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Restitution – Special Damages — Attorney’s Fees of Victims to Enforce Contract in Theft by Contractor Case

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.

Holding:

¶29. Longmire contends the trial court erred because the “American Rule” requires litigants in a civil action to bear their own litigation costs, and thus the rule precludes a recovery of attorney fees as “special damages” under Wis. Stat. § 973.20(5)(a). The State responds that Wis. Stat. § 100.20(5) provides an exception to the “American Rule” applicable to this case because it would allow the homeowners to recover “a reasonable attorney’s fee” in a civil suit against Longmire for the Administrative Code violations that underlay the two read-in misdemeanors. Although we agree that the homeowners might be able to recover certain attorney fees in such a suit, we also agree with Longmire that the fees should not have been a part of the restitution order for amounts authorized under § 973.20(5)(a).8

¶30. … Because the statutory language plainly distinguishes between a plaintiff’s “pecuniary loss” constituting “damages” and attorney fees a plaintiff may also recover, we conclude that the legislature did not intend that costs and fees were subsumed within the plaintiff’s “damages.”

¶32. Finally, we observe that, in authorizing a sentencing court to order a criminal defendant to pay restitution to a victim for “special damages … which could be recovered in a civil action against the defendant,” Wis. Stat. § 973.20(5)(a) (emphasis added), the statute plainly contemplates that restitution ordered in a criminal case will generally render actual civil litigation unnecessary. We cannot conclude that the legislature intended to include in “special damages” attorney fees for pursuing arguably unnecessary litigation.9

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