*1 Plaintiff-Respondent, STORES, INC., SHOPKO Defendant-Appellant.† KUJAK, Terese M. Appeals Court of Argued April No. 87-2054. 1988. Decided November
1988. (Also reported 618.) in 433 N.W.2d BABLITCH, J., part. Petition to review † denied. took no *2 briefs by there were defendant-appellant For Legal Wisconsin L. Rhorer Western Thomas and Inc., Crosse, Services, argument and oral of La L. Rhorer. Thomas there was a brief by plaintiff-respondent
For Relies, S.C., of Madi- & D. Allen Reuter and Clifford D. Reuter. by Allen son, argument oral Gartzke, P.J., JJ. Sundby, Dykman Before SUNDBY, to a La pled guilty J. Terese Kujak charge. Restitution shoplifting city ordinance Crosse brought then this action ordered. was not 943.51, granted court Stats. The trial and awarded summary judgment Shopko’s motion exemplary damages, and damages, actual $90 it $30 from the appeals judgment. fees. attorney $210 Stats.,11985 permits Wis. Act Section *3 bring theft a civil action of a retail the victim 943.51, Stats., is as follows: full text of sec. 1The (1) person injury Any to his or her business or who incurs bring may property a civil of a violation of s. 943.50 as a result any emancipated against minor who caused the adult or action following: for all of the loss (a) merchandise unless it is returned The retail value of the undamaged person may recover under this unused. A demanding diligence paragraph only in if he or she exercises due immediately after he or she the return of the merchandise identity person of the who has the the loss and the discovers merchandise. (a). (b) par. damages Any not covered under actual (2) (1), person incurs the loss In to sub. if the who addition may grant any prevails, judgment of the the in the action following: (a)l. damages Exemplary 3 times the of not more than (b). (l)(a) under sub. amount exemplary required proof award of 2. for an No additional damages paragraph. under this (b) 814.04, Notwithstanding limitations of s. 799.25or all action, including attorney reasonable fees. actual costs of the to recover injury who causes the person against damaged, lost or other of the merchandise the value costs, damages, and the damages, exemplary actual fees, action. of the including attorney (1) number of claims: The trial makes a awarding Shopko damages” in "actual court erred its merchandise without Shopko recovered because (2) damages” wages do not include the loss. "Actual her theft and de- who detected Shopko’s employees (3) cannot recover Shopko exemplary tained her. Stats., her under sec. because damages from (4) for her offense a forfeiture. punished she was its of action under sec. 943.51 Shopko waived cause adequate itself of its remedy it failed to avail because (5) sec. 943.50. She is entitled to have a jury under damages claim. We con- Shopko’s exemplary decide awarding the trial court erred clude damages judgment. on We there- exemplary summary reverse and remand the issue fore respects. all other judgment for trial. We affirm (3) (2), Notwithstanding amount awarded for sub. total attorney and reasonable fees not exceed $300. (4) plaintiff proving by preponder- The has the burden of a violation under s. 943.50. A ance of the evidence that a occurred precedent bringing conviction under s. 943.50 is not a condition action, collecting obtaining judgment judgment or an this section. (5) person criminally any A liable under s. 943.30 for is not *4 brought good this civil action faith under section. (6) Nothing precludes plaintiff bring- in this from section ing ch. 799 if the is within the action under amount claimed 799.01(4). jurisdictional limits of s.
I—i THE CASE BACKGROUND OF personnel by Shopko security was detained Kujak possession She had in her suspicion shoplifting. on unpaid-for Shopko’s items of merchandise of a eleven pled She to a violation of guilty retail value of $59.71. 7.04(k) ordinances, adopting of the La Crosse city sec. municipal Stats. The court assessed a Shopko did not seek restitution forfeiture of $67.50. 943.50(5), began this action under sec. under sec. but 943.51.
HHi—i ACTUAL DAMAGES A. recover "actu- Shopko may claims that not 943.51(l)(b), Stats., because it damages” al under sec. undamaged and recovered its merchandise unused. but must be ambiguous the statute is She the other of its interaction with so construed because 973.09(l)(b) provisions of 1985 Wis. Act (lr), Stats. 943.50(5), Stats., Act 179 created sec. Wis. to order restitution for empowering municipal courts sec. 943.50 conformity of ordinances with violation theft). (retail sec. 943.51. Section The Act also created court, 973.09(l)(b), Stats., it a trial unless requires restitution, reason not to order finds a substantial of the probation, restitution impose, as a condition possible. Section loss to the extent pecuniary victim’s 973.09(lr) value of loss as the retail pecuniary defines *5 or of which the has the merchandise stolen merchant deprived. wrongfully been
legislature recovery intended that the merchant’s 943.51 shall limited "in kind under sec. be and compensation amount” to the available to the mer- 973.09(l)(b) 943.50(5),i.e., under secs. resti- chant disagree. tution. We ambiguous persons
A statute is
if well-informed
may
ways.
Britzke,
read it in different
State v.
108
(Ct.
1982)
App.
289,
675, 680,
2d
Wis.
(1983).
We find no Section provides bring victim of a retail theft a following” action "for all of civil and enumerates (a) par. the retail value the stolen or misappropriated merchandise unless it is returned (b), undamaged par. any unused, and under actual (a).” par. Recovery "not covered under (a)” par. actual "not covered under is not dependent upon return of the stolen merchandise or legislature recovery of its retail value. The could not expressed clearly. have its intent more We will not arguments Kujak’s upon supposed examine based ambiguity in the statute where none exists.2 We reject Kujak’s therefore contention that can- legislative 2We analyzed note that the reference bureau (1985 179) creating exceptions Bill 643 Senate Wis. Act as to the probation limitation of restitution as a condition of and "also” establishing "special provisions civil action for victims of worthless checks or retail theft.” 943.51(l)(b) damages under sec. recover its actual
not *6 undamaged its merchandise it recovered because unused.
B.
not
incur
Shopko
next contends
did
Kujak
services
damages”
employee
in the loss of
"actual
because,
detained
Shopko’s security personnel
when
her,
were
to
doing
they
paid
were
what
they
merely
however,
contends,
if
had not
that'
Shopko
do.
theft,
it would have received an
a retail
committed
protection
of merchandise
two hours
additional
services. It
that such
managerial
hour of
one
recognized
have been
as
services
employee
losses
v. Service Electric &
State
damages.
compensable
Inc.,
(1982);
943.51(l)(b), Stats. Because the Wisconsin cases are persuasive reject Kujak’s arguments we based on from other jurisdictions. decisions
h-HHHHH EFFECT OF FORFEITURE EXEMPLARY ON
DAMAGES A. Kujak contends that the trial court could not exemplary damages3 against award her under damages” "exemplary "punitive damages” 3The cases use Wickhem, interchangeably. Damages Exemplary See "The Rule of Wisconsin,” (1923); Shaw, in 2 Wis. L. 129 Rev. Luther v. 157 Wis. (1914); Co., 260, Wangen 18 N.W. v. Ford Motor 97 Wis. 2d (1980). 8, 437, 278 n. 447-48 The Random House (2d 1987) Dictionary English Language unabridged the 677 Ed. of defining "exemplary damages” punitive damages.” says: in "See notes, Shopko Kujak struggles question
As with the of exemplary damages whether the allowed under the statute are statutory "more like” common-law than multiple damages. Co., See Cieslewicz v. Mutual Service Cas. Ins. (1978). 91, agree 84 267 Wis. 2d N.W.2d 595 We with that 943.51(2)(a),Stats., exemplary damages under sec. are not statuto- damages. ry multiple imposition statutory multiple The dam- ages mandatory is once the offense is established. Id. at 943.51(2)(a) N.W.2d at 600. Section does not make an award 943.51(2)(a), Stats., subjected because she was to a civil it her offense. She that so offends forfeiture fairness that it be concept of fundamental cannot the intended to allow a merchant legislature held punishment”4 round of on a retail inflict "a second punished a fine or forfeiture. thief who has been 943.51 is if there only claims that sec. available thief, prosecution is of the retail or the prosecution no construction of the Kujak’s suggested unsuccessful. is legislature statute to the intention contrary legislative in Act. We look for expressed plainly Gordon, of the statutes. State v. in language intent restitution in sec. remedy Wis. Act 179 created a 943.50(5). (b) par. pro The last sentence of thereof this compensated vides: "A victim not be meaningless 943.51.” This sentence is section and s. sec. 943.51 is available when the retail thief is unless 943.50, or ordi prosecuted under sec. an successfully therewith. conformity nance have Act alternative remedies. We provides The 943.51(2)(a), concluding hesitancy no Stats., permits unambiguously recovery if thief has convicted damages even the retail been to a fine under sec. 943.50 or a forfeiture subjected under a local ordinance. *8 upon proof mandatory of the offense of retail
theft. given punishment damage of to the
4"Punitive on the basis injured... punish injured party but to the not because he has been wrongdoer for malice and to deter others from like conduct.” his 547-48, 495, 543, 497 Nysse, 2d 297 N.W.2d v. 98 Wis. Jeffers Sales, 57, (1980), quoting 14 2d Malco v. Midwest Aluminum Wis. (1961). 66, 109 N.W.2d
B. of retribution round that a "second asserts of the court dignity the it undermines unfair is so She does not attack rule of law.” for the respect and Stats., on due constitutionality requires public policy grounds but process in suggests order statute as she interpret that we jurisprudential legislative appropriate to serve legisla by the is determined policy Public purposes. Oil, Inc., 11, 15, 2d Ashland 132 Wis. Martinez v. ture. 1986). (Ct. arguments 72, Kujak’s App. 390 N.W.2d and not to the legislature presented must be courts. event, overwhelming majority
In any "[a]n imposition punitive allow jurisdictions wrongful though the even same in a civil action him to criminal may subject the defendant conduct of Damages, Punitive Kircher, 1 Ghiardi & punishment.” (1985). 3.02, at 2 Wisconsin Law and Practice the defendant damages even where allows v. Klopfer criminal action. in a punished has been v. Bromme, Luther 372, (1870), cited 26 Wis. Shaw, 234, 237, 147 N.W. 157 Wis. the jury, is assured because
Fundamental fairness "com- damages, consider determining punitive and forfei- damages and fines punitive pensatory Co., Ford Motor imposed_” Wangen tures already (1980) 459-60 omitted). (footnote
HH >
WAIVER waived its claim for Kujak pursue it failed to its damages when restitution 943.50, Stats. We con- under sec. remedy adequate theft is not required of a retail that a victim clude 943.50(5)(b) if the retail sec. under seek restitution thereunder, or under an ordinance prosecuted thief is in therewith. conformity shown, 179 provides 1985 Wis. Act have
As we theft may victim of a retail remedies. The alternative 943.50(5), Stats., if the under sec. restitution seek an under sec. 943.50 or prosecuted retail thief is therewith, seek may or conformity ordinance 943.51. damages under sec. recovery Further, remedy claim that reject Kujak’s we 943.50(5), Stats., Section adequate. 943.50(5)(b) require payment the court to empowers loss,” as defined "pecuniary the victim’s 943.50(5)(a). dam- 973.09(8), The victim’s Sec. Stats. damages” be less than "actual thereunder ages 943.51(l)(b). Also, a restitution under sec. recoverable 943.50(5)(b) include cannot under sec. order damages.
V. SUMMARY DAMAGES: EXEMPLARY JUDGMENT trial. She jury for a timely made a demand determine have a right jury has a claims she claim. Shopko’s exemplary *10 in awarding court erred that the trial agree We however, not, do damages. We Shopko exemplary or constitutional Kujak’s decision on our ground Shopko’s to a trial. We decide right jury statutory be resolved on damages could not exemplary claim summary judgment. law exemplary that at common
Shopko concedes argues, It question. a damages primarily jury are 943.51(2), Stats., however, the burdens rejects that sec. It contends that sec. at common law. imposed liberally which must be con- remedial statute is a legislative purpose punish- accomplish to strued LIRC, theft. Watkins v. deterring retail See ing and 482, 485, 753, 758, 762, 345 N.W.2d 117 Wis. 2d (1984) (statutes language remedial containing broad construed). liberally shall be us to permit does not amend
Liberal construction change methodol- summary judgment the statute or 943.51(2), Stats., provides that a judgment Section ogy. grant damages. Exem- "may” exemplary thereunder If not the trial court damages mandatory. are plary damages under the power exemplary has the to award statute, 802.08, Stats., it summary judgment damages as a plaintiff is entitled because 802.08(2), Stats., provides of law. matter "Sec[tion] shall be rendered when no summary judgment a dispute only question material facts are v. Fire presented.” law is Kraemer Bros. United States Co., 857, 861 2d Ins. Wis. damages claim for does not
Shopko’s
exemplary
A
present
question
of law.
claim for
only
of the defendant’s
involves an evaluation
mitigation
damages.
conduct and matters
Sum-
for trial of such
poor
is a
substitute
mary judgment
[punitive damages]
issue
issues.
be
can[not]
"[T]his
principled
in a
fashion on summary judg-
resolved
(7th
90,
Sahagian
v.
Dickey, 827 F.2d
ment.”
Cir.
alia,
1987),
Moore,
inter
Moore’s
citing,
[part
J.
2]
(2d
Practice, 1986).
Federal
ed.
56.17[18]
punitive
or
are
Because
ana
considering
wrongdoer’s
nature of the
lyzed by
tort,
Wan
conduct,
of the underlying
not the nature
266,
442,
294 N.W.2d at
gen,
97 Wis. 2d at
there is
question of whether
shall be
they
awarded
always
Welty
Heggy,
we noted in
at all. As
(Ct.
546, 549
1988),
App.
"The amount
damages] can never be
low.”
punitive
unreasonably
[of
(Quoting Wangen,
Thus, proof while of retail theft is suffi- Kujak’s damages, she subject may cient her to if, in the escape damages altogether an award of such fact-finder, the her offense does not judgment of damage to punitive warrant "the added sanction of a committing against acts human deter others from Co., 47 v. Ford Motor 2d dignity.” Entzminger Wis. 899, (1970), 751, 757-58, quoted 903 177 N.W.2d 269, 443. 294 at Jean Wangen, 97 Wis. 2d at N.W.2d under a if sued in a civil action Valjean, example, 943.51, Stats., escaped might have statute such as
601 theft of feed for his bread to his punitive family. respecting
There are other factors
the defendant’s
punitive
make trial of a
or exemplary
conduct which
inappropriate:
the serious-
damage claim
affidavit
by
public,
hazard to the
the
profitability
ness of the
conduct,
97
improper
Wangen,
duration of the
Wis. 2d
305,
460,
potential damage
294
at
and the
at
N.W.2d
might
have been done
such acts as well as
which
543,
damage,
98 Wis. 2d
Nysse,
the actual
Jeffers
495,
497
mitigating
age
factors:
There
be
offender;
attitude
and conduct of the offender
305,
detection,
There are of cases which do not lend many types *12 themselves to resolution on Bal summary judgment. Co., 351, 357, com Royal v. Ins. Wis. 2d 161 N.W.2d (1968). 918, 921 A claim for exemplary damages such a case. Because we conclude Shopko’s claim in exemplary damages cannot be resolved principled fashion on we reverse summary judgment, damages Shop- and remand exemplary
the award of for trial.5 ko’s claim in Judgment part, affirmed re-
By Court. — remanded. part in and cause versed DYKMAN, containing J. The bill (dissenting). 943.51, Stats., was introduced at the what became sec. Shop- to the "Wisconsin Coalition Prevent behest of file, 1985 lifting,” See Legislative Reference Bureau 1985 A.B. 212. The aim of this Wis. Act 179 and legislature’s The method organization is self-evident. to create civil remedies deterring shoplifting was of However, by shoplifters. victimized for merchants damages plus fees was exemplary attorney of recovery 943.51(3). Sec. limited to a total $300.
I with the conclusion that agree majority’s do not are relevant punitive damage law factors all common under sec. exemplary to a determination 943.51(2)(a)2, are not to construe statutes in Stats. We Clausen, of common sense. State v. derogation The Wis. 2d proof shoplifting be legislature intended damages. support exemplary to an award of enough Thus, the offense warrants "added sanc whether Ford damage[s],” Entzminger of ... punitive tion Co., 751, 757-58, 177 Motor 943.51(2)(a)2. (1970), is irrelevant to a claim under sec. factors, wealth, are not such as a defendant’s Other suggests ignore the trial court’s award of 5The dissent that we Shopko $300 and find that is entitled fees; request attorney it attorney does not $300 fees. damages. Shopko’s request, punitive At the trial court wants damages. Shopko attorney advises fees to $90 shifted ... increase the deterrent effect intended us: "The court did so give Shopko legislature.” not more by the The trial court could requested. attorney than it Nor can we. fees *13 943.51(2)(a)2 incompatible requirement with the sec. supports that alone an proof shoplifting The trial authorizes damage jury majority award. those issues only compatible should involve with sec. 943.51(2)(a)2. legisla- Common sense dictates that intend, deterrent, a shoplifting ture did not as exten- sive trials over jury $300.
The net result of the decision is that majority’s La required provide is to a county judge, Crosse jury, services to decide Shop- courtroom and court whether exemplary damages, ko should receive the maximum 943.51(2)(a)l, which cannot exceed Sec. amount of $90. legislature I doubt intended such an Stats. impact county taxpayers on La Crosse when it set legislation to combat shoplifting. about draft We All this need not have been. review motions de novo. In summary judgment re Cherokee Park (Ct. Plat, 112, 115-16, N.W.2d 1983). facts, The law and the App. undisputed not the parties’ requests, desires and dictate the result of a motion. summary judgment Summary judgment permit inquiry argu does not an into methodology hearing. ments made at a motion The trial court this court with the only parties’ plead concerned ings and affidavits. at at 582-83. Id. need not consider whether We therefore determined it is jury must be because reasonable undisputed Shopko’s attorney fees $300, 943.51(3), Stats., exceeded limits the total of attorney plus exemplary fees $300. I would conclude that is entitled to $300 943.51(3), Stats., attorney as fees under thus avoiding of a trial jury over necessity $90.