Estate of Miller v. Storey

• Decision Date: 30 November 2017
• Docket Number: No. 2014AP2420,2014AP2420
• Citation: 378 Wis.2d 358,903 N.W.2d 759,2017 WI 99
• Parties: ESTATE OF Stanley G. MILLER c/o Genevieve Miller, Personal Representative, Plaintiff-Respondent-Petitioner, v. Diane STOREY, Defendant-Appellant.
• Court: Wisconsin Supreme Court

378 Wis.2d 358

903 N.W.2d 759

2017 WI 99

ESTATE OF Stanley G. MILLER c/o Genevieve Miller, Personal Representative, Plaintiff-Respondent-Petitioner,

v.Diane STOREY, Defendant-Appellant.

No. 2014AP2420

Supreme Court of Wisconsin.

Oral Argument: September 12, 2017

Opinion Filed: November 30, 2017

For the plaintiff-respondent-petitioner, there were briefs filed by Scott A. Swid, Benjamin J. Krautkramer, and Swid Law Offices, LLC, Mosinee. There was an oral argument by Scott A. Swid.

For the defendant-appellant, there was a brief filed by Jennifer A. Slater-Carlson and Legal Advantage, LLC, Cedarburg. There was an oral argument by Jennifer A. Slater-Carlson.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of a published decision of the court of appeals, Estate of Miller v. Storey, 2016 WI App 68, 371 Wis. 2d 669, 885 N.W.2d 787, which reversed the Marathon County circuit court's¹ small claims money judgment for the Estate of Miller ("Estate") against Diane Storey ("Storey").

¶2 In a small claims action by the Estate, a jury found Storey liable under Wis. Stat. § 895.446 (2013-14)² for theft of money from her elderly uncle when she cared for him in the last year of his life. After the verdict, the circuit court awarded the Estate actual damages of $10,000 under Wis. Stat. § 799.01(1)(d),³ exemplary damages of $20,000 under § 895.446(3)(c), attorney fees of $20,000 under § 895.446(3)(b),⁴ and double taxable costs under Wis. Stat. § 807.01(3). Storey appealed.

¶3 On appeal, Storey argued that the actual damages should be reduced to $5,000 because Wis. Stat. § 895.446 is a "tort action" under Wis. Stat. § 799.01(1)(cr), not an "other civil action" under § 799.01(1)(d), which also meant that double costs were not authorized under Wis. Stat. § 807.01(3). Storey further argued that attorney fees were not "costs of investigation and litigation" under § 895.446(3)(b) and that exemplary damages under § 895.446(3)(c) could not be awarded by the judge where the jury had been the trier of fact. The court of appeals agreed and reversed the judgment of the circuit court. The Estate filed a motion for reconsideration, which the court of appeals denied. The Estate then petitioned this court for review.

¶4 There are four issues on this appeal. First, we consider whether Wis. Stat. § 895.446 is an "action based in tort" under Wis. Stat. § 799.01(1)(cr) or an "other civil action" under § 799.01(1)(d). Our conclusion on this issue will resolve the consequent issues of which damages cap under § 799.01 applies and whether double costs are authorized under Wis. Stat. § 807.01(3). Second, we consider whether attorney fees are included within the meaning of "costs of investigation and litigation" under § 895.446(3)(b). Third, we consider whether the court of appeals erroneously exercised its discretion in considering whether the circuit court erred when it awarded exemplary damages on the Estate's post-verdict motion. Fourth, we consider whether the court of appeals properly denied the Estate's motion for reconsideration.

¶5 As to the first issue, we conclude that Wis. Stat. § 895.446 is an "other civil action" under Wis. Stat. § 799.01(1)(d) based on fundamental principles of statutory interpretation and the established distinctions between statutory civil claims and common law tort claims. Because we conclude that § 895.446 is an "other civil action," we consequently conclude that the damages cap is $10,000 under § 799.01(1)(d) and that double costs are authorized under Wis. Stat. § 807.01(3).

¶6 As to the second issue, we conclude that attorney fees are included within the meaning of "costs of investigation and litigation" under Wis. Stat. § 895.446(3)(b) because Stathus v. Horst, 2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165, a judicial interpretation by the court of appeals, has long stood for that proposition, and the legislature, despite taking other, subsequent action in that very statute, has not legislated so as to alter that interpretation.

¶7 As to the third issue, we conclude that the court of appeals did not err when it considered the issue of exemplary damages, in part because the issue raised was a legal question, the parties thoroughly briefed the issue, and there were no disputed issues of fact. We also conclude that the court of appeals' reversal of the circuit court was proper because the circuit court's ruling was contrary to the clear legal standard set forth in Kimble v. Land Concepts, Inc., 2014 WI 21, 353 Wis. 2d 377, 845 N.W.2d 395.

¶8 As to the fourth issue, we conclude that our analysis as to the first issue renders analysis of the fourth issue unnecessary because our reversal of the court of appeals' holdings on actual damages and double costs obviates the substance of the Estate's remaining arguments.

¶9 Thus, we reverse the decision of the court of appeals as to the first and second issues and affirm the decision of the court of appeals as to the third issue. Because we reverse on the first issue, we need not decide the fourth issue. We remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶10 On February 28, 2013, the Estate filed a small claims action against Storey in the Marathon County circuit court seeking damages of $10,000 for misappropriation of funds from the Estate of Stanley Miller. For the purposes of this appeal, the facts underlying the claim are not pertinent.

¶11 On June 7, 2013, the Estate filed a notice of its offer of settlement pursuant to Wis. Stat. § 807.01(3), which authorizes the award of double costs where the plaintiff's recovery is more favorable than the settlement offer. The Estate offered to settle the matter for $7,500.⁵ Storey declined, and, after an unsuccessful mediation, the case proceeded to a jury trial.

¶12 On October 30, 2013, prior to trial, the Estate submitted its requested jury instructions, which included the following request for a specialized jury instruction for violation of Wis. Stat. § 895.446⁶ based on conduct prohibited by Wis. Stat. § 943.20 :⁷

To recover for theft by misappropriation, Plaintiff must prove by evidence that satisfies you to a reasonable certainty by the greater weight of the credible evidence that the following four elements were present:

First, that Defendant intentionally used, transferred, or retained possession of movable property of another. The term "intentionally" means that the Defendant must have had the mental purpose to take and carry away property. The term "movable property" means property whose physical location can be changed; "movable property" includes money.

Second, that the owner of the property did not consent to taking and carrying away the property.

Third, that Defendant knew the owner did not consent.

Fourth, that Defendant intended to deprive the owner permanently of the possession of the property.

Storey made no objection to this specialized jury instruction.

¶13 On January 9, 2014, the trial began. The trial lasted two days, and, at the close of the case, the circuit court instructed the jury as requested by the Estate. The jury found Storey liable under Wis. Stat. § 895.446.

¶14 On July 8, 2014, the circuit court held a hearing on the Estate's post-verdict motions. The Estate argued that the court should award (1) $10,000 for actual damages under Wis. Stat. § 895.446(3)(a) ; (2) $30,000 for exemplary damages under § 895.446(3)(c) ; (3) $814.95 for taxable costs under Wis. Stat. § 799.25 ; (4) $814.95 for double costs under Wis. Stat. § 807.01(3) ; and (5) $20,000 for attorney fees under § 895.446(3)(b). Storey argued that the actual damages should be limited to the $5,000 cap for an "action based in tort"; that the exemplary damages were inappropriate because they were not requested in the initial complaint; that the taxable costs should not be doubled because, if the actual damages were limited to $5,000, then § 807.01(3) did not apply; and that the attorney fees exceeded the maximum award allowed under Wis. Stat. § 814.04(1). The circuit court ruled in favor of the Estate and entered a judgment for $52,629.90.⁸

¶15 On October 15, 2014, Storey appealed.

¶16 On July 6, 2016, the court of appeals reversed the judgment of the circuit court.

¶17 On the issue of actual damages, the court of appeals held that civil theft claims under Wis. Stat. § 895.446(1)⁹ are "tort claims." Consequently, it held that the actual damages award was limited to $5,000 under Wis. Stat. § 799.01(1)(cr) and reversed the award of double costs under Wis. Stat. § 807.01(3).

¶18 On the issue of attorney fees, the court of appeals held that the phrase "costs of ... litigation" in Wis. Stat. § 895.446(3)(b) did not include attorney fees because, if the legislature had intended that attorney fees be collectible, it would have so specified, as it did in making specific provision for "reasonable attorney fees" in § 895.446(3m)(b).

¶19 On the issue of exemplary damages, the court of appeals held that whether to award exemplary damages in a jury trial must be decided by the jury. Here, the Estate not only challenges the court of appeals' holding but also argues that it was an erroneous exercise of discretion for the court of appeals to decide the issue at all, as it was not preserved by objection in the circuit court below.¹⁰

¶20 On July 11, 2016, the Estate filed a motion for reconsideration. As pertains to the issue here, the Estate argued that the court of appeals' holding as to actual damages was not supported by the case law cited in the opinion and that the holding as to double costs did not address existing precedent interpreting the application of Wis. Stat. § 807.01.

¶21 On July 14, 2016, the court of appeals withdrew and vacated its July 6th opinion.

¶22 On July 28, 2016, the court of appeals denied the Estate's motion for reconsideration.

¶23 On August 16, 2016, the court of appeals issued a revised opinion. As pertains to the issue here, the revised opinion reflects changes to the analysis of actual damages and double...