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Estate of Stanley G. Miller v. Diane Storey
Citations: 378 Wis. 2d 358; 2017 WI 99Docket: 2014AP002420
Court: Wisconsin Supreme Court; November 30, 2017; Wisconsin; State Supreme Court
Original Court Document: View Document
The Supreme Court of Wisconsin reviewed the Court of Appeals' decision in the case of Estate of Stanley G. Miller v. Diane Storey, which involved a small claims action for theft against Storey, who was accused of taking money from her elderly uncle during his final year. A jury had previously found Storey liable, resulting in a circuit court judgment that awarded the Estate $10,000 in actual damages, $20,000 in exemplary damages, $20,000 in attorney fees, and double taxable costs. Storey appealed, arguing that the actual damages should be reduced to $5,000, asserting that the case was a "tort action" rather than an "other civil action," which affected the applicable damages cap and the eligibility for double costs. She also contested whether attorney fees qualified as "costs of investigation and litigation" and if exemplary damages could be awarded post-verdict since the jury was the trier of fact. The Court of Appeals agreed with Storey, reversing the circuit court's judgment. The Estate sought review from the Supreme Court, which considered four key issues: the classification of Wis. Stat. 895.446 as a tort action or other civil action, the inclusion of attorney fees as litigation costs, the appropriateness of the circuit court's award of exemplary damages, and the denial of the Estate's motion for reconsideration. The Supreme Court's ruling affirmed part of the Court of Appeals' decision, reversed another part, and remanded the case for further proceedings. Wis. Stat. 895.446 is classified as an "other civil action" under Wis. Stat. 799.01(1)(d), leading to a $10,000 damages cap and the authorization of double costs per Wis. Stat. 807.01(3). Attorney fees are deemed part of "costs of investigation and litigation" under Wis. Stat. 895.446(3)(b), supported by the precedent in Stathus v. Horst, with no legislative changes affecting this interpretation. The court of appeals correctly addressed the exemplary damages issue, as it was a legal question with no factual disputes. Its reversal of the circuit court's decision was justified, aligning with the legal standards in Kimble v. Land Concepts, Inc. The analysis of the fourth issue is unnecessary due to the resolution of the first three issues. The court reverses the court of appeals' decisions on the first and second issues while affirming the decision on the third issue and remands for further proceedings. The case originated from the Estate's small claims action against Storey for $10,000 regarding fund misappropriation, with a settlement offer of $7,500 that was declined, leading to jury trial proceedings. The settlement offer is relevant solely for determining eligibility for double costs, as per Wis. Stat. 807.01(3). On October 30, 2013, the Estate submitted jury instructions for trial, specifically requesting a specialized instruction regarding theft by misappropriation under Wis. Stat. 895.446, which outlined four elements necessary for the jury's consideration. The trial began on January 9, 2014, lasting two days, after which the jury found Storey liable as per the Estate's requested instructions. Following the trial, the Estate sought post-verdict awards totaling $52,629.90, including actual damages, exemplary damages, taxable costs, double costs, and attorney fees. Storey contested these claims, arguing for limits on actual damages based on a statutory cap, the inappropriateness of exemplary damages, and the exclusion of double costs and excessive attorney fees. The circuit court ruled in favor of the Estate, but Storey appealed. On July 6, 2016, the court of appeals reversed the circuit court's judgment, limiting actual damages to $5,000 based on the classification of civil theft claims as tort claims and reversing the award for double costs. The court also concluded that "costs of litigation" did not encompass attorney fees, citing legislative intent. Additionally, the court ruled that the decision to award exemplary damages must be made by the jury, a point of contention for the Estate, which argued that this issue had not been preserved for appeal. Subsequently, the Estate filed a motion for reconsideration, claiming the court of appeals' rulings on actual damages and double costs were unsupported by case law. The court of appeals later withdrew its initial opinion, and on August 16, 2016, issued a revised opinion that included modifications regarding the analysis of actual damages and double costs. The court of appeals modified its opinion regarding actual damages and double costs, noting that the Estate had conceded these issues. The Estate contended that the court erroneously denied its motion for reconsideration, as the revisions made by the court were directly responsive to the motion. A petition for review was filed by the Estate on September 12, 2016, and granted on January 9, 2017. The legal standard for review of statutory interpretation is de novo, allowing the court to analyze whether Wis. Stat. 895.446 is classified as an "action based in tort" or an "other civil action," and whether attorney fees fall under "costs of litigation." The allocation of responsibilities concerning exemplary damages is also a legal question subject to de novo review. The court will review the court of appeals' exercise of discretion regarding exemplary damages and the Estate's reconsideration motion under a deferential standard for erroneous exercise of discretion. The analysis addresses four main issues: A) Classification of Wis. Stat. 895.446 as an "other civil action," determining a damages cap of $10,000 and authorization of double costs. B) Inclusion of attorney fees within "costs of investigation and litigation" under Wis. Stat. 895.446(3)(b), supported by established judicial interpretation. C) Whether the court of appeals properly exercised discretion in considering exemplary damages, concluding it did due to the legal nature of the issue and thorough briefing. D) Affirmation of the court of appeals' proper reversal of the circuit court’s exemplary damages award based on clear legal standards set in prior cases. The analysis of the fourth issue is deemed unnecessary due to the reversal of the court of appeals' decisions regarding actual damages and double costs, which addresses the Estate's remaining arguments. The first significant issue examined is whether Wis. Stat. 895.446 qualifies as an "action based in tort" under Wis. Stat. 799.01(1)(c) with a $5,000 limit, or as an "other civil action" under Wis. Stat. 799.01(1)(d) with a $10,000 limit. The Estate contends that Wis. Stat. 895.446 is an "other civil action" because its civil theft claim emerges from a statutory right, differentiating it from common law tort claims such as conversion. In contrast, Storey argues that it is an "action based in tort" due to the similarity in elements required to prove the civil theft claim and those of conversion. The conclusion reached is that Wis. Stat. 895.446 is indeed an "other civil action" under Wis. Stat. 799.01(1)(d), based on statutory interpretation principles and distinctions between statutory civil claims and common law tort claims. This classification allows for a damages cap of $10,000 and authorizes double costs. Four reasons support this conclusion: the statute refers to the cause as a "civil action," established case law distinguishes between statutory civil theft and common law tort claims, there is a recognized difference between statutorily created civil claims and common law tort claims, and a long-standing common law distinction exists between crimes and torts. Statutory interpretation begins with the statute's wording, which indicates that the cause of action is a civil action against those causing property damage through conduct defined by criminal statutes. This interpretation aligns with how the statute and case law describe civil theft claims, reinforcing that they are distinct from conversion claims. In H.A. Friend Co. v. Professional Stationery, Inc., the plaintiff asserted a civil theft claim under Wis. Stat. 895.80(1) and a conversion claim due to unauthorized financial transactions by the defendant. The court of appeals recognized these as separate claims, emphasizing the distinction between statutory and common law claims. The Estate's statutory civil theft claim under Wis. Stat. 895.446, linked to Wis. Stat. 943.20, is distinct from conversion, allowing for both claims to be pursued simultaneously based on the same facts. The court noted that the civil theft claim functions as a criminal charge pursued civilly for damages rather than through state prosecution. It concluded that Wis. Stat. 895.446 qualifies as an "other civil action" under Wis. Stat. 799.01(1)(d), rather than an "action based in tort" under Wis. Stat. 799.01(1)(c), reflecting the legislature's intent to maintain a distinction between these categories. This classification allows for a damages cap of $10,000 and authorizes double costs under Wis. Stat. 807.01(3). The jury found Storey liable for violating Wis. Stat. 895.446 and awarded $10,000 in damages, which aligns with the established cap for "other civil actions." The court remanded the case, instructing the circuit court to reinstate the judgment for the actual damages awarded. Wis. Stat. 807.01(3) allows a plaintiff to serve a written settlement offer on the defendant after issue is joined but at least 20 days before trial. If the offer, which includes a specified sum, is not accepted and the plaintiff subsequently secures a more favorable judgment, the plaintiff is entitled to recover double the taxable costs. In this case, the Estate served a settlement offer of $7,500 on Storey on June 7, 2013, which Storey declined. After trial and appeal, the Estate recovered $10,000 in damages, qualifying for double the taxable costs. The Estate's taxable costs amount to $814.95, resulting in a total of $1,629.90 upon doubling. The court remands the case to the circuit court to reinstate the judgment for taxable costs at this doubled amount. The second issue examined is whether attorney fees fall under "costs of investigation and litigation" as per Wis. Stat. 895.446(3)(b). The Estate contends that attorney fees are included in this phrase based on prior court interpretations. Storey counters by arguing that a later amendment, subsection (3m), specifically addresses "reasonable attorney fees," suggesting that including attorney fees in subsection (3)(b) would render subsection (3m) redundant. However, the court concludes that attorney fees are indeed encompassed within the meaning of "costs of investigation and litigation," as established by the court of appeals in Stathus, 260 Wis. 2d 166. The court emphasizes that legislative inaction following judicial interpretation indicates legislative acquiescence, reinforcing the established interpretation that includes attorney fees. The re-enactment of a statute with an existing judicial interpretation suggests an intent to incorporate that interpretation into the statute itself, as established in Tucker v. Marcus and further supported by United States v. Home Concrete Supply, LLC. Despite dissenting opinions questioning this interpretive canon, Justice Kelly does not dispute its application within Wisconsin law, indicating that the dissent fails to propose an alternative approach. The established canons of construction are crucial for maintaining a coherent theory of statutory interpretation. Specifically, the phrase "all costs of investigation and litigation" has been interpreted to include attorney fees, as seen in Stathus, which assumed such fees were awardable without directly addressing the issue. This interpretation aligns with the Predicate-Act Canon, which permits necessary acts implied by statutory authorization. Lower courts have consistently awarded attorney fees under this statute, demonstrating a pattern of interpretation and application that supports this position. The principle of stare decisis ensures that published decisions by appellate courts are authoritative, reinforcing the notion that attorney fees are justifiable under the statute. The legislature made six revisions to the statute after the Stathus decision, providing opportunities to address the judicial interpretation of "costs of litigation," particularly regarding attorney fees. However, the legislature did not act to repeal or modify this interpretation, thus affirming that attorney fees are considered part of "costs of litigation." Wis. Stat. 799.25 supports this conclusion by explicitly including attorney fees as recoverable costs in small claims actions, with specific provisions noted in the statute. The legislative drafting file indicates that the statute's purpose is to allow a winning party in civil actions to recover treble damages and costs, which encompasses reasonable attorney fees and litigation costs. The "private attorney general" doctrine, which allows attorneys to recover fees in cases serving the public interest, further supports the inclusion of attorney fees as recoverable costs. This doctrine, first articulated in 1943, gained traction in the 1970s as an exception to the American rule that generally requires parties to bear their own litigation costs. In this context, the amount of attorney fees recoverable is "otherwise specified" by Wis. Stat. 895.446(3)(b), meaning the $300 limit from Wis. Stat. 814.04(1)(a) does not apply to the Estate's recovery in this case. The evolution of the private attorney general concept has prompted courts to establish legal standards to define its application. Under federal law, attorney fees can be recovered under the private attorney general doctrine only if there is statutory authority or a contractual basis for such an award. This principle is supported by the precedent set in Alyeska Pipeline Serv. Co. v. Wilderness Society, which emphasizes that Congress often relies on private enforcement to promote public policy, thereby allowing attorney fees to encourage private litigation. Wisconsin has adopted a similar approach, as seen in Marquardt v. Milwaukee County, where the court required a statutory basis for awarding attorney's fees in private attorney general cases. However, this statutory basis does not need to be explicitly stated in the statute. In Watkins v. LIRC, the court recognized that reasonable attorney's fees could be awarded even without express statutory language, if the authority to do so is implied through statutory interpretation, emphasizing the importance of fulfilling the statute's purpose rather than defeating it. The award of attorney fees is deemed necessary for effective enforcement of public rights statutes, particularly when potential recoveries are low compared to litigation costs, which could deter individuals from pursuing claims. This aligns with the principle that meaningful rights must be enforceable. Additionally, Wisconsin Statute 895.446 may align with the private attorney general doctrine, as illustrated by a case where an estate brought a private suit under a criminal statute aimed at deterring theft, acknowledging that criminal prosecution is the government's exclusive domain. Rubenstein establishes that the Estate's private lawsuit serves to uphold public rights against crime, similarly supported by Watkins. Individuals enforcing statutory rights may act as "private attorneys general." The Estate sought $10,000, but incurred legal fees totaling $24,708.50, indicating financial barriers to pursuing both private and public interests without recoverable fees. The court concluded that attorney fees are classified as "costs of litigation" under Wis. Stat. 895.446(3)(b), supported by the court of appeals' interpretation in Stathus, despite legislative inaction on this interpretation. Additionally, Wis. Stat. 799.25 recognizes attorney fees as recoverable costs in small claims, and the private attorney general doctrine further justifies this recovery. The court affirmed that attorney-client relationships are agency-based, allowing the Estate to recover attorney fees as the value of time spent by its agents. The court emphasized that denying attorney fees would contradict established legal principles and require overturning precedent, particularly given six legislative modifications to the statute post-Stathus. The matter was remanded to the circuit court for a reasonable attorney fee award, while the issue of the award's reasonableness was left for the circuit court's initial consideration. Lastly, the court addressed whether the court of appeals erred in reviewing an argument on exemplary damages not raised in the circuit court, examining both the discretion exercised and potential legal error in the appellate decision to reverse the exemplary damages award. The Estate contends that the court of appeals improperly exercised its discretion by addressing the circuit court's award of exemplary damages, arguing it creates a double standard when parties do not fully brief arguments. Storey counters that the appellate court's consideration was justified, asserting the circuit court incorrectly awarded exemplary damages post-verdict since the jury was the rightful trier of fact according to established law. The Estate further claims the appellate court erred in reversing the award, asserting that the law does not mandate a jury's determination of the damages amount. Conversely, Storey maintains that the law requires the jury's involvement, making the judge's post-verdict award improper. The appellate court ultimately found no error in considering the exemplary damages issue because it was a legal question, thoroughly briefed by both parties, and involved no disputed facts. The court deemed the reversal of the circuit court's ruling appropriate, as it contradicted the clear legal standard established in Kimble, which dictates the judge-jury responsibilities concerning exemplary damages. The court reiterated the concept of "forfeiture" rather than "waiver," stating that although issues typically need to be preserved through timely objection, the appellate court can still choose to address unpreserved issues if they are legal questions, thoroughly briefed, and undisputed. Storey raised concerns about the allocation of responsibilities between judge and jury regarding exemplary damages in her appellate brief, to which the Estate responded. It is established that the judge, rather than the jury, determined the appropriateness and amount of exemplary damages in the initial case. The appellate court reviewed whether this decision was a legal error. According to precedent, the judge acts as a "gatekeeper" regarding punitive damages, determining if the issue is suitable for jury consideration, while the jury retains discretion on whether to award such damages and the amount if awarded. In this case, the circuit court improperly awarded exemplary damages based on a post-verdict motion without presenting the issue to the jury first, leading to the appellate court's correct reversal of that decision. The appellate court affirmed its authority in this matter, reinforcing that in a jury trial, the jury must decide on exemplary damages. Lastly, the appellate court addressed the Estate's motion for reconsideration, filed on July 11, 2016, which contended that the appellate court's earlier ruling on actual damages lacked proper legal support. The appellate court withdrew its prior opinion shortly thereafter on July 14, 2016. On July 28, 2016, the court of appeals denied the Estate's motion, subsequently revising its opinion on August 16, 2016, to indicate that the Estate had conceded issues regarding actual damages and double costs. The Estate contends that the court acted erroneously by revising its opinion while denying the motion for reconsideration, arguing that the revisions directly addressed points raised in the motion. Storey, on the other hand, asserts that the court's actions were within its statutory discretion. The court concluded that its earlier analysis regarding actual damages and double costs rendered further examination of the Estate's arguments unnecessary. It confirmed that the Estate's claim qualifies as an "other civil action" under Wisconsin law, subject to a $10,000 damages cap, and that double costs are legally permitted. The court noted that the court of appeals has discretion in reconsidering decisions and denying motions for reconsideration. Additionally, although the court of appeals previously held that the Estate conceded it should have filed in large claims, the current record does not convincingly support this. The appeal involves four issues, focusing primarily on whether the relevant statute is classified as an "action based in tort" or "other civil action," which determines the applicable damages cap and the authorization of double costs. Attorney fees are deemed included in the phrase "costs of investigation and litigation" as defined under Wis. Stat. 895.446(3)(b). The court found that Wis. Stat. 895.446 qualifies as an "other civil action" under Wis. Stat. 799.01(1)(d), establishing a damages cap of $10,000 and permitting double costs under Wis. Stat. 807.01(3). Regarding exemplary damages, the court of appeals did not err in its discretion as the matter presented was purely legal, well-briefed, and devoid of factual disputes. The appellate court's reversal of the circuit court's award of exemplary damages was justified due to the circuit court's misalignment with established legal standards. The analysis of the fourth issue became unnecessary as the outcomes of the first two issues rendered the Estate's additional arguments moot. Consequently, the court affirmed part of the court of appeals' decision while reversing it in other respects, remanding the case for further proceedings consistent with the findings. In a concurring and dissenting opinion, Justice Daniel Kelly agreed with the majority except regarding the interpretation that Wis. Stat. 895.446(3)(b) awards attorney's fees to prevailing plaintiffs. He contended that the supporting case, Stathus v. Horst, does not provide clear authority on this matter, and legislative silence on the issue further complicates the interpretation of the statute's language concerning recoverable costs. The determination of attorney's fees hinges on a careful analysis of the statute's wording, context, and structure. Statutory interpretation begins with the statute's language, considering its context and structure, as well as its relation to surrounding statutes. Interpretation aims to avoid unreasonable or absurd meanings. If the statute's plain meaning is clear, further analysis is unnecessary. The opinion under review deviates from this method; it improperly prioritized a court opinion over the statutory language and context. Instead of focusing on the statute's wording, the analysis relied on a policy argument regarding attorney's fees, concluding that the statute awards fees to prevailing plaintiffs without adequate textual support. The opinion misapplied the "Prior Construction Canon," suggesting that existing authoritative constructions should guide interpretation, despite the absence of such constructions for the relevant statute. The excerpt emphasizes the importance of adhering to established methods of statutory interpretation, as deviations can lead to flawed conclusions. Construction of written law involves interpreting the intention of the law's authors, particularly when the law appears contradictory or fails to address a specific scenario. In the case of Stathus, the court did not analyze whether attorney fees were awardable under Wis. Stat. 895.446(3)(b); it assumed they were while establishing standards for assessing the reasonableness of such fees. This assumption, however, does not constitute a construction of the statute as it lacks a definitive interpretation of the statute's meaning. The "Prior Construction Canon" is inapplicable because Stathus merely contained an assumption, not an explicit construction. The remand to the circuit court for determining the reasonableness of attorney fees does imply authorization for such fees, but this procedural aspect does not aid in understanding the statute itself. The text emphasizes that distinguishing between an assumption and a legal construction is crucial, as the latter involves a clear exposition of meaning, while the former does not contribute to logical reasoning or statutory interpretation. The text critiques the use of the "Predicate-Act Canon" in this context, arguing it leads to logical fallacies by conflating premises with conclusions. The law of non-contradiction asserts that a proposition cannot be both true and false simultaneously, as articulated by Aristotle. This principle is invoked to argue that the Stathus court could not simultaneously assume that a statute awards attorney's fees while also engaging in discovery related to that statute. The "Interpretation Principle" is deemed insufficient because it relies on a text application that the Stathus court failed to perform, rendering any interpretive efforts moot. The lack of sufficient interpretive canons prevents establishing an authoritative stance on attorney's fees under Wis. Stat. 895.446(3)(b). Legislative inaction is highlighted as a key point, with the opinion noting that the legislature has not countered the court's interpretation that the statute awards attorney's fees. The legislature's failure to act, despite opportunities to do so, does not imply meaning regarding the statute itself. Instead, statutory meaning should derive from text, context, structure, and potentially legislative history, all of which possess definable content. In contrast, legislative inaction lacks definable content, rendering its interpretation void and suggesting an overly judicial-centric view of the relationship between the courts and other government branches. The passage critiques the assumption that the legislature actively engages with judicial interpretations of statutes and reacts accordingly. It emphasizes that the legislature operates as an independent branch with its own priorities, not obligated to align with judicial pronouncements. The text argues against inferring legislative intent from inaction, highlighting that the meaning of a statute is fixed at its adoption and does not depend on current legislative sentiment. Furthermore, it points out that the legislature is composed of numerous members who do not share a collective understanding, undermining the notion of deriving meaning from their inactivity. The critique also notes that evaluating a court's interpretation is different from assessing whether a statute should have been enacted initially. It stresses that various factors can lead to legislative inaction that may have no bearing on the accuracy of judicial interpretations, making it erroneous to draw conclusions about legislative intent from silence. Lastly, the passage underscores that legislative dynamics are complex and cannot simply be measured by the lack of new legislation. The constitutional framework creates a challenge in interpreting congressional inaction, leading to ambiguity about whether such inaction signifies approval, inability to reach consensus, unawareness, indifference, or political reluctance. Even if a legislative majority seeks to challenge a prevailing interpretation, this may not translate into new legislation. Inferring intent from congressional inaction is fraught with uncertainty and overlooks the checks and balances integral to legislative processes. Justice Scalia's dissent emphasizes that the notion of "legislative inaction" lacks valid explanatory power and should not be relied upon. The document critiques the judiciary's adherence to this concept, revealing a reliance on unsubstantiated analytical constructs that obscure the truth. It acknowledges the absence of a coherent statutory interpretation theory without such fictions, while suggesting that the text of statutes should guide interpretations instead. The discussion then shifts to the statute's text, which indicates that attorney's fees are recoverable, although the initial analysis of the statute involved mere quotations rather than substantive interpretation. Ultimately, while acknowledging that attorneys operate in an agency role, the conclusion that "agent" in the statute includes "attorney" is not necessarily justified. Substantial evidence indicates that when the legislature intends a provision to encompass both attorneys and agents, it explicitly states so. This consistent legislative practice across numerous statutes demonstrates a clear pattern of differentiation, which the opinion fails to recognize. Numerous examples from Wisconsin statutes illustrate this point, wherein both "agent" and "attorney" are mentioned distinctly in various contexts, emphasizing that the terms are not interchangeable. The argument posits that if "agent" included "attorney," there would be no need for the legislature to specify "attorney" on multiple occasions. Consequently, the statute clearly establishes defendant liability for the time value of the prevailing plaintiff's agents, reinforcing the distinction between the roles of agent and attorney as intended by the legislature. Sections 60.06 and 814.245 are identified as fee-shifting provisions that distinguish between "attorneys" and "agents." The current version referenced is from 2015-16. The document mentions that a prior decision, No. 2014AP2420.dk, did not extend the statute to include attorney's fees, and the appropriateness of that decision is not for consideration. A significant principle of statutory construction emphasizes that statutory language should be interpreted to give effect to every word, avoiding any interpretation that renders language meaningless. The statute in question contains two cost-shifting provisions: a general one applicable to all actions under Wis. Stat. 895.446(1), and a specific one that allows for recovery of attorney's fees in certain claims related to violations of s. 943.01. It is argued that if the general provision already includes attorney's fees, the specific provision would be rendered unnecessary, which violates the principle of avoiding surplusage. The opinion stresses the importance of maintaining the integrity of the statutory text and suggests that not reading "attorney" into "agent" preserves the specific provision's function. It also discusses the presumption against legislative changes to common law, stating that a statute must clearly indicate any alteration to established legal principles. Wisconsin follows the "American Rule" regarding attorney's fees, wherein such fees are not generally recoverable unless provided by statute or contract. Therefore, if Wis. Stat. 895.446(3)(b) aims to change this rule, it must do so explicitly. The dissenting opinion asserts that civil theft under Wis. Stat. 895.446 qualifies as an "action based in tort" as defined by Wis. Stat. 799.01(1)(cr), and therefore, the Estate's compensatory damages should be limited to $5,000, with no entitlement to double costs. The dissent criticizes the majority for relying on vague principles and disregarding established case law that has recognized certain statutory claims as torts. It argues that the majority mischaracterizes the legal question by emphasizing the distinction between statutory claims and common law tort claims, thus creating a misleading argument. The dissent maintains that the actual issue is whether civil theft under Wis. Stat. 895.446 is an "action based in tort," which it asserts it is. Furthermore, the dissent disagrees with the majority's interpretation of Wis. Stat. 895.446(3)(b) regarding the awarding of attorney fees, aligning instead with Justice Kelly’s dissent on this matter. Lastly, it criticizes the majority for failing to adequately define the elements of the private attorney general doctrine, leading to incorrect conclusions about the case. The dissent identifies four reasons provided by the majority to support their viewpoint, all of which it finds unpersuasive. The majority's reasoning contains critical flaws by addressing an irrelevant question: whether a civil theft claim under Wis. Stat. 895.446 is a common law tort, rather than whether it constitutes an "action based in tort" under Wis. Stat. 799.01(1)(cr). The majority elaborates on the distinction between statutory causes of action and common law torts but fails to recognize that the case specifically asks about the classification of a statutory civil theft claim. Furthermore, the majority does not justify why a statutory claim and a similar common law tort claim cannot both be characterized as actions based in tort, despite Wisconsin precedent supporting such a classification. Lastly, the majority's emphasis on the separation of civil tort claims from criminal charges is deemed irrelevant, as many statutory claims are recognized as tort actions. The discussion highlights that a civil action created by statute, like Wis. Stat. 895.446, can still be recognized as sounding in tort, as established by several Wisconsin cases. The majority opinion is critiqued for addressing an unasked question and contradicting nearly three decades of established case law, rendering its arguments unpersuasive. The case at hand seeks clarification on whether a statutory civil theft claim qualifies as an "action based in tort" under Wis. Stat. 799.01(1)(cr) and whether Wis. Stat. 895.446(3)(b) allows prevailing plaintiffs to recover reasonable attorney fees, specifically including investigative and litigation costs. The author aligns with Justice Kelly's dissent, asserting that Wis. Stat. 895.446(3)(b) does not permit such fee awards. The majority's interpretation of the private attorney general doctrine is seen as overly broad and misrepresentative. In Wisconsin, attorney fees can be awarded without specific contractual or statutory authority if the action benefits a large group, necessitates private enforcement, and is of societal significance, as established in several precedent cases. The foundational case for this doctrine in Wisconsin is Shands v. Castrovinci, where the court upheld an award of attorney fees to a tenant who successfully recovered her security deposit and sought additional fees following an appeal. The Supreme Court ruled that Shands was entitled to attorney fees incurred from Castrovinci's unsuccessful appeal, aligning the decision with statutory purpose and public policy. Key points include: 1. **Encouragement for Legal Action**: The recovery of double damages and attorney fees incentivizes tenants to pursue legal actions to enforce their rights, compensating for the relatively small pecuniary losses compared to litigation costs. 2. **Private Attorney General Role**: Tenants suing under the statute act as "private attorneys general," enforcing both their rights and the public's rights under administrative regulations. 3. **Deterrent Effect**: Tenant lawsuits deter landlords from violating regulations due to the potential for double damages and responsibility for attorney fees, thereby enhancing tenants' bargaining power. 4. **Support for State Enforcement**: Private tenant actions serve as a necessary supplement to the state's enforcement capabilities, especially given the volume of violations that limit state action. 5. **Limitations of the Private Attorney General Doctrine**: The current case does not meet the criteria for the private attorney general doctrine as it does not benefit the general public or a large class, nor is private enforcement necessary for addressing theft, given that there is no evidence of overwhelmed prosecutors. 6. **Comparison with Previous Cases**: Unlike other Wisconsin cases where the private attorney general doctrine was applied, the current lawsuit primarily aims for personal recovery rather than advancing public interest. This summary captures the legal principles and reasoning outlined in the excerpt while clarifying the distinctions between the current case and prior applications of the private attorney general doctrine. The Estate had a significant financial incentive to pursue litigation, seeking $10,000 in actual damages and potentially $30,000 in exemplary damages, totaling a possible recovery of $40,000. This contrasts sharply with minimal recoveries in previous cases, such as $290 in Shands and no monetary recovery in Watkins. The majority's conclusion that a civil theft claim under Wis. Stat. 895.446 is not an "action based in tort" contradicts nearly 30 years of case law. Furthermore, the majority incorrectly interprets Wis. Stat. 895.446(3)(b) regarding attorney fee awards, misapplying the private attorney general doctrine by failing to adequately explain its elements. The dissent emphasizes these errors and asserts that they undermine the majority's conclusions.