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.
¶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