Alden Associates v. Jacki Curry ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 19, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1280 Cir. Ct. No. 2018CV278
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
ALDEN ASSOCIATES,
PLAINTIFF-COUNTER DEFENDANT-APPELLANT,
MARGE ALDEN,
COUNTER DEFENDANT-APPELLANT,
V.
JACKI CURRY,
DEFENDANT-COUNTER CLAIMANT-RESPONDENT,
MAJESTIC WELLNESS SPA,
DEFENDANT,
MAJESTIC FALLS, INC.,
COUNTER CLAIMANT-RESPONDENT.
No. 2022AP1280
APPEAL from a judgment of the circuit court for Polk County:
DANIEL J. TOLAN, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Marge Alden and Alden Associates1 appeal from a
circuit court judgment, entered after a bench trial, in favor of Alden against Jacki
Curry for unpaid rent and in favor of Curry and Majestic Falls, Inc.,2 on Curry’s
counterclaims for constructive eviction, unjust enrichment, civil theft, conversion,
tortious interference with contractual and prospective contractual relationships,
trademark infringement, and defamation. This case arose out of Curry’s failure to
pay rent for several months for space in a property owned by Alden, out of which
Curry operated a spa business, and Alden’s subsequent acts of locking Curry out
of the premises; retaining Curry’s personal property located on the premises; and,
thereafter, operating her own spa business. For the reasons set forth below, we
affirm the circuit court’s ruling in all respects.
1
Marge Alden testified that she is a “major stockholder” in Alden Associates, which
“owns real estate in Wisconsin.” For ease of reading, and because the circuit court did not
distinguish liability between those parties, we will refer to both parties as Alden unless stated
otherwise.
2
Majestic Falls, Inc., is a Wisconsin business entity owned and operated by Jacki Curry.
We will also refer to both parties as Curry unless stated otherwise.
2
No. 2022AP1280
BACKGROUND
¶2 Curry owned and operated Majestic Falls Spa3 from 1998 through
May 31, 2017, most recently during that period at a property located in St. Croix
Falls, Wisconsin. That property—a residential house used to operate a business—
is the subject of this case. In 2016, the property was involved in a foreclosure sale
by Hiawatha Bank.4 Curry entered into an agreement with Hiawatha Bank to
occupy the property for $1,000 per month until the bank sold the property. At
some point during Fall 2016, Curry sought investors—including Alden—for her
spa business.
¶3 On December 21, 2016, Alden purchased the property from
Hiawatha Bank. Alden and Curry then discussed rental arrangements, and Alden
alleged that on January 3, 2017, the parties entered into a written commercial
lease.5 According to Alden, Curry quickly breached the lease by failing to pay
3
Curry’s salon license was under the name Majestic Falls Aveda Concept Day Retreat &
Spa.
4
The circuit court took judicial notice of the foreclosure proceedings at trial.
5
The purported written commercial lease between the parties contained in the record
was signed by Curry on behalf of Majestic Wellness Spa—an LLC she claims to have no
involvement in. Curry testified that she did not notice that “Majestic Wellness Spa” was written
on the lease when she signed it.
Evidence at trial revealed that Alden had formed Majestic Wellness Spa—purportedly
with Curry as an “organizer,” although Curry’s first name was spelled incorrectly on the
documents—on December 27, 2016. According to Alden, Curry had agreed to “enter into a
business to run a spa” with Alden. In exchange, Alden would pay Curry approximately five to
ten percent of the business proceeds, but Curry would pay the rent plus all expenses of the
premises owned by Alden and her company. In contrast, Curry testified that she had not “been
talking to Ms. Alden about forming any company” and that she did not become aware of the
existence of Majestic Wellness Spa until May 2017.
(continued)
3
No. 2022AP1280
rent for the months of January, February, March, April, and May 2017. For her
part, Curry alleged that Alden never gave her a copy of the lease or told her the
amount of the rent, so she assumed it was $1,000—the same monthly rent she had
paid to the bank. Curry also believed that the costs of repairs to the property as
well as spa services she had provided to Alden and others had been credited
against the monthly rent during this period, which is what Alden had told her. The
record reflects that she made some partial rent payments during this period.
¶4 Alden alleged that she wrote Curry two letters regarding the unpaid
rent and her intention to evict Curry. The first letter, dated February 24, 2017, was
titled “QUIT OR CURE NOTICE” and stated that rent must be paid
“immediately” or Curry would have to “vacate.” The second letter, dated May 14,
2017, stated that Alden had “warned [Curry] several times and now we are
terminating your lease.” Accordingly, on May 31, 2017, Alden changed the locks
on the property, thereby locking Curry and her independent contractors out of the
building. Alden then operated her own spa out of the premises.
¶5 On the day that Alden changed the locks, Curry’s personal property,
personal property of other spa staff members, and Aveda product inventory
(hereinafter, retail product) remained on the property. Both Curry and Christina
Atkinson, who was a massage therapist for Majestic Falls Spa and who was
During discovery, Alden presented a document, titled “Majestic Wellness Spa
Understanding” (hereinafter, Exhibit 15), which stated rules for the business and which Alden
alleged Curry signed in January 2017. At trial, Curry testified that she did not sign that
document, and she presented testimony from an expert witness who opined that the signature on
the document did not belong to Curry. In its oral ruling, while discussing the reasons why it
failed to find Alden credible, the circuit court stated that Alden “represented that Curry signed the
document in her presence. However, … a handwriting expert that this court finds to be credible,
testified that [E]xhibit 15 did not contain Curry’s signature.”
4
No. 2022AP1280
present that day, asked to re-enter the property to retrieve their belongings, but
their request was denied. Curry subsequently filed a police report. However, on
or about June 1, 2017, Alden procured a “Trespass Notice” from the St. Croix
Falls Police Department, which barred Curry from the premises.6 The record
states that the police were not informed that Curry was a tenant of the property.
At trial, Curry testified that she never received any indication from Alden that
Curry was allowed to come onto the premises after May 31, 2017, to retrieve her
property.
¶6 On September 19, 2018, Alden filed a small claims complaint
against Curry for money damages, including unpaid rent. The complaint alleged a
“[l]ease dated 1/1/17 rent, ins[urance], real estate taxe[s], maintenance, late fees
and A/P not paid for 6 months” and “[f]unds embezzled over 5 months.” Curry
answered and asserted counterclaims for breach of contract; unjust enrichment;
property damage or loss caused by crime—civil theft under WIS. STAT. § 895.446
(2021-22);7 conversion; tortious interference with prospective contractual
relations; trademark infringement; defamation; and a violation of WIS. ADMIN.
CODE ch. ATCP 134 (Oct. 2021).8 The circuit court held a six-day bench trial
during April and June 2021.
6
Curry testified at trial that she was barred from and remained off of the premises until a
circuit-court-ordered walk through on March 5, 2020, during which Curry identified her property
within the building. In the court’s order, Alden was directed “forthwith” to return items Curry
“needed in order to run her business,” but Alden allegedly failed to fully comply. Eventually,
some items were returned, although testimony revealed that many of those items were in a state
of disrepair.
7
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
8
All references to Chapter ATCP 134 of the Wisconsin Administrative Code are to the
October 2021 register unless otherwise noted.
5
No. 2022AP1280
¶7 On May 31, 2022, the circuit court issued its oral ruling after what it
described as a “complex and convoluted trial.” The court first noted that it did not
find either Alden or Curry to be particularly credible, and it offered reasons for
these findings on the record, specifically pointing to both women’s inconsistent
and conflicting testimony. The court then found an implied lease agreement
between Alden and Curry for the rental of the property in the amount of $1,675
per month and that Curry had breached the terms of that agreement by failing to
pay rent. It therefore awarded Alden $4,747.72 for unpaid rent, inclusive of
credits for repairs Curry made to the property.
¶8 As to Curry’s counterclaims, the circuit court determined that the
two letters Alden wrote to Curry “did not comply with” WIS. STAT. ch. 704;
therefore, it “was not a legal eviction of Curry or her business by Alden.”
See WIS. STAT. §§ 704.17, 704.21. The court further concluded that Alden had
constructively evicted Curry and that Curry did not voluntarily leave. According
to the court:
Alden and her representatives filed a trespass against
Curry and her business. The locks were changed and she
was prevented from access to the building, and she didn’t
return to the premises. This happened on May 31[], 2017.
There was in fact a disturbance of Curry’s benefit and use
and enjoyment of the premises as she was locked out.
Therefore, the court concludes that Curry was
constructively evicted and is entitled to damages.
The court asserted, however, that “it [could not] establish the actual damages of
the constructive eviction based upon the evidence presented but that Curry ha[d]
established that it [was] at least one dollar,” which it awarded to Curry as nominal
damages. The court further awarded punitive damages, “given the willful conduct
of Alden in the constructive eviction of Curry,” in the amount of $2,500.
6
No. 2022AP1280
¶9 As to Curry’s unjust enrichment, civil theft, and conversion claims,
the circuit court called “the analysis … somewhat the same,” and it concluded that
Curry had established all three and that Alden must pay the value of the property
obtained. The court made the following findings on the record:
It bears repeating that Alden changed the locks and filed a
trespass against Curry. Left within the premises was the
personal property of Curry and inventory including product
for use and sale. The credible testimony was that there was
Aveda product and the other product that was held for use
and resale. [The credible testimony was that] [t]here was
also personal property left in the premises due to Curry
being locked out and trespassed from the premises.
The court further found “that Curry or her business did not abandon personal
property at the premises” and that “Alden unlawfully retained, concealed, and took
Curry’s business equipment, furnishings, product, and personal property.” The
court determined, based upon the best available evidence, that the total value of
the retail product and the personal property on the premises was $251,457 as of
the date of trial and awarded that amount plus interest, costs, and reasonable
attorney’s fees. The court noted that exemplary damages for property lost or
damaged by a crime were not warranted.
¶10 On the remaining claims, the circuit court found that Curry had
proven that Alden tortiously interfered with Curry’s prospective contractual
relationships with prospective clients on May 31, 2017, resulting in a loss of
customers for the day. On the trademark infringement claim, the circuit court
concluded that “Curry established the use of the names Majestic Falls, Majestic
Falls Spa, Majestic Falls and Majestic Wellness Spa” and that “Alden’s use of the
name and formerly Majestic Falls Spa and Majestic Wellness Spa has caused
confusion and deception to the public.” The court also found, by the greater
weight of the credible evidence, that Curry had proven that Alden defamed her.
7
No. 2022AP1280
Finally, as to the WIS. ADMIN. CODE ch. ATCP 134 claim, the court found that
code provision was inapplicable under the facts of the case because while the
property “was a house[,] it was not a place of abode. It was a place of a
commercial operation,” and therefore ch. ATCP 134 “does not apply.” Alden
appeals.
DISCUSSION
¶11 As noted above, Alden challenges several of the circuit court’s
conclusions on appeal.9 Alden does not, however, appeal the court’s judgment as
to the claims for tortious interference with prospective contractual relations,
trademark infringement, or defamation. Further, Curry has not filed a
cross-appeal; therefore, she does not challenge the court’s conclusion that she
breached an agreement by failing to pay rent or that WIS. ADMIN. CODE
ch. ATCP 134 is inapplicable under the circumstances of this case. We will not
address these issues further.
¶12 Alden argues that “[t]his appeal is about the personal property left
inside the premises after May 31, 2017,” but that “[t]he [circuit] court’s errors are
intertwined.” We address below Alden’s claims questioning the sufficiency of the
evidence supporting the court’s findings that she committed a civil theft, that she
converted Curry’s property, and that she was unjustly enriched, together with her
9
We note that Alden has failed to comply with our Rules of Appellate Procedure.
Alden’s factual references in her briefs cite only to her appendix. A party must include
appropriate references to the record in its briefing. WIS. STAT. RULE 809.19(1)(d)-(e). The
appendix is not the record. United Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2,
302 Wis. 2d 245, 733 N.W.2d 322. As a high-volume appellate court, we are entitled to expect
briefing by an attorney that follows the basic Rules of Appellate Procedure. We caution Alden’s
counsel that future violations of the Rules of Appellate Procedure may result in sanctions.
See WIS. STAT. RULE 809.83(2).
8
No. 2022AP1280
claims that the court erred in determining the amount of damages awarded to
Curry on each of these claims.
I. The Circuit Court Found Criminal Intent Under WIS. STAT. § 895.446.
¶13 First, Alden argues that the circuit court erroneously analyzed three
of Curry’s counterclaims related to personal property—unjust enrichment,
conversion, and civil theft—under identical facts without acknowledging that WIS.
STAT. § 895.446 required Curry to prove that Alden had the “specific criminal
intent” to steal her personal property. According to Alden, “[a]t best, the record
demonstrates that, on May 31, 2017, Alden temporarily prevented Curry and her
friends from accessing their personal property by locking a building that Alden
owned, and also that Alden was willing to return anyone’s property upon their
reasonable requests.” We disagree and conclude that the record supports the
court’s implied finding of Alden’s specific criminal intent to steal Curry’s
property on May 31, 2017.
¶14 “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.” Estate of Miller v. Storey, 2017 WI 99, ¶12 n.6,
378 Wis. 2d 358, 903 N.W.2d 759. One of those enumerated statutes is WIS.
STAT. § 943.20, which is the crime of theft. See § 895.446(1). To commit civil
theft, the individual must “[i]ntentionally” take and carry away, use, transfer,
conceal, or retain possession of movable property of another “without the other’s
consent and with intent to deprive the owner permanently of possession of such
9
No. 2022AP1280
property.”10 Sec. 943.20; WIS JI—CRIMINAL 1441 (2022); see also Estate of
Miller, 378 Wis. 2d 358, ¶40 & n.16 (“The cause of action under [§] 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.”). The burden of proof for a civil theft claim is by the “preponderance of
the credible evidence.” Sec. 895.446(2).
¶15 We approach this issue as a challenge to the sufficiency of the
evidence. When reviewing the circuit court’s findings as the trier of fact, we apply
a highly deferential standard of review. Jacobson v. American Tool Cos., 222
Wis. 2d 384, 389, 588 N.W.2d 67 (Ct. App. 1998). We will not set aside the
court’s factual findings unless they are clearly erroneous. WIS. STAT. § 805.17(2).
“Furthermore, the fact finder’s determination and judgment will not be disturbed if
more than one inference can be drawn from the evidence.” Jacobson, 222 Wis. 2d
at 389. Intent is “not generally susceptible to direct proof”; therefore, “the state of
10
To better understand the elements of civil theft, we compare that cause of action to the
common law tort of conversion. To establish conversion, the plaintiff must establish: (1) that the
defendant intentionally controlled or took property belonging to the owner; (2) that the defendant
controlled or took the property without the owner’s consent or without lawful authority; and
(3) that the defendant’s act with respect to the property seriously interfered with the right of the
owner to possess the property. Estate of Miller v. Storey, 2017 WI 99, ¶40, 378 Wis. 2d 358, 903
N.W.2d 759 (citing WIS JI—CIVIL 2200 (2014)). “[A] civil claim for theft under WIS. STAT.
§ 895.446 is separate and distinct from a claim for conversion.” Estate of Miller, 378 Wis. 2d
358, ¶36.
[F]irst, 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.”
Id., ¶40 (citations omitted).
10
No. 2022AP1280
mind of the person ‘must be inferred from the acts and statements of the person, in
view of the surrounding circumstances.’” Elmakias v. Wayda, 228 Wis. 2d 312,
320, 596 N.W.2d 869 (Ct. App. 1999) (citation omitted); see also WIS JI—
CRIMINAL 1441 (2022) (“Knowledge and intent must be found, if found at all,
from the defendant’s acts, words, and statements, if any, and from all the facts and
circumstances in this case bearing upon knowledge and intent.”).
¶16 While Alden is correct that the circuit court did not refer to “specific
criminal intent,” we conclude that the record on appeal supports the court’s
implicit finding that Alden intended to permanently deprive Curry of her property,
with knowledge that Curry did not consent, and with intent to retain the property
for her own use.11 See State v. Echols, 175 Wis. 2d 653, 672, 499 N.W.2d 631(1993) (“An implicit finding of fact is sufficient when the facts of record support
the decision of the [circuit] court.”). During its oral ruling, the court properly
11
Alden cites to Tri-Tech Corp. of America v. Americomp Services, Inc., 2002 WI 88,
¶21, 254 Wis. 2d 418, 646 N.W.2d 822, for the proposition that WIS. STAT. § 895.446 must be
strictly construed. There, the issue was “whether the treble damages remedy of WIS. STAT.
§ 895.80 (1999-2000) is available for civil theft by contractor under WIS. STAT. § 779.02(5)
[(1999-2000)], and if so, whether it requires proof of the elements of the criminal offense under
WIS. STAT. § 943.20(1)(b) [(1999-2000)], including criminal intent.” Tri-Tech, 254 Wis. 2d 418,
¶1. Under the facts of that case, our supreme court described “specific criminal intent” as
meaning “that the defendant knowingly retained possession of or used contractor trust funds
without the owner’s consent, contrary to his authority, and with intent to convert such funds for
his own use or the use of another.” Id., ¶2. The court explained that “while the intent element
required for conviction of the criminal offense … may be inferred from circumstantial evidence,
it is nevertheless a specific intent requirement”—not a general intent requirement—“and it is the
plaintiff’s burden to prove it.” Id., ¶29.
Alden claims that the circuit court’s “failure even to address Curry’s burden of proving
‘specific criminal intent,’ including any facts that may support that heightened element, and
instead merely addressing ‘general intent,’ independently merits reversal.” Curry claims that
Tri-Tech is inapplicable because the court was analyzing the difference between criminal and
civil theft by a contractor, where the criminal statute requires wrongful intent but the civil statute
does not. See id., ¶15. Regardless of the merits of the foregoing debate, our review of the record
finds support for more than general intent.
11
No. 2022AP1280
cited the legal standard for civil theft. It then recounted its findings based on
evidence of Alden’s acts, words, and statements, which we conclude demonstrate
the requisite criminal intent.
¶17 The circuit court identified the fact that Alden locked Curry out of
the premises and refused to allow Curry re-entry to retrieve her personal property;
that Alden secured a Trespass Notice through law enforcement and did so by
failing to report that Curry was a tenant; and that Alden retained and later sold
retail product belonging to Curry. Further, the court noted “Alden’s changing
position on what happened to Curry’s personal property throughout the trial,”
explaining that Alden at times claimed the property was actually hers, but also
claimed that the property was thrown away, that it was provided to Curry and
others, that it was never on the premises, that it had no value, or that Curry
actually abandoned the property. Finally, the court stated:
Incorporating all that I’ve already said and in an attempt
to not repeat myself so many times[,] Alden intentionally
retained the movable property of Curry. She didn’t have
consent, as evidenced by Curry’s report to the police, this
lawsuit, multiple motions to receive or return the personal
property, Alden knew she didn’t have the consent for that
movable property for the same reason but she also knew
that Curry didn’t consent because Curry tried to get back in
the premises the day she was locked out but couldn’t
because Alden had changed the locks. So Alden intended
to deprive Curry permanently of the movable property.
¶18 Alden argues that even if we assume that the circuit court implicitly
addressed specific criminal intent, we should still conclude that the court erred by
finding that “Alden intended to deprive Curry permanently of the moveable
property” because the record contradicts that finding. Alden’s arguments on
appeal focus on what the evidence could have alternatively demonstrated. For
example, she claims the court did not consider “that Alden locked Curry out
12
No. 2022AP1280
because she failed to pay rent—an eviction,” which Alden argues was her actual
“specific intent.” However, the record shows the court likely did not consider that
to be Alden’s intent because it found that Alden did not lawfully evict Curry.
¶19 Alden further argues that “the [circuit] court failed to acknowledge
that doors can unlock” and that Alden “demonstrated willingness to return
property to Curry and to anyone else who bothered to ask.” Alden cites the fact
that she “told Curry, before her eviction, to remove her personal property,”
“offered to return property to Curry within days,” and “actually returned property
to Curry’s friends after they asked.” Additionally, Alden claims that events after
May 31, 2017, cannot prove her intent on that date and that Alden’s “mixed
testimony suggests Alden’s confusion on facts and/or her inability to appreciate or
understand legal ownership,” not criminal intent. We are not persuaded.
¶20 Based on the record, the circuit court clearly did not agree with
many of Alden’s assertions. In particular, Alden claims that she was willing to
return property, but the court observed that “despite this lawsuit a court order had
to be issued to return some personal property.” Further, whether Alden was
willing to return items of personal property to other individuals has no bearing on
the issue at trial, which was whether Alden intended to permanently retain
possession of Curry’s property without her consent. Additionally, one of the items
of evidence that Alden refers to in support of her claim that she offered to return
Curry’s items is an email allegedly sent on June 12, 2017. We discuss this email
in further detail below, as it was not admitted into evidence because the court
ruled it was hearsay. Regardless, that email purports to return only “boxes” and
“records.” Finally, the court could reasonably find that Alden’s claims that she
owned Curry’s property when, in fact, she did not could evidence Alden’s intent to
13
No. 2022AP1280
keep the property permanently, particularly where the evidence showed that Alden
sold some of Curry’s retail product as part of Alden’s spa business.
¶21 While Alden identifies competing evidence from which the circuit
court could have drawn different inferences, we see nothing in the record to
convince us that the court’s conclusion that Alden committed a civil theft is
incredible as a matter of law. The evidence is sufficient to support the court’s
determination that Alden’s acts, words, and statements showed the specific
criminal intent to permanently deprive Curry of her property.
II. Any Error Arising From the Circuit Court’s Finding that Exhibit 7 Constitutes
Hearsay Was Harmless Error.
¶22 Alden next argues that the circuit court’s “conclusion that Alden’s
June 12, 2017 email [(Exhibit 7)] constituted hearsay is erroneous because Alden
did not offer it for ‘the truth of the matter asserted.’” “A circuit court’s decision
regarding the admissibility of a hearsay statement is within the discretion of the
circuit court.” State v. Weed, 2003 WI 85, ¶9, 263 Wis. 2d 434, 666 N.W.2d 485.
We will “uphold a circuit court’s decision to admit or exclude evidence if the court
examined the relevant facts, applied a proper legal standard, and reached a
reasonable conclusion using a rational process.” Id.¶23 Alden allegedly sent Curry an email, titled “cleaning up spa,” on
June 12, 2017, which broadly referenced items of personal property. The email
stated: “I wanted to let you know that we cleaned out the closet in the facial room
and more of the basement. If you want those boxes, records etc.[,] I will have
some of my crew drop them off at your driveway.” There was no reference to
furnishings, product, or any other items of Curry’s property being returned. Curry
denied receiving this email, and Alden testified that Curry never responded to it.
14
No. 2022AP1280
¶24 At trial, when Alden attempted to admit Exhibit 7, the circuit court
sustained a hearsay objection, stating that it was an out-of-court statement being
offered for the truth of the matter asserted. See WIS. STAT. §§ 908.01, 908.02.
Alden then attempted to argue that the document should be admitted under the
business records exception, but the court again sustained the objection. At the
close of evidence, Alden proposed redacting sentences from Exhibit 7 in another
effort to admit it. The court subsequently held a hearing regarding the contested
trial exhibits by video conference on November 2, 2021. By order, the court
sustained the objection to Exhibit 7 and denied admission.
¶25 On appeal, Alden now argues that she was not offering Exhibit 7 for
the truth of the matter asserted but to show that Alden sent that message on that
date—to rebut any claim that Alden fabricated her testimony regarding sending
the email—and to demonstrate Alden’s state of mind regarding her intent as it
pertains to WIS. STAT. § 895.446. Alden also claims that the “[t]hen existing
mental, emotional, or physical condition” hearsay exception under WIS. STAT.
§ 908.03(3) applies to Exhibit 7. These arguments were not made before the
circuit court.12 See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997)
(“The general rule is that issues not presented to the circuit court will not be
considered for the first time on appeal.”).
12
It does not appear that a transcript of the November 2, 2021 hearing was included in
the record on appeal, and neither of the parties direct this court’s attention to any discussion in the
record of the arguments presented at that hearing. Therefore, it is possible that these arguments
were made before the circuit court, but we are unable to confirm that to be true. It is the
appellant’s responsibility to ensure that the record on appeal is complete, and any missing
material is presumed to support the circuit court’s ruling. Fiumefreddo v. McLean, 174 Wis. 2d
10, 26-27, 496 N.W.2d 226 (Ct. App. 1993). As the current appellate record stands, Alden did
not make these arguments before the circuit court.
15
No. 2022AP1280
¶26 Nevertheless, for the purpose of this decision, we will assume,
without deciding, that the circuit court erroneously exercised its discretion by
refusing to admit Exhibit 7 at trial; however, we conclude that this error was
harmless. See State v. Britt, 203 Wis. 2d 25, 41, 553 N.W.2d 528 (Ct. App. 1996).
Generally, an error is harmless if it does not affect the substantial rights of the
adverse party. See Weborg v. Jenny, 2012 WI 67, ¶68, 341 Wis. 2d 668, 816
N.W.2d 191; WIS. STAT. § 805.18. “The test is the same in both civil and criminal
cases: whether ‘it appears beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.’” Allsop Venture Partners III v.
Desmond, 2023 WI 43, ¶39, 407 Wis. 2d 387, 991 N.W.2d 320 (citations
omitted). Whether an error was harmless is a question of law, subject to our
independent review. Weborg, 341 Wis. 2d 668, ¶43.
¶27 We conclude that the failure to admit Exhibit 7 did not contribute to
the verdict. Even if Exhibit 7 had been admitted for the purposes Alden now
claims—i.e., to show that Alden sent Curry the email on that date, to show that
Alden did not fabricate her testimony regarding the email, and to help demonstrate
Alden’s state of mind—Exhibit 7 does not completely counteract the other
evidence at trial regarding Alden’s credibility and her intent such that it would
have affected the verdict. As noted above, the circuit court specifically stated that
it did not find Alden credible and cited multiple reasons for that finding on the
record. Admission of Exhibit 7 alone would not have tipped the balance on
Alden’s credibility.
¶28 Further, Alden testified at trial that in the email she sent, she
“offered to deliver some things to [Curry] if she wanted them.” However, as noted
above, in the email it appears that Alden actually offered to return only “boxes,
records etc.” located in a closet and in the basement. There was no mention of the
16
No. 2022AP1280
other personal property or retail product located on the premises, which provided
the basis for the court’s damages award and verdict. In summary, it appears
beyond a reasonable doubt that the court’s refusal to admit Exhibit 7 did not
contribute to the verdict obtained.
III. WISCONSIN STAT. § 704.05 Is Not Applicable to Curry’s Personal Property.
¶29 Next, Alden argues that the circuit court erred by not applying WIS.
STAT. § 704.05(5)(a)1.—the presumption of abandonment—to Curry’s personal
property. Section 704.05(5)(a)1. provides:
If a tenant removes from or is evicted from the premises
and leaves personal property, the landlord may presume, in
the absence of a written agreement between the landlord
and the tenant to the contrary, that the tenant has
abandoned the personal property and may, subject to
par. (am) and [WIS. STAT. §] 799.45(3m), dispose of the
abandoned personal property in any manner that the
landlord, in its sole discretion, determines is appropriate.
Alden claims that she evicted Curry on May 31, 2017, and Curry subsequently
abandoned her personal property within the premises. According to Alden, there
was “no written evidence that Curry asked Alden for any items inside the
[p]roperty, or otherwise put Alden on notice of any potential claim related to her
personal property” until Curry filed the counterclaims in this case.
¶30 In support of her position, Alden cites the legislature’s comment
within the statute, which provides in pertinent part:
Sub. (5) is new. It is intended to provide a simple
remedy for the landlord faced with personal property left
on the premises by a tenant either at the end of his [or her]
lease or when he [or she] moves out during a lease. In
many cases the property left behind has little value and has
in fact been abandoned by the tenant. However,
abandonment as a judicial concept requires proof and
finding of intent to abandon. The landlord who disposes of
such goods at present runs the risk that he will be sued by
17
No. 2022AP1280
the tenant for conversion and that a jury may place a high
value on the apparently worthless goods.
1969 Wis. Act 284, § 25 (cmt.). Alden claims the very risk that the legislature was
concerned about occurred in this case. She also calls the circuit court’s finding
that Curry did not abandon her personal property at the premises to be
“conclusory,” claiming the court “needed to explain how Curry rebutted the
statutory presumption.”
¶31 “Statutory interpretation and applying a statute to a set of facts are
both questions of law which this court reviews de novo.” State v. Bodoh, 226
Wis. 2d 718, 724, 595 N.W.2d 330 (1999). Our interpretation of the statute
“begins with the language of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). “Statutory
language is given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special
definitional meaning.” Id. Importantly, “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 surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id., ¶46.
¶32 We conclude that WIS. STAT. § 704.05(5)(a)1. is entirely
inapplicable under the circumstances of this case. The plain language of the
statute requires that the tenant either “removes from or is evicted from the
premises,” neither of which occurred here. The circuit court specifically found
based on the evidence in the record “that there was not a voluntary removal by
Curry or her business from the premises.”
18
No. 2022AP1280
¶33 Curry was also not evicted. The word “evict” means “[t]o expel (a
person, esp. a tenant), from real property, [usually] by legal process.” Evict,
BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). Eviction, the noun
of evict, means “[t]he act or process of legally dispossessing a person of land or
rental property,” Eviction, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis
added), which is distinct from the definition of constructive eviction,
see Constructive Eviction, BLACK’S LAW DICTIONARY (11th ed. 2019). The
circuit court specifically determined that Alden did not legally evict Curry
pursuant to the requirements under WIS. STAT. ch. 704. Alden therefore cannot
rely upon WIS. STAT. § 704.05(5)(a)1. in her effort to retain Curry’s property.
¶34 Alden claims, however, that “[t]he fact that Alden constructively
evicted Curry does not change this analysis” because the statute provides “no
distinction for the process.” We disagree. Essentially, Alden is claiming that a
landlord can, under WIS. STAT. § 704.05(5)(a)1., unlawfully lock a tenant out of a
leased premises without notice and then lawfully presume ownership of the
tenant’s business and personal property. We agree with Curry’s reasoning for why
Alden’s position is untenable:
Considered in the context of the Drafters’ Notes, the
weakness of the argument becomes even more apparent.
Alden was not faced with the issue; she created it. The
property was not left by Curry; she was expressly not
permitted to retrieve it. Curry was not deprived of her
property at the end of a lease or as a result of moving out.
Alden changed the locks specifically to keep Curry and her
business associates from entering the premises to conduct
their business or retrieve their property. Further, after
refusing Curry’s and [another’s] requests to enter the
premises to retrieve their property, Alden had a No
Trespass Order issued by the St. Croix Falls Police
Department, prohibiting Curry from stepping foot on the
property.
See 1969 Wis. Act 284, § 25 (cmt.).
19
No. 2022AP1280
¶35 Alden cannot fail to comply with the tenant protection requirements
of WIS. STAT. ch. 704 but then expect to benefit from the presumption in WIS.
STAT. § 704.05(5)(a)1. The circuit court clearly—and, we determine,
reasonably—found that Curry did not abandon the property but that it was stolen
from her by Alden. Based on the evidence already addressed above, the court’s
finding that Curry did not abandon her property was not clearly erroneous.
IV. Curry’s Personal Property Was Correctly Addressed Outside a Contract.
¶36 Alden’s next arguments all pertain to her belief that “the circuit
court’s finding that Alden breached a lease agreement with Curry dictates that it
should have awarded Curry all damages that ‘naturally arise from the breach.’”
Based on that proposition, Alden asserts that: (1) Curry cannot receive punitive
damages for a constructive eviction;13 (2) Curry cannot recover for unjust
enrichment because unjust enrichment is only available in the absence of a
contract; and (3) Curry cannot recover for conversion under the independent duty
13
“A constructive eviction constitutes a breach of the covenant for quiet enjoyment.”
First Wis. Tr. Co. v. L. Wiemann Co., 93 Wis. 2d 258, 267, 286 N.W.2d 360 (1980).
Any act of the landlord or of anyone who acts under authority or
legal right given to him [or her] by the landlord which so
disturbs the tenant’s enjoyment of the premises or so interferes
with his [or her] possession of the premises as to render them
unfit for occupancy for the purposes for which they are leased, is
an eviction, and whenever it takes place, the tenant is released
from the obligation under the lease to pay rent accruing
thereafter.
Id. at 267-68. However, “[a] mere slight temporary inconvenience to the tenant does not justify
[the tenant] in throwing up his [or her] lease”; “the breach must be substantial and of such
duration that it can be said that the tenant has been deprived of the full use and enjoyment of the
leased property for a material period of time.” Id. at 268 (citation omitted).
20
No. 2022AP1280
rule because Alden did not have any duty to Curry independent from the rights
found in the contract. We disagree on each point.
¶37 We recognize initially that Alden’s position on these issues arises
from her continued assertion that she evicted Curry for failing to pay rent.14
According to Alden, Curry breached the lease agreement by failing to pay rent,
and “Alden thus had a legitimate basis to evict Curry; she just did so improperly.”
Alden then argues that “a contract exists” and that “[t]he court found that Alden
and Curry signed a ‘written commercial lease,’ that Curry intended to rent the
property on behalf of her business, and that Curry breached [the lease].” In
contrast, Curry claims that “the court found no actual contract at all but rather an
implied agreement to rent premises, which it found breached by Curry, not
Alden.”
¶38 In its oral ruling, the circuit court stated:
Whether it was Majestic Falls, Majestic Wellness Spa or
some other entity[,] it was the intention of Curry to rent the
premises from Alden and it was the intention of Alden to
rent the premises to Curry.
….
14
We pause to acknowledge Curry’s argument that Alden is taking inconsistent positions
before this court and the circuit court. See State v. Miller, 2004 WI App 117, ¶31, 274 Wis. 2d
471, 683 N.W.2d 485 (discussing the doctrine of judicial estoppel); State v. Caban, 210 Wis. 2d
597, 604, 563 N.W.2d 501 (1997) (“The general rule is that issues not presented to the circuit
court will not be considered for the first time on appeal.”). Curry claims that Alden argued before
the circuit court that “no contract existed between Curry/[Majestic Falls, Inc.] and Alden or
[Alden Associates]” and that Curry was a trespasser. Alden responds that “as evidenced by
Alden’s breach of contract claim, she did argue the existence of a lease agreement. The circuit
court just found that the contract existed between different entities.” Alden observes that “the
court’s decision to find a valid contract between Alden and Curry—instead of ‘Alden Associates
LLC’ and ‘Majestic Wellness Spa’—triggered the issues that are now on appeal.” Given the
intricacies of the arguments and the fact that Alden’s positions are not clearly inconsistent given
the involvement of multiple entities, we will consider Alden’s arguments.
21
No. 2022AP1280
Based upon that evidence the court finds that there was
an agreement between Alden and Curry. The best
available evidence of the terms of the rental agreement is
[the written commercial lease]. It was signed by both
parties. That was for rent to be $1,675 per month. Curry
agreed to pay rent and she did not pay rent, so she’s in
breach and Alden is entitled to damages.
(Emphasis added.) Again, as stated above, the court did not find that Alden
lawfully evicted Curry, concluding instead that Alden constructively evicted Curry
and then acted to unlawfully retain Curry’s property. This situation was more than
an eviction gone wrong, and Curry’s recovery of damages is based on that finding.
¶39 Regardless of whether there was a valid written lease or an implied
agreement to lease the premises, the circuit court properly awarded damages
outside of any contract. “Contract damages compensate the wronged party for
damages that arise naturally from the breach.” Kramer v. Board of Educ. of Sch.
Dist. of Menomonie Area, 2001 WI App 244, ¶10, 248 Wis. 2d 333, 635 N.W.2d
857. “The damages are limited by the concept of foreseeability”; therefore,
“[r]ecovery is limited to damages reasonably supposed to have been in the
contemplation of both parties at the time they made the contract as the probable
result of a breach.” Id.; see also WIS JI—CIVIL 3710 (2018) (“In determining the
damages, if any, … allow an amount that will reasonably compensate the injured
person for all losses that are the natural and probable results of the breach.”).
¶40 We agree with Curry that entirely apart from Alden’s acts amounting
to a constructive eviction, Alden’s subsequent conduct constituting theft of
Curry’s personal property did not naturally arise from any breach of an implied
agreement, it was not a probable result of a breach, and it was certainly not
contemplated by Curry when she agreed to rent the premises. Even if Curry was
aware of the possibility that she might be barred from the premises at some point
22
No. 2022AP1280
prior to May 31, 2017, that fact does not render Alden’s conduct in retaining
Curry’s property and operating her business out of the premises foreseeable at the
time the parties may have entered into an agreement. Thus, any claims and any
damages arising out of that conduct are not based on a breach of any alleged
agreement. We address the following challenges with that conclusion in mind.
a. Punitive Damages
¶41 Alden argues that Curry is unable to receive punitive damages for
the breach of contract that occurred in this case. The legal remedy of punitive
damages may be available if the plaintiff proves that “the defendant acted
maliciously toward the plaintiff or in an intentional disregard of the rights of the
plaintiff.” WIS. STAT. § 895.043(3). Whether punitive damages are available is a
question of law reviewed de novo. Tucker v. Marcus, 142 Wis. 2d 425, 432, 418
N.W.2d 818 (1988).
¶42 “Under Wisconsin law, punitive damages are not available as a
remedy in a breach of contract action.” Mohns Inc. v. BMO Harris Bank Nat’l
Ass’n, 2021 WI 8, ¶58, 395 Wis. 2d 421, 954 N.W.2d 339. In its oral ruling, the
circuit court awarded Curry $2,500 in punitive damages. While Alden claims that
punitive damages were awarded “for Alden’s breach of the lease agreement,”
Curry argues that the court found that “Alden constructively evicted Curry” but
did not state that it was finding that Alden breached a contract.
¶43 We conclude that the circuit court’s award of punitive damages was
not in error. The punitive damages were expressly awarded for the “willful
23
No. 2022AP1280
conduct of Alden in the constructive eviction.”15 This willful conduct, as
described by the court, constituted not only the act of changing the locks on the
premises and preventing Curry from entering the premises, but importantly for the
court’s punitive damages award, Alden’s refusal to permit Curry to retrieve her
property, her failure to return Curry’s personal property, her act of improperly
obtaining a trespass notice, and her retention of Curry’s personal property and
retail product on the premises for use in Alden’s own business. Thus, the punitive
damages were awarded for Alden’s actions taken after the constructive eviction.
The court’s findings support a conclusion that Alden intentionally took and
refused to return Curry’s personal property and intentionally harmed Curry’s
business. Thus, the punitive damages were not based on a breach of contract or an
implied agreement, but rather on tort liability as a result of Alden converting
Curry’s property. See id. (“A jury’s award of punitive damages must be based
upon a finding of tort liability.”); see also Landwehr v. Citizens Tr. Co., 110
Wis. 2d 716, 722-23, 329 N.W.2d 411 (1983) (“Ordinarily, a breach of contract is
not a tort, but a contract may create the state of things which furnishes the
occasion of a tort.” (citation omitted)).
b. Unjust Enrichment
¶44 Alden argues that Curry cannot recover for unjust enrichment
because the circuit court found that a contract existed.
[A] claim for unjust enrichment does not arise out of an
agreement entered into by the parties. Rather, an action for
15
We note that Alden does not specifically challenge either the circuit court’s finding
that Curry had proven that Alden’s actions satisfied the standard of conduct described in WIS.
STAT. § 895.043(3) or the amount of the punitive damages award. We do not discuss these issues
further.
24
No. 2022AP1280
recovery based upon unjust enrichment is grounded on the
moral principle that one who has received a benefit has a
duty to make restitution where retaining such a benefit
would be unjust.
Sands v. Menard, 2017 WI 110, ¶30, 379 Wis. 2d 1, 904 N.W.2d 789 (alteration
in original; citation omitted). The claim requires proof of three elements: “(1) a
benefit conferred on the defendant by the plaintiff; (2) appreciation or knowledge
by the defendant of the benefit; and (3) acceptance or retention of the benefit by
the defendant under circumstances making it inequitable to do so.” Id. “Under
Wisconsin law, a plaintiff may not recover damages for both breach of contract
and unjust enrichment based on the same conduct.” Mohns Inc., 395 Wis. 2d 421,
¶48. “While a [circuit] court’s decision to grant equitable relief in an action for
unjust enrichment is discretionary, the application of the facts to the unjust
enrichment legal standard is a question of law that we review de novo.”16
Tri-State Mech., Inc. v. Northland Coll., 2004 WI App 100, ¶13, 273 Wis. 2d
471, 681 N.W.2d 302 (citation omitted).
¶45 As we discussed above, even if the circuit court found that a lease
agreement existed, not only were Alden’s conduct and the resulting damages not
contemplated within the terms of that agreement, but Curry’s unjust enrichment
claim did not “aris[e] out of the same conduct or subject matter” as any breach of
the agreement. See Mohns, 395 Wis. 2d 421, ¶52. Alden’s assertion that the court
concluded that the breach of the lease prevented Curry from using her personal
property within the premises fails to acknowledge the whole story. The court did
not find that Alden breached an agreement by retaining Curry’s personal property;
16
Alden does not specifically argue that Curry failed to prove the elements of unjust
enrichment or that the circuit court’s application of the facts to the elements of the claim was in
error. We will not address these issues further.
25
No. 2022AP1280
the two claims do not arise out of the same conduct. Therefore, the damages
awarded for unjust enrichment need not be set aside, as the court reasonably acted
within its discretion.
c. Conversion and the Independent Duty Rule
¶46 Alden next argues that the circuit court’s finding that Alden
converted Curry’s property should be reversed because the “independent duty
rule” precludes Curry’s recovery. “Where a contract is involved, in order for a
claim in tort to exist, a duty must exist independently of the duty to perform under
the terms of the contract.” Autumn Grove Joint Venture v. Rachlin, 138 Wis. 2d
273, 281, 405 N.W.2d 759 (Ct. App. 1987). Alden concedes that “neither this
[c]ourt nor the Wisconsin Supreme Court have explicitly applied the ‘independent
duty rule’ with conversion,” but she claims that “case authority supports its
application in this context.”
¶47 We are not persuaded by Alden’s arguments on this point because
we do not agree with her summary assertion that “Alden did not have any duty to
Curry independent from the rights found in the [a]greement.” According to Alden,
“the contract (i.e., lease agreement) precluded Alden from disturbing Curry’s
personal property inside the leased premises.” While Alden’s assertion may be
true, the circuit court’s finding of conversion was not based upon Alden’s
disturbance of Curry’s property inside the leased premises during the lease. The
award was based upon Alden’s refusal to return Curry’s property to her, or permit
her to obtain and use it, once the implied lease was terminated. Thus, Curry’s
claim does not arise under the lease; it arises because Alden stole her property.
The fact that Alden did so by keeping the property in the formerly leased premises
does not mean there was no conversion. Regardless of any implied lease, Alden
26
No. 2022AP1280
had an independent duty not to steal Curry’s personal property. As Curry argues,
“Renting premises is mutually exclusive from having your property stolen….
Alden’s intentional conduct in converting the property had nothing to do with the
parties’ implied lease arrangement.”
V. The Circuit Court Properly Assessed and Awarded Damages.
¶48 Finally, Alden argues that the circuit court erroneously awarded
inflated, overstated, and noncredible damages. More specifically, Alden claims
that Curry failed to prove “by credible evidence” that she suffered $251,457 in
damages with “reasonable certainty.” “We apply a highly deferential standard of
review to damage awards, affirming if there is any credible evidence which under
any reasonable view supports the finding.” Selmer Co. v. Rinn, 2010 WI App
106, ¶28, 328 Wis. 2d 263, 789 N.W.2d 621. “It is not [the reviewing court’s]
purpose to determine whether damage awards are high or low, nor to substitute
[its] judgment for that of the jury or the [circuit] court but rather to determine
whether the award is within reasonable limits.” Id. (first and second alterations in
original; citation omitted). Damages must be established with reasonable certainty
but not with mathematical precision. See Management Comput. Servs., Inc. v.
Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 189, 557 N.W.2d 67 (1996).
¶49 Curry was the only party to submit evidence as to valuation of
property at the trial. Based on the evidence Curry presented, she asked the circuit
court to find that the value of the personal property and retail product left on the
premises on May 31, 2017, was $322,181. The court initially opined that Curry’s
“replacement values appear to be inflated, overstated, and not particularly credible
given the court has already found that Curry is not particularly credible.” The
court then reduced the value of the personal property to $251,457. On this record,
27
No. 2022AP1280
Alden argues that the court’s ultimate decision on damages was in error. Again,
we disagree that the court erred.
¶50 Curry testified as the business owner who had personal knowledge
regarding the personal property and retail product contained on the premises. For
trial, Curry prepared a detailed list of the items in each room of the property and
their values. Curry testified that she prepared the list “from memory” and that it
was based on “days” of “research[ing] replacement value” “[o]n the Internet with
the company and the brands.” She stated that she believed that these values
represented accurate replacement values for the items. Curry also explained that
there were some items that she could not put a value on because they were
“one-of-a-kind artwork and sentimental items that [she had] received as gifts
throughout 18 years.”
¶51 The circuit court credited Curry’s testimony as well as her list of
values. As the court acknowledged, “In Wisconsin, the general rule is that a
non-expert owner may testify concerning the value of their property, regardless of
whether it is realty or personalty” and “[t]he weight to be attached to a non-expert
owner’s testimony is for the trier of fact.” Mayberry v. Volkswagen of Am., Inc.,
2005 WI 13, ¶42, 278 Wis. 2d 39, 692 N.W.2d 226 (citation omitted). The court
found that there “was no evidence contradicting the Curry valuation other than
[Alden’s testimony] that the items were old, broken, in such poor repair, or never
on the premises or in need of being discarded or that Alden had never seen those
items there, or they were procured from thrift stores.” The court found, however,
that Alden’s assertions were contradicted by other evidence presented at trial.
¶52 The record demonstrates that the circuit court conducted a thorough
review of the evidence regarding Curry’s claimed damages, comparing the
28
No. 2022AP1280
evidence presented by Curry to photographs in the record, as well as other
evidence presented, and consulting a spreadsheet to determine the value of the
retail product based on the testimony. The court observed that it “[had] to start
with the value” on Curry’s list and “reduce it.” Therefore, we conclude that the
court properly considered the only available evidence of value, took into account
the weight of the evidence as well as credibility determinations, deducted amounts
that it determined were not credibly proven, and arrived at an amount that was
within reasonable limits.
¶53 As to Alden’s specific argument that the circuit court failed to apply
the rule that the evidence of value must be credible because it found Curry’s
values “inflated, overstated, and not particularly credible,” we are not persuaded.
In setting damages sustained by a party, a fact-finder is not limited to the amounts
given by the witnesses. See Milwaukee Rescue Mission, Inc. v. Redevelopment
Auth., 161 Wis. 2d 472, 485, 468 N.W.2d 663 (1991). Instead, the fact-finder
may assess the credibility of that evidence against all of the circumstances in the
case and arrive at a figure it believes is warranted by the evidence. See Cutler
Cranberry Co. v. Oakdale Elec. Coop., 78 Wis. 2d 222, 234-35, 254 N.W.2d 234(1977) (“[W]here the fact of damage is clear and certain, but the amount is a
matter of uncertainty, the [circuit] court has discretion to fix a reasonable amount.
Simply because the amount is uncertain, the [circuit] court should not deny
recovery altogether.” (citation omitted)). The court made its statements about the
29
No. 2022AP1280
credibility of the evidence to explain its reason for reducing or denying the
provided values. We see no error.17
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
17
Alden also argues that the circuit court erroneously awarded Curry the replacement
value of her property because she claims that Alden is not liable under WIS. STAT. § 895.446.
Because we have already concluded that the court properly determined that Alden is liable for
civil theft, we need not address this argument.
30