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Estate of Miller v. Storey

Court of Appeals of Wisconsin

August 16, 2016

Estate of Stanley G. Miller c/o Genevieve Miller, Personal Representative, Plaintiff-Respondent,
v.
Diane Storey, Defendant-Appellant.

         Recommended for publication in the official reports

         APPEAL from a judgment of the circuit court for Marathon County: Cir. Ct. No. 2013SC669 JILL N. FALLSTAD, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          SEIDL, J.[1]

         ¶1 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, [2] 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.

         ¶2 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.

         BACKGROUND

         ¶3 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.

         ¶4 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)."

         ¶5 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.

         ¶6 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 Stanley.

         ¶7 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.

         ¶8 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.

         ¶9 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 that statute.

         ¶10 The circuit court awarded a money judgment in the amount of $51, 629.90[3] 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.

         DISCUSSION

         ¶11 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 N.W.2d 655.

         ¶12 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.

         I. Notice of the Estate's claim under Wis.Stat. § 895.446

         ¶13 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.

         ¶14 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 ...


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