                                                                  2017 WI 99

                   SUPREME COURT                 OF   WISCONSIN
CASE NO.:                       2014AP2420
COMPLETE TITLE:                 Estate of Stanley G. Miller c/o Genevieve
                                Miller, Personal Representative,
                                           Plaintiff-Respondent-Petitioner,
                                     v.
                                Diane Storey,
                                           Defendant-Appellant.

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

OPINION FILED:                  November 30, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:                  September 12, 2017

SOURCE OF APPEAL:
   COURT:                       Circuit
   COUNTY:                      Marathon
   JUDGE:                       Jill N. Falstad

JUSTICES:
   CONCURRED:
   CONCURRED/DISSENTED:         KELLY, J. concurs and dissents, joined by R.
                                G. BRADLEY, J. (opinion filed).
  DISSENTED:                    ABRAHAMSON, J. dissents (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       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.
                                                                          2017 WI 99
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2014AP2420
(L.C. No.   2013SC669)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Estate of Stanley G. Miller c/o Genevieve
Miller, Personal Representative,

             Plaintiff-Respondent-Petitioner,
                                                                       FILED
      v.                                                          NOV 30, 2017

Diane Storey,                                                        Diane M. Fremgen
                                                                  Clerk of Supreme Court

             Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                     Affirmed in

part, reversed in part, and cause remanded.



      ¶1     ANNETTE KINGSLAND ZIEGLER, J.              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, which

reversed the Marathon County circuit court's1 small claims money

judgment     for   the   Estate   of   Miller       ("Estate")      against      Diane

Storey ("Storey").




      1
          The Honorable Jill N. Falstad presided.
                                                                   No.     2014AP2420



      ¶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

      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
      3
       While the evidence presented at trial would support a
claim for over $10,000, at the time, small claims actions were
limited to $5,000 for an "action based in tort" and to $10,000
for an "other civil action."     See Wis. Stat. § 799.01(1)(cr),
(d).    Thus, the jury verdict reflects a finding for actual
damages in the amount of $10,000.
      4
       We note that the reasonableness of this amount was not an
issue before this court. Storey did argue in her briefing that
any award of attorney fees must be limited to the amount to be
recovered under the Estate's contingency fee agreement.      See
Stathus v. Horst, 2003 WI App 28, ¶¶19-24, 260 Wis. 2d 166, 659
N.W.2d 165.   This issue, however, was not raised below and we
decline to address it so as to afford the circuit court the
opportunity to consider it in the first instance on remand.


                                       2
                                                                                 No.       2014AP2420



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
                                               3
                                                                          No.   2014AP2420



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,    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
                                             4
                                                                          No.    2014AP2420



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.

    5
       While typically an offer to settle is inadmissible, the
offer is not used here "to prove liability for or invalidity of
the claim or its amount." See Wis. Stat. § 904.08. Rather, the
settlement offer is relevant in this case to determine whether
double costs are authorized under Wis. Stat. § 807.01(3), which
states in part as follows:

         After issue is joined but at least 20 days before
    trial, the plaintiff may serve upon the defendant a
    written offer of settlement for the sum, or property,
    or the effect therein specified, with costs. . . . If
    the offer of settlement is not accepted and the
    plaintiff recovers a more favorable judgment, the
    plaintiff shall recover double the amount of the
    taxable costs.

§ 807.01(3).


                                               5
                                                                    No.    2014AP2420



     ¶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. § 895.4466 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



     6
       Wisconsin Stat. § 895.446 is a civil statute that provides
a cause of action for "Property damage or loss caused by crime"
by reference to enumerated criminal statutes.
     7
       Wisconsin Stat.        § 943.20     is     a    criminal     statute       that
prohibits "Theft."


                                       6
                                                                       No.     2014AP2420



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.


     8
       The circuit court awarded only $20,000 in exemplary
damages, and, as noted by the court of appeals, the record
appears to support an award of $51,629.90, which is one thousand
dollars less than the amount of the judgment entered by the
circuit court. See Estate of Miller v. Storey, 2016 WI App 68,
¶10 n.3, 371 Wis. 2d 669, 885 N.W.2d 787.


                                           7
                                                          No.   2014AP2420



    ¶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




    9
       The court of appeals' July 6th opinion cites to Wis. Stat.
§ 895.446(3)(c), which is the exemplary damages subsection. We
read this as a typo and interpret their holding to apply to
subsection (1).


                                     8
                                                                 No.    2014AP2420



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


      10
        Storey did object to the award of exemplary damages in
her responses to the Estate's post-verdict motion in the circuit
court and at the July 8, 2014 hearing on the motion, but her
objection was based on a different ground than she raised on
appeal.    See supra ¶14; State v. Nelis, 2007 WI 58, ¶31, 300
Wis. 2d 415, 733 N.W.2d 619 ("An objection is sufficient to
preserve an issue for appeal, if it apprises the court of the
specific grounds upon which it is based.").      In the circuit
court she argued that exemplary damages were barred because the
Estate had not requested them in the complaint; in the court of
appeals, and in this court, she argued that exemplary damages
were barred because the judge cannot award them where the jury
is the finder of fact.


                                        9
                                                                                  No.     2014AP2420



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
                                                    10
                                                                No.   2014AP2420



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


       11
       To the extent that the Estate's fourth issue may be read
as raising an issue of the court of appeals' authority under
Wis. Stat. (Rule) § 809.24, this would require interpretation of
the statute, which is a question of law that we would review de
novo.   See State v. Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246,
858 N.W.2d 372. However, because we conclude that our analysis
of the first issue renders analysis of the fourth issue
unnecessary, we need not address this question of law.


                                        11
                                                                           No.       2014AP2420



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
                                             12
                                                                                 No.     2014AP2420



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


                                                 13
                                                                          No.    2014AP2420


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.




                                             14
                                                        No.    2014AP2420



     ¶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

     12
       The Supremacy-of-Text Principle dictates that "[t]he
words of a governing text are of paramount concern, and what
they convey, in their context, is what the text means." Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 56 (2012).
     13
       The Ordinary Meaning Canon dictates that "[w]ords are to
be understood in their ordinary, everyday meanings——unless the
context indicates that they bear a technical sense." Id. at 69.


                                  15
                                                                         No.     2014AP2420



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.

       14
       The Presumption of Consistent Usage dictates that "[a]
word or phrase is presumed to bear the same meaning throughout a
text; a material variation in terms suggests a variation in
meaning." Id. at 170.
       15
       Wis. Stat. § 895.80 (2003-04) was renumbered                              as    Wis.
Stat. § 895.446 in 2006. See 2005 Wis. Act 155, § 70.


                                           16
                                                                               No.     2014AP2420



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-
                                                 17
                                                                       No.       2014AP2420



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., ¶40; 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:
                                             18
                                                   No.   2014AP2420




    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.


    16
       The elements of criminal theft under Wis. Stat. § 943.20
are exactly the same as the elements of the civil theft claim
brought by the Estate:

    1.   The defendant intentionally took and carried away
         movable property of another. . . .
    2.   The owner of the property did not consent to
         taking and carrying away the property.
    3.   The defendant knew that the owner did not
         consent.
    4.   The defendant intended to deprive the owner
         permanently of the possession of the property.

Wis JI——Criminal 1441 (2009) (footnotes omitted). The cause of
action under Wis. Stat. § 895.446 does not have a set of
elements unique from criminal causes because the statutory civil
claim is tied to whichever enumerated criminal statute listed in
subsection (1) applies. See also supra note 7. Of course, the
burden of proof and the consequences are different, as is the
enforcement mechanism: a criminal charge is brought by the
government taking formal action, and a civil action is brought
by a citizen seeking monetary damages.


                               19
                                                                        No.   2014AP2420



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, 76




                                         20
                                                                          No.   2014AP2420



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

      17
       The earliest distinction at common law was between the
"appeal of felony" (crimes) and the "writ of trespass" (torts).
See David J. Seipp, The Distinction Between Crime and Tort in
the Early Common Law, 76 B.U. L. Rev. 59, 60 (1996). Although
both were considered "breaches of the king's peace," conviction
of a felony carried much harsher penalties and had different
procedural requirements. Id. at 59, 61-63.
      18
       The Estate specifically brought an action under Wis.
Stat. § 895.446 for conduct prohibited by Wis. Stat. § 943.20——a
criminal statute prohibiting "Theft."


                                              21
                                                                           No.     2014AP2420



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.




      19
       The Surplusage Canon dictates that "[i]f possible, every
word and every provision is to be given effect . . . .     None
should be ignored.      None should needlessly be given an
interpretation that causes it to duplicate another provision or
to have no consequence."    Scalia & Garner, supra note 12, at
174.


                                               22
                                                                    No.   2014AP2420


         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 direction

to reinstate the circuit court judgment as to actual damages in

the amount of $10,000.

      ¶47     With       regard    to     the     double   costs,    Wis.      Stat.

§ 807.01(3) states in relevant part as follows:



                                           23
                                                                       No.    2014AP2420


           After issue is joined but at least 20 days before
      trial, the plaintiff may serve upon the defendant a
      written offer of settlement for the sum, or property,
      or    to   the   effect    therein   specified,   with
      costs. . . . If the offer of settlement is not
      accepted and the plaintiff recovers a more favorable
      judgment, the plaintiff shall recover double the
      amount of the taxable costs.
§ 807.01(3).        The Estate (the plaintiffs below) filed a notice

of its offer of settlement on June 7, 2013 (approximately seven

months before trial).            The Estate offered to settle with Storey

for a sum of $7,500.             Storey declined to settle.              After trial

and appeal, the Estate will recover $10,000 in actual damages,

which is a higher and more favorable judgment.                    Thus, the Estate

"shall      recover     double    the       amount   of    the    taxable      costs."

§ 807.01(3).          The   Estate's     taxable     costs   amount      to   $814.95,

which doubled amount to $1,629.90.                    We therefore remand the

cause    to   the     circuit    court    with   direction       to    reinstate    the

circuit court's judgment as to taxable costs in the amount of

$1,629.90.

           B. Whether Attorney Fees Are Included Within The
          Meaning Of "Costs Of Investigation And Litigation"
                   Under Wis. Stat. § 895.446(3)(b).
      ¶48     The second issue we consider is whether attorney fees

are included within the meaning of "costs of investigation and

litigation" under Wis. Stat. § 895.446(3)(b).                    The Estate argues

that attorney fees are included as "costs of . . . litigation"

because the court of appeals has already interpreted this phrase

as including attorney fees.              See Stathus, 260 Wis. 2d 166, ¶¶12-

24.      Storey argues that Stathus is not good law because it
considered     a    version      of   the    statute      that   did    not    include

                                            24
                                                                  No.    2014AP2420



subsection    (3m);    subsection        (3m)    specifically     provides     for

"reasonable attorney fees" and interpreting subsection (3)(b) to

include attorney fees in light of this amendment would render

the specific provision in (3m) superfluous.

     ¶49    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 so as

to alter that interpretation.

     ¶50    We begin with the language of the statute.                  See Kalal,

271 Wis. 2d 633, ¶45.         Section 895.446(3)(b) states in relevant

part as follows:

     If the plaintiff prevails in a civil action under sub.
     (1), he or she may recover all of the following:
     . . .

          (b) All costs of investigation and litigation
     that were reasonably incurred, including the value of
     the time spent by any employee or agent of the victim.
Wis. Stat. § 895.446(3)(b).

     ¶51    "If a statute uses words or phrases that have already

received authoritative construction by the jurisdiction's court

of   last    resort,   or    even   uniform       construction     by     inferior

courts . . . they      are    to    be    understood      according      to   that

construction."     Scalia & Garner, supra ¶35, at 322-26 (Prior-

Construction Canon).         "A statute will be construed to alter the
common law only when that disposition is clear," and "[r]epeals


                                         25
                                                                       No.       2014AP2420



by implication are . . . 'very much disfavored.'" Id. at 318-19

(Presumption      Against   Change        in    Common    Law);      id.     at    327-33

(Presumption      Against       Implied        Repeal).         In     other       words,

legislative inaction in the wake of judicial construction of a

statute indicates legislative acquiescence.20                   See Progressive N.

Ins. Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 697

N.W.2d 417.       This doctrine of legislative acquiescence applies

with equal, if not greater, force where the legislature has

acted on the statute, but declines to revise the interpreted

language.       See   Tucker    v.      Marcus,    142    Wis. 2d 425,           434,    418

N.W.2d 818      (1988)   (citing        Munninghoff       v.    Wis.     Conservation

Comm'n,   255     Wis.   252,    258,     38    N.W.2d 712      (1949)       ("The       re-

enactment    of   the    statute     on    which   there       existed       a   judicial

determination      indicates       an     intent     to    adopt       the       judicial

determination as a part of the statute."));                       see also         United

States v. Home Concrete & Supply, LLC, 566 U.S. 478, 483 (2012)

(declining to give the same language in a reenacted statute a

different     construction       where     the     operative         language       in    a


     20
       We note that Justice Kelly's concurrence/dissent takes
issue with this canon of construction, see Justice Kelly's
concurrence/dissent, ¶¶94-104, but does not argue that Wisconsin
law does not support application of the canon or that we have
incorrectly applied the canon here.    Thus, its scrutiny of the
assumptions that underlie the canon do not bear directly on the
integrity of our analysis.     In other words, the dissent has
presented a problem without suggesting a solution, and we
decline to digress from the established canons of construction
because to do so would leave us with "no intelligible, generally
accepted   and   consistently   applied   theory   of   statutory
interpretation." Scalia & Garner, supra note 12, at 8.


                                          26
                                                      No.   2014AP2420



reenacted provision was identical because stare decisis counsels

against such interpretive variation).

    ¶52    The   phrase   "[a]ll    costs   of   investigation    and

litigation" has previously been interpreted to include attorney

fees.    See Stathus, 260 Wis. 2d 166, ¶¶12-24.21     In Wisconsin,


    21
       We acknowledge that the Stathus court did not directly
consider the issue of whether attorney fees were awardable;
rather, in promulgating the standards by which a circuit court
should determine whether an award of attorney fees under the
statute is reasonable, the Stathus court assumed that attorney
fees were awardable.     This assumption, however, is a prior
construction   under    the   Predicate-Act   Canon   and   the
Interpretation Principle of statutory construction.         The
Interpretation Principle holds that "[e]very application of a
text to particular circumstances entails interpretation"; the
Predicate-Act Canon holds that "[a]uthorization of an act also
authorizes a necessary predicate act."     See Scalia & Garner,
supra note 12, at 53-55, 192-94.   Thus, when the Stathus court
remanded to the circuit court with instructions to "apply the
appropriate standards for determining 'reasonableness'" of
attorney fees under the statute, it necessarily construed the
statute as authorizing the award of attorney fees. Stathus, 260
Wis. 2d 166, ¶25.

     Additionally,  lower   courts  have   consistently   awarded
attorney fees under the statute.      See Revolution Processing
Sol., Inc. v. Collins Fin., LLC, No. 13CV657, 2015 WL 13540579,
at *4 (Wis. Cir. Ct. Dec. 9, 2015); Gribble v. Gribble, No.
11CV017625, 2015 WL 5192481, at *2 (Wis. Cir. Ct. Aug. 18,
2015); Coyle v. Coyle, No. 11CV0510, 2013 WL 6211087, at *1
(Wis. Cir. Ct. Oct. 2, 2013); Offerman v. Pettijohn, No.
09CV04775, 2011 WL 2260387 (Wis. Cir. Ct. Apr. 8, 2011); Carter
v. Cuttingedge of Elkhart Lake, Inc., No 06CV414, 2007 WL
5308643 (Wis. Cir. Ct. Nov. 6, 2007); Lautenslager v. Wallace
Enters., Inc., No. 03CV1860, 2004 WL 5162818 (Wis. Cir. Ct. Nov.
5, 2004); see also BJK of Manitowoc Cty., Inc. v. Barkwell, No.
09CV738, 2012 WL 13001081, at *17 (Wis. Cir. Ct. June 25, 2012);
cf. KBS Constr., Inc. v. McCullough Plumbing, Inc., No.
2008AP1867, unpublished slip op., ¶¶31-32 (Wis. Ct. App. Dec 23,
2009); IW Enter. V. Kopas, No. 03-2036, unpublished slip op.,
¶¶11, 32-33 (Wis. Ct. App. July 27, 2004); Lorge v. Rabl, No.
                                                      (continued)
                                   27
                                                                No.    2014AP2420



this is an authoritative interpretation.              See Wenke v. Gehl Co.,

2004     WI   103,   ¶21,   274    Wis. 2d 220,       682    N.W.2d 405   ("The

principle of stare decisis applies to the published decisions of

the court of appeals.").           After Stathus, the legislature made

six revisions to the statute.22           Thus, the legislature had ample

opportunity to act on or repeal the judicial interpretation of

"costs      of . . . litigation"    in     Stathus,   particularly      when   it

amended subsection (3)(b).          See 2003 Wis. Act 138, § 22.               But

the    legislature    did   not    act    on   or   repeal    the   interpreted

language.       Therefore, the Stathus court's interpretation that

attorney fees are included as "costs of . . . litigation" stands

as good law.23

       ¶53    Additionally, the language of Wis. Stat.                § 799.25——

governing costs recoverable in small claims actions——supports




03CV1629, 2006 WL 6623605 (Wis. Cir. Ct. May 2, 2006).

       On this, the legislature has stood silent.
       22
       See 2003 Wis. Act 36, § 11; 2003 Wis. Act 138, §§ 19-25;
2005 Wis. Act 155, § 70 (renumbering as Wis. Stat. § 895.446);
2005 Wis. Act 447, § 1; 2007 Wis. Act 96, § 161; 2011 Wis. Act
186, § 2.
       23
       We note also that this interpretation is consonant with
the instructions given in the legislative drafting file for the
act creating the statute, which describes the purpose as
allowing "a person who wins a civil action to receive treble
damages and costs for certain property crimes.    This includes
all reasonable attorney fees and other costs of investigation
and litigation. . . ."     Drafting File, 1995 Wis. Act 27,
Legislative Reference Bureau, Madison, Wis.


                                         28
                                                                           No.       2014AP2420



the   conclusion      that     attorney         fees     are    included       as    costs    of

litigation.       Section 799.25 states in relevant part as follows:

             Costs.      The clerk shall without notice to the
       parties tax       and insert in the judgment as costs in
       favor    of       the   party  recovering   judgment the
       following: .      . .

            (10) Attorney Fees.       (a) Attorney fees as
       provided in s. 814.04(1) and (6), except if the amount
       of attorney fees is otherwise specified by statute.24
§ 799.25(10)(a).            Thus,    the       Stathus    interpretation            of     "costs

of . . . litigation"           as     inclusive          of     attorney        fees       seems

particularly        appropriate      in        small   claims     actions,          given     the

language     in    the   statute      directing          that    "attorney          fees"    are

"costs."     See     also    Scalia        &    Garner,        supra    ¶35,        at     170-73

(Presumption of Consistent Usage).

       ¶54   Moreover,        the     private          attorney        general           doctrine

supports the conclusion that attorney fees are included as costs

of    litigation.        The       term    "private        attorney      general"          first

appeared in the law in 1943, when Judge Jerome Frank used the

phrase to describe attorneys empowered by Congress to "institute

a proceeding . . . to vindicate the public interest."                                      Assoc.

Indus. of New York v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943).

It was soon after analogized to "a sort of King's proctor," but

did   not    take    root     in    widespread         practice        until    the        1970s.


       24
       As established here, the amount of attorney fees
recoverable in this action is "otherwise specified" by Wis.
Stat. § 895.446(3)(b).   Thus, the $300 limit provided in Wis.
Stat. § 814.04(1)(a) does not apply to the Estate's recovery in
this case.


                                               29
                                                                  No.    2014AP2420



F.C.C. v. Nat'l Broadcasting Co., 319 U.S. 239, 265 n.1 (1943)

(Douglas, J., dissenting); see William B. Rubenstein, On What a

"Private Attorney General" Is——And Why it Matters, 57 Vand. L.

Rev. 2129, 2130 (2004).

      ¶55    The expansive popularity of the doctrine in the 1970s

has been attributed to its status as an equitable exception to

the American rule that each party in a lawsuit bears its own

costs.      See Ann K. Wooster, Annotation, Private Attorney General

Doctrine—State        Cases     106   A.L.R.    5th   523,      § 2(a)     (2003);

Rubenstein, supra ¶54, at 2136 ("Once loosed as a matter of

money,   the    private       attorney    general   concept's    diffusion       was

limited only by the imagination of lawyers seeking attorneys'

fees.").       This   rapid     expansion,     however,   prompted      courts    to

craft legal standards to define its limits.

      ¶56    Under federal law, attorney fees are recoverable under

the   private    attorney       general    doctrine   only   where       there    is

statutory authority or a contract justifying the award.                          See

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
263 (1975); cf. id. ("[U]nder some, if not most, of the statutes

providing for the allowance of reasonable fees, Congress has

opted to rely heavily on private enforcement to implement public

policy and to allow counsel fees so as to encourage private

litigation.").




                                          30
                                                                         No.     2014AP2420



      ¶57    This     holding        did      not       control       the      doctrine's

development at the state level,25 but Wisconsin has adopted a

similar limitation.           See Marquardt v. Milwaukee Cty., 2002 WI

App 12, ¶23, 249 Wis. 2d 780, 639 N.W.2d 762.                      In Marquardt, the

court held that, "[i]n order for Marquardt to prevail on his

theory that he was acting as a private attorney general, he was

required     to    show    that    some     statutory     basis    existed       for        his

request for attorney's fees."                Id.     The statutory basis for the

request,     however,       need     not     be     express    statutory         language

authorizing        attorney       fees.           See    Watkins      v.       LIRC,        117

Wis. 2d 753, 755, 345 N.W.2d 482 (1984) (holding "that DILHR has

the   authority       to     award    reasonable         attorney's         fees       to    a

prevailing        complainant"      "even     though      [the]    Act      contains        no

express statutory language authorizing such an award").                                Where

there is no express authorization for attorney fees, the court

must determine "whether the authority to award attorney's fees

may be fairly implied from [the statute]"; this is a question of

statutory interpretation.            Id. at 761.
      ¶58    "A cardinal rule in interpreting statutes is to favor

a construction that will fulfill the purpose of the statute over

a construction that defeats the manifest object of the act."

Id.   at    761;    see    also    Scalia    &     Garner,    supra    ¶35,     at     63-65



      25
       In some states the legal standard is promulgated by
statute, see, e.g., Cal. Civ. Proc. Code § 1021.5, but in most
states, as in Wisconsin, the legal standard has developed in the
common law.


                                            31
                                                                     No.    2014AP2420



(Presumption Against Ineffectiveness).26             An award of reasonable

attorney fees effectuates the purpose of a public rights statute

if,   without    the    award,   victims    would   not   be    in    an    economic

position to advance the private and public interest at stake.

See Watkins,      117   Wis. 2d at 764;       Shands v. Castrovinci, 115

Wis. 2d 352, 358, 340 N.W.2d 506 (1983) ("Often the amount of

pecuniary       loss    is   small     compared      with       the        cost     of

litigation. . . . The        award     of     attorney         fees        encourages

attorneys to pursue [] claims where the anticipated monetary

recovery would not justify the expense of legal action.").                        This

is grounded in the maxim that, if rights are to be meaningful,

they must be enforceable.          See also Hartman v. Winnebago Cty.,

216 Wis. 2d 419, 433 n.8, 574 N.W.2d 222 (1998) (noting that,

where a party is acting as a private attorney general, the costs

incurred in retaining counsel are "necessary" costs because, to

fully enforce the public's rights, "assistance of counsel is

fundamental").

      ¶59   Given this analysis, Wis. Stat. § 895.446 could well
fall under the private attorney general doctrine.27                   On the facts

of the cause before us, the Estate brought a private suit based

      26
       The Presumption Against Ineffectiveness dictates that
"[a] textually permissible interpretation that furthers rather
than obstructs the document's purpose should be favored."
Scalia & Garner, supra note 12, at 63.
      27
       We note also that other states provide for similar civil
actions based on criminalized conduct.      See, e.g., In. Stat.
35-43-4-2   (Theft;  receiving   stolen   property);  In.  Stat.
34-24-3-1 (Pecuniary loss as result of property offenses).


                                      32
                                                                 No.    2014AP2420



on a criminal statute that deters theft.                Criminal prosecution

is the exclusive province of the government in the United States

today.      Rubenstein, supra ¶54, at 2141.             Thus, in bringing a

private suit that enforces criminal proscriptions, the Estate's

cause vindicates the public right to be free from crime.                       See

also Watkins, 117 Wis. 2d at 764 ("[A]n individual who brings an

action to enforce a statutory right may be acting as a 'private

attorney    general'    to     enforce    the    public's   rights     under   the

statute.").     Additionally, the Estate's claim was for $10,000

and the circuit court found that the hourly legal fees amounted

to $24,708.50.         As a practical matter then, without attorney

fees, the Estate may not have been in an economic position to

advance the private and public interest at stake.28

      ¶60    Based on the foregoing, we conclude that attorney fees

are recoverable as "costs of . . . litigation" under Wis. Stat.

§ 895.446(3)(b)       because    the     court   of   appeals'   authoritative

interpretation in Stathus stands where the legislature failed to

act    to    repeal     that     interpretation.            Additionally,      the
itemization of "attorney fees" as "costs" in Wis. Stat. § 799.25

(applicable to small claims) and the private attorney general

doctrine     support     the     conclusion      that   attorney       fees    are

recoverable here.


      28
       We note that the circuit court awarded attorney fees
based on an hourly rate, although the record reflects that the
Estate had a contingency fee agreement, and confine our analysis
to the facts underlying the circuit court award. See supra note
4.


                                         33
                                                                          No.     2014AP2420



       ¶61       Furthermore, other language in the statute supports

our conclusion that attorney fees are recoverable.                              It is well

established that attorneys are agents of their clients.                                 See,

e.g.,       Marten      Transp.,   Ltd    v.       Hartford   Specialty          Co.,    194

Wis. 2d 1,        13,    533    N.W.2d 452         (1995)   ("The    relationship            of

attorney and client is one of agency.").                      Section 895.446(3)(b)

allows the plaintiffs in a civil theft action to recover the

"value      of    the    time   spent    by    any    employee      or   agent     of    the

victim."         Thus, the language of this provision further supports

that the Estate, as the plaintiff in this civil theft action,

may recover attorney fees as the value of the time spent by the

Estate's attorneys, who are its agents.29

       ¶62       In sum, to conclude that Wis. Stat. § 895.446(3)(b)

does    not      include    attorney     fees       would   require      us     to,     at   a

minimum, overturn precedent, disregard fundamental principles of

statutory interpretation, and ignore the legislature's inaction

with respect to this subsection, especially when the legislature

modified this very statute six times post-Stathus.                         We therefore
remand the cause to the circuit court with direction to award

reasonable        attorney      fees   consistent      with   this       opinion.        See

supra ¶2 note 4.




       29
       Again, the reasonableness of the amount awarded was not
an issue before this court and we decline to address it so as to
afford the circuit court the opportunity to consider it in the
first instance on remand. See supra note 4.


                                              34
                                                                                No.    2014AP2420


      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.
      ¶63     The third issue we consider is whether the court of

appeals     erred    in    considering          an    argument       regarding        exemplary

damages that was not raised in the circuit court.                               This issue is

two-fold: first we determine whether considering the argument

was an erroneous exercise of discretion; second, we determine

whether the court of appeals' decision to reverse the circuit

court's award of exemplary damages was an error of law.

      ¶64     As    to     whether        the        court   of        appeals        erred     in

considering the issue of the circuit court's award of exemplary

damages, the Estate argues that the court of appeals erroneously

exercised     its    discretion       because         considering         an    argument       not

preserved      below      creates     a     double       standard         for    parties       who

decline to address arguments not fully briefed by an opposing

party.30    Storey        argues    that        the     court     of      appeals      did    not

erroneously exercise its discretion because the circuit court

was   wrong    to   award     exemplary          damages        to   the    Estate      on     the

Estate's      post-verdict         motion       where    there       is    clear      law     that


      30
       The essence of this double standard is as follows: on the
one hand, responding to an issue that the opposing party did not
fully brief or raise below "open[s] the door for the Court of
Appeals to consider the issue 'thoroughly' briefed"; on the
other hand, "a failure to take on the merits of that [issue] can
be used against the respondent if the Court of Appeals" decides
to consider the issue and determines it has been forfeited by
the party that declined to respond on the basis that the issue
had not been fully briefed.


                                                35
                                                                              No.     2014AP2420



requires an award of exemplary damages be made by the trier of

fact, which in this case was the jury.

      ¶65      As to whether the court of appeals erred in reversing

the   circuit     court's        award    of    exemplary          damages,     the        Estate

argues that the court of appeals erred because the law does not

clearly require a jury to determine the amount of exemplary

damages.       Storey argues that the court of appeals did not err

because     the    law     clearly       requires          that    the     trier      of    fact

determine the amount of exemplary damages, which in this case

was the jury; thus, the judge's award of exemplary damages on a

post-verdict motion was improper.

      ¶66      Regarding discretion, 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.             Regarding the legal merit of reversal,

we 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.

      ¶67      First, we determine whether considering the argument

was an erroneous exercise of discretion.                          Typically, on appeal,

a court will not consider an issue not preserved below.                                       See

State     v.    Huebner,     2000    WI        59,    ¶10,        235    Wis. 2d 486,         611

N.W.2d 727.        Although        this    has       commonly       been      known    as    the




                                               36
                                                                            No.   2014AP2420



"waiver       rule,"    we    reiterate        here   that     it    is    more   properly

referred to as "forfeiture."31                      See id., ¶11 n.2; Brunton v.

Nuvell    Credit       Corp.,    2010     WI    50,    ¶35,    325    Wis. 2d 135,       785

N.W.2d 302.        At    the     circuit       court,   issues       are    preserved    by

timely objection.            Huebner, 235 Wis. 2d 486, ¶10.                  An appellate

court may, however, exercise its discretion to hear an issue not

preserved      below.         See   Caban,      210    Wis. 2d at         609.    Such   an

exercise of discretion is proper where the issue raised is a

legal question, the parties have thoroughly briefed the issue,

and there are no disputed issues of fact.                      See Wirth v. Ehly, 93

Wis. 2d 433, 444, 287 N.W.2d 140 (1980), superseded by statute

on other grounds; see also State v. Bodoh, 226 Wis. 2d 718, 737,

595 N.W.2d 330 (1999).

    ¶68        Here,    the     court     of    appeals       did    not    err   when   it

considered the issue of exemplary damages.                           First, the proper

allocation of responsibilities between the judge and the jury

with regard to exemplary damages is a question of law.                                   See

Kimble, 353 Wis. 2d 377, ¶38.                   Second, Storey raised the issue
of the proper allocation of responsibilities between judge and

jury with regard to exemplary damages in her briefing in the

court    of    appeals,       and   the    Estate's       court      of    appeals   brief

responds to her argument on that issue.                        Third, the parties do

not dispute that it was the judge, not the jury——the trier of

    31
       "[F]orfeiture is the failure to make the timely assertion
of a right[;] waiver is the intentional relinquishment or
abandonment of a known right." Brunton v. Nuvell Credit Corp.,
2010 WI 50, ¶35, 325 Wis. 2d 135, 785 N.W.2d 302.


                                               37
                                                                           No.         2014AP2420



fact    below——who       determined          both    the    appropriateness            and    the

amount of the award of exemplary damages.                           Thus, the court of

appeals did not err when it considered whether the circuit court

had improperly awarded exemplary damages.

       ¶69     Second,      we   determine          whether   the    court        of    appeals

decision      to    reverse      the     circuit      court's      award     of    exemplary

damages was an error of law.                       The accepted legal standard for

awarding exemplary damages is clear.                          In    Kimble,       this court

stated:

       The judge has the duty to act as the "gatekeeper" when
       determining whether the issue of punitive damages32 is
       properly before the jury.        Once the judge has
       determined that the issue of punitive damages is
       properly before the jury, whether to actually award
       punitive damages in a particular case is entirely
       within the discretion of the jury.
353 Wis. 2d 377, ¶44 (citation omitted) (footnote added).                                     This

establishes         that,      although       the     judge       initially       determines

whether      exemplary         damages       are    an     appropriate     issue         to    be

presented to the trier of fact, it is within the discretion of

the    trier       of   fact     to    determine         whether    to    actually        award

exemplary      damages         and,    if    so,     in    what    amount.         See        also

Topolewski      v.      Plankinton       Packing      Co.,    143    Wis. 52,          53,     126

N.W. 554 (1910); Shopko Stores, Inc. v. Kujak, 147 Wis. 2d 589,

601,    433     N.W.2d 618            (Ct.   App.        1988).      Of    course,            that



       32
       "Exemplary  damages"  are   synonymous  with  "punitive
damages."  Exemplary Damages, Black's Law Dictionary 692 (10th
ed. 2014).


                                               38
                                                                      No.     2014AP2420



determination is subject to post-verdict review, for example, on

proper motion and/or on appeal.

     ¶70       Here, the trier of fact in the circuit court was the

jury.33        Thus,   the    circuit     court's    decision    to     first      award

exemplary       damages      on    the   Estate's    post-verdict       motion       was

contrary to clear law because the issue was not first presented

to the jury, and the court of appeals decision to reverse was

proper.

     ¶71       In sum, we affirm the court of appeals' exercise of

discretion to consider the issue of the circuit court's post-

verdict award of exemplary damages.                 After consideration of the

issue, the court of appeals held that, in a jury trial, the

award of exemplary damages must be decided by the jury.                              See

Estate    of    Miller,      371    Wis. 2d 669,    ¶16.      Because       this   is   a

proper application of the legal standard, we also affirm the

court of appeals' holding on the merits.

           D.    Whether The Court Of Appeals Properly Denied
                 The Estate's Motion For Reconsideration.
     ¶72       The fourth and final issue we consider is whether the
court     of    appeals      properly     denied    the     Estate's    motion      for

reconsideration.                  The    Estate     filed     its      motion        for

reconsideration on July 11, 2016.                   In its motion, the Estate

argued that the court of appeals' holding as to actual damages

     33
       We note that in some instances, the judge is also the
trier of fact and it would be appropriate in that instance for
the judge to determine whether to award exemplary damages and
the amount of the award.


                                           39
                                                                     No.     2014AP2420



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.

The court of appeals withdrew its opinion on July 14, 2016.

       ¶73    On July 28, 2016, the court of appeals denied the

Estate's motion, and, on August 16, 2016, the court of appeals

issued a revised opinion.                With regard to actual damages, the

court of appeals removed citations to legal authority and added

language that the Estate had conceded the issue.                            Estate of

Miller, 371 Wis. 2d 669, ¶21.              With regard to double costs, the

court of appeals added language that the Estate had conceded the

issue.      Id., ¶31.

       ¶74    The     Estate     argues     that      the    court     of      appeals

erroneously         exercised    its     discretion      because     the    court   of

appeals withdrew and revised its opinion contemporaneously with

its consideration of the Estate's motion for reconsideration 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.

Storey argues that the court of appeals properly exercised its

discretion because its withdrawal of its decision and its denial

of    the    Estate's     motion   for     reconsideration      were       "completely

within its statutory authority."

       ¶75    We conclude that our analysis as to the first issue
renders analysis of this issue unnecessary because our reversal
                                           40
                                                                  No.   2014AP2420



of the court of appeals' holdings on actual damages and double

costs     obviates   the     substance      of    the    Estate's       remaining

arguments.34,   35


     ¶76    Above,   we    concluded   that      the   Estate's   claim    is   an

"other civil action" for which the $10,000 damages cap applies

and that double costs are authorized by law.               See supra ¶¶32-47.

This obviates the need for us to further analyze the court of

appeals' holding on this issue,36 and we decline to do so.

     34
       As a general matter, we note that, under Wis. Stat.
(Rule) § 809.24(3), the court of appeals may reconsider a
decision on its own motion. Section 809.24(3) does not dictate
the grounds on which the court of appeals may withdraw and
revise a previously issued opinion. Thus, the court of appeals
is afforded discretion in withdrawing and revising previously
issued opinions. Additionally, under § 809.24(2), the court of
appeals may deny a motion for reconsideration.            Section
809.24(2) does not dictate what action the court of appeals must
take on a motion, just that it must take action.       Thus, the
court of appeals is afforded discretion to deny motions for
reconsideration.
     35
       Again, to the extent that the Estate's arguments may be
read to raise a question of law regarding the court of appeals'
statutory authority under Wis. Stat. (Rule) § 809.24, analysis
of that issue is also rendered unnecessary by our analysis of
the first issue and we need not comment further on whether the
court of appeals' revision actually reflects a grant of the
motion for reconsideration. See also supra note 11.
     36
       The court of appeals held that the Estate conceded that
it should have filed in large claims. See Estate of Miller, 371
Wis. 2d 669, ¶21.   Although we do not analyze that holding, we
note that it appears from the record that the Estate did not
concede this issue: first, it is not clear that Storey's brief
in the court of appeals fully developed this as an argument;
second, there was no reference anywhere in the record to the
requirements for filing a large claim, not the least of which is
the filing fee, see Wis. Stat. ch. 814.


                                       41
                                                                                   No.       2014AP2420




                                      IV.    CONCLUSION

      ¶77    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

resolves     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.

      ¶78    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).

      ¶79    As to the second issue, we conclude that attorney fees
are included within the meaning of "costs of investigation and
                                                 42
                                                                              No.     2014AP2420



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       so     as     to      alter       that

interpretation.

       ¶80    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.

       ¶81    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.

       ¶82    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.



       By    the        Court.—The      decision    of    the    court      of      appeals    is
affirmed in part, reversed in part, and the cause is remanded to
                                              43
                                                 No.   2014AP2420



the circuit court for further proceedings consistent with this

opinion.




                              44
                                                                           No.    2014AP2420.dk


      ¶83       DANIEL KELLY, J.            (concurring in part, dissenting in

part).          I    join    the    court's       opinion       except    insofar          as   it

concludes that Wis. Stat. § 895.446(3)(b) awards attorney's fees

to prevailing plaintiffs.               Stathus v. Horst,1 our opinion's sole

source     of       authority      supporting        that   conclusion,          is   actually

silent on the issue.                And the legislature has been silent with

respect to Stathus's silence.                    But in that doubly-quiet void we

purport to hear not only an authoritative interpretation of a

statute,        but    also       the   legislature's           commendation          of    that

unspoken interpretation.                Because I hear no such thing, I must

respectfully dissent from that part of our opinion.

      ¶84       The availability of attorney's fees depends entirely

on what Wis. Stat. § 895.466(3) means when it says a prevailing

plaintiff "may recover all of the following: . . . All costs of

investigation          and       litigation      that    were    reasonably           incurred,

including the value of the time spent by any employee or agent

of the victim."              Our methodology for discerning that meaning

focuses on the statute's text, context, and structure.                                State ex
rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶¶45-46, 271

Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory interpretation 'begins

with the language of the statute.' . . . Context is important to

meaning. So, too, is the structure of the statute in which the

operative       language         appears.     Therefore,        statutory        language       is

interpreted in the context in which it is used; not in isolation

but   as    part       of    a    whole;    in       relation     to     the     language       of


      1
          2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165.


                                                 1
                                                                       No.    2014AP2420.dk


surrounding          or    closely-related           statutes . . . ."          (internal

citation omitted)).             In performing this analysis, we carefully

avoid ascribing an unreasonable or absurd meaning to the text.

Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably,

to avoid absurd or unreasonable results." (citations omitted)).

If we find the statute's plain meaning through this methodology,

we go no further.           Id., ¶45 ("If the meaning of the statute is

plain,    we    ordinarily       stop    the       inquiry.'"      (quoting    Seider     v.

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659));

see generally Daniel R. Suhr, Interpreting Wisconsin Statutes,

100 Marq. L. Rev. 969 (2017).

    ¶85        Our    opinion    does    not       conform    to    this     methodology.

Instead of "begin[ning] with the language of the statute," we

began with a court opinion that did not address itself to the

question       sub   judice.       Instead         of   considering     the     statute's

context    and       structure,     we    turned        to    a     canard    about      the

significance of legislative inaction.                        And we argued that it

would be wise policy to award attorney's fees in situations like
this——an argument on which I offer no comment except to say that

the wisdom of a given policy makes the asserted meaning of a

statute neither more nor less likely to be true.                            And then, at

the end, we finally arrived at the statute's language, but only

in search of justification for the conclusion we had already

reached.       This is a method of statutory interpretation so far

removed    from      the   practice      we    endorsed      in     Kalal    that   it    is

unrecognizable.



                                               2
                                                                           No.    2014AP2420.dk


                    I. WHAT STATHUS V. HORST CANNOT TELL US

       ¶86    Citing Kalal, our opinion says "[w]e begin with the

language of the statute."                   Majority op., ¶50.                   And we did,

inasmuch as we quoted Wis. Stat. § 895.446(3) near the beginning

of the attorney's fees section of our opinion.                            But Kalal is not

telling us where we should place the quote——it is telling us

that   the    language     should      be    the       first      thing   to     capture    our

analytical attention.               However, after quoting the statute, we

promptly      ignored    it    until      giving       it    a    paragraph's       worth     of

attention at the end of our analysis, and then only after we had

already      concluded    the       language          we    did    not    construe        awards

attorney's fees to prevailing plaintiffs.                         Our analysis actually

started with the invocation of a canon of construction to make

it appear that Stathus said something it did not.

       ¶87    We said that the "Prior Construction Canon" requires

us to read Wis. Stat. § 895.446(3) as awarding attorney's fees

to prevailing plaintiffs.                 This interpretive aid counsels that

"[i]f a statute uses words or phrases that have already received
authoritative construction by the jurisdiction's court of last

resort,        or      even         uniform           construction          by       inferior

courts . . . , they           are    to     be       understood      according       to    that

construction."         Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 322 (2012).                               We have never

construed the language of § 895.446(3)(b), so the canon directs

our attention to our court of appeals.

       ¶88    We offered Stathus as the only candidate in which we
may    find     an     authoritative          construction           of    the      statute's

                                                 3
                                                                    No.    2014AP2420.dk


language.       But before we hunt through the Stathus opinion for

such a thing, it's worth a short digression to describe the

subject of our search.            The term "construction" refers to the

process by which we discover the meaning of the written law.                           It

is "[t]he act or process of interpreting or explaining the sense

or    intention     of    a    writing     (usu.    a    statute,         opinion,     or

instrument)."      Black's Law Dictionary 308 (7th ed. 1999).

      Construction, as applied to written law, is the art or
      process of discovering and expounding the meaning and
      intention of the authors of the law with respect to
      its application to a given case, where that intention
      is rendered doubtful either by reason of apparently
      conflicting provisions or directions, or by reason of
      the fact that the given case is not explicitly
      provided for in the law.
Id. (quoting Henry Campbell Black, Handbook on the Construction

and Interpretation of the Laws 1 (1896)).

      ¶89   So if Stathus is to bear the weight we assign it, we

should find in that opinion an effort to discover and expound on

the   meaning     of   Wis.     Stat.    § 895.446(3)(b)     as     it     relates     to

liability    for    the   plaintiff's       attorney's      fees.         Stathus,     of

course, contains no such thing.                 Surprisingly, this is not even

a point of contention——our opinion frankly admits the court of

appeals     did    not    construe       the     language    in     which      we     are

interested:        "We acknowledge that the              Stathus    court did not

directly    consider      the    issue     of    whether    attorney        fees     were

awardable;    rather,     in     promulgating      the   standards        by   which    a

circuit court should determine whether an award of attorney fees

under the statute is reasonable, the Stathus court assumed that
attorney fees were awardable."             Majority op., ¶52 n.21.             Because

                                           4
                                                                       No.    2014AP2420.dk


the        "Prior     Construction        Canon"       performs        its      work     on

"constructions," our concession that Stathus contains only an

assumption          necessarily     disqualifies        it      from     the      canon's

operation.

       ¶90     But with a liberal application of a few more canons,

we claim to have coaxed something authoritative out of Stathus:

"This assumption, however, is a prior construction under the

Predicate-Act         Canon[2]    and   the       Interpretation       Principle[3]      of

statutory         construction. . . . Thus,           when    the       Stathus        court

remanded to the circuit court with instructions to 'apply the

appropriate         standards     for     determining        "reasonableness"'           of

attorney fees under the statute, it necessarily construed the

statute as authorizing the award of attorney fees."                              Majority

op.,        ¶52     n.21.         No      sentence       that       begins        "[t]his

assumption . . . is          a    prior    construction"          can        advance    any

logically         defensible      proposition.           A    "construction,"            as

described above, is the discovery and exposition of meaning.                             An




       2
       "Authorization of an act also authorizes a necessary
predicate act." Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 192 (2012) (defining the
"Predicate-Act Canon").
       3
       "Every application of a text to particular circumstances
entails    interpretation."     Id.   at   53   (defining   the
"Interpretation Principle").


                                              5
                                                                           No.   2014AP2420.dk


assumption is the absence of that.                       The laws of a rational

universe forbid these being the same thing.4

       ¶91     Even without this error, the "Predicate-Act Canon" can

provide no useful instruction here.                     It is certainly true that

the    Stathus      court,       in    remanding   the    case        to    determine       the

reasonableness of the claimed attorney's fees, also authorized

the circuit court to award those fees.                         But what of it?              Our

project      here     is   discerning      the    meaning      of     a    statute,    not    a

matter's undisputed procedural history.                       But perhaps we mean to

say    the    Stathus      court's       assumption     was     an    "act"      within     the

meaning of this canon.                If that is what we meant, then this is a

good object lesson in why the canon applies to "acts" (as its

name       suggests),      not    reasoning.       If    the    canon       allows     us    to

conclude       that     Stathus        authoritatively        answered       the    question

before       us   because        its    assumptions      were        necessary      for     its

conclusion,         then    the    canon    does   nothing          but    create     logical

fallacies.        Positing an argument's premise in the conclusion as

a means of proving the premise's truth is known as the petitio
principii (or "begging the question") error.                          Bootstrapping does

not make a premise more likely to be true.



       4
       The law of non-contradiction holds that a proposition
cannot be simultaneously true and not true.           Aristotle,
Metaphysics bk. IV, ch. VI, at 1011b (W.D. Ross, trans., Oxford,
Clarendon Press 1908) (c. 350 B.C.E.) (stating that "the most
indisputable of all beliefs is that contradictory statements are
not at the same time true").     Thus, the Stathus court cannot
have both (1) assumed this statute awards attorney's fees, and
also (2) engaged in a process of discovery and exposition on
that subject.


                                              6
                                                                            No.    2014AP2420.dk


    ¶92        The "Interpretation Principle" is similarly unhelpful.

Yes, "[e]very application of a text to particular circumstances

entails interpretation."                Scalia & Garner, supra ¶5, at 53.                      But

that truism requires an application of the text.                            As our opinion

admits, however, the Stathus court didn't apply the text to the

question       in    which    we       are    interested.           Thus,     there       is    no

interpretation for this canon to validate.                            So, even if we had

the power to suspend the iron-clad law of non-contradiction,

this brace of canons is no more helpful than the first.

    ¶93        As    our      opinion        reveals,         we    don't      have       enough

interpretive canons to make Stathus say something authoritative

about    the    availability           of    attorney's        fees    under       Wis.    Stat.

§ 895.446(3)(b).           We should be grateful this is so.                       For if our

opinion is correct, and this cocktail of canons has the power to

create     ex       nihilo,     then         we       have   called     forth       from       our

interstitial        silences       a    host      of     undefined     (and       undefinable)

authorities.         Who knows what manner of inchoate precedent will

answer that summons?               Our responsibility (and authority) lies
only in saying what the law is——that is, saying what it already

is; it is not for us to use interpretive canons to speak the law

into existence.         Marbury v. Madison, 5 U.S. 137, 177 (1803).

                              II. LEGISLATIVE INACTION

    ¶94        To affirm the continuing validity of Stathus's non-

holding,    our      opinion       observes       that       the   legislature       has   done

nothing to counter the court of appeals' assumption that Wis.

Stat.    § 895.446(3)(b)            awards        attorney's        fees    to      prevailing
plaintiffs:         "[T]he legislature had ample opportunity to act on

                                                  7
                                                                                  No.    2014AP2420.dk


or    repeal            the         judicial              interpretation                of      'costs

of . . . litigation'               in    Stathus, particularly when it amended

subsection (3)(b). . . . [b]ut the legislature did not act on or

repeal the interpreted language."                          Majority op., ¶52.                Accepting

for   the        sake     of       argument          that      there        was     a        "judicial

interpretation" to which the legislature could respond, there is

nothing     to    suggest      the           legislature's      non-response             could      have

anything to say about the statute.

      ¶95    As mentioned above, we look for a statute's meaning in

its text, context, and structure.                          Kalal, 271 Wis. 2d 633, ¶¶45-

46.   These are things that exist and have definable content, the

meaning     of    which       we    may        contest.        Some    would        also       include

legislative history as a source of a statute's meaning——e.g.,

instructions delivered to the bill's drafter, iterations of a

bill presented in committee or to the full legislative body,

statements delivered by the members in a legislative chamber, et

cetera.          Regardless             of     the       propriety     of    consulting             such

material, it at least shares with the statute's text the benefit
of being something that                      exists; it has definable content to

which construing minds might have recourse.

      ¶96    Legislative            inaction,             on   the     other        hand,          is   a

negation.        There is no definable content in a void, and there

can be no meaning drawn from it.                          There are several reasons this

is true.

      ¶97    First,           attributing                significance        to         legislative

inaction depends on an overweening, court-centric view of our
relationship       to    the       other        branches       of    government.              If    this

                                                     8
                                                                   No.    2014AP2420.dk


interpretive device is to function, it requires a belief that

the     legislature       carefully    attends       to     everything         we     say,

rigorously compares our pronouncements to its own understanding

of the statutory corpus,5 compiles a list of disagreements, and

privileges      corrective     measures       over   everything      else       on    its

crowded legislative calendar.

       ¶98    This, of course, hasn't the slightest correlation to

reality.       The legislature is a coordinate branch of government

with its own unique responsibilities, functions, and priorities.

It    does    not   pay   court   to   us,    nor    does    it   have        the   least

obligation to do so.           That it does, from time to time, adopt

legislation specifically designed and intended to respond to one

of our holdings gives us no license to pretend it will always do

so when it disagrees with us.

       ¶99    Second, drawing an inference from legislative inaction

involves an unwarranted temporal elision.                     The meaning of a

statute is fixed at the point it is adopted.                      To the extent we

are looking past the text to the legislature to determine what
its membership thought the statute meant, we should at least

look to the body that adopted it.              The legislature does not have

stagnant membership——it is, in fact, reconstituted every other

year.        Many   legislators   return,      but   the    change       of    even   one

member makes it a new body.               If we look for meaning in the

       5
       The legislature does not actually have a collective
understanding of a statute's meaning.    A legislature is not a
monolith; ours is a body that comprises 132 members, all of whom
exercise their mental faculties independently of the others. So
to speak of a collective understanding is to speak of a fiction.


                                          9
                                                                      No.   2014AP2420.dk


inactivity of successive legislatures, then we are asking after

the wrong body.

      This assumption [about the significance of legislative
      inactivity], which frequently haunts our opinions,
      should be put to rest. It is based, to begin with, on
      the patently false premise that the correctness of
      statutory construction is to be measured by what the
      current Congress desires, rather than by what the law
      as enacted meant.
Johnson v. Transp. Agency, Santa Clara Cty. Cal., 480 U.S. 616,

671 (1987) (Scalia, J., dissenting).

      ¶100 Third, whether a court's interpretation of a statute

should be rejected is a substantively different question from

whether the statute should be adopted in the first instance:

"To make matters worse, it [the legislative inaction principle]

assays     the    current    Congress'       desires     with     respect       to   the

particular       provision   in     isolation,       rather    than    (the    way   the

provision was originally enacted) as part of a total legislative

package containing many quids pro quo."                 Id. (emphasis omitted).

There is no telling what might incentivize legislators to reject

our statutory interpretations, or dissuade them from doing so.
Nor do we have the means by which to compare those dynamics to

the   supporting      rationale      for     the     statute's    provisions         when

adopted.

      ¶101 Finally,         there     are        a   variety     of     reasons       the

legislature may take no action on any given question.                           Because

most of those reasons have nothing to do with the accuracy of

our work, there simply isn't any way to espy meaning in the

legislature's silence:


                                            10
                                                                  No.    2014AP2420.dk

    But even accepting the flawed premise that the intent
    of the current Congress, with respect to the provision
    in isolation, is determinative, one must ignore
    rudimentary principles of political science to draw
    any conclusions regarding that intent from the failure
    to enact legislation.      The 'complicated check on
    legislation,'    The Federalist No. 62, p. 378 (C.
    Rossiter ed. 1961), erected by our Constitution
    creates an inertia that makes it impossible to assert
    with any degree of assurance that congressional
    failure to act represents (1) approval of the status
    quo, as opposed to (2) inability to agree upon how to
    alter the status quo, (3) unawareness of the status
    quo, (4) indifference to the status quo, or even (5)
    political cowardice.
Id. at 671-72.         Even if a majority of one of the succeeding

legislature's members wished to rebuke our interpretation, that

desire still might not result in a new law:                 "[I]ntuiting those

desires    from   congressional     failure    to     act    is     an     uncertain

enterprise which takes as its starting point disregard of the

checks and balances in the constitutional scheme of legislation

designed to assure that not all desires of a majority of the

Legislature find their way into law."           United States v. Johnson,

481 U.S. 681, 703 (1987) (Scalia, J., dissenting).

    ¶102 This "legislative inaction" device has no explanatory
power whatsoever, and we should not pretend it does.                     As Justice

Scalia    said,   "I   think   we   should    admit    that       vindication      by

congressional inaction is a canard."            Johnson, 480 U.S. at 672

(Scalia, J., dissenting).       I do, too.

    ¶103 Our opinion relies on it anyway because, well, that's

what we do:       "[The] concurrence/dissent takes issue with this

canon of construction . . . but does not argue that Wisconsin
law does not support application of the canon or that we have

incorrectly applied the canon here."             Majority op., ¶51 n.20.
                                      11
                                                                          No.    2014AP2420.dk


Alas       for    the    day    in    which    exposing     one     of    our    analytical

constructs as just make-believe doesn't diminish its authority.

Notwithstanding the emptiness of this judicial fabrication, we

are so humbled by it that we cannot even imagine challenging its

place in our jurisprudence.                   Yes, our prior opinions support the

use of this fiction.                 But reason doesn't.          Between the two, we

should choose the latter.                    We have both the authority and the

responsibility to do so.

       ¶104 Perhaps even more unsettling is our revelation that,

without this fiction and a clutch of inapposite canons, we would

be    unable       to   interpret      our     statutes:      "In    other       words,   the

dissent has presented a problem without suggesting a solution,

and    we        decline   to     digress      from   the   established          canons     of

construction            because      to   do     so   would       leave     us     with     no

intelligible, generally accepted and consistently applied theory

of statutory interpretation."                   Majority op., ¶51 n.20 (internal

quotations and citation omitted).                     We could always consult the

statute's          text,   as     Kalal      teaches——a     solution       with     which    I
introduced this opinion, and which I address below.

                                III. THE STATUTE'S TEXT

       ¶105 After having already concluded that the statute shifts

responsibility for attorney's fees to the defendant, our opinion

finally turns to the statute's text to see what it might have to

say for itself:                "Furthermore, other language in the statute

supports our conclusion that attorney fees are recoverable."6

       6
       We reached our conclusion as early as ¶49; our treatment
of the statute's language did not start until ¶61.


                                                12
                                                                        No.   2014AP2420.dk


Majority op., ¶61.           "Other" language supports our conclusion?

This suggests we had already construed some of the statute's

language.     We hadn't.         Until this paragraph all we had done with

the language was quote it.              In any event, our analysis of the

statute's language spanned a single paragraph.                      See id.          And in

that paragraph we simply recognized that (1) attorneys act in an

agency    capacity    with       respect   to     their    clients,       and       (2)   the

statute awards "the value of the time spent by any employee or

agent of the victim" as a cost to the prevailing plaintiff.

       ¶106 While    it    is    true   that      attorneys       act    in    an    agency

capacity for their clients, it does not inexorably follow from

this that the legislature means the term "agent" to encompass

"attorney."      And there is substantial evidence that it does not

mean this.       When the legislature wants a provision to apply to

both    attorneys    and    agents,     it      makes   its      intention      known     by

actually saying it applies to both attorneys and agents.                             It has

done this so consistently, and so broadly across the statutory

corpus, that it has created a quite distinct pattern, a pattern
our    opinion    does     not    acknowledge.            See,    e.g.,       Wis.    Stat.

§§ 19.05 ("the plaintiff's agent or the plaintiff's attorney"),

42.01 ("an authorized attorney or agent"), 59.40 ("the party's

agent or the party's attorney"), 59.694 ("agent or attorney"),

60.06 ("agents, attorneys and representatives"), 60.351 ("agent

or    attorney"),    62.23       ("by   agent      or     by   attorney"),           66.0111

("attorney or agent"), 66.0703 ("agents or attorneys"), 71.78

("agent or attorney"), 73.01 ("petitioner's attorney or agent"),
76.30     ("person's       authorized        agent        or     attorney"),          77.61

                                           13
                                                                          No.    2014AP2420.dk


("person's authorized agent or attorney"), 87.12                                ("engineers,

attorneys, agents, assistants, clerks, employees and laborers"),

93.18    ("agent    or     attorney"),         100.23   ("his        or    her     agent   or

attorney"), 102.123           ("employee's attorney or other authorized

agent";       "employee,      attorney,       or    agent"),       102.30       ("agent    or

attorney"),       102.33      (stating     phrase       "attorney         or     authorized

agent"    five    times),      103.275     ("attorney         or    agent";        "person's

attorney or agent"), 103.58 ("agents, servants, employees and

attorneys"), 133.08 ("applicant's agent or attorney"), 115.997

("officers,       attorneys,         employees,      agents,        or     consultants"),

134.19 ("principal, agent or attorney"), 145.10 ("attorney or

agent"; "person's attorney or agent"), 171.04 ("person's agent

or   attorney"),     171.05         ("person's     agent     or     attorney"),       171.06

("person's      agent    or    attorney"),         181.1603       ("member's       agent   or

attorney"; "agent or attorney"), 180.0720 (stating "shareholder

or his or her agent or attorney" three times), 180.1602 ("agent

or   attorney"),     180.1603         ("shareholder's         agent       or    attorney"),

185.47    ("any    member      or    stockholder,       or    his    or    her     agent   or
attorney"),       186.70      ("agent    or    attorney"),         193.501        ("member's

agent    or    attorney"),      214.525       ("person,      agent,       or     attorney"),

217.19 ("agent or attorney"), 221.0518 (stating "shareholder or

his or her agent or attorney" three times), 279.07 ("interested

persons or their agents or attorneys"), 280.13 ("attorney or

agent";       "licensee's      attorney       or    agent"),       304.16       ("officers,

attorneys, employees, agents, or consultants"), 321.61 (stating

"person's agent or attorney" three times; "person or agent or
attorney"), 610.50 ("insurer or an employee, agent or attorney

                                              14
                                                                   No.    2014AP2420.dk


of an insurer"), 611.51 ("policyholder's agent or attorney"),

701.0802 ("agent or attorney of the trustee"), 757.30 ("person

who   appears    as    agent,    representative         or     attorney"),     779.98

("person's agent or attorney"), 799.45 ("plaintiff's attorney or

agent"; "plaintiff or his or her attorney or agent"), 804.01

("attorney, consultant, surety, indemnitor, insurer, or agent"),

814.245 ("attorneys or agents"), 815.53 ("creditor or his or her

attorney,       or    agent"),        881.016     ("attorneys,           accountants,

investment advisers, agents or other persons"), 893.80 ("party,

agent or attorney"), 893.82              ("his or her agent, attorney or

personal representative"), 895.14 ("the party injured, agent or

attorney"),     898.02    ("plaintiff's         agent   or     attorney"),     898.03

("plaintiff's         agent     or      attorney"),          938.999      ("officers,

attorneys,       employees,          agents,     or     consultants"),         946.13

("director,      officer,      employee,       agent    or     attorney"),     946.17

("agent or attorney of any person"; "agent or attorney").7

      ¶107 If the term "agent" subsumes "attorney," there would

have been no need to mention the latter on these 60 occasions.
We should not shoehorn the term "attorney" into "agent" when the

legislature so clearly does not.               The statute, by its own terms,

makes a defendant liable for the time value of the prevailing

plaintiff's agents.           But, for whatever reason, the legislature



      7
       Two of these statutes, Wis. Stat. §§ 60.06 and 814.245,
are fee-shifting provisions, demonstrating that even in this
context the legislature makes a distinction between "attorneys"
and "agents." All of these statutes refer to the current 2015-
16 version.


                                          15
                                                                        No.   2014AP2420.dk


chose not to extend the statute's mandate to attorney's fees.

Whether it should have done so is none of our business.

    ¶108 Even if this were an insufficient reason to reject our

reading of the statute, the text provides an even more explicit

reason   to    do   so.      One   of   the        most    respected     principles        of

statutory construction is that we should not interpret text in a

manner    that      reduces    any      of        its     language     to     ignominious

surplusage.      Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language is

read where possible to give reasonable effect to every word, in

order to avoid surplusage.").                 We cannot understand "agent" as

inclusive of "attorney" without violating that principle for the

following reasons.

    ¶109 The statute under consideration actually contains two

cost-shifting provisions.            The first is general and applies to

all causes of action authorized by Wis. Stat. § 895.446(1):                               "If

the plaintiff prevails in a civil action under sub. (1), he or

she may recover all of the following:                       . . . ."        § 895.446(3).

The second is specific, and applies only to a subset of claims
authorized by the statute.              This specific provision explicitly

makes    the   defendant       liable        for    the     prevailing        plaintiff's

attorney's fees:          "If the violation of s. 943.01(1) involves the

circumstances       under     s.   943.01(2d),            the   court       may   award    a

prevailing plaintiff the reasonable attorney fees incurred in

litigating the action . . . ."               § 895.446(3m)(b).8



    8
       The type of property damage to which this provision refers
is not at issue in this case.


                                             16
                                                                          No.   2014AP2420.dk


       ¶110 Our conclusion does irremediable damage to the text of

the specific cost-shifting provision.                       If the general provision

already includes attorney's fees, there is no reason for the

specific provision to authorize a court to make such an award.

That is to say, our understanding of the general provision makes

the    specific    provision's         award      of      attorney's        fees   entirely

meaningless.       But there is nothing about the statute or this

case that requires us to cause that damage.                             If we don't stuff

"attorney" into "agent" (which would be felicitously consistent

with the legislature's choices), then the specific provision's

award of attorney's fees will have good work to do.                             And we will

have   given    "reasonable          effect     to     every       word,"    and   left    no

surplusage.       We     did    not    explain        why     we    should      ignore   this

internally-consistent reading of the statute.

       ¶111 Our    opinion        demonstrates         an    understandable        fondness

for canons of statutory construction.                       When carefully applied in

applicable      circumstances,           they     can       powerfully       illuminate     a

statute's    meaning.          Out    of    the      many    cited      canons,    however,
perhaps   the     only    applicable        one      is     the    presumption      against

legislative     changes      to    the     common      law:        "A    statute    will   be

construed to alter the common law only when that disposition is

clear."      Scalia      &     Garner,     supra       ¶5,    at    318     (defining      the

"Presumption Against Change in Common Law"); see majority op.,

¶51.    In Wisconsin, we follow the "American Rule" with respect

to attorney's fees:

       The general rule, known as the American rule, is that
       attorney's fees are not ordinarily recoverable in the
       absence of a statute or enforceable contract providing
       therefor. Each party to a lawsuit, under this theory,
                                 17
                                                    No.   2014AP2420.dk

    should bear its own costs of litigation. The American
    rule has been recognized and followed in Wisconsin.
Kremers-Urban Co. v. Am. Emp'rs Ins. Co., 119 Wis. 2d 722, 744-

45, 351 N.W.2d 156 (1984) (internal citations omitted).        That's

our common law.   So if Wis. Stat. § 895.446(3)(b) is to alter

that rule, it must do so clearly.        We, however, derived our

attorney's fees holding wholly from what we think we squeezed

out of silence.    That should make it self-evident that this

statute did not "clearly" alter the common law.

                           IV. CONCLUSION

    ¶112 We found the meaning of Wis. Stat. § 895.446(3)(b) in

a court of appeals opinion that did not address the question we

answered, a collection of inapposite interpretive canons, some

policy arguments, and a canard.     This is not how we are supposed

to interpret statutes.     And the methodology we employed led us

to the wrong conclusion.     Consequently, I respectfully dissent

from that portion of our opinion.

    ¶113 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this opinion concurring in part and dissenting in

part.




                                  18
                                                                    No.    2014AP2420.ssa



      ¶114 SHIRLEY S. ABRAHAMSON, J.                (dissenting).              Unlike the

majority, I conclude that civil theft is an "action based in

tort"     within    the    meaning       of    Wis.     Stat.       § 799.01(1)(cr).

Therefore, the Estate's compensatory damages should be capped at

$5,000, and the Estate is not entitled to double costs.1

      ¶115 In      reaching    an    opposite       conclusion,           the    majority

relies entirely on unremarkable truisms and simply ignores the

wealth of prior cases in which Wisconsin courts have either

explicitly or implicitly characterized certain statutory causes

of action as "torts" or as "sounding in tort."

      ¶116 The     majority     repeatedly       draws         distinctions        between

statutory    claims    and     "common    law"      tort       claims     in    order    to

conclude that the statutory claim for civil theft under Wis.

Stat. § 895.446 cannot be a common law tort claim.                         In so doing,

the   majority     pulls   a   bait-and-switch          in      order     to    answer   a

question that was never asked.

      ¶117 The     question    presented       in   the        instant    case     is   not

whether a civil theft claim pursuant to Wis. Stat. § 895.446 is

a "common law" tort claim.            It obviously is not.                 Rather, the

actual    question     presented     is       whether      a    civil      theft    claim

pursuant to § 895.446 is an "action based in tort" under Wis.

Stat. § 799.01(1)(cr).         Reader beware!           The majority's choice of

language is calculated to erect a strawman that it can then


      1
       I agree with the majority that whether to award exemplary
damages, and if so, in what amount, is a question to be decided
by the finder of fact.


                                          1
                                                                    No.    2014AP2420.ssa


easily    set    ablaze     in   the    guise     of   reasoned      and       principled

analysis.

    ¶118 I also write to make clear that I do not agree with

the majority's conclusion that Wis. Stat. § 895.446(3)(b) awards

attorney fees in the present case.                     On this issue, I largely

agree with the analysis of Justice Kelly's dissent.

    ¶119 Lastly, I conclude that the majority fails to fully

delineate the elements of the private attorney general doctrine,

leading to a flawed result.

    ¶120 Because a civil theft claim pursuant to Wis. Stat.

§ 895.446 is an "action based in tort" and attorney fees are not

awardable       to     prevailing        plaintiffs         under         Wis.     Stat.

§ 895.446(3)(b), I dissent.

                                            I

    ¶121 The majority states four equally unpersuasive reasons

for its conclusion that a civil theft claim pursuant to Wis.

Stat. § 895.446 is not an "action based in tort," but instead,

qualifies       as   an     "other     civil      action"        under     Wis.    Stat.
§ 799.01(1)(d).           The    majority       reasons    as    follows:         first,

§ 895.446, the civil theft statute, states that it is creating a

"civil   action";      second,     Wisconsin      case     law    distinguishes       the

statutory civil theft claim under § 895.446 from similar common-

law tort claims; third, Wisconsin 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

                                            2
                                                                      No.   2014AP2420.ssa


acting       under    a    civil    statute        that   enables     enforcement       of

criminal law is not bringing an action based in tort.                           Majority

op., ¶34.

       ¶122 The majority's latter three reasons together suffer

from the same infirmity:             these three reasons answer a question

that was never asked.              These three reasons answer the question

"Is    a    civil    theft   claim    pursuant       to   Wis.   Stat.      § 895.446    a

common law tort claim?"              This is not the question presented by

the case.           The question presented is as follows: "Is a civil

theft claim pursuant to Wis. Stat. § 895.446 an 'action based in

tort' under Wis. Stat. § 799.01(1)(cr)?"2

       ¶123 The majority spends several paragraphs explaining the

unremarkable         proposition      that        specific   statutory       causes     of

action are separate and distinct from their similar common law

counterparts, see, e.g., majority op., ¶¶36-40, and pointing out

that       "there    has   long    been   a   distinction        in   the    common   law

between a tort claim and a criminal charge[,]" majority op.,

¶41.


       2
        The majority opinion explains that causes of action
created by Wis. Stat. § 895.446(1), including a civil theft
claim, are referred to as "civil actions."       Majority op., ¶35;
Wis. Stat. § 895.446(2), (3).     It then concludes that "the use
of the term 'civil action' in Wis. Stat. § 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."    Majority op., ¶35.    This conclusion leads nowhere.
It is a dead end. Every action listed in § 799.01 is a "civil
action," including all tort actions. Being a "civil action" is
not   a   distinguishing   characteristic   that   is   helpful  in
determining the specific subsection of § 799.01 into which the
claim of civil theft falls.


                                              3
                                                               No.     2014AP2420.ssa


      ¶124 The     majority's     analytical         errors     are     threefold.

First, the majority answers a question that is not asked.                          It

repeatedly      draws   distinctions       between    statutory        claims    and

common    law   tort    claims   without    ever     acknowledging        that   the

question presented asks whether a statutory civil theft claim is

"an   action    based    in   tort"   as   opposed     to     asking     whether   a

statutory civil theft claim is a "common-law tort."

      ¶125 Second, the majority fails to explain why a statutory

claim and a very similar, though distinct, common-law tort claim

cannot both be considered actions based in tort.                         The great

weight of Wisconsin authority confirms that statutory claims and

very similar, though distinct, common-law tort claims may both

be considered actions based in tort.3

      ¶126 Third, the relevance of the majority's pointing out

that a civil tort claim, whether created by statute or common

law, is separate and distinct from a criminal prosecution for

the same conduct is not apparent.              There are countless crimes


      3
       See, e.g., Fandrey ex rel. Connell v. Am. Family Mut. Ins.
Co., 2004 WI 62, ¶¶9, 19, 272 Wis. 2d 46, 680 N.W.2d 345
(recognizing "that § 174.02 [strict liability dog-bite statute]
is a codified tort action" and further explaining that "the fact
that liability in this case is predicated upon a statute rather
than a common-law cause of action is not dispositive, as
§ 174.02 still sounds in tort; it is a codified cause of action
for a civil wrong"); Hanlon v. Town of Milton, 2000 WI 61, ¶16,
235 Wis. 2d 597, 612 N.W.2d 44 (describing claim under 42 U.S.C.
§ 1983 as a tort); Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 45-
46, 532 N.W.2d 130 (1995) (describing the "purely [] statutory
remedy" of wrongful death action as "an action in tort"); Shopko
Stores, Inc. v. Kujak, 147 Wis. 2d 589, 433 N.W.2d 618 (Ct. App.
1988) (referring to an "underlying tort" when examining a civil
action under § 943.51 for retail theft).


                                       4
                                                                   No.    2014AP2420.ssa


the commission of which will likely constitute a tort against

the victim, including, for example, battery and theft.                         Conduct

that amounts to a crime is very likely to be considered "conduct

that amounts to a legal wrong and that causes harm for which

courts will impose civil liability."                     1 Dan Dobbs et al., The

Law of Torts § 1 (2d ed. 2011).

       ¶127 In sum, the majority opinion answers a question that

was never asked in order to reach a conclusion that contradicts

almost 30 years of case law.                   As a result, the majority is

unpersuasive.

                                        II

       ¶128 In addition to asking this court to determine whether

a    statutory     civil   theft   claim       is   an   "action    based    in   tort"

pursuant to Wis. Stat. § 799.01(1)(cr), the instant case also

asks    us    to    determine      whether      Wis.      Stat.    § 895.446(3)(b),

specifically,       the    language   "[a]ll        costs   of    investigation     and

litigation that were reasonably incurred, including the value of

the time spent by any employee or agent of the victim," includes
an    award   for    actual    reasonable       attorney     fees    to     prevailing

plaintiffs.

       ¶129 I agree to a large extent with Justice Kelly's dissent

concluding that Wis. Stat. § 895.446(3)(b) does not provide for

an award of actual reasonable attorney fees.

       ¶130 In invoking the private attorney general doctrine to

support its conclusion that a plaintiff successful in proving a

statutory civil theft claim is entitled to an award of attorney



                                           5
                                                              No.   2014AP2420.ssa


fees, the majority writes too broadly and misstates the private

attorney general doctrine.4

     ¶131 In Wisconsin, a party will be awarded attorney fees,

even in the absence of contractual or statutory authorization,

if that party vindicates a right that: (1) benefits a large

number of people; (2) requires private enforcement; and (3) is

of   societal      importance.         See   Shands    v.    Castrovinci,      115

Wis. 2d 352, 340 N.W.2d 506 (1983); State ex rel. Hodge v. Town

of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993); Watkins

v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984); Richland Sch.

Dist. v. DILHR, 166 Wis. 2d 262, 479 N.W.2d 579 (Ct. App. 1991);

accord Maness v. Daily, 307 P.3d 894, 906 (Alaska 2013); Cave

Creek Unified Sch. Dist. v. Ducey, 308 P.3d 1152, 1159 (Ariz.

2013); In re Conservatorship of Whitley, 241 P.3d 840, 846 (Cal.

2010); Honolulu Const. & Draying Co., Ltd. v. State, Dep't of

Land & Natural Res., 310 P.3d 301, 303 (Haw. 2013); Bitterroot

River    Protective   Ass'n    v.   Bitterroot      Conservation     Dist.,    251

P.3d 131,    ¶20    (Mont.    2011);    Highlands     at    Jordanelle   LLC   v.
Wasatch Cnty., 355 P.3d 1047, ¶35 (Utah 2015); Ann K. Wooster,

Annotation, Private Attorney General Doctrine——State Cases, 106

A.L.R. 5th 523 (2003); Carl Cheng, Comment, Important Rights and




     4
       For further background on the doctrine, see William B.
Rubenstein, On What a "Private Attorney General" Is——and Why It
Matters, 57 Vand. L. Rev. 2129, 2129-36, 2139-48 (2004); Carl
Cheng, Comment, Important Rights and the Private Attorney
General Doctrine, 73 Cal. L. Rev. 1929, 1929-41 (1985); The
Supreme Court, 1974 Term, 89 Harv. L. Rev. 47, 170-82 (1975).


                                         6
                                                                     No.       2014AP2420.ssa


the Private Attorney General Doctrine, 73 Cal. L. Rev. 1929,

1929 (1985).

       ¶132 The    seminal    Wisconsin           case    regarding        the         private

attorney     general      doctrine        is     Shands     v.     Castrovinci,            115

Wis. 2d 352, 340 N.W.2d 506 (1983).                 In Shands, the plaintiff, a

residential tenant, commenced a small claims action against her

former     landlord     to   recover       her     security      deposit          of    $145.

Shands, 115 Wis. 2d at 354.            The statute under which Shands sued

allowed    for    the   recovery     of    twice    the     amount    of        the    actual

pecuniary    loss,      together     with       costs,    including        a    reasonable

attorney fee.         Wis. Stat. § 100.20(5) (1983-84).                        The circuit

court found that the landlord improperly withheld her security

deposit and awarded Shands $290 as damages.                      Shands, 115 Wis. 2d

at 355.      After an evidentiary hearing, the court awarded an

additional $287.50 for attorney fees.                     Shands, 115 Wis. 2d at

355.     Castrovinci appealed but was unsuccessful.                            Shands, 115

Wis. 2d at 356.          The issue on appeal was whether Shands was

entitled to an award of attorney fees incurred as a result of
the appeal.       Shands, 115 Wis. 2d at 357-58.                   The supreme court

held that she was.

       ¶133 The    Shands    court    held       that     Shands    was        entitled     to

attorney fees incurred as a result of Castrovinci's unsuccessful

appeal, explaining that its decision was in accord with the

purpose of the statute and public policy in general as follows:

       First, the recovery of double damages and attorney
       fees encourages injured tenants to bring legal actions
       to enforce their rights under the administrative
       regulations.   Often the amount of pecuniary loss is
       small compared with the cost of litigation. Thus, it

                                            7
                                                            No.   2014AP2420.ssa

      was necessary to make the recovery large enough to
      give tenants an incentive to bring suit. The award of
      attorney fees encourages attorneys to pursue tenants'
      claims where the anticipated monetary recovery would
      not justify the expense of legal action.         While
      attorneys generally are willing to perform pro bono
      legal services in appropriate cases, we recognize that
      practical considerations limit the number of such
      suits.

      Second, the tenant who sues under the statute acts as
      a "private attorney general" to enforce the tenants'
      rights set forth in the administrative regulations.
      Thus, the individual tenant not only enforces his or
      her individual rights, but the aggregate effect of
      individual suits enforces the public's rights.

      Third, tenant suits have the effect of deterring
      impermissible conduct by landlords because, if they
      violate the administrative regulations, they will be
      subject to double damages and will be responsible for
      costs, including attorney fees.    The deterrent effect
      of the statute strengthens the bargaining power of
      tenants in dealing with landlords.

      Finally, in an amicus brief the Wisconsin Department
      of Justice noted that private tenant actions provide a
      necessary backup to the state's enforcement powers
      under sec. 100.20, Stats. The department pointed out
      that the sheer number of violations prevent it from
      proceeding against all violators.       Private tenant
      actions thus constitute an enforcement mechanism
      reinforcing that of the justice department.
Shands, 115 Wis. 2d at 358-59.

      ¶134 Wisconsin   has    also       applied   the     private      attorney

general doctrine in cases involving the enforcement of rights

under the Wisconsin Open Meetings Law, State ex rel. Hodge v.

Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993), the

Wisconsin Fair Employment Act, Watkins v. LIRC, 117 Wis. 2d 753,

345   N.W.2d 482   (1984),   and   the    Wisconsin      Family   and   Medical
Leave Act, Richland Sch. Dist. v. DILHR, 166 Wis. 2d 262, 479

N.W.2d 579 (Ct. App. 1991).
                                     8
                                                                       No.    2014AP2420.ssa


      ¶135 The instant case does not meet the elements of the

private attorney general doctrine, and bears no resemblance to

other     Wisconsin       cases    in    which     the   private       attorney      general

doctrine has been applied.

      ¶136 First, the lawsuit does not benefit the general public

or a large class of persons.                  Though the instant case involved

theft from an elderly individual, the theft statute and Wis.

Stat. § 895.446 apply broadly to all individuals.                             The benefit

conferred     to    the       public    in   the   lawsuit   is    that       the    law    is

enforced.5     To the extent one could fairly identify a benefit

conferred upon the elderly as a class, the motivation for the

lawsuit in the instant case was personal monetary recovery, not

the   advancement         of    the     public's    interest      in    protecting         the

elderly as such.

      ¶137 Second, it does not appear that private enforcement is

necessary to enforce the public's right to be free from theft.

There is no evidence that prosecutors' offices across the state

are     overwhelmed       such        that   private     actions        are    needed       to
constitute     an        enforcement         mechanism    reinforcing          the     State

criminal law punishing theft.                 See Shands, 115 Wis. 2d at 359.

      ¶138 Relatedly, and contrary to the majority's conclusion,6

the   Estate       had    a    sufficient      financial     incentive         to    pursue
      5
       The public always has a significant interest in seeing
that the laws are enforced——it always derives some benefit when
illegal private or public conduct is rectified. Something more
than this general benefit must be shown to make sure that the
private attorney general doctrine does not become the default
rule.
      6
          Majority op., ¶59.

                                               9
                                                                  No.    2014AP2420.ssa


litigation in the instant case.                  It sought $10,000 in actual

damages     and    could     have    received       an   additional      $30,000      in

exemplary    damages       under    the    statute       in   addition        to   costs.

Compare this potential $40,000 recovery with the $290 recovery

in Shands and the lack of any monetary recovery at all to the

successful plaintiff in Watkins.

                                           III

       ¶139 By relying entirely on unremarkable truisms and red

herrings     in    the     guise    of    reasoned       analysis,      the    majority

concludes that a civil theft claim under Wis. Stat. § 895.446 is

not an "action based in tort" within the meaning of Wis. Stat.

§ 799.01(1)(cr).         Thus, the majority contravenes almost 30 years

of case law compelling a contrary conclusion.

       ¶140 Additionally, the majority erroneously concludes that

Wis.   Stat.      § 895.446(3)(b)         affords    successful      plaintiffs        an

award for attorney fees when the statute's text, context, and

structure all lead to a contrary conclusion.                      Compounding its

errors, the majority purports to rely in part on the private
attorney general doctrine for its conclusion that the Estate is

entitled to attorney fees.               In doing so, the majority fails to

fully and correctly explain the doctrine's elements, leading to

its misapplication of the doctrine.                 Consequently, I dissent.




                                           10
    No.   2014AP2420.ssa




1
