Estate of Miller v. Storey
885 N.W.2d 787
Wis. Ct. App.2016Background
- Decedent Stanley Miller (age 86) was cared for by his niece Diane Storey from May 2010–May 2011; numerous large withdrawals/checks from his account followed and 11 checks were contested.
- The Estate sued Storey in small claims for reimbursement of up to $10,000 for misappropriated funds; Storey denied the claim.
- The court commissioner ruled for Storey; the Estate demanded a de novo jury trial. At pretrial the Estate submitted jury instructions including a special verdict and an instruction referencing civil-theft under Wis. Stat. § 895.446. Storey did not object to those submitted instructions.
- A jury found Storey took $10,000. Post-verdict the circuit court (1) held the Estate had tried a § 895.446 claim and allowed amendment to conform, (2) awarded $20,000 exemplary damages (court, not jury), (3) awarded $20,000 attorney fees under § 895.446(3)(b), (4) doubled taxable costs under § 807.01(3), and (5) deemed the judgment "restitution;" total judgment ~ $51,629.90.
- On appeal the court affirmed notice/amendment and most evidentiary rulings but reversed exemplary damages (must be jury), reversed attorney fees under § 895.446(3)(b), reduced the compensatory award to the small-claims tort limit, reversed double costs tied to the improperly reduced verdict, and reversed the restitution designation.
Issues
| Issue | Plaintiff's Argument (Estate) | Defendant's Argument (Storey) | Held |
|---|---|---|---|
| Notice / amendment to add § 895.446 claim | Estate argued Storey had notice from pretrial submissions and requested instruction, so pleadings could be conformed | Storey argued complaint gave no notice of a statutory theft claim and she was prejudiced | Court: Storey had notice (instruction/special verdict tried the issue); amendment to conform was proper |
| Exemplary (statutory punitive) damages — who decides | Estate argued exemplary damages could be awarded by court on post-verdict motion or by separate jury if needed | Storey argued exemplary damages must be submitted to jury and cannot be awarded by court after verdict | Court: Exemplary damages under § 895.446(3)(c) must be decided by the jury; award by court reversed |
| Small-claims monetary limit applicability | Estate implicitly argued trial could proceed in small claims and sought full jury award ($10,000 compensatory + exemplary) | Storey argued civil-theft claims are torts subject to $5,000 small-claims cap (Wis. Stat. § 799.01) and verdict must be reduced | Court: Treated as conceded that § 895.446 claims here are torts; compensatory award should be limited to $5,000; exemplary award reversed on other grounds |
| Attorney fees under § 895.446(3)(b) | Estate argued "all costs of investigation and litigation" includes actual attorney fees | Storey argued § 895.446(3)(b) does not mention attorney fees and a later subsection (3m)(b) expressly authorizes attorney fees for a subset of claims, implying (3)(b) does not include them | Court: "costs of litigation" in (3)(b) does not authorize actual attorney fees; (3m)(b) shows legislature knew how to grant attorney fees; award reversed |
| Double costs under § 807.01(3) (offer of settlement) | Estate obtained verdict greater than $7,500 offer and sought doubled costs | Storey argued that with verdict reduced to $5,000 the statutory-offer comparison fails | Court: Because compensatory award reduced to $5,000 (less than offer), double-costs award must be reversed |
| Handwriting expert testimony exclusion | Estate contended expert should have been allowed to opine a named third party wrote checks | Storey argued limits were proper because exemplar foundation for named third party lacking | Court: Exclusion of opinion tying checks to a specifically named third party was a proper discretionary foundation ruling; expert could say checks matched an unnamed third party |
| Designation of civil judgment as "restitution" | Estate requested judgment be deemed restitution (apparently to affect bankruptcy/dischargeability) | Storey argued state civil court cannot convert judgment into restitution under criminal statutes and courts don’t decide bankruptcy dischargeability | Court: § 895.446(4) only reduces civil recovery by an existing criminal/juvenile restitution recovery; civil judgment cannot be labeled restitution here — order reversed |
Key Cases Cited
- Shopko Stores, Inc. v. Kujak, 147 Wis. 2d 589 (statutory exemplary damages must be decided by a jury)
- Hess v. Fernandez, 278 Wis. 2d 283 (issue must be tried by consent; notice/amendment analysis under Wis. Stat. § 802.09)
- Weborg v. Jenny, 341 Wis. 2d 668 (standard for appellate review of evidentiary discretion)
- Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (statutory interpretation principles)
- Stathus v. Horst, 260 Wis. 2d 166 (interpreting predecessor statute; court distinguishes facts and subsequent statutory amendments)