N.W.2d 849 (Ct. App.
1998).

Specifically, a court has discretion to determine
whether a particular disbursement was “necessary,” as
required by § 814.04(2).

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No. 2024AP1847

Second, the statutes plainly give the court discretion to decline to tax items as
costs under certain circumstances. See, e.g., WIS. STAT. § 814.035(2) (“When the
causes of action stated in the complaint and counterclaim and cross complaint
arose out of the same transaction or occurrence, costs in favor of the successful
party … shall be in the discretion of the court.”). And here, as stated, the court
exercised its discretion by determining that Griswold was not entitled to an expert
witness fee because his father did not serve as an expert witness, and that any
disbursements for photocopying were unnecessary under the circumstances.

¶7 Griswold takes issue with the circuit court’s exercise of discretion in
determining that his father did not provide expert testimony. Yet, his appellate
briefs do not cite, much less address, WIS. STAT. § 907.02, which is the statute that
pertains to expert testimony and was the focus of the court’s exercise of discretion.
The court essentially determined that, regardless of whether Griswold’s father
might or might not be considered an expert on some issues, the dispute was about
whether Griswold’s bills were appropriate, and Griswold’s father’s testimony on
that topic was not “scientific, technical, or other specialized knowledge” that was
required to assist the jury in resolving that dispute. See id. Griswold does not
develop an argument that shows that the court’s determination under § 907.02 was
erroneous.

¶8 Finally, Griswold may be arguing that the circuit court was required
by due process to hold a hearing on the decision to award costs. If Griswold is
making that argument, I reject it for two reasons. First, Griswold submitted his
proof of costs by affidavit and did not ask the court to hold a hearing. Second,
Griswold does not cite any law that provides that a hearing is required. See State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (a court need

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No. 2024AP1847

not consider arguments that are unsupported by legal citations or are otherwise
undeveloped).

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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