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    August 16, 2016

    Appeals Court Reverses on Exemplary Damages, Attorney Fees in Elder Theft Case

    Joe Forward

    Health Records

    Aug. 16, 2016 – A circuit court ordered a woman to pay more than $50,000 to her uncle’s estate after a jury determined she stole money from him while serving as his caretaker. Recently, a state appeals court cut that award to about $6,000.

    In Estate of Miller v. Storey, 2014AP2420 (Aug. 16, 2016), a three-judge panel for the District III Court of Appeals ruled that the estate, which filed the action in small claims court seeking $10,000, was not entitled to exemplary damages or attorney fees.

    After Stanley Miller died, the estate’s representative discovered suspicious activity on Miller’s bank accounts and linked the missing funds to Storey, who served as Miller’s caretaker. Miller was 86 years old when Storey moved to Hatley to live with him.

    The estate ultimately filed a small claims action against Storey, and presented a case for civil liability theft under Wis. Stat. section 895.446, which allows a prevailing party to obtain actual damages, all costs of investigation and litigation, and exemplary damages up to three times the amount of actual damages awarded in the case.

    The complaint sought $10,000 for a misappropriation of funds. Ultimately, after a jury trial, the court awarded the estate restitution of $10,000 in actual damages, $20,000 in exemplary damages, $20,000 in attorney fees, and almost $2,000 in double costs.

    Exemplary Damages

    Storey made numerous arguments on appeal. First, she argued that the circuit court judge, without a jury determination, improperly awarded exemplary damages.

    “An award of exemplary damages in a jury trial must be decided by the jury, and not, as here, by the circuit court on motions after the verdict,” wrote Judge Mark Seidl, noting that juries must also decide the amount of exemplary damages to be awarded.

    The panel noted that the estate “was obligated to request a special verdict question on exemplary damages.”

    Compensatory Damages

    The estate was not entitled to receive the $10,000 compensatory award either, the panel concluded, because the estate asserted a tort claim – misappropriation of funds – and tort claims seeking more than $5,000 exceed the small claims limit.

    Civil actions claiming $10,000 or less can be filed in small claims court, under Wis. Stat. section 799.01. But personal injury claims and actions based in tort are capped at $5,000 or less, under section 799.01(1)(cr). Otherwise, they must go to large claims.

    “[T]he circuit court should have limited the Estate’s judgment for compensatory damages to $5,000, rather than the $10,000 awarded,” Judge Seidl explained.

    Double Costs

    The estate had offered to settle with Storey for $7,500, but Storey refused. Because the circuit court awarded $10,000 in compensatory damages, the estate successfully argued for double statutory costs under section 807.01(3), about $2,000.

    That provision says the plaintiff can recover double the amount of taxable costs if the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment.

    But since the appeals court ruled that the estate was only entitled to $5,000 in compensable damages in small claims court – less than the offer of settlement – the appeals panel also ruled that the estate was not entitled to double the amount of costs.

    “Since the $5,000 limit is less than the statutory offer, the award of double costs is also reversed,” wrote Judge Seidl, allowing actual costs of about $800.

    Attorney Fees

    The circuit court awarded the estate $20,000 in attorney fees, under section 895.446(3)(b), which allows a prevailing plaintiff to obtain “all costs of investigation and litigation.” But Storey argued that those costs don’t include attorney fees.

    The panel noted that a related provision expressly allows a prevailing party to obtain reasonable attorney fees, an indication that the legislature did not intend for attorney fees to be available under section 895.446(3)(b). Otherwise, it would have said so.

    “We agree with Storey that, had the legislature intended attorney fees to be available to a prevailing plaintiff under Wis. Stat. § 895.446(3)(b), it would have used that specific language, just as it did in other statutes,” Judge Seidl wrote.


    Storey argued that the circuit court improperly ordered that the judgment be deemed the same as restitution, arguing it was done to prevent the judgment from being discharged in bankruptcy. The appeals court agreed and reversed on that issue also.

    “[T]he record does not disclose any other basis to order the judgment be deemed restitution, nor does it reflect any recovery under any existing criminal restitution order that may reduce the civil judgment in this manner,” wrote Judge Seidl.

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