Estate of Stanley G. Miller v. Diane Storey
2017 WI 99
| Wis. | 2017Background
- The Estate sued Diane Storey in small claims under Wis. Stat. § 895.446 (civil theft tied to criminal statutes) for misappropriation of funds; a jury found Storey liable and awarded $10,000 in actual damages.
- After verdict the circuit court granted the Estate: $10,000 actual damages, $20,000 exemplary damages, $20,000 attorney fees, and double taxable costs (total judgment ≈ $52,630).
- Storey appealed, arguing (inter alia) § 895.446 is an "action based in tort" (invoking the $5,000 small-claims cap), that § 895.446(3)(b) does not permit attorney fees, and that exemplary damages must be determined by the jury.
- The court of appeals reversed the circuit court on those grounds; the Estate sought reconsideration, the court of appeals revised its opinion but denied reconsideration, and the Wisconsin Supreme Court granted review.
- The Supreme Court considered four questions: (1) whether § 895.446 is an "action based in tort" or an "other civil action" for small-claims limits and costs; (2) whether attorney fees are included in "costs of investigation and litigation" in § 895.446(3)(b); (3) whether the court of appeals properly considered the exemplary-damages issue and erred in reversing; and (4) whether the court of appeals properly denied reconsideration.
- Holding: Supreme Court reversed the court of appeals on (1) and (2) (holding § 895.446 is an "other civil action" and attorney fees are recoverable as litigation costs), affirmed on (3) (judge may not award exemplary damages after a jury trial — jury decides amount), and declined to reach (4) as unnecessary.
Issues
| Issue | Plaintiff's Argument (Estate) | Defendant's Argument (Storey) | Held |
|---|---|---|---|
| Classification of § 895.446 for small-claims cap (tort $5,000 vs other civil $10,000) | Estate: § 895.446 is a statutory civil cause tied to criminal statutes and thus an "other civil action" ($10,000 cap). | Storey: The statutory civil-theft claim is essentially a tort (similar to conversion) and should be treated as an "action based in tort" ($5,000 cap). | The Court held § 895.446 is an "other civil action" under § 799.01(l)(d); $10,000 cap applies and double costs allowed. |
| Attorney fees: does "costs of investigation and litigation" in § 895.446(3)(b) include attorney fees? | Estate: Yes — prior appellate interpretation (Stathus) treated attorney fees as recoverable; statute and small-claims cost provisions support that construction. | Storey: No — if legislature intended attorney fees it would have said so explicitly (and later subsection (3m) separately references "reasonable attorney fees"). | The Court held attorney fees are recoverable as "costs of investigation and litigation," relying on Stathus and legislative acquiescence; remanded for reasonable-fee determination. |
| Exemplary (punitive) damages: may judge award exemplary damages post‑verdict when jury was trier of fact? | Estate: Circuit court may award exemplary damages on post-verdict motion; law does not clearly require jury to fix amount. | Storey: No — Kimble establishes judge is gatekeeper but once issue is before the trier of fact the jury decides whether and what amount to award. | The Court affirmed the court of appeals: in a jury trial the jury (not the judge on post-verdict motion) must determine whether and what exemplary damages to award. |
| Court of appeals' denial of reconsideration after revising opinion | Estate: Court of appeals abused discretion by revising opinion contemporaneously with, and in ways responsive to, the Estate's reconsideration motion yet denying the motion. | Storey: Court of appeals acted within its procedural authority and discretion. | The Court declined to decide because its holdings on (1) and (2) made further review of this procedural challenge unnecessary. |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (statutory interpretation principles)
- Stathus v. Horst, 260 Wis. 2d 166 (Wis. Ct. App. 2003) (interpreting "costs of investigation and litigation" to include attorney fees; relied on by the Court)
- Kimble v. Land Concepts, Inc., 353 Wis. 2d 377 (judge is gatekeeper on punitive damages; jury decides award)
- Tri-Tech Corp. of Am. v. Americomp Servs., Inc., 254 Wis. 2d 418 (referring to statutory civil theft as "civil theft")
- Shands v. Castrovinci, 115 Wis. 2d 352 (private attorney general doctrine and awarding attorney fees under public-rights statutes)