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Estate of Miller v. Storey

Supreme Court of Wisconsin

November 30, 2017

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

          Oral argument: September 12, 2017

         REVIEW of a decision of the Court of Appeals, Circuit Court Marathon County Jill N. Falstad Judge Affirmed in part, reversed in part, and cause remanded.

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

          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.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 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');">885 N.W.2d 787, which reversed the Marathon County circuit court's[1] small claims money judgment for the Estate of Miller ("Estate") against Diane Storey ("Storey").

         ¶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 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 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');">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 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.

         ¶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. § 895.446[6] 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 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.

         ¶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 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 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 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 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 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 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.

         ¶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 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. 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- 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., ¶4 0; 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:

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.

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, 7 6 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 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.

         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 ...


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