Estate of Stanley G. Miller v. Diane Storey

2017 WI 99

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2420
COMPLETE TITLE: Estate of Stanley G. Miller c/o Genevieve
Miller, Personal Representative,
Plaintiff-Respondent-Petitioner,
v.
Diane Storey,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 669, 885 N.W.2d 787
PDC No: 2016 WI App 68 – Published

OPINION FILED: November 30, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 12, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Jill N. Falstad

JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: KELLY, J. concurs and dissents, joined by R.
G. BRADLEY, J. (opinion filed).
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

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.
 2017 WI 99
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2420
(L.C. No. 2013SC669)

STATE OF WISCONSIN : IN SUPREME COURT

Estate of Stanley G. Miller c/o Genevieve
Miller, Personal Representative,

Plaintiff-Respondent-Petitioner,
FILED
v. NOV 30, 2017

Diane Storey, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Affirmed in

part, reversed in part, and cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, J. 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").

1
The Honorable Jill N. Falstad presided.
 No. 2014AP2420

¶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

2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
While the evidence presented at trial would support a
claim for over $10,000, at the time, small claims actions were
limited to $5,000 for an "action based in tort" and to $10,000
for an "other civil action." See Wis. Stat. § 799.01(1)(cr),
(d). Thus, the jury verdict reflects a finding for actual
damages in the amount of $10,000.
4
We note that the reasonableness of this amount was not an
issue before this court. Storey did argue in her briefing that
any award of attorney fees must be limited to the amount to be
recovered under the Estate's contingency fee agreement. See
Stathus v. Horst, 2003 WI App 28, ¶¶19-24, 260 Wis. 2d 166, 659
N.W.2d 165. This issue, however, was not raised below and we
decline to address it so as to afford the circuit court the
opportunity to consider it in the first instance on remand.

2
 No. 2014AP2420

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
3
 No. 2014AP2420

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
4
 No. 2014AP2420

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.

5
While typically an offer to settle is inadmissible, the
offer is not used here "to prove liability for or invalidity of
the claim or its amount." See Wis. Stat. § 904.08. Rather, the
settlement offer is relevant in this case to determine whether
double costs are authorized under Wis. Stat. § 807.01(3), which
states in part as follows:

After issue is joined but at least 20 days before
trial, the plaintiff may serve upon the defendant a
written offer of settlement for the sum, or property,
or the effect therein specified, with costs. . . . If
the offer of settlement is not accepted and the
plaintiff recovers a more favorable judgment, the
plaintiff shall recover double the amount of the
taxable costs.

§ 807.01(3).

5
 No. 2014AP2420

¶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

6
Wisconsin Stat. § 895.446 is a civil statute that provides
a cause of action for "Property damage or loss caused by crime"
by reference to enumerated criminal statutes.
7
Wisconsin Stat. § 943.20 is a criminal statute that
prohibits "Theft."

6
 No. 2014AP2420

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.

8
The circuit court awarded only $20,000 in exemplary
damages, and, as noted by the court of appeals, the record
appears to support an award of $51,629.90, which is one thousand
dollars less than the amount of the judgment entered by the
circuit court. See Estate of Miller v. Storey, 2016 WI App 68,
¶10 n.3, 371 Wis. 2d 669, 885 N.W.2d 787.

7
 No. 2014AP2420

¶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

9
The court of appeals' July 6th opinion cites to Wis. Stat.
§ 895.446(3)(c), which is the exemplary damages subsection. We
read this as a typo and interpret their holding to apply to
subsection (1).

8
 No. 2014AP2420

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 costs. See Estate of Miller, 371 Wis. 2d 669, ¶¶21, 31.

With regard to actual damages, the court of appeals removed

10
Storey did object to the award of exemplary damages in
her responses to the Estate's post-verdict motion in the circuit
court and at the July 8, 2014 hearing on the motion, but her
objection was based on a different ground than she raised on
appeal. See supra ¶14; State v. Nelis, 2007 WI 58, ¶31, 300
Wis. 2d 415, 733 N.W.2d 619 ("An objection is sufficient to
preserve an issue for appeal, if it apprises the court of the
specific grounds upon which it is based."). In the circuit
court she argued that exemplary damages were barred because the
Estate had not requested them in the complaint; in the court of
appeals, and in this court, she argued that exemplary damages
were barred because the judge cannot award them where the jury
is the finder of fact.

9
 No. 2014AP2420

citations to legal authority and added language that the Estate

had conceded the issue. Id., ¶21. With regard to double costs,

the court of appeals added language that the Estate had conceded

the issue. Id., ¶31. Here, the Estate argues that the court of

appeals erroneously exercised its discretion in denying the

Estate's motion for reconsideration because the court of appeals

withdrew and revised its opinion contemporaneously with its

review of the motion, and two of the revisions made were

responsive to two of the motion's arguments. In essence, the

Estate argues that the court of appeals cannot both revise its

decision and deny the Estate's motion for reconsideration,

especially because the revisions appear to be based on the

merits of the motion's arguments.

¶24 On September 12, 2016, the Estate filed a petition for

review in this court. On January 9, 2017, we granted the

petition.

II. STANDARD OF REVIEW

¶25 Interpretation of a statute is a question of law that
we review de novo, although we benefit from the analyses of the

circuit court and the court of appeals. See State v. Harrison,

2015 WI 5, ¶37, 360 Wis. 2d 246, 858 N.W.2d 372. Thus, we

review de novo whether Wis. Stat. § 895.446 is an "action based

in tort" or an "other civil action" and whether attorney fees

are included within the meaning of "costs of . . . litigation"

under § 895.446(3)(b). The proper allocation of

responsibilities between the judge and the jury with regard to
exemplary damages is also a question of law that we review de
10
 No. 2014AP2420

novo. See Kimble, 353 Wis. 2d 377, ¶38. Thus, we also review

de novo the merits of the court of appeals' decision to reverse

the circuit court's award of exemplary damages.

¶26 We review the court of appeals' exercise of discretion

under the deferential erroneous exercise of discretion standard.

See State v. Lemberger, 2017 WI 39, ¶13, 374 Wis. 2d 617, 893

N.W.2d 232. Whether to consider an issue not preserved below is

an exercise of discretion. See State v. Caban, 210 Wis. 2d 597,

609, 563 N.W.2d 501 (1997). Whether to grant or deny a motion

for reconsideration under Wis. Stat. (Rule) § 809.24 is an

exercise of discretion. See State v. Thiel, 171 Wis. 2d 157,

159-60, 491 N.W.2d 94 (Ct. App. 1992). Thus, we review the

court of appeals' decisions to consider the issue of exemplary

damages and to deny the Estate's motion for reconsideration for

erroneous exercise of discretion.11

III. ANALYSIS

¶27 The following analysis will address four issues: (A)

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); (B) Whether attorney fees are included within

11
To the extent that the Estate's fourth issue may be read
as raising an issue of the court of appeals' authority under
Wis. Stat. (Rule) § 809.24, this would require interpretation of
the statute, which is a question of law that we would review de
novo. See State v. Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246,
858 N.W.2d 372. However, because we conclude that our analysis
of the first issue renders analysis of the fourth issue
unnecessary, we need not address this question of law.

11
 No. 2014AP2420

the meaning of "costs of investigation and litigation" under

§ 895.446(3)(b); (C) 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; and (D) Whether the court of appeals

properly denied the Estate's motion for reconsideration.

¶28 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).

¶29 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,
260 Wis. 2d 166, 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 to alter that interpretation.

¶30 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
12
 No. 2014AP2420

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, 353 Wis. 2d 377.

¶31 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.

A. 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).

¶32 The first issue we consider is whether Wis. Stat.

§ 895.446 is an "action based in tort" under Wis. Stat.

§ 799.01(1)(cr), and thus subject to the $5,000 small claims

limit, or an "other civil action" under § 799.01(1)(d), and thus

subject to the $10,000 small claims limit. The applicable

statutory limit also impacts the award of costs. The Estate

argues that § 895.446 is an "other civil action," and thus

subject to the $10,000 limit, because its civil theft claim

arises from a statutorily created right to enforce criminal law.

The Estate distinguishes this statutory civil theft claim from

the civil action for conversion, which arises from the common

law of tort. Storey, to the contrary, argues that § 895.446 is

an "action based in tort," and thus subject to the $5,000 limit,

because the elements required to prove the Estate's statutory

13
 No. 2014AP2420

civil theft claim are similar to the elements of the common law

tort of conversion.

¶33 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).

1. Wisconsin Stat. § 895.446 is an "other civil action"
under Wis. Stat. § 799.01(1)(d).
¶34 Wisconsin Stat. § 895.446 is an "other civil action"

under Wis. Stat. § 799.01(1)(d) for four reasons: first, the

statute itself refers to its cause as a "civil action"; second,

our case law distinguishes the statutory civil theft claim under

§ 895.446 from similar common law tort claims; third, our case

law distinguishes between other statutorily created civil claims

and common law tort claims; and fourth, there is a long-standing

distinction in the common law between crimes and torts, even

though both may be based on the same conduct, which suggests

that a plaintiff acting under a civil statute that enables

enforcement of criminal law is not bringing an action based in

tort.

14
 No. 2014AP2420

¶35 "[S]tatutory interpretation begins with the language

of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110; Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 56-58 (2012) (Supremacy-of-Text Principle).12 Here, the

statute provides for a civil cause of action against a person

who has caused damage or loss to property by conduct that is

proscribed by the enumerated criminal statutes. See Wis. Stat.

§ 895.446(1). Subsections (2) and (3) both refer to this cause

as a "civil action":

(2) The burden of proof in a civil action under
sub. (1) . . . .

(3) If the plaintiff prevails in a civil action
under sub. (1) . . . .
§ 895.446(2), (3). Words are to be understood in their ordinary

everyday meaning. See Kalal, 271 Wis. 2d 633, ¶45; Scalia &

Garner, supra, at 69-77 (Ordinary-Meaning Canon).13 Thus, when a

statute characterizes its cause as a "civil action" it is within

the bounds of ordinary understanding to interpret it as a "civil

action." Furthermore, a word or phrase is presumed to bear the

same meaning throughout a text. See Scalia & Garner, supra, at

12
The Supremacy-of-Text Principle dictates that "[t]he
words of a governing text are of paramount concern, and what
they convey, in their context, is what the text means." Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 56 (2012).
13
The Ordinary Meaning Canon dictates that "[w]ords are to
be understood in their ordinary, everyday meanings——unless the
context indicates that they bear a technical sense." Id. at 69.

15
 No. 2014AP2420

170-73 (Presumption of Consistent Usage).14 Thus, the use of the

term "civil action" in § 895.446 to describe the cause therein

provided indicates that the cause may also be properly

characterized as a "civil action" under Wis. Stat. § 799.01.

See § 799.01(1)(d) ("Other civil actions where the amount

claimed is $10,000 or less . . . .").

¶36 Additionally, Wisconsin cases analyzing a civil theft

claim under the statute have referred to the cause as a civil

action. See Tri-Tech Corp. of Am. v. Americomp Servs., Inc.,

2002 WI 88, ¶1, 254 Wis. 2d 418, 646 N.W.2d 822 ("civil theft").

This statutory civil theft claim has also been specifically

distinguished from similar claims of conversion, which sound in

tort. In other words, a civil claim for theft under Wis. Stat.

§ 895.446 is separate and distinct from a claim for conversion.

For example, in H.A. Friend & Co. v. Professional Stationery,

Inc., the plaintiff brought a civil theft claim under Wis. Stat.

§ 895.80(1) (2003-04)15 and a common law tort claim for

conversion where the defendant had written checks and withdrawn
and transferred funds without authorization. 2006 WI App 141,

¶¶2, 5-6, 294 Wis. 2d 754, 720 N.W.2d 96. The court of appeals

treated these as separate and distinct claims in its analysis.

14
The Presumption of Consistent Usage dictates that "[a]
word or phrase is presumed to bear the same meaning throughout a
text; a material variation in terms suggests a variation in
meaning." Id. at 170.
15
Wis. Stat. § 895.80 (2003-04) was renumbered as Wis.
Stat. § 895.446 in 2006. See 2005 Wis. Act 155, § 70.

16
 No. 2014AP2420

Compare id., ¶9, with id., ¶11. See also Cook v. Public

Storage, Inc., 2008 WI App 155, ¶49, 314 Wis. 2d 426, 761

N.W.2d 645 (distinguishing the plaintiff's common law claim of

conversion from its statutory theft claim under Wis. Stat.

§ 895.446 (2005-06) via Wis. Stat. § 943.20 (2005-06)); Phillips

v. Parmelee, 2013 WI 105, ¶9, 351 Wis. 2d 758, 840 N.W.2d 713

(where the plaintiff brought a statutory civil theft claim under

Wis. Stat. § 895.446 (2009-10) via Wis. Stat. § 943.20 (2009-10)

and a common law tort claim for negligence because defendant-

sellers had failed to disclose asbestos-related defects).

¶37 Moreover, there is an established distinction between

statutory claims and common law claims generally. See Kailin v.

Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132;

Chomicki v. Wittekind, 128 Wis. 2d 188, 381 N.W.2d 561 (Ct. App.

1985). In Chomicki the plaintiff brought a statutory civil

claim under Wis. Stat. § 101.22(7) (1985-86) where her landlord

had sexually harassed and threatened her. See Chomicki, 128

Wis. 2d at 192. In rejecting the landlord's challenge to the
jury's award of compensatory damages, the court of appeals held

that Chomicki's recovery was not controlled by the rules

regarding the common law tort of intentional infliction of

emotional distress because "Chomicki . . . did not bring a

common law tort claim, but a private civil action specifically

authorized by statute." Id. at 199.

¶38 Similarly, in Kailin, the plaintiff brought a

statutory civil claim under Wis. Stat. § 100.18 (1999-2000) and
a common law tort claim for misrepresentation where defendant-
17
 No. 2014AP2420

sellers had failed to disclose a tenant with a history of

delinquent rent payments. 252 Wis. 2d 676, ¶¶1-2. The court of

appeals treated these claims as separate and distinct in its

analysis, compare id., ¶¶26-36, with id., ¶¶37-45, and held that

"[t]he fact that two different claims may be proved with the

same evidence in a particular case does not mean they are the

same claim." Id., ¶41. This is particularly true where the

elements of the statutory cause of action "differ from those of

the common law claim[]." Id., ¶40; see also Below v. Norton,

2008 WI 77, ¶42, 310 Wis. 2d 713, 751 N.W.2d 351 (noting that

the plaintiff was not without a remedy where the economic loss

doctrine barred common law claims of misrepresentation because

the statutory civil claim under Wis. Stat. § 100.18 (2003-04)

was still available).

¶39 Here, the Estate brought a statutory civil theft claim

under Wis. Stat. § 895.446 via Wis. Stat. § 943.20. Statutory

claims are distinct from common law claims, and in fact, often

both can be pursued. See Kailin, 252 Wis. 2d 676, ¶41;
Chomicki, 128 Wis. 2d at 199. Additionally, the precise

statutory civil theft claim being pursued by the Estate here has

been held to be distinct from the similar common law tort of

conversion. See H.A. Friend & Co., 294 Wis. 2d 754, ¶¶9, 11.

Moreover, this distinction is supported by the fact that the

elements of the statutory cause of action "differ from those of

the common law claim[]." Kailin, 252 Wis. 2d 676, ¶40.

¶40 The elements of the Estate's statutory civil theft
claim are as follows:
18
 No. 2014AP2420

1. Defendant intentionally used, transferred, or
retained possession of movable property of
another;
2. The owner of the property did not consent to
taking and carrying away the property;
3. Defendant knew the owner did not consent; and
4. Defendant intended to deprive the owner
permanently of the possession of the property.16
See supra ¶12. Conversely, the elements of the common law tort

claim of conversion are as follows:

1. That (defendant) intentionally (controlled)
(took) property belonging to (owner);
2. That defendant (controlled) (took) the property
without the consent of (owner) or without lawful
authority; and
3. That defendant's act with respect to the property
seriously interfered with the right of (owner) to
possess the property.

16
The elements of criminal theft under Wis. Stat. § 943.20
are exactly the same as the elements of the civil theft claim
brought by the Estate:

1. The defendant intentionally took and carried away
movable property of another. . . .
2. The owner of the property did not consent to
taking and carrying away the property.
3. The defendant knew that the owner did not
consent.
4. The defendant intended to deprive the owner
permanently of the possession of the property.

Wis JI——Criminal 1441 (2009) (footnotes omitted). The cause of
action under Wis. Stat. § 895.446 does not have a set of
elements unique from criminal causes because the statutory civil
claim is tied to whichever enumerated criminal statute listed in
subsection (1) applies. See also supra note 7. Of course, the
burden of proof and the consequences are different, as is the
enforcement mechanism: a criminal charge is brought by the
government taking formal action, and a civil action is brought
by a citizen seeking monetary damages.

19
 No. 2014AP2420

Wis JI——Civil 2200 (2014). Although similar, the Estate's

statutory civil theft claim significantly differs from the

common law tort claim of conversion in two respects: first, the

statutory civil theft claim additionally requires that the

"defendant knew that the owner did not consent"; second, the

statutory civil theft claim differs in that it requires that the

"defendant intended to deprive the owner permanently

of . . . possession," not simply that the defendant acted to

"seriously interfere with the right of the owner to possess the

property." Compare supra ¶12, with Wis JI——Civil 2200 (2014).

Thus, the Estate's statutory civil theft claim under Wis. Stat.

§ 895.446 is, in fact, separate and distinct from a common law

tort claim for conversion, even if the same facts might support

both causes of action.

¶41 Furthermore, the Estate's claim is essentially a

criminal charge being brought civilly by a plaintiff (for money

damages) instead of by the State (for conviction), as authorized

by statute. These criminal roots are important because there
has long been a distinction in the common law between a tort

claim and a criminal charge. See David J. Seipp, The

Distinction Between Crime and Tort in the Early Common Law, 76

20
 No. 2014AP2420

B.U. L. Rev. 59 (1996).17 Thus, the long-standing distinction

between causes of action brought as crimes and causes of action

brought as torts suggests that statutory claims which enable

civil enforcement of criminal law, such as the claim brought

here,18 need not necessarily be treated as "actions based in

tort" because they are actually "actions based in criminal law."

¶42 Based on the foregoing, we conclude that Wis. Stat.

§ 895.446 is an "other civil action" under Wis. Stat.

§ 799.01(1)(d), not an "action based in tort" under

§ 799.01(1)(cr). It is true that any cause that is not criminal

is civil; thus, tort claims are civil actions. But the

distinction between an "action based in tort" and an "other

civil action" is one that the legislature has made, and is one

that is important to claimants because there is a significant

difference in the amounts that may be recovered. Compare

§ 799.01(1)(cr), with § 799.01(1)(d). Thus, it is the task of

this court to give effect and meaning to that distinction. See

Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language is read where
possible to give reasonable effect to every word, in order to

17
The earliest distinction at common law was between the
"appeal of felony" (crimes) and the "writ of trespass" (torts).
See David J. Seipp, The Distinction Between Crime and Tort in
the Early Common Law, 76 B.U. L. Rev. 59, 60 (1996). Although
both were considered "breaches of the king's peace," conviction
of a felony carried much harsher penalties and had different
procedural requirements. Id. at 59, 61-63.
18
The Estate specifically brought an action under Wis.
Stat. § 895.446 for conduct prohibited by Wis. Stat. § 943.20——a
criminal statute prohibiting "Theft."

21
 No. 2014AP2420

avoid surplusage."); Scalia & Garner, supra ¶35, at 174-79

(Surplusage Canon).19 In doing so, we hold that § 895.446 is an

"other civil action" under § 799.01(1)(d) because the statute

itself refers to its cause as a "civil action," our case law

distinguishes the statutory civil theft claim under § 895.446

from similar common law tort claims, our case law distinguishes

between other statutory civil claims and common law tort claims

generally, and there is a long-standing distinction in the

common law between crimes and torts that suggests that a

plaintiff acting under a civil statute that enables enforcement

of criminal law is not bringing an "action based in tort," but

rather is bringing an "action based in criminal law," even

though both claims may be based on the same conduct.

¶43 In sum, to conclude that Wis. Stat. § 895.446——the

civil theft statute——is an "action based in tort" rather than an

"other civil action" would require us to, at a minimum, ignore

fundamental principles of statutory construction, disregard the

legislature's choice to provide a statutory civil theft claim,
and discount the established distinctions between statutory

civil claims and common law tort claims.

19
The Surplusage Canon dictates that "[i]f possible, every
word and every provision is to be given effect . . . . None
should be ignored. None should needlessly be given an
interpretation that causes it to duplicate another provision or
to have no consequence." Scalia & Garner, supra note 12, at
174.

22
 No. 2014AP2420

2. Because Wis. Stat. § 895.446 is an "other civil
action" under Wis. Stat. § 799.01(1)(d),
the damages cap is $10,000 and double costs
are authorized under Wis. Stat. § 807.01(3).
¶44 Because we conclude that Wis. Stat. § 895.446 is an

"other civil action" under Wis. Stat. § 799.01(1)(d), the

damages cap is $10,000 and double costs are authorized under

Wis. Stat. § 807.01(3).

¶45 With regard to the damages cap, Wis. Stat. § 799.01(1)

states in relevant part as follows:

EXCLUSIVE USE OF SMALL CLAIMS PROCEDURE. Except
as provided in ss. 799.02(1) and 799.21(4) and except
as provided under sub. (2), the procedure in this
chapter is the exclusive procedure to be used in
circuit court in the following actions: . . .

(d) Other civil actions. Other civil actions
where the amount claimed is $10,000 or less, if the
actions or proceedings are:

1. For money judgments . . . .
§ 799.01(1)(d)1.

¶46 The jury found Storey liable for a violation of Wis.

Stat. § 895.446 and awarded $10,000 in actual damages. As
established above, § 895.446 is an "other civil action." Thus,

the $10,000 in damages claimed and subsequently awarded is

appropriate under Wis. Stat. § 799.01(1)(d)'s damages cap. We

therefore remand the cause to the circuit court with direction

to reinstate the circuit court judgment as to actual damages in

the amount of $10,000.

¶47 With regard to the double costs, Wis. Stat.

§ 807.01(3) states in relevant part as follows:

23
 No. 2014AP2420

After issue is joined but at least 20 days before
trial, the plaintiff may serve upon the defendant a
written offer of settlement for the sum, or property,
or to the effect therein specified, with
costs. . . . If the offer of settlement is not
accepted and the plaintiff recovers a more favorable
judgment, the plaintiff shall recover double the
amount of the taxable costs.
§ 807.01(3). The Estate (the plaintiffs below) filed a notice

of its offer of settlement on June 7, 2013 (approximately seven

months before trial). The Estate offered to settle with Storey

for a sum of $7,500. Storey declined to settle. After trial

and appeal, the Estate will recover $10,000 in actual damages,

which is a higher and more favorable judgment. Thus, the Estate

"shall recover double the amount of the taxable costs."

§ 807.01(3). The Estate's taxable costs amount to $814.95,

which doubled amount to $1,629.90. We therefore remand the

cause to the circuit court with direction to reinstate the

circuit court's judgment as to taxable costs in the amount of

$1,629.90.

B. Whether Attorney Fees Are Included Within The
Meaning Of "Costs Of Investigation And Litigation"
Under Wis. Stat. § 895.446(3)(b).
¶48 The second issue we consider is whether attorney fees

are included within the meaning of "costs of investigation and

litigation" under Wis. Stat. § 895.446(3)(b). The Estate argues

that attorney fees are included as "costs of . . . litigation"

because the court of appeals has already interpreted this phrase

as including attorney fees. See Stathus, 260 Wis. 2d 166, ¶¶12-

24. Storey argues that Stathus is not good law because it
considered a version of the statute that did not include

24
 No. 2014AP2420

subsection (3m); subsection (3m) specifically provides for

"reasonable attorney fees" and interpreting subsection (3)(b) to

include attorney fees in light of this amendment would render

the specific provision in (3m) superfluous.

¶49 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, 260 Wis. 2d 166, 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.

¶50 We begin with the language of the statute. See Kalal,

271 Wis. 2d 633, ¶45. Section 895.446(3)(b) states in relevant

part as follows:

If the plaintiff prevails in a civil action under sub.
(1), he or she may recover all of the following:
. . .

(b) All costs of investigation and litigation
that were reasonably incurred, including the value of
the time spent by any employee or agent of the victim.
Wis. Stat. § 895.446(3)(b).

¶51 "If a statute uses words or phrases that have already

received authoritative construction by the jurisdiction's court

of last resort, or even uniform construction by inferior

courts . . . they are to be understood according to that

construction." Scalia & Garner, supra ¶35, at 322-26 (Prior-

Construction Canon). "A statute will be construed to alter the
common law only when that disposition is clear," and "[r]epeals

25
 No. 2014AP2420

by implication are . . . 'very much disfavored.'" Id. at 318-19

(Presumption Against Change in Common Law); id. at 327-33

(Presumption Against Implied Repeal). In other words,

legislative inaction in the wake of judicial construction of a

statute indicates legislative acquiescence.20 See Progressive N.

Ins. Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 697

N.W.2d 417. This doctrine of legislative acquiescence applies

with equal, if not greater, force where the legislature has

acted on the statute, but declines to revise the interpreted

language. See Tucker v. Marcus, 142 Wis. 2d 425, 434, 418

N.W.2d 818 (1988) (citing Munninghoff v. Wis. Conservation

Comm'n, 255 Wis. 252, 258, 38 N.W.2d 712 (1949) ("The re-

enactment of the statute on which there existed a judicial

determination indicates an intent to adopt the judicial

determination as a part of the statute.")); see also United

States v. Home Concrete & Supply, LLC, 566 U.S. 478, 483 (2012)

(declining to give the same language in a reenacted statute a

different construction where the operative language in a

20
We note that Justice Kelly's concurrence/dissent takes
issue with this canon of construction, see Justice Kelly's
concurrence/dissent, ¶¶94-104, but does not argue that Wisconsin
law does not support application of the canon or that we have
incorrectly applied the canon here. Thus, its scrutiny of the
assumptions that underlie the canon do not bear directly on the
integrity of our analysis. In other words, the dissent has
presented a problem without suggesting a solution, and we
decline to digress from the established canons of construction
because to do so would leave us with "no intelligible, generally
accepted and consistently applied theory of statutory
interpretation." Scalia & Garner, supra note 12, at 8.

26
 No. 2014AP2420

reenacted provision was identical because stare decisis counsels

against such interpretive variation).

¶52 The phrase "[a]ll costs of investigation and

litigation" has previously been interpreted to include attorney

fees. See Stathus, 260 Wis. 2d 166, ¶¶12-24.21 In Wisconsin,

21
We acknowledge that the Stathus court did not directly
consider the issue of whether attorney fees were awardable;
rather, in promulgating the standards by which a circuit court
should determine whether an award of attorney fees under the
statute is reasonable, the Stathus court assumed that attorney
fees were awardable. This assumption, however, is a prior
construction under the Predicate-Act Canon and the
Interpretation Principle of statutory construction. The
Interpretation Principle holds that "[e]very application of a
text to particular circumstances entails interpretation"; the
Predicate-Act Canon holds that "[a]uthorization of an act also
authorizes a necessary predicate act." See Scalia & Garner,
supra note 12, at 53-55, 192-94. Thus, when the Stathus court
remanded to the circuit court with instructions to "apply the
appropriate standards for determining 'reasonableness'" of
attorney fees under the statute, it necessarily construed the
statute as authorizing the award of attorney fees. Stathus, 260
Wis. 2d 166, ¶25.

Additionally, lower courts have consistently awarded
attorney fees under the statute. See Revolution Processing
Sol., Inc. v. Collins Fin., LLC, No. 13CV657, 2015 WL 13540579,
at *4 (Wis. Cir. Ct. Dec. 9, 2015); Gribble v. Gribble, No.
11CV017625, 2015 WL 5192481, at *2 (Wis. Cir. Ct. Aug. 18,
2015); Coyle v. Coyle, No. 11CV0510, 2013 WL 6211087, at *1
(Wis. Cir. Ct. Oct. 2, 2013); Offerman v. Pettijohn, No.
09CV04775, 2011 WL 2260387 (Wis. Cir. Ct. Apr. 8, 2011); Carter
v. Cuttingedge of Elkhart Lake, Inc., No 06CV414, 2007 WL
5308643 (Wis. Cir. Ct. Nov. 6, 2007); Lautenslager v. Wallace
Enters., Inc., No. 03CV1860, 2004 WL 5162818 (Wis. Cir. Ct. Nov.
5, 2004); see also BJK of Manitowoc Cty., Inc. v. Barkwell, No.
09CV738, 2012 WL 13001081, at *17 (Wis. Cir. Ct. June 25, 2012);
cf. KBS Constr., Inc. v. McCullough Plumbing, Inc., No.
2008AP1867, unpublished slip op., ¶¶31-32 (Wis. Ct. App. Dec 23,
2009); IW Enter. V. Kopas, No. 03-2036, unpublished slip op.,
¶¶11, 32-33 (Wis. Ct. App. July 27, 2004); Lorge v. Rabl, No.
(continued)
27
 No. 2014AP2420

this is an authoritative interpretation. See Wenke v. Gehl Co.,

2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405 ("The

principle of stare decisis applies to the published decisions of

the court of appeals."). After Stathus, the legislature made

six revisions to the statute.22 Thus, the legislature had ample

opportunity to act on or repeal the judicial interpretation of

"costs of . . . litigation" in Stathus, particularly when it

amended subsection (3)(b). See 2003 Wis. Act 138, § 22. But

the legislature did not act on or repeal the interpreted

language. Therefore, the Stathus court's interpretation that

attorney fees are included as "costs of . . . litigation" stands

as good law.23

¶53 Additionally, the language of Wis. Stat. § 799.25——

governing costs recoverable in small claims actions——supports

03CV1629, 2006 WL 6623605 (Wis. Cir. Ct. May 2, 2006).

On this, the legislature has stood silent.
22
See 2003 Wis. Act 36, § 11; 2003 Wis. Act 138, §§ 19-25;
2005 Wis. Act 155, § 70 (renumbering as Wis. Stat. § 895.446);
2005 Wis. Act 447, § 1; 2007 Wis. Act 96, § 161; 2011 Wis. Act
186, § 2.
23
We note also that this interpretation is consonant with
the instructions given in the legislative drafting file for the
act creating the statute, which describes the purpose as
allowing "a person who wins a civil action to receive treble
damages and costs for certain property crimes. This includes
all reasonable attorney fees and other costs of investigation
and litigation. . . ." Drafting File, 1995 Wis. Act 27,
Legislative Reference Bureau, Madison, Wis.

28
 No. 2014AP2420

the conclusion that attorney fees are included as costs of

litigation. Section 799.25 states in relevant part as follows:

Costs. The clerk shall without notice to the
parties tax and insert in the judgment as costs in
favor of the party recovering judgment the
following: . . .

(10) Attorney Fees. (a) Attorney fees as
provided in s. 814.04(1) and (6), except if the amount
of attorney fees is otherwise specified by statute.24
§ 799.25(10)(a). Thus, the Stathus interpretation of "costs

of . . . litigation" as inclusive of attorney fees seems

particularly appropriate in small claims actions, given the

language in the statute directing that "attorney fees" are

"costs." See also Scalia & Garner, supra ¶35, at 170-73

(Presumption of Consistent Usage).

¶54 Moreover, the private attorney general doctrine

supports the conclusion that attorney fees are included as costs

of litigation. The term "private attorney general" first

appeared in the law in 1943, when Judge Jerome Frank used the

phrase to describe attorneys empowered by Congress to "institute

a proceeding . . . to vindicate the public interest." Assoc.

Indus. of New York v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943).

It was soon after analogized to "a sort of King's proctor," but

did not take root in widespread practice until the 1970s.

24
As established here, the amount of attorney fees
recoverable in this action is "otherwise specified" by Wis.
Stat. § 895.446(3)(b). Thus, the $300 limit provided in Wis.
Stat. § 814.04(1)(a) does not apply to the Estate's recovery in
this case.

29
 No. 2014AP2420

F.C.C. v. Nat'l Broadcasting Co., 319 U.S. 239, 265 n.1 (1943)

(Douglas, J., dissenting); see William B. Rubenstein, On What a

"Private Attorney General" Is——And Why it Matters, 57 Vand. L.

Rev. 2129, 2130 (2004).

¶55 The expansive popularity of the doctrine in the 1970s

has been attributed to its status as an equitable exception to

the American rule that each party in a lawsuit bears its own

costs. See Ann K. Wooster, Annotation, Private Attorney General

Doctrine—State Cases 106 A.L.R. 5th 523, § 2(a) (2003);

Rubenstein, supra ¶54, at 2136 ("Once loosed as a matter of

money, the private attorney general concept's diffusion was

limited only by the imagination of lawyers seeking attorneys'

fees."). This rapid expansion, however, prompted courts to

craft legal standards to define its limits.

¶56 Under federal law, attorney fees are recoverable under

the private attorney general doctrine only where there is

statutory authority or a contract justifying the award. See

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
263 (1975); cf. id. ("[U]nder some, if not most, of the statutes

providing for the allowance of reasonable fees, Congress has

opted to rely heavily on private enforcement to implement public

policy and to allow counsel fees so as to encourage private

litigation.").

30
 No. 2014AP2420

¶57 This holding did not control the doctrine's

development at the state level,25 but Wisconsin has adopted a

similar limitation. See Marquardt v. Milwaukee Cty., 2002 WI

App 12, ¶23, 249 Wis. 2d 780, 639 N.W.2d 762. In Marquardt, the

court held that, "[i]n order for Marquardt to prevail on his

theory that he was acting as a private attorney general, he was

required to show that some statutory basis existed for his

request for attorney's fees." Id. The statutory basis for the

request, however, need not be express statutory language

authorizing attorney fees. See Watkins v. LIRC, 117

Wis. 2d 753, 755, 345 N.W.2d 482 (1984) (holding "that DILHR has

the authority to award reasonable attorney's fees to a

prevailing complainant" "even though [the] Act contains no

express statutory language authorizing such an award"). Where

there is no express authorization for attorney fees, the court

must determine "whether the authority to award attorney's fees

may be fairly implied from [the statute]"; this is a question of

statutory interpretation. Id. at 761.
¶58 "A cardinal rule in interpreting statutes is to favor

a construction that will fulfill the purpose of the statute over

a construction that defeats the manifest object of the act."

Id. at 761; see also Scalia & Garner, supra ¶35, at 63-65

25
In some states the legal standard is promulgated by
statute, see, e.g., Cal. Civ. Proc. Code § 1021.5, but in most
states, as in Wisconsin, the legal standard has developed in the
common law.

31
 No. 2014AP2420

(Presumption Against Ineffectiveness).26 An award of reasonable

attorney fees effectuates the purpose of a public rights statute

if, without the award, victims would not be in an economic

position to advance the private and public interest at stake.

See Watkins, 117 Wis. 2d at 764; Shands v. Castrovinci, 115

Wis. 2d 352, 358, 340 N.W.2d 506 (1983) ("Often the amount of

pecuniary loss is small compared with the cost of

litigation. . . . The award of attorney fees encourages

attorneys to pursue [] claims where the anticipated monetary

recovery would not justify the expense of legal action."). This

is grounded in the maxim that, if rights are to be meaningful,

they must be enforceable. See also Hartman v. Winnebago Cty.,

216 Wis. 2d 419, 433 n.8, 574 N.W.2d 222 (1998) (noting that,

where a party is acting as a private attorney general, the costs

incurred in retaining counsel are "necessary" costs because, to

fully enforce the public's rights, "assistance of counsel is

fundamental").

¶59 Given this analysis, Wis. Stat. § 895.446 could well
fall under the private attorney general doctrine.27 On the facts

of the cause before us, the Estate brought a private suit based

26
The Presumption Against Ineffectiveness dictates that
"[a] textually permissible interpretation that furthers rather
than obstructs the document's purpose should be favored."
Scalia & Garner, supra note 12, at 63.
27
We note also that other states provide for similar civil
actions based on criminalized conduct. See, e.g., In. Stat.
35-43-4-2 (Theft; receiving stolen property); In. Stat.
34-24-3-1 (Pecuniary loss as result of property offenses).

32
 No. 2014AP2420

on a criminal statute that deters theft. Criminal prosecution

is the exclusive province of the government in the United States

today. Rubenstein, supra ¶54, at 2141. Thus, in bringing a

private suit that enforces criminal proscriptions, the Estate's

cause vindicates the public right to be free from crime. See

also Watkins, 117 Wis. 2d at 764 ("[A]n individual who brings an

action to enforce a statutory right may be acting as a 'private

attorney general' to enforce the public's rights under the

statute."). Additionally, the Estate's claim was for $10,000

and the circuit court found that the hourly legal fees amounted

to $24,708.50. As a practical matter then, without attorney

fees, the Estate may not have been in an economic position to

advance the private and public interest at stake.28

¶60 Based on the foregoing, we conclude that attorney fees

are recoverable as "costs of . . . litigation" under Wis. Stat.

§ 895.446(3)(b) because the court of appeals' authoritative

interpretation in Stathus stands where the legislature failed to

act to repeal that interpretation. Additionally, the
itemization of "attorney fees" as "costs" in Wis. Stat. § 799.25

(applicable to small claims) and the private attorney general

doctrine support the conclusion that attorney fees are

recoverable here.

28
We note that the circuit court awarded attorney fees
based on an hourly rate, although the record reflects that the
Estate had a contingency fee agreement, and confine our analysis
to the facts underlying the circuit court award. See supra note
4.

33
 No. 2014AP2420

¶61 Furthermore, other language in the statute supports

our conclusion that attorney fees are recoverable. It is well

established that attorneys are agents of their clients. See,

e.g., Marten Transp., Ltd v. Hartford Specialty Co., 194

Wis. 2d 1, 13, 533 N.W.2d 452 (1995) ("The relationship of

attorney and client is one of agency."). Section 895.446(3)(b)

allows the plaintiffs in a civil theft action to recover the

"value of the time spent by any employee or agent of the

victim." Thus, the language of this provision further supports

that the Estate, as the plaintiff in this civil theft action,

may recover attorney fees as the value of the time spent by the

Estate's attorneys, who are its agents.29

¶62 In sum, to conclude that Wis. Stat. § 895.446(3)(b)

does not include attorney fees would require us to, at a

minimum, overturn precedent, disregard fundamental principles of

statutory interpretation, and ignore the legislature's inaction

with respect to this subsection, especially when the legislature

modified this very statute six times post-Stathus. We therefore
remand the cause to the circuit court with direction to award

reasonable attorney fees consistent with this opinion. See

supra ¶2 note 4.

29
Again, the reasonableness of the amount awarded was not
an issue before this court and we decline to address it so as to
afford the circuit court the opportunity to consider it in the
first instance on remand. See supra note 4.

34
 No. 2014AP2420

C. 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.
¶63 The third issue we consider is whether the court of

appeals erred in considering an argument regarding exemplary

damages that was not raised in the circuit court. This issue is

two-fold: first we determine whether considering the argument

was an erroneous exercise of discretion; second, we determine

whether the court of appeals' decision to reverse the circuit

court's award of exemplary damages was an error of law.

¶64 As to whether the court of appeals erred in

considering the issue of the circuit court's award of exemplary

damages, the Estate argues that the court of appeals erroneously

exercised its discretion because considering an argument not

preserved below creates a double standard for parties who

decline to address arguments not fully briefed by an opposing

party.30 Storey argues that the court of appeals did not

erroneously exercise its discretion because the circuit court

was wrong to award exemplary damages to the Estate on the

Estate's post-verdict motion where there is clear law that

30
The essence of this double standard is as follows: on the
one hand, responding to an issue that the opposing party did not
fully brief or raise below "open[s] the door for the Court of
Appeals to consider the issue 'thoroughly' briefed"; on the
other hand, "a failure to take on the merits of that [issue] can
be used against the respondent if the Court of Appeals" decides
to consider the issue and determines it has been forfeited by
the party that declined to respond on the basis that the issue
had not been fully briefed.

35
 No. 2014AP2420

requires an award of exemplary damages be made by the trier of

fact, which in this case was the jury.

¶65 As to whether the court of appeals erred in reversing

the circuit court's award of exemplary damages, the Estate

argues that the court of appeals erred because the law does not

clearly require a jury to determine the amount of exemplary

damages. Storey argues that the court of appeals did not err

because the law clearly requires that the trier of fact

determine the amount of exemplary damages, which in this case

was the jury; thus, the judge's award of exemplary damages on a

post-verdict motion was improper.

¶66 Regarding discretion, 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. Regarding the legal merit of reversal,

we 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, 353

Wis. 2d 377.

¶67 First, we determine whether considering the argument

was an erroneous exercise of discretion. Typically, on appeal,

a court will not consider an issue not preserved below. See

State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611

N.W.2d 727. Although this has commonly been known as the

36
 No. 2014AP2420

"waiver rule," we reiterate here that it is more properly

referred to as "forfeiture."31 See id., ¶11 n.2; Brunton v.

Nuvell Credit Corp., 2010 WI 50, ¶35, 325 Wis. 2d 135, 785

N.W.2d 302. At the circuit court, issues are preserved by

timely objection. Huebner, 235 Wis. 2d 486, ¶10. An appellate

court may, however, exercise its discretion to hear an issue not

preserved below. See Caban, 210 Wis. 2d at 609. Such an

exercise of discretion is proper where the issue raised is a

legal question, the parties have thoroughly briefed the issue,

and there are no disputed issues of fact. See Wirth v. Ehly, 93

Wis. 2d 433, 444, 287 N.W.2d 140 (1980), superseded by statute

on other grounds; see also State v. Bodoh, 226 Wis. 2d 718, 737,

595 N.W.2d 330 (1999).

¶68 Here, the court of appeals did not err when it

considered the issue of exemplary damages. First, the proper

allocation of responsibilities between the judge and the jury

with regard to exemplary damages is a question of law. See

Kimble, 353 Wis. 2d 377, ¶38. Second, Storey raised the issue
of the proper allocation of responsibilities between judge and

jury with regard to exemplary damages in her briefing in the

court of appeals, and the Estate's court of appeals brief

responds to her argument on that issue. Third, the parties do

not dispute that it was the judge, not the jury——the trier of

31
"[F]orfeiture is the failure to make the timely assertion
of a right[;] waiver is the intentional relinquishment or
abandonment of a known right." Brunton v. Nuvell Credit Corp.,
2010 WI 50, ¶35, 325 Wis. 2d 135, 785 N.W.2d 302.

37
 No. 2014AP2420

fact below——who determined both the appropriateness and the

amount of the award of exemplary damages. Thus, the court of

appeals did not err when it considered whether the circuit court

had improperly awarded exemplary damages.

¶69 Second, we determine whether the court of appeals

decision to reverse the circuit court's award of exemplary

damages was an error of law. The accepted legal standard for

awarding exemplary damages is clear. In Kimble, this court

stated:

The judge has the duty to act as the "gatekeeper" when
determining whether the issue of punitive damages32 is
properly before the jury. Once the judge has
determined that the issue of punitive damages is
properly before the jury, whether to actually award
punitive damages in a particular case is entirely
within the discretion of the jury.
353 Wis. 2d 377, ¶44 (citation omitted) (footnote added). This

establishes that, although the judge initially determines

whether exemplary damages are an appropriate issue to be

presented to the trier of fact, it is within the discretion of

the trier of fact to determine whether to actually award

exemplary damages and, if so, in what amount. See also

Topolewski v. Plankinton Packing Co., 143 Wis. 52, 53, 126

N.W. 554 (1910); Shopko Stores, Inc. v. Kujak, 147 Wis. 2d 589,

601, 433 N.W.2d 618 (Ct. App. 1988). Of course, that

32
"Exemplary damages" are synonymous with "punitive
damages." Exemplary Damages, Black's Law Dictionary 692 (10th
ed. 2014).

38
 No. 2014AP2420

determination is subject to post-verdict review, for example, on

proper motion and/or on appeal.

¶70 Here, the trier of fact in the circuit court was the

jury.33 Thus, the circuit court's decision to first award

exemplary damages on the Estate's post-verdict motion was

contrary to clear law because the issue was not first presented

to the jury, and the court of appeals decision to reverse was

proper.

¶71 In sum, we affirm the court of appeals' exercise of

discretion to consider the issue of the circuit court's post-

verdict award of exemplary damages. After consideration of the

issue, the court of appeals held that, in a jury trial, the

award of exemplary damages must be decided by the jury. See

Estate of Miller, 371 Wis. 2d 669, ¶16. Because this is a

proper application of the legal standard, we also affirm the

court of appeals' holding on the merits.

D. Whether The Court Of Appeals Properly Denied
The Estate's Motion For Reconsideration.
¶72 The fourth and final issue we consider is whether the
court of appeals properly denied the Estate's motion for

reconsideration. The Estate filed its motion for

reconsideration on July 11, 2016. In its motion, the Estate

argued that the court of appeals' holding as to actual damages

33
We note that in some instances, the judge is also the
trier of fact and it would be appropriate in that instance for
the judge to determine whether to award exemplary damages and
the amount of the award.

39
 No. 2014AP2420

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.

The court of appeals withdrew its opinion on July 14, 2016.

¶73 On July 28, 2016, the court of appeals denied the

Estate's motion, and, on August 16, 2016, the court of appeals

issued a revised opinion. With regard to actual damages, the

court of appeals removed citations to legal authority and added

language that the Estate had conceded the issue. Estate of

Miller, 371 Wis. 2d 669, ¶21. With regard to double costs, the

court of appeals added language that the Estate had conceded the

issue. Id., ¶31.

¶74 The Estate argues that the court of appeals

erroneously exercised its discretion because the court of

appeals withdrew and revised its opinion contemporaneously with

its consideration of the Estate's motion for reconsideration and

two of the revisions made were responsive to two of the motion's

arguments. In essence, the Estate argues that the court of
appeals cannot both revise its decision and deny the Estate's

motion for reconsideration, especially because the revisions

appear to be based on the merits of the motion's arguments.

Storey argues that the court of appeals properly exercised its

discretion because its withdrawal of its decision and its denial

of the Estate's motion for reconsideration were "completely

within its statutory authority."

¶75 We conclude that our analysis as to the first issue
renders analysis of this issue unnecessary because our reversal
40
 No. 2014AP2420

of the court of appeals' holdings on actual damages and double

costs obviates the substance of the Estate's remaining

arguments.34, 35

¶76 Above, we concluded that the Estate's claim is an

"other civil action" for which the $10,000 damages cap applies

and that double costs are authorized by law. See supra ¶¶32-47.

This obviates the need for us to further analyze the court of

appeals' holding on this issue,36 and we decline to do so.

34
As a general matter, we note that, under Wis. Stat.
(Rule) § 809.24(3), the court of appeals may reconsider a
decision on its own motion. Section 809.24(3) does not dictate
the grounds on which the court of appeals may withdraw and
revise a previously issued opinion. Thus, the court of appeals
is afforded discretion in withdrawing and revising previously
issued opinions. Additionally, under § 809.24(2), the court of
appeals may deny a motion for reconsideration. Section
809.24(2) does not dictate what action the court of appeals must
take on a motion, just that it must take action. Thus, the
court of appeals is afforded discretion to deny motions for
reconsideration.
35
Again, to the extent that the Estate's arguments may be
read to raise a question of law regarding the court of appeals'
statutory authority under Wis. Stat. (Rule) § 809.24, analysis
of that issue is also rendered unnecessary by our analysis of
the first issue and we need not comment further on whether the
court of appeals' revision actually reflects a grant of the
motion for reconsideration. See also supra note 11.
36
The court of appeals held that the Estate conceded that
it should have filed in large claims. See Estate of Miller, 371
Wis. 2d 669, ¶21. Although we do not analyze that holding, we
note that it appears from the record that the Estate did not
concede this issue: first, it is not clear that Storey's brief
in the court of appeals fully developed this as an argument;
second, there was no reference anywhere in the record to the
requirements for filing a large claim, not the least of which is
the filing fee, see Wis. Stat. ch. 814.

41
 No. 2014AP2420

IV. CONCLUSION

¶77 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

resolves 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.

¶78 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).

¶79 As to the second issue, we conclude that attorney fees
are included within the meaning of "costs of investigation and
42
 No. 2014AP2420

litigation" under Wis. Stat. § 895.446(3)(b) because Stathus,

260 Wis. 2d 166, 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.

¶80 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, 353 Wis. 2d 377.

¶81 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.

¶82 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.

By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part, and the cause is remanded to
43
 No. 2014AP2420

the circuit court for further proceedings consistent with this

opinion.

44
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¶83 DANIEL KELLY, J. (concurring in part, dissenting in

part). I join the court's opinion except insofar as it

concludes that Wis. Stat. § 895.446(3)(b) awards attorney's fees

to prevailing plaintiffs. Stathus v. Horst,1 our opinion's sole

source of authority supporting that conclusion, is actually

silent on the issue. And the legislature has been silent with

respect to Stathus's silence. But in that doubly-quiet void we

purport to hear not only an authoritative interpretation of a

statute, but also the legislature's commendation of that

unspoken interpretation. Because I hear no such thing, I must

respectfully dissent from that part of our opinion.

¶84 The availability of attorney's fees depends entirely

on what Wis. Stat. § 895.466(3) means when it says a prevailing

plaintiff "may recover all of the following: . . . All costs of

investigation and litigation that were reasonably incurred,

including the value of the time spent by any employee or agent

of the victim." Our methodology for discerning that meaning

focuses on the statute's text, context, and structure. State ex
rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶¶45-46, 271

Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory interpretation 'begins

with the language of the statute.' . . . Context is important to

meaning. So, too, is the structure of the statute in which the

operative language appears. Therefore, statutory language is

interpreted in the context in which it is used; not in isolation

but as part of a whole; in relation to the language of

1
2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165.

1
 No. 2014AP2420.dk

surrounding or closely-related statutes . . . ." (internal

citation omitted)). In performing this analysis, we carefully

avoid ascribing an unreasonable or absurd meaning to the text.

Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably,

to avoid absurd or unreasonable results." (citations omitted)).

If we find the statute's plain meaning through this methodology,

we go no further. Id., ¶45 ("If the meaning of the statute is

plain, we ordinarily stop the inquiry.'" (quoting Seider v.

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659));

see generally Daniel R. Suhr, Interpreting Wisconsin Statutes,

100 Marq. L. Rev. 969 (2017).

¶85 Our opinion does not conform to this methodology.

Instead of "begin[ning] with the language of the statute," we

began with a court opinion that did not address itself to the

question sub judice. Instead of considering the statute's

context and structure, we turned to a canard about the

significance of legislative inaction. And we argued that it

would be wise policy to award attorney's fees in situations like
this——an argument on which I offer no comment except to say that

the wisdom of a given policy makes the asserted meaning of a

statute neither more nor less likely to be true. And then, at

the end, we finally arrived at the statute's language, but only

in search of justification for the conclusion we had already

reached. This is a method of statutory interpretation so far

removed from the practice we endorsed in Kalal that it is

unrecognizable.

2
 No. 2014AP2420.dk

I. WHAT STATHUS V. HORST CANNOT TELL US

¶86 Citing Kalal, our opinion says "[w]e begin with the

language of the statute." Majority op., ¶50. And we did,

inasmuch as we quoted Wis. Stat. § 895.446(3) near the beginning

of the attorney's fees section of our opinion. But Kalal is not

telling us where we should place the quote——it is telling us

that the language should be the first thing to capture our

analytical attention. However, after quoting the statute, we

promptly ignored it until giving it a paragraph's worth of

attention at the end of our analysis, and then only after we had

already concluded the language we did not construe awards

attorney's fees to prevailing plaintiffs. Our analysis actually

started with the invocation of a canon of construction to make

it appear that Stathus said something it did not.

¶87 We said that the "Prior Construction Canon" requires

us to read Wis. Stat. § 895.446(3) as awarding attorney's fees

to prevailing plaintiffs. This interpretive aid counsels that

"[i]f a statute uses words or phrases that have already received
authoritative construction by the jurisdiction's court of last

resort, or even uniform construction by inferior

courts . . . , they are to be understood according to that

construction." Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 322 (2012). We have never

construed the language of § 895.446(3)(b), so the canon directs

our attention to our court of appeals.

¶88 We offered Stathus as the only candidate in which we
may find an authoritative construction of the statute's

3
 No. 2014AP2420.dk

language. But before we hunt through the Stathus opinion for

such a thing, it's worth a short digression to describe the

subject of our search. The term "construction" refers to the

process by which we discover the meaning of the written law. It

is "[t]he act or process of interpreting or explaining the sense

or intention of a writing (usu. a statute, opinion, or

instrument)." Black's Law Dictionary 308 (7th ed. 1999).

Construction, as applied to written law, is the art or
process of discovering and expounding the meaning and
intention of the authors of the law with respect to
its application to a given case, where that intention
is rendered doubtful either by reason of apparently
conflicting provisions or directions, or by reason of
the fact that the given case is not explicitly
provided for in the law.
Id. (quoting Henry Campbell Black, Handbook on the Construction

and Interpretation of the Laws 1 (1896)).

¶89 So if Stathus is to bear the weight we assign it, we

should find in that opinion an effort to discover and expound on

the meaning of Wis. Stat. § 895.446(3)(b) as it relates to

liability for the plaintiff's attorney's fees. Stathus, of

course, contains no such thing. Surprisingly, this is not even

a point of contention——our opinion frankly admits the court of

appeals did not construe the language in which we are

interested: "We acknowledge that the Stathus court did not

directly consider the issue of whether attorney fees were

awardable; rather, in promulgating the standards by which a

circuit court should determine whether an award of attorney fees

under the statute is reasonable, the Stathus court assumed that
attorney fees were awardable." Majority op., ¶52 n.21. Because

4
 No. 2014AP2420.dk

the "Prior Construction Canon" performs its work on

"constructions," our concession that Stathus contains only an

assumption necessarily disqualifies it from the canon's

operation.

¶90 But with a liberal application of a few more canons,

we claim to have coaxed something authoritative out of Stathus:

"This assumption, however, is a prior construction under the

Predicate-Act Canon[2] and the Interpretation Principle[3] of

statutory construction. . . . Thus, when the Stathus court

remanded to the circuit court with instructions to 'apply the

appropriate standards for determining "reasonableness"' of

attorney fees under the statute, it necessarily construed the

statute as authorizing the award of attorney fees." Majority

op., ¶52 n.21. No sentence that begins "[t]his

assumption . . . is a prior construction" can advance any

logically defensible proposition. A "construction," as

described above, is the discovery and exposition of meaning. An

2
"Authorization of an act also authorizes a necessary
predicate act." Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 192 (2012) (defining the
"Predicate-Act Canon").
3
"Every application of a text to particular circumstances
entails interpretation." Id. at 53 (defining the
"Interpretation Principle").

5
 No. 2014AP2420.dk

assumption is the absence of that. The laws of a rational

universe forbid these being the same thing.4

¶91 Even without this error, the "Predicate-Act Canon" can

provide no useful instruction here. It is certainly true that

the Stathus court, in remanding the case to determine the

reasonableness of the claimed attorney's fees, also authorized

the circuit court to award those fees. But what of it? Our

project here is discerning the meaning of a statute, not a

matter's undisputed procedural history. But perhaps we mean to

say the Stathus court's assumption was an "act" within the

meaning of this canon. If that is what we meant, then this is a

good object lesson in why the canon applies to "acts" (as its

name suggests), not reasoning. If the canon allows us to

conclude that Stathus authoritatively answered the question

before us because its assumptions were necessary for its

conclusion, then the canon does nothing but create logical

fallacies. Positing an argument's premise in the conclusion as

a means of proving the premise's truth is known as the petitio
principii (or "begging the question") error. Bootstrapping does

not make a premise more likely to be true.

4
The law of non-contradiction holds that a proposition
cannot be simultaneously true and not true. Aristotle,
Metaphysics bk. IV, ch. VI, at 1011b (W.D. Ross, trans., Oxford,
Clarendon Press 1908) (c. 350 B.C.E.) (stating that "the most
indisputable of all beliefs is that contradictory statements are
not at the same time true"). Thus, the Stathus court cannot
have both (1) assumed this statute awards attorney's fees, and
also (2) engaged in a process of discovery and exposition on
that subject.

6
 No. 2014AP2420.dk

¶92 The "Interpretation Principle" is similarly unhelpful.

Yes, "[e]very application of a text to particular circumstances

entails interpretation." Scalia & Garner, supra ¶5, at 53. But

that truism requires an application of the text. As our opinion

admits, however, the Stathus court didn't apply the text to the

question in which we are interested. Thus, there is no

interpretation for this canon to validate. So, even if we had

the power to suspend the iron-clad law of non-contradiction,

this brace of canons is no more helpful than the first.

¶93 As our opinion reveals, we don't have enough

interpretive canons to make Stathus say something authoritative

about the availability of attorney's fees under Wis. Stat.

§ 895.446(3)(b). We should be grateful this is so. For if our

opinion is correct, and this cocktail of canons has the power to

create ex nihilo, then we have called forth from our

interstitial silences a host of undefined (and undefinable)

authorities. Who knows what manner of inchoate precedent will

answer that summons? Our responsibility (and authority) lies
only in saying what the law is——that is, saying what it already

is; it is not for us to use interpretive canons to speak the law

into existence. Marbury v. Madison, 5 U.S. 137, 177 (1803).

II. LEGISLATIVE INACTION

¶94 To affirm the continuing validity of Stathus's non-

holding, our opinion observes that the legislature has done

nothing to counter the court of appeals' assumption that Wis.

Stat. § 895.446(3)(b) awards attorney's fees to prevailing
plaintiffs: "[T]he legislature had ample opportunity to act on

7
 No. 2014AP2420.dk

or repeal the judicial interpretation of 'costs

of . . . litigation' in Stathus, particularly when it amended

subsection (3)(b). . . . [b]ut the legislature did not act on or

repeal the interpreted language." Majority op., ¶52. Accepting

for the sake of argument that there was a "judicial

interpretation" to which the legislature could respond, there is

nothing to suggest the legislature's non-response could have

anything to say about the statute.

¶95 As mentioned above, we look for a statute's meaning in

its text, context, and structure. Kalal, 271 Wis. 2d 633, ¶¶45-

46. These are things that exist and have definable content, the

meaning of which we may contest. Some would also include

legislative history as a source of a statute's meaning——e.g.,

instructions delivered to the bill's drafter, iterations of a

bill presented in committee or to the full legislative body,

statements delivered by the members in a legislative chamber, et

cetera. Regardless of the propriety of consulting such

material, it at least shares with the statute's text the benefit
of being something that exists; it has definable content to

which construing minds might have recourse.

¶96 Legislative inaction, on the other hand, is a

negation. There is no definable content in a void, and there

can be no meaning drawn from it. There are several reasons this

is true.

¶97 First, attributing significance to legislative

inaction depends on an overweening, court-centric view of our
relationship to the other branches of government. If this

8
 No. 2014AP2420.dk

interpretive device is to function, it requires a belief that

the legislature carefully attends to everything we say,

rigorously compares our pronouncements to its own understanding

of the statutory corpus,5 compiles a list of disagreements, and

privileges corrective measures over everything else on its

crowded legislative calendar.

¶98 This, of course, hasn't the slightest correlation to

reality. The legislature is a coordinate branch of government

with its own unique responsibilities, functions, and priorities.

It does not pay court to us, nor does it have the least

obligation to do so. That it does, from time to time, adopt

legislation specifically designed and intended to respond to one

of our holdings gives us no license to pretend it will always do

so when it disagrees with us.

¶99 Second, drawing an inference from legislative inaction

involves an unwarranted temporal elision. The meaning of a

statute is fixed at the point it is adopted. To the extent we

are looking past the text to the legislature to determine what
its membership thought the statute meant, we should at least

look to the body that adopted it. The legislature does not have

stagnant membership——it is, in fact, reconstituted every other

year. Many legislators return, but the change of even one

member makes it a new body. If we look for meaning in the

5
The legislature does not actually have a collective
understanding of a statute's meaning. A legislature is not a
monolith; ours is a body that comprises 132 members, all of whom
exercise their mental faculties independently of the others. So
to speak of a collective understanding is to speak of a fiction.

9
 No. 2014AP2420.dk

inactivity of successive legislatures, then we are asking after

the wrong body.

This assumption [about the significance of legislative
inactivity], which frequently haunts our opinions,
should be put to rest. It is based, to begin with, on
the patently false premise that the correctness of
statutory construction is to be measured by what the
current Congress desires, rather than by what the law
as enacted meant.
Johnson v. Transp. Agency, Santa Clara Cty. Cal., 480 U.S. 616,

671 (1987) (Scalia, J., dissenting).

¶100 Third, whether a court's interpretation of a statute

should be rejected is a substantively different question from

whether the statute should be adopted in the first instance:

"To make matters worse, it [the legislative inaction principle]

assays the current Congress' desires with respect to the

particular provision in isolation, rather than (the way the

provision was originally enacted) as part of a total legislative

package containing many quids pro quo." Id. (emphasis omitted).

There is no telling what might incentivize legislators to reject

our statutory interpretations, or dissuade them from doing so.
Nor do we have the means by which to compare those dynamics to

the supporting rationale for the statute's provisions when

adopted.

¶101 Finally, there are a variety of reasons the

legislature may take no action on any given question. Because

most of those reasons have nothing to do with the accuracy of

our work, there simply isn't any way to espy meaning in the

legislature's silence:

10
 No. 2014AP2420.dk

But even accepting the flawed premise that the intent
of the current Congress, with respect to the provision
in isolation, is determinative, one must ignore
rudimentary principles of political science to draw
any conclusions regarding that intent from the failure
to enact legislation. The 'complicated check on
legislation,' The Federalist No. 62, p. 378 (C.
Rossiter ed. 1961), erected by our Constitution
creates an inertia that makes it impossible to assert
with any degree of assurance that congressional
failure to act represents (1) approval of the status
quo, as opposed to (2) inability to agree upon how to
alter the status quo, (3) unawareness of the status
quo, (4) indifference to the status quo, or even (5)
political cowardice.
Id. at 671-72. Even if a majority of one of the succeeding

legislature's members wished to rebuke our interpretation, that

desire still might not result in a new law: "[I]ntuiting those

desires from congressional failure to act is an uncertain

enterprise which takes as its starting point disregard of the

checks and balances in the constitutional scheme of legislation

designed to assure that not all desires of a majority of the

Legislature find their way into law." United States v. Johnson,

481 U.S. 681, 703 (1987) (Scalia, J., dissenting).

¶102 This "legislative inaction" device has no explanatory
power whatsoever, and we should not pretend it does. As Justice

Scalia said, "I think we should admit that vindication by

congressional inaction is a canard." Johnson, 480 U.S. at 672

(Scalia, J., dissenting). I do, too.

¶103 Our opinion relies on it anyway because, well, that's

what we do: "[The] concurrence/dissent takes issue with this

canon of construction . . . but does not argue that Wisconsin
law does not support application of the canon or that we have

incorrectly applied the canon here." Majority op., ¶51 n.20.
11
 No. 2014AP2420.dk

Alas for the day in which exposing one of our analytical

constructs as just make-believe doesn't diminish its authority.

Notwithstanding the emptiness of this judicial fabrication, we

are so humbled by it that we cannot even imagine challenging its

place in our jurisprudence. Yes, our prior opinions support the

use of this fiction. But reason doesn't. Between the two, we

should choose the latter. We have both the authority and the

responsibility to do so.

¶104 Perhaps even more unsettling is our revelation that,

without this fiction and a clutch of inapposite canons, we would

be unable to interpret our statutes: "In other words, the

dissent has presented a problem without suggesting a solution,

and we decline to digress from the established canons of

construction because to do so would leave us with no

intelligible, generally accepted and consistently applied theory

of statutory interpretation." Majority op., ¶51 n.20 (internal

quotations and citation omitted). We could always consult the

statute's text, as Kalal teaches——a solution with which I
introduced this opinion, and which I address below.

III. THE STATUTE'S TEXT

¶105 After having already concluded that the statute shifts

responsibility for attorney's fees to the defendant, our opinion

finally turns to the statute's text to see what it might have to

say for itself: "Furthermore, other language in the statute

supports our conclusion that attorney fees are recoverable."6

6
We reached our conclusion as early as ¶49; our treatment
of the statute's language did not start until ¶61.

12
 No. 2014AP2420.dk

Majority op., ¶61. "Other" language supports our conclusion?

This suggests we had already construed some of the statute's

language. We hadn't. Until this paragraph all we had done with

the language was quote it. In any event, our analysis of the

statute's language spanned a single paragraph. See id. And in

that paragraph we simply recognized that (1) attorneys act in an

agency capacity with respect to their clients, and (2) the

statute awards "the value of the time spent by any employee or

agent of the victim" as a cost to the prevailing plaintiff.

¶106 While it is true that attorneys act in an agency

capacity for their clients, it does not inexorably follow from

this that the legislature means the term "agent" to encompass

"attorney." And there is substantial evidence that it does not

mean this. When the legislature wants a provision to apply to

both attorneys and agents, it makes its intention known by

actually saying it applies to both attorneys and agents. It has

done this so consistently, and so broadly across the statutory

corpus, that it has created a quite distinct pattern, a pattern
our opinion does not acknowledge. See, e.g., Wis. Stat.

§§ 19.05 ("the plaintiff's agent or the plaintiff's attorney"),

42.01 ("an authorized attorney or agent"), 59.40 ("the party's

agent or the party's attorney"), 59.694 ("agent or attorney"),

60.06 ("agents, attorneys and representatives"), 60.351 ("agent

or attorney"), 62.23 ("by agent or by attorney"), 66.0111

("attorney or agent"), 66.0703 ("agents or attorneys"), 71.78

("agent or attorney"), 73.01 ("petitioner's attorney or agent"),
76.30 ("person's authorized agent or attorney"), 77.61

13
 No. 2014AP2420.dk

("person's authorized agent or attorney"), 87.12 ("engineers,

attorneys, agents, assistants, clerks, employees and laborers"),

93.18 ("agent or attorney"), 100.23 ("his or her agent or

attorney"), 102.123 ("employee's attorney or other authorized

agent"; "employee, attorney, or agent"), 102.30 ("agent or

attorney"), 102.33 (stating phrase "attorney or authorized

agent" five times), 103.275 ("attorney or agent"; "person's

attorney or agent"), 103.58 ("agents, servants, employees and

attorneys"), 133.08 ("applicant's agent or attorney"), 115.997

("officers, attorneys, employees, agents, or consultants"),

134.19 ("principal, agent or attorney"), 145.10 ("attorney or

agent"; "person's attorney or agent"), 171.04 ("person's agent

or attorney"), 171.05 ("person's agent or attorney"), 171.06

("person's agent or attorney"), 181.1603 ("member's agent or

attorney"; "agent or attorney"), 180.0720 (stating "shareholder

or his or her agent or attorney" three times), 180.1602 ("agent

or attorney"), 180.1603 ("shareholder's agent or attorney"),

185.47 ("any member or stockholder, or his or her agent or
attorney"), 186.70 ("agent or attorney"), 193.501 ("member's

agent or attorney"), 214.525 ("person, agent, or attorney"),

217.19 ("agent or attorney"), 221.0518 (stating "shareholder or

his or her agent or attorney" three times), 279.07 ("interested

persons or their agents or attorneys"), 280.13 ("attorney or

agent"; "licensee's attorney or agent"), 304.16 ("officers,

attorneys, employees, agents, or consultants"), 321.61 (stating

"person's agent or attorney" three times; "person or agent or
attorney"), 610.50 ("insurer or an employee, agent or attorney

14
 No. 2014AP2420.dk

of an insurer"), 611.51 ("policyholder's agent or attorney"),

701.0802 ("agent or attorney of the trustee"), 757.30 ("person

who appears as agent, representative or attorney"), 779.98

("person's agent or attorney"), 799.45 ("plaintiff's attorney or

agent"; "plaintiff or his or her attorney or agent"), 804.01

("attorney, consultant, surety, indemnitor, insurer, or agent"),

814.245 ("attorneys or agents"), 815.53 ("creditor or his or her

attorney, or agent"), 881.016 ("attorneys, accountants,

investment advisers, agents or other persons"), 893.80 ("party,

agent or attorney"), 893.82 ("his or her agent, attorney or

personal representative"), 895.14 ("the party injured, agent or

attorney"), 898.02 ("plaintiff's agent or attorney"), 898.03

("plaintiff's agent or attorney"), 938.999 ("officers,

attorneys, employees, agents, or consultants"), 946.13

("director, officer, employee, agent or attorney"), 946.17

("agent or attorney of any person"; "agent or attorney").7

¶107 If the term "agent" subsumes "attorney," there would

have been no need to mention the latter on these 60 occasions.
We should not shoehorn the term "attorney" into "agent" when the

legislature so clearly does not. The statute, by its own terms,

makes a defendant liable for the time value of the prevailing

plaintiff's agents. But, for whatever reason, the legislature

7
Two of these statutes, Wis. Stat. §§ 60.06 and 814.245,
are fee-shifting provisions, demonstrating that even in this
context the legislature makes a distinction between "attorneys"
and "agents." All of these statutes refer to the current 2015-
16 version.

15
 No. 2014AP2420.dk

chose not to extend the statute's mandate to attorney's fees.

Whether it should have done so is none of our business.

¶108 Even if this were an insufficient reason to reject our

reading of the statute, the text provides an even more explicit

reason to do so. One of the most respected principles of

statutory construction is that we should not interpret text in a

manner that reduces any of its language to ignominious

surplusage. Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language is

read where possible to give reasonable effect to every word, in

order to avoid surplusage."). We cannot understand "agent" as

inclusive of "attorney" without violating that principle for the

following reasons.

¶109 The statute under consideration actually contains two

cost-shifting provisions. The first is general and applies to

all causes of action authorized by Wis. Stat. § 895.446(1): "If

the plaintiff prevails in a civil action under sub. (1), he or

she may recover all of the following: . . . ." § 895.446(3).

The second is specific, and applies only to a subset of claims
authorized by the statute. This specific provision explicitly

makes the defendant liable for the prevailing plaintiff's

attorney's fees: "If the violation of s. 943.01(1) involves the

circumstances under s. 943.01(2d), the court may award a

prevailing plaintiff the reasonable attorney fees incurred in

litigating the action . . . ." § 895.446(3m)(b).8

8
The type of property damage to which this provision refers
is not at issue in this case.

16
 No. 2014AP2420.dk

¶110 Our conclusion does irremediable damage to the text of

the specific cost-shifting provision. If the general provision

already includes attorney's fees, there is no reason for the

specific provision to authorize a court to make such an award.

That is to say, our understanding of the general provision makes

the specific provision's award of attorney's fees entirely

meaningless. But there is nothing about the statute or this

case that requires us to cause that damage. If we don't stuff

"attorney" into "agent" (which would be felicitously consistent

with the legislature's choices), then the specific provision's

award of attorney's fees will have good work to do. And we will

have given "reasonable effect to every word," and left no

surplusage. We did not explain why we should ignore this

internally-consistent reading of the statute.

¶111 Our opinion demonstrates an understandable fondness

for canons of statutory construction. When carefully applied in

applicable circumstances, they can powerfully illuminate a

statute's meaning. Out of the many cited canons, however,
perhaps the only applicable one is the presumption against

legislative changes to the common law: "A statute will be

construed to alter the common law only when that disposition is

clear." Scalia & Garner, supra ¶5, at 318 (defining the

"Presumption Against Change in Common Law"); see majority op.,

¶51. In Wisconsin, we follow the "American Rule" with respect

to attorney's fees:

The general rule, known as the American rule, is that
attorney's fees are not ordinarily recoverable in the
absence of a statute or enforceable contract providing
therefor. Each party to a lawsuit, under this theory,
17
 No. 2014AP2420.dk

should bear its own costs of litigation. The American
rule has been recognized and followed in Wisconsin.
Kremers-Urban Co. v. Am. Emp'rs Ins. Co., 119 Wis. 2d 722, 744-

45, 351 N.W.2d 156 (1984) (internal citations omitted). That's

our common law. So if Wis. Stat. § 895.446(3)(b) is to alter

that rule, it must do so clearly. We, however, derived our

attorney's fees holding wholly from what we think we squeezed

out of silence. That should make it self-evident that this

statute did not "clearly" alter the common law.

IV. CONCLUSION

¶112 We found the meaning of Wis. Stat. § 895.446(3)(b) in

a court of appeals opinion that did not address the question we

answered, a collection of inapposite interpretive canons, some

policy arguments, and a canard. This is not how we are supposed

to interpret statutes. And the methodology we employed led us

to the wrong conclusion. Consequently, I respectfully dissent

from that portion of our opinion.

¶113 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this opinion concurring in part and dissenting in

part.

18
 No. 2014AP2420.ssa

¶114 SHIRLEY S. ABRAHAMSON, J. (dissenting). Unlike the

majority, I conclude that civil theft is an "action based in

tort" within the meaning of Wis. Stat. § 799.01(1)(cr).

Therefore, the Estate's compensatory damages should be capped at

$5,000, and the Estate is not entitled to double costs.1

¶115 In reaching an opposite conclusion, the majority

relies entirely on unremarkable truisms and simply ignores the

wealth of prior cases in which Wisconsin courts have either

explicitly or implicitly characterized certain statutory causes

of action as "torts" or as "sounding in tort."

¶116 The majority repeatedly draws distinctions between

statutory claims and "common law" tort claims in order to

conclude that the statutory claim for civil theft under Wis.

Stat. § 895.446 cannot be a common law tort claim. In so doing,

the majority pulls a bait-and-switch in order to answer a

question that was never asked.

¶117 The question presented in the instant case is not

whether a civil theft claim pursuant to Wis. Stat. § 895.446 is

a "common law" tort claim. It obviously is not. Rather, the

actual question presented is whether a civil theft claim

pursuant to § 895.446 is an "action based in tort" under Wis.

Stat. § 799.01(1)(cr). Reader beware! The majority's choice of

language is calculated to erect a strawman that it can then

1
I agree with the majority that whether to award exemplary
damages, and if so, in what amount, is a question to be decided
by the finder of fact.

1
 No. 2014AP2420.ssa

easily set ablaze in the guise of reasoned and principled

analysis.

¶118 I also write to make clear that I do not agree with

the majority's conclusion that Wis. Stat. § 895.446(3)(b) awards

attorney fees in the present case. On this issue, I largely

agree with the analysis of Justice Kelly's dissent.

¶119 Lastly, I conclude that the majority fails to fully

delineate the elements of the private attorney general doctrine,

leading to a flawed result.

¶120 Because a civil theft claim pursuant to Wis. Stat.

§ 895.446 is an "action based in tort" and attorney fees are not

awardable to prevailing plaintiffs under Wis. Stat.

§ 895.446(3)(b), I dissent.

I

¶121 The majority states four equally unpersuasive reasons

for its conclusion that a civil theft claim pursuant to Wis.

Stat. § 895.446 is not an "action based in tort," but instead,

qualifies as an "other civil action" under Wis. Stat.
§ 799.01(1)(d). The majority reasons as follows: first,

§ 895.446, the civil theft statute, states that it is creating a

"civil action"; second, Wisconsin case law distinguishes the

statutory civil theft claim under § 895.446 from similar common-

law tort claims; third, Wisconsin case law distinguishes between

other statutorily created civil claims and common-law tort

claims; and fourth, there is a long-standing distinction in the

common law between crimes and torts, even though both may be
based on the same conduct, which suggests that a plaintiff

2
 No. 2014AP2420.ssa

acting under a civil statute that enables enforcement of

criminal law is not bringing an action based in tort. Majority

op., ¶34.

¶122 The majority's latter three reasons together suffer

from the same infirmity: these three reasons answer a question

that was never asked. These three reasons answer the question

"Is a civil theft claim pursuant to Wis. Stat. § 895.446 a

common law tort claim?" This is not the question presented by

the case. The question presented is as follows: "Is a civil

theft claim pursuant to Wis. Stat. § 895.446 an 'action based in

tort' under Wis. Stat. § 799.01(1)(cr)?"2

¶123 The majority spends several paragraphs explaining the

unremarkable proposition that specific statutory causes of

action are separate and distinct from their similar common law

counterparts, see, e.g., majority op., ¶¶36-40, and pointing out

that "there has long been a distinction in the common law

between a tort claim and a criminal charge[,]" majority op.,

¶41.

2
The majority opinion explains that causes of action
created by Wis. Stat. § 895.446(1), including a civil theft
claim, are referred to as "civil actions." Majority op., ¶35;
Wis. Stat. § 895.446(2), (3). It then concludes that "the use
of the term 'civil action' in Wis. Stat. § 895.446 to describe
the cause therein provided indicates that the cause may also be
properly characterized as a 'civil action' under Wis. Stat.
§ 799.01." Majority op., ¶35. This conclusion leads nowhere.
It is a dead end. Every action listed in § 799.01 is a "civil
action," including all tort actions. Being a "civil action" is
not a distinguishing characteristic that is helpful in
determining the specific subsection of § 799.01 into which the
claim of civil theft falls.

3
 No. 2014AP2420.ssa

¶124 The majority's analytical errors are threefold.

First, the majority answers a question that is not asked. It

repeatedly draws distinctions between statutory claims and

common law tort claims without ever acknowledging that the

question presented asks whether a statutory civil theft claim is

"an action based in tort" as opposed to asking whether a

statutory civil theft claim is a "common-law tort."

¶125 Second, the majority fails to explain why a statutory

claim and a very similar, though distinct, common-law tort claim

cannot both be considered actions based in tort. The great

weight of Wisconsin authority confirms that statutory claims and

very similar, though distinct, common-law tort claims may both

be considered actions based in tort.3

¶126 Third, the relevance of the majority's pointing out

that a civil tort claim, whether created by statute or common

law, is separate and distinct from a criminal prosecution for

the same conduct is not apparent. There are countless crimes

3
See, e.g., Fandrey ex rel. Connell v. Am. Family Mut. Ins.
Co., 2004 WI 62, ¶¶9, 19, 272 Wis. 2d 46, 680 N.W.2d 345
(recognizing "that § 174.02 [strict liability dog-bite statute]
is a codified tort action" and further explaining that "the fact
that liability in this case is predicated upon a statute rather
than a common-law cause of action is not dispositive, as
§ 174.02 still sounds in tort; it is a codified cause of action
for a civil wrong"); Hanlon v. Town of Milton, 2000 WI 61, ¶16,
235 Wis. 2d 597, 612 N.W.2d 44 (describing claim under 42 U.S.C.
§ 1983 as a tort); Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 45-
46, 532 N.W.2d 130 (1995) (describing the "purely [] statutory
remedy" of wrongful death action as "an action in tort"); Shopko
Stores, Inc. v. Kujak, 147 Wis. 2d 589, 433 N.W.2d 618 (Ct. App.
1988) (referring to an "underlying tort" when examining a civil
action under § 943.51 for retail theft).

4
 No. 2014AP2420.ssa

the commission of which will likely constitute a tort against

the victim, including, for example, battery and theft. Conduct

that amounts to a crime is very likely to be considered "conduct

that amounts to a legal wrong and that causes harm for which

courts will impose civil liability." 1 Dan Dobbs et al., The

Law of Torts § 1 (2d ed. 2011).

¶127 In sum, the majority opinion answers a question that

was never asked in order to reach a conclusion that contradicts

almost 30 years of case law. As a result, the majority is

unpersuasive.

II

¶128 In addition to asking this court to determine whether

a statutory civil theft claim is an "action based in tort"

pursuant to Wis. Stat. § 799.01(1)(cr), the instant case also

asks us to determine whether Wis. Stat. § 895.446(3)(b),

specifically, the language "[a]ll costs of investigation and

litigation that were reasonably incurred, including the value of

the time spent by any employee or agent of the victim," includes
an award for actual reasonable attorney fees to prevailing

plaintiffs.

¶129 I agree to a large extent with Justice Kelly's dissent

concluding that Wis. Stat. § 895.446(3)(b) does not provide for

an award of actual reasonable attorney fees.

¶130 In invoking the private attorney general doctrine to

support its conclusion that a plaintiff successful in proving a

statutory civil theft claim is entitled to an award of attorney

5
 No. 2014AP2420.ssa

fees, the majority writes too broadly and misstates the private

attorney general doctrine.4

¶131 In Wisconsin, a party will be awarded attorney fees,

even in the absence of contractual or statutory authorization,

if that party vindicates a right that: (1) benefits a large

number of people; (2) requires private enforcement; and (3) is

of societal importance. See Shands v. Castrovinci, 115

Wis. 2d 352, 340 N.W.2d 506 (1983); State ex rel. Hodge v. Town

of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993); Watkins

v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984); Richland Sch.

Dist. v. DILHR, 166 Wis. 2d 262, 479 N.W.2d 579 (Ct. App. 1991);

accord Maness v. Daily, 307 P.3d 894, 906 (Alaska 2013); Cave

Creek Unified Sch. Dist. v. Ducey, 308 P.3d 1152, 1159 (Ariz.

2013); In re Conservatorship of Whitley, 241 P.3d 840, 846 (Cal.

2010); Honolulu Const. & Draying Co., Ltd. v. State, Dep't of

Land & Natural Res., 310 P.3d 301, 303 (Haw. 2013); Bitterroot

River Protective Ass'n v. Bitterroot Conservation Dist., 251

P.3d 131, ¶20 (Mont. 2011); Highlands at Jordanelle LLC v.
Wasatch Cnty., 355 P.3d 1047, ¶35 (Utah 2015); Ann K. Wooster,

Annotation, Private Attorney General Doctrine——State Cases, 106

A.L.R. 5th 523 (2003); Carl Cheng, Comment, Important Rights and

4
For further background on the doctrine, see William B.
Rubenstein, On What a "Private Attorney General" Is——and Why It
Matters, 57 Vand. L. Rev. 2129, 2129-36, 2139-48 (2004); Carl
Cheng, Comment, Important Rights and the Private Attorney
General Doctrine, 73 Cal. L. Rev. 1929, 1929-41 (1985); The
Supreme Court, 1974 Term, 89 Harv. L. Rev. 47, 170-82 (1975).

6
 No. 2014AP2420.ssa

the Private Attorney General Doctrine, 73 Cal. L. Rev. 1929,

1929 (1985).

¶132 The seminal Wisconsin case regarding the private

attorney general doctrine is Shands v. Castrovinci, 115

Wis. 2d 352, 340 N.W.2d 506 (1983). In Shands, the plaintiff, a

residential tenant, commenced a small claims action against her

former landlord to recover her security deposit of $145.

Shands, 115 Wis. 2d at 354. The statute under which Shands sued

allowed for the recovery of twice the amount of the actual

pecuniary loss, together with costs, including a reasonable

attorney fee. Wis. Stat. § 100.20(5) (1983-84). The circuit

court found that the landlord improperly withheld her security

deposit and awarded Shands $290 as damages. Shands, 115 Wis. 2d

at 355. After an evidentiary hearing, the court awarded an

additional $287.50 for attorney fees. Shands, 115 Wis. 2d at

355. Castrovinci appealed but was unsuccessful. Shands, 115

Wis. 2d at 356. The issue on appeal was whether Shands was

entitled to an award of attorney fees incurred as a result of
the appeal. Shands, 115 Wis. 2d at 357-58. The supreme court

held that she was.

¶133 The Shands court held that Shands was entitled to

attorney fees incurred as a result of Castrovinci's unsuccessful

appeal, explaining that its decision was in accord with the

purpose of the statute and public policy in general as follows:

First, the recovery of double damages and attorney
fees encourages injured tenants to bring legal actions
to enforce their rights under the administrative
regulations. Often the amount of pecuniary loss is
small compared with the cost of litigation. Thus, it

7
 No. 2014AP2420.ssa

was necessary to make the recovery large enough to
give tenants an incentive to bring suit. The award of
attorney fees encourages attorneys to pursue tenants'
claims where the anticipated monetary recovery would
not justify the expense of legal action. While
attorneys generally are willing to perform pro bono
legal services in appropriate cases, we recognize that
practical considerations limit the number of such
suits.

Second, the tenant who sues under the statute acts as
a "private attorney general" to enforce the tenants'
rights set forth in the administrative regulations.
Thus, the individual tenant not only enforces his or
her individual rights, but the aggregate effect of
individual suits enforces the public's rights.

Third, tenant suits have the effect of deterring
impermissible conduct by landlords because, if they
violate the administrative regulations, they will be
subject to double damages and will be responsible for
costs, including attorney fees. The deterrent effect
of the statute strengthens the bargaining power of
tenants in dealing with landlords.

Finally, in an amicus brief the Wisconsin Department
of Justice noted that private tenant actions provide a
necessary backup to the state's enforcement powers
under sec. 100.20, Stats. The department pointed out
that the sheer number of violations prevent it from
proceeding against all violators. Private tenant
actions thus constitute an enforcement mechanism
reinforcing that of the justice department.
Shands, 115 Wis. 2d at 358-59.

¶134 Wisconsin has also applied the private attorney

general doctrine in cases involving the enforcement of rights

under the Wisconsin Open Meetings Law, State ex rel. Hodge v.

Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993), the

Wisconsin Fair Employment Act, Watkins v. LIRC, 117 Wis. 2d 753,

345 N.W.2d 482 (1984), and the Wisconsin Family and Medical
Leave Act, Richland Sch. Dist. v. DILHR, 166 Wis. 2d 262, 479

N.W.2d 579 (Ct. App. 1991).
8
 No. 2014AP2420.ssa

¶135 The instant case does not meet the elements of the

private attorney general doctrine, and bears no resemblance to

other Wisconsin cases in which the private attorney general

doctrine has been applied.

¶136 First, the lawsuit does not benefit the general public

or a large class of persons. Though the instant case involved

theft from an elderly individual, the theft statute and Wis.

Stat. § 895.446 apply broadly to all individuals. The benefit

conferred to the public in the lawsuit is that the law is

enforced.5 To the extent one could fairly identify a benefit

conferred upon the elderly as a class, the motivation for the

lawsuit in the instant case was personal monetary recovery, not

the advancement of the public's interest in protecting the

elderly as such.

¶137 Second, it does not appear that private enforcement is

necessary to enforce the public's right to be free from theft.

There is no evidence that prosecutors' offices across the state

are overwhelmed such that private actions are needed to
constitute an enforcement mechanism reinforcing the State

criminal law punishing theft. See Shands, 115 Wis. 2d at 359.

¶138 Relatedly, and contrary to the majority's conclusion,6

the Estate had a sufficient financial incentive to pursue
5
The public always has a significant interest in seeing
that the laws are enforced——it always derives some benefit when
illegal private or public conduct is rectified. Something more
than this general benefit must be shown to make sure that the
private attorney general doctrine does not become the default
rule.
6
Majority op., ¶59.

9
 No. 2014AP2420.ssa

litigation in the instant case. It sought $10,000 in actual

damages and could have received an additional $30,000 in

exemplary damages under the statute in addition to costs.

Compare this potential $40,000 recovery with the $290 recovery

in Shands and the lack of any monetary recovery at all to the

successful plaintiff in Watkins.

III

¶139 By relying entirely on unremarkable truisms and red

herrings in the guise of reasoned analysis, the majority

concludes that a civil theft claim under Wis. Stat. § 895.446 is

not an "action based in tort" within the meaning of Wis. Stat.

§ 799.01(1)(cr). Thus, the majority contravenes almost 30 years

of case law compelling a contrary conclusion.

¶140 Additionally, the majority erroneously concludes that

Wis. Stat. § 895.446(3)(b) affords successful plaintiffs an

award for attorney fees when the statute's text, context, and

structure all lead to a contrary conclusion. Compounding its

errors, the majority purports to rely in part on the private
attorney general doctrine for its conclusion that the Estate is

entitled to attorney fees. In doing so, the majority fails to

fully and correctly explain the doctrine's elements, leading to

its misapplication of the doctrine. Consequently, I dissent.

10
 No. 2014AP2420.ssa

1