Estate of Stanley G. Miller c/o Genevieve Miller, Personal Representative, Plaintiff-Respondent,
Diane Storey, Defendant-Appellant.
for publication in the official reports
from a judgment of the circuit court for Marathon County:
Cir. Ct. No. 2013SC669 JILL N. FALLSTAD, Judge.
Stark, P.J., Hruz and Seidl, JJ.
Diane Storey appeals a small claims money judgment entered
after a jury trial and posttrial motions, in which the court
awarded the Estate of Stanley G. Miller (the Estate) sums
totaling $52, 629.90. That amount included restitution
damages, exemplary damages, double statutory costs, and
actual attorney fees. Storey argues she was never given
actual notice of any claim for theft under WIS. STAT. §
895.446,  and, therefore, the circuit court should
not have allowed any damages or other relief under that
statute. Further, Storey contends statutory damages under
§ 895.446 may not be awarded where the Estate failed to
plead exemplary damages. Storey also argues her handwriting
expert should not have been precluded from offering part of
his expert opinion. We reject these arguments.
Storey further argues that, even if exemplary damages were
properly pled, the jury, not the court, must award them. In
addition, Storey asserts the circuit court's award
exceeds the statutory limit for small claims judgments.
Storey also contends the court erred in awarding actual
attorney fees under Wis.Stat. § 895.446(3)(b), in
awarding double costs in this case, and ordering the judgment
be deemed restitution. We conclude Storey is correct on all
of these arguments. We therefore reverse the judgment.
On February 28, 2013, the Estate commenced a small claims
action against Storey. The form small claims complaint
alleged a claim for money damages of $10, 000 or less.
Specifically, the complaint alleged: "The Defendant,
Diane Storey, has misappropriated funds from the Estate of
Stanley Miller in the amount of $10, 000.00. Plaintiff seeks
reimbursement of said funds to the Estate." Storey
denied the allegations of the complaint in her answer.
Storey prevailed at a small claims trial to the court
commissioner. The Estate then filed a demand for a de novo
jury trial. During the final pretrial conference
approximately one month before the jury trial, the Estate
submitted proposed jury instructions and a proposed special
verdict. Storey did not present her own versions of either
and did not object to the Estate's submissions, which
included a special jury instruction for "Theft; Civil
Liability-Wis. Stat. § 895.446 (Based on Conduct (Theft)
Prohibited by Wis.Stat. § 943.20)."
The jury trial was held on January 9 and 10, 2014. Testimony
introduced at trial showed that Stanley Miller was eighty-six
years old in May 2010 when Storey, his niece, came to Hatley,
Wisconsin, to serve as his caretaker. Storey cared for
Stanley through May 2011. During that time, Storey helped
Stanley by doing his shopping, cooking meals, doing laundry,
taking him to appointments, getting his mail, and other
necessary tasks. Storey also helped Stanley with his
checkbook and paying bills. At Stanley's request, Storey
wrote out checks for him, which he then signed. While Storey
wrote check entries in Stanley's checkbook ledger, she
never balanced his checkbook.
After Stanley passed away in July 2011, his sister, Genevieve
Miller took on the role of personal representative of the
Estate. When the Estate noticed Stanley had signed up for
online banking, it raised a concern, because Stanley did not
have internet access. Stanley's bank had flagged the
request for internet banking as suspicious. When the
bank's manager called the telephone number on the request
form, he spoke first with Storey and then Stanley, but he
believed Stanley was being coached in his answers by Storey.
Storey denied having ever set up internet banking on
Stanley's behalf. Funds from Stanley's bank accounts
were withdrawn in large amounts over the course of the year
Storey stayed with Stanley. Storey's property taxes in
Horicon, Wisconsin, were paid from Stanley's checking
account. Personal checks were being made payable to
"Cash." One check was issued for cat food in the
amount of $450. Another check was payable to a collection
agency, which witnesses testified seemed out of character for
Eleven checks written from Stanley's account were at
issue in the trial. Storey testified she was not aware of
those checks, and they were neither written nor signed by
her. The Estate was able to correlate several of the checks
written from Stanley's account with funds deposited into
Storey's own bank account. Storey claimed someone else
deposited the checks into her account and that she was the
victim of identity theft. She explained that during the year
she was at her uncle's home she did not review her own
bank account because she rarely wrote checks from it. During
that time, she lived mostly on cash that was sent to her by
her aunt, Leone Seidel. In May 2011 she left Stanley's
home because she needed to have significant oral surgery. At
that time, she discovered someone had accessed her account
and drained it, substantially overdrawing it. Storey further
testified she was unaware anything was awry with
Stanley's checking account until 2012, when this lawsuit
was initiated against her.
At trial, Storey called a forensic document examiner and
handwriting expert, Curt Baggett, to testify. Baggett
testified that Storey's handwriting did not appear on the
eleven checks at issue.
The jury returned a verdict finding Storey had taken $10, 000
from Stanley prior to his death. On motions after verdict,
the circuit court held that the Estate successfully presented
a case for civil liability theft pursuant to Wis.Stat. §
895.446 and that the Estate requested damages pursuant to
§ 895.446(3)(a). The circuit court further found that,
while Storey had no notice of the § 895.446 claim from
the complaint, Storey had notice of that claim through the
jury instruction proposed by the Estate, which referenced
The circuit court awarded a money judgment in the amount of
$51, 629.90 consisting of: (1) $10, 000 for the
misappropriation of funds as awarded by the jury, pursuant to
Wis.Stat. § 895.446(3)(a); (2) exemplary damages in the
amount of $20, 000, as found by the court, pursuant to §
895.446(3)(c); (3) taxable costs in the amount of $814.95,
pursuant to Wis.Stat. § 799.25, and the doubling of
those costs for an additional $814.95, pursuant to Wis.Stat.
§ 807.01(3); and (4) attorney fees in the amount of $20,
000, pursuant to § 895.446(3)(a)1. The circuit court
further held the judgment was an award of restitution,
apparently so that it would be nondischargeable in
bankruptcy. Storey now appeals.
Storey argues she was never given actual notice, from the
complaint or otherwise, of any claim for damages for theft
under Wis.Stat. § 895.446, and, therefore, the circuit
court should not have allowed any damages under that statute.
After the trial, the court held Storey had notice of the
statutory claim from the pretrial submission of jury
instructions and essentially granted leave to amend the
complaint to allege a claim for damages under that statute.
Granting leave to amend a complaint is a discretionary
decision. Mach v. Allison, 2003 WI.App. 11,
¶20, 259 Wis.2d 686, 656 N.W.2d 766. Storey also argues
her handwriting expert should not have been precluded from
offering part of his opinion. The decision to admit or
exclude evidence is a matter of circuit court discretion. We
do not disturb the circuit court's discretionary
decisions unless the court erroneously exercised its
discretion. See Weborg v. Jenny, 2012 WI 67,
¶41, 341 Wis.2d 668, 816 N.W.2d 191; Hess v.
Fernandez, 2005 WI 19, ¶12, 278 Wis.2d 283, 692
Storey further argues exemplary damages under Wis.Stat.
§ 895.446(3)(c) may not be awarded where the Estate
failed to plead exemplary damages; even if pleaded, the jury,
not the court, must award exemplary damages; the judgment
erroneously exceeded the small claims limit under Wis.Stat.
§ 799.01; § 895.446(3)(b) does not allow an award
of attorney fees; the award of double costs in this case is
erroneous; and holding that the judgment is an award of
restitution is inappropriate. These are all questions of law
which we review de novo. See Bryhan v. Pink, 2006
WI.App. 111, ¶13, 294 Wis.2d 347, 718 N.W.2d 112.
Notice of the Estate's claim under Wis.Stat. §
The form complaint is void of any reference to a cause of
action for civil liability theft pursuant to Wis.Stat. §
895.446. The prayer for relief stated only a claim for
reimbursement of the $10, 000 allegedly taken from the
Estate. Storey claims the first time she was made aware the
Estate was pursuing a statutory cause of action under §
895.446 was in the Estate's motions after verdict, which
requested a total judgment exceeding $50, 000. However, on
motions after verdict, the circuit court found
based on this record that the plaintiff did successfully
present a case for civil liability theft pursuant to Section
895.446. In fact, the defendant has long been on notice of
the nature of this claim. Not only is it clear from the
complaint and various hearings held, but it is clearly
spelled out in the plaintiff's requested jury
instructions dated October 29, 2013.
Within that request is a specialized jury instruction for
theft[-]civil liability, pursuant to Wis.Stat. Section
895.446, based on conduct, theft, or fraud. It further
referenced Wisconsin Jury Instruction Criminal 1441, theft,
pursuant to Section 943.20.
When an issue not raised by the pleadings is tried by express
or implied consent of the parties, it shall be treated in all
respects as if the claim had been raised in the pleadings.
Wis.Stat. § 802.09(2). When the circuit court finds the
issue has been tried with consent of the parties, the court
should amend the pleadings. State v. Peterson, 104
Wis.2d 616, 631, 312 N.W.2d 784 (1981). Here, the circuit
court properly determined Storey had ample notice of the
Estate's claim for statutory theft based upon
Storey's agreement to instruct the jury on civil