Tri-Tech Corporation of America v. Americomp Services, Inc., 254 Wis. 2d 418

Summary

The Wisconsin Supreme Court held that Wisconsin's treble-damages remedy for specified intentional property crimes is available for civil theft by contractor because the contractor-trust-fund statute incorporates the criminal theft statute. The court further held that a plaintiff must prove the criminal theft elements, including specific intent to convert the funds, by a preponderance of the evidence. It reversed summary judgment for the plaintiff because the record did not establish specific intent or provide sufficient evidence that the property work constituted an improvement.

Holdings

1. Wisconsin Statutes section 895.80 provides a treble-damages remedy for theft by contractor under section 779.02(5) because section 779.02(5) makes misappropriation of contractor trust funds punishable under section 943.20, which is an enumerated predicate offense in section 895.80.
2. A plaintiff seeking treble damages for theft by contractor must prove the elements of both section 779.02(5) and the criminal-theft provision in section 943.20(1)(b), including specific criminal intent, by a preponderance of the credible evidence.
3. Summary judgment was improper because Tri-Tech did not present prima facie evidence establishing Schmidt's specific criminal intent to convert contractor trust funds.
4. The record did not establish as a matter of law that the computer-network cabling was an improvement providing a permanent benefit to the land; the issue ordinarily presents a question of fact.

Questions Presented

1. Whether Wisconsin Statutes section 895.80 provides a treble-damages remedy for civil theft by contractor under section 779.02(5).
2. Whether a plaintiff seeking treble damages for theft by contractor must prove the criminal-theft elements under section 943.20(1)(b), including specific criminal intent.
3. Whether summary judgment was proper when the plaintiff failed to establish a prima facie case of specific criminal intent.
4. Whether the record established as a matter of law that The Frantz Group was an owner and that the computer-network cabling was an improvement under the construction-lien statutes.

Disposition

reversed_and_remanded