Heritage Farms, Inc. v. Markel Ins. Co.
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Plaintiffs in this action consisted of Heritage Farms and several other landowners whose properties were damaged as a result of a forest fire. A jury determined the fire was negligently caused by Jeffrey Knaack. Post-verdict, Plaintiffs moved for judgment against Knaack, the campground, and their respective insurers (Defendants) for double damages and attorney fees and costs under Wis. Stat. 26.21(1). The circuit court awarded Heritage Farms its attorney fees and costs but declined to double Heritage Farms' damages. The court of appeals affirmed. The Supreme Court reversed, holding (1) pursuant to section 26.21(1), if it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, the property owner is entitled to double damages; (2) because the jury determined Heritage Farms' property was damaged by a forest fire caused by Knaack's negligence, Heritage Farms was entitled to double damages; (3) pursuant to Wis. Stat. 841.04(4), Heritage Farms was entitled to twelve percent interest on its double damages award from the date of the jury's verdict and to twelve percent interest on its award of attorney fees and costs from the date of that award; and (4) section 814.04(4) was constitutional.
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2012 WI 26 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP355 Heritage Farms, Inc., Audrey Bunchkowski, Russell Bunchkowski, Ruth Dutcher, Howard Dutcher, Sally Freitag, Amy Holzwart, James Holzwart, Kathleen Khin, Glenwood Zellmer, Daryl Lloyd, Donald Lloyd, Judy Maas, Jeffrey Maas, Carolyn Mueller, Lois Rucich, George Rucich, Donna Semrow, Harland Semrow, Beverly Singer, Norman A. Singer Trust, Joan Singer, Gordon Singer, Singer Living Trust, Inga Stoellinger, Otto Stoellinger, Catherine Swanton, Swanton Family Trust, Christine Toliver, Alan Toliver, Krista Zimmer and Norman Zimmer, Plaintiffs-Appellants-Petitioners, Hartford Insurance Company of the Midwest, Auto-Owners Insurance Company, Safeco Insurance Company of America and Acuity, a mutual insurance company, Involuntary-Plaintiffs, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. -----------------------------------------------------------Ted Schwochert, Paul B. Schwochert, Helen Schwochert and Sue Schroeder, Plaintiffs-Appellants-Petitioners, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS 2011 WI App 12 Reported at: 331 Wis. 2d 64, 793 N.W.2d 896 (Ct. App. 2010 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: March 16, 2012 November 1, 2011 Circuit Waushara John V. Finn JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: BRADLEY, J. dissents (Opinion filed). ATTORNEYS: For the plaintiffs-appellants-petitioners there were briefs filed by Mark L. Thomsen, Sarah F. Kaas and Cannon & Dunphy, S.C., Brookfield, Clay R. Dutcher and Dutcher Law Office, L.L.C., Wautoma and George W. Curtis, Brian P. Beisenstein and Curtis Law Office, Oshkosh and oral argument by Mark Thomsen. For the defendants-respondents there was a brief filed by John V. McCoy, Brian D. Parish and McCoy Law Group, S.C., Waukesha, Mark S. Henkel and First Law Group, Stevens Point and oral argument by John V. McCoy. 2 2012 WI 26 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP355 (L.C. No. 2004CV131) STATE OF WISCONSIN : IN SUPREME COURT Heritage Farms, Inc., Audrey Bunchkowski, Russell Bunchkowski, Ruth Dutcher, Howard Dutcher, Sally Freitag, Amy Holzwart, James Holzwart, Kathleen Khin, Glenwood Zellmer, Daryl Lloyd, Donald Lloyd, Judy Maas, Jeffrey Maas, Carolyn Mueller, Lois Rucich, George Rucich, Donna Semrow, Harland Semrow, Beverly Singer, Norman A. Singer Trust, Joan Singer, Gordon Singer, Singer Living Trust, Inga Stoellinger, Otto Stoellinger, Catherine Swanton, Swanton Family Trust, Christine Toliver, Alan Toliver, Krista Zimmer and Norman Zimmer, Plaintiffs-Appellants-Petitioners, Hartford Insurance Company of the Midwest, Auto-Owners Insurance Company, Safeco Insurance Company of America and Acuity, a mutual insurance company, Involuntary-Plaintiffs, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. ----------------------------------------------Ted Schwochert, Paul B. Schwochert, Helen Schwochert and Sue Schroeder, FILED MAR 16, 2012 Diane M. Fremgen Clerk of Supreme Court Plaintiffs-Appellants-Petitioners, v. Markel Insurance Company, J.J.J. Recreation Corporation d/b/a Lake of the Woods Campground, American Family Mutual Insurance Company and Jeffrey Knaack, Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded to the circuit court with instructions. ¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals, Heritage Farms, Inc. v. Markel Insurance Co., 2011 WI App 12, 331 Wis. 2d 64, 793 N.W.2d 896, Circuit that Court1 affirmed granting an in order part by and the Waushara denying in County part the plaintiffs' motion for payment of double damages and reasonable costs for legal representation under Wis. Stat. § 26.21(1) (2003-04)2 and for 12 percent interest thereon. 1 The Honorable John V. Finn presided. 2 Wisconsin Stat. § 26.21 (2003-04), "Civil liability for forest fires," states: (1) In addition to the penalties provided in s. 26.20, the United States, the state, the county or private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence. In a civil action, a court may award reasonable costs 2 No. ¶2 The plaintiffs several other landowners consist of Heritage (collectively, Farms, Heritage 2010AP355 Inc. and Farms) whose properties were extensively damaged as a result of a 2003 forest fire in Marquette and Waushara Counties, commonly referred to as the Crystal Lake Fire. A jury determined that the fire was negligently caused by Jeffrey Knaack (Knaack), who ignited and failed to properly extinguish a burn pile at the Lake of the Woods Campground. Post-verdict, Heritage Farms moved for judgment against Knaack, the campground, and their respective insurers (collectively, Markel)3 for double damages and reasonable costs for legal representation pursuant to Wis. Stat. § 26.21(1). ¶3 before This is the second time these parties have appeared us. See Heritage Farms, Inc. v. Markel Ins. Co. for legal representation to provide owners recovering damages under this subsection. (2) Persons causing fires in violation of this chapter shall be liable to the state in an action for debt, to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting forest fires and shall be liable to municipalities in an action for debt, to the full amount of all damages to the municipal lands and for all expenses incurred by the municipalities fighting such fires. All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. 3 Knaack was insured against personal liability by American Family Mutual Insurance Company, and the Lake of the Woods Campground was insured against commercial liability by Markel Insurance Company. 3 No. 2010AP355 (hereafter Heritage Farms I),4 2009 WI 27, 316 Wis. 2d 47, 762 N.W.2d 652. In Heritage Farms I, we held that civil liability for forest fires under Wis. Stat. § 26.21(1) is not limited to a specific class of tortfeasor such as a railroad corporation and that a violation under Wis. Stat. § 26.205 is not a prerequisite to the application of Wis. Stat. § 26.21(1). Id., ¶13. We further concluded that § 26.21(1) does not require a showing of gross negligence. ¶4 Id., ¶37. After our decision in Heritage Farms I, Heritage Farms again requested the circuit court to award double damages and reasonable costs § 26.21(1). award representation discretion. damages under The attorney fees exercise its punishment legal representation under Wis. Stat. The circuit court determined that the decision to double reasoning for that and and § 26.21(1) circuit costs. discretion Knaack's beyond the reasonable to court is subject awarded However, double conduct payment of did costs the to the Heritage court Heritage not for court's Farms its declined to Farms' necessarily compensatory legal damages, warrant damages. The court of appeals affirmed. 4 We use the case name Heritage Farms I to identify this court's first published decision involving these same parties and to distinguish that first published decision from the decision at bar. 5 Wisconsin Stat. § 26.20, "Fire protection devices," generally outlines the duties of those corporations that operate on or maintain a railway. See Heritage Farms, Inc. v. Markel Ins. Co. (Heritage Farms I), 2009 WI 27, ¶11 & n.7, 316 Wis. 2d 47, 762 N.W.2d 652. 4 No. ¶5 Heritage Farms petitioned this court for review, which we granted. and 2010AP355 remand We now reverse the decision of the court of appeals to the circuit court with instructions to enter judgment in accordance with this opinion. ¶6 This case presents several issues for our review: (1) Pursuant to Wis. Stat. § 26.21(1), if it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, is the property owner entitled to double damages as a matter of course, or is an award of double damages discretionary? (a) Assuming we conclude that the property owner is entitled to double damages under § 26.21(1) as a matter of course, should we apply our holding only prospectively? (b) Assuming we conclude that an award of double damages under § 26.21(1) is discretionary, is the decision to award double damages subject to the circuit court's fact-finder? constitutional discretion Relatedly, right to or does have reserved a a party jury for the have a decide whether to award double damages under § 26.21(1)? (i) Assuming we conclude that the decision to award double damages under § 26.21(1) is subject to the circuit court's discretion, what standard, if any, should the court follow in making its determination? 5 No. (2) 2010AP355 Assuming we conclude that Heritage Farms is entitled to double damages under Wis. Stat. § 26.21(1) as a matter of course, is Heritage Farms entitled to 12 percent interest on that amount from the date of the jury's verdict pursuant to Wis. Stat. § 814.04(4)? Is Heritage Farms entitled to 12 percent interest on its award of attorney fees and costs from the date of the jury's verdict? (a) Is § 814.04(4) unconstitutional on its face or as applied to Markel? ¶7 it is We conclude that pursuant to Wis. Stat. § 26.21(1), if determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course. retrospectively. We apply this holding Consequently, in this case, because the jury determined that Heritage Farms' property was damaged by a forest fire caused by Knaack's negligence, Heritage Farms is entitled to double damages as a matter of course. ¶8 We further conclude that pursuant to Wis. Stat. § 814.04(4), Heritage Farms is entitled to 12 percent interest on its double damages award from the date of the jury's verdict. At the same time, we determine that Heritage Farms is entitled to 12 percent interest on its award of attorney fees and costs only from the date of that award, not from the date of the jury's verdict. Finally, we conclude that Markel has failed to 6 No. prove beyond a reasonable doubt that 2010AP355 § 814.04(4) is unconstitutional on its face or as applied to Markel. I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE ¶9 The facts and procedural history of this case were recited in Heritage Farms I and need not be repeated at length here. See 316 Wis. 2d 47, ¶¶3-4. It is sufficient to state that Heritage Farms' property was extensively damaged by the 2003 Crystal Lake Fire. The fire originated when a large burn pile, ignited lawfully by Knaack six weeks earlier, flared up and escaped the Lake of the Woods Campground. The fire burned 572 acres of land before it was finally contained. ¶10 Heritage Farms filed a civil action against Markel, claiming negligence, trespass, and nuisance, and seeking double damages and reasonable costs for legal representation under Wis. Stat. § 26.21(1). were submitted returned claims a and The negligence, trespass, and nuisance claims to verdict awarded a jury. in favor Heritage On October 13, of Heritage Farms Farms 2006, $568,422 on in the all jury three compensatory damages. ¶11 Post-verdict, Heritage Farms moved for judgment against Markel for double damages and reasonable costs for legal representation under Wis. Stat. § 26.21(1). The circuit court denied the motion, concluding that § 26.21(1) applies only to defendants who are railroad corporations. Accordingly, circuit court entered judgment on the jury verdict. On July 17, 2007, Markel paid the entirety of that judgment plus interest. 7 the No. ¶12 Heritage Farms appealed, and the court of 2010AP355 appeals affirmed. ¶13 In Heritage Farms I, we reversed that decision of the court of appeals. 316 Wis. 2d 47. We held that Wis. Stat. § 26.21(1) is not limited to a specific class of tortfeasor such as a railroad corporation and that a violation under Wis. Stat. § 26.20 is not a prerequisite to the application of Wis. Stat. § 26.21(1). Id., ¶13. We further concluded that § 26.21(1) does not require a showing of gross negligence. ¶14 Id., ¶37. Markel moved for reconsideration, which we denied on May 28, 2009. Heritage Farms, Inc. v. Markel Ins. Co., No. 2007AP983, unpublished order (Wis. May 28, 2009). ¶15 The issues before us today arose subsequent to our decision in Heritage Farms I. Heritage double Farms again damages and On August 20, 2009, upon remand, moved the reasonable under Wis. Stat. § 26.21(1). circuit costs for court for legal payment of representation Heritage Farms also requested 12 percent interest on those amounts from the date of the jury's verdict, pursuant to Wis. Stat. § 814.04(4).6 ¶16 Markel opposed Heritage Farms' motion, arguing that Wis. Stat. § 26.21(1) does not mandate the payment of double damages and reasonable costs for legal representation. Rather, Markel contended, the statute's plain language is permissive, 6 Wisconsin Stat. § 814.04(4), "Interest on verdict," provides, in relevant part: "[I]f the judgment is for the recovery of money, interest at the rate of 12% per year from the time of verdict, decision or report until judgment is entered shall be computed by the clerk and added to the costs." 8 No. 2010AP355 making clear that the determination of whether to impose double damages and costs for legal representation is left to the factfinder's discretion. Markel maintained that double damages and costs for legal representation are inappropriate in this case, given the jury's finding that Knaack was "negligent, but no more." ¶17 Markel further argued that even if the circuit court now awards Heritage Farms double damages and reasonable costs for legal representation, Heritage Farms is still not entitled to interest on those amounts from the date of the jury's verdict because, as determined. interest of that date, such amounts were not known and In any case, Markel asserted, imposing 12 percent under Wis. Stat. § 814.04(4) is unconstitutional. Markel reasoned that a 12 percent interest rate is so severe that it tends to deter defendants from defending themselves on appeal. ¶18 On November 19, 2009, the circuit court held a hearing on Heritage Farms' motion, ultimately granting it in part and denying it in part. The circuit court determined that the decision to award double damages and reasonable costs for legal representation under Wis. Stat. § 26.21(1) is subject to the court's discretion. The circuit court awarded Heritage Farms its attorney fees and costs. However, the court declined to impose interest on those amounts from the date of the jury's verdict, explaining that as of that date, the parties were still operating under the ruling that Markel. 9 § 26.21(1) did not apply to No. ¶19 whether 2010AP355 The circuit court had a more difficult time deciding to award Heritage Farms double damages. The court lamented the lack of guidance as to what standard it should apply in exercising its discretion: "[W]hat I'm struggling with is whether or not, in addition to paying the compensatory damages, the person who started the fire should be punished by having double damages, and without any criteria, it's really hard to do . . . ." persuaded that Heritage Farms' conduct did it Ultimately, should exercise damages. not the The necessarily circuit its court court discretion reasoned warrant to that punishment was not double Knaack's beyond the payment of compensatory damages. ¶20 The circuit court entered judgment accordingly on December 23, 2009, granting Heritage Farms' motion for payment of attorney fees and costs but denying Heritage Farms' motion for payment of double damages and for 12 percent interest on any attorney fees, costs, or additional damages awarded from the date of the jury's verdict. On February 12, 2010, Markel paid the judgment of attorney fees and costs, plus interest running from November 19, 2009. ¶21 Heritage reconsideration, Farms which the moved the court denied. circuit The court circuit for court reiterated its determination that an award of double damages under Wis. Stat. § 26.21(1) is discretionary. Because § 26.21(1) uses the word "may," the circuit court construed the statute as "an invitation for the Court to consider whether or not the specific facts in a specific case are such that the 10 No. 2010AP355 defendant ought to be punished in addition to paying for his, his [sic] negligence . . . ." ¶22 Heritage appealed,7 Farms maintaining that double damages under Wis. Stat. § 26.21(1) are mandatory or, at the very least, affirmed. presumed. Heritage The court Farms, 331 of appeals disagreed Wis. 2d 64. The court and of appeals, like the circuit court, concluded that the decision to award double damages under § 26.21(1) is subject to the circuit court's discretion. that the Id., ¶11. legislature used The court of appeals pointed out the permissive word "may" in § 26.21(1) when describing a property owner's right to recover double damages in the event that a forest fire results from willfulness, malice, or negligence. Id., ¶10. In contrast, the court of appeals explained, the legislature used the mandatory word "shall" in § 26.21(2) when describing a person's liability to the State and to municipalities for damage done to state and municipal lands and for expenses incurred in fighting forest fires. Id. According to the court of appeals, the legislature's use of the words "may" in § 26.21(1) and "shall" in § 26.21(2) is evidence of its awareness that the words have distinct appeals meanings. concluded Id., that ¶11. Consequently, § 26.21(1) permissive, not mandatory. Id. 7 should be the court of interpreted as The court of appeals further Markel did not cross-appeal from the circuit court's order granting Heritage Farms' motion for payment of reasonable costs for legal representation under Wis. Stat. § 26.21(1). Accordingly, that portion of the circuit court's order is not before us. 11 No. rejected Heritage Farm's § 26.21(1) are presumed. argument that Id., ¶13. double 2010AP355 damages under Finally, because the court of appeals affirmed the circuit court's denial of double damages under § 26.21(1), it declined to address whether Heritage Farms was entitled to 12 percent interest on such damages from the date of the jury's verdict. ¶23 Id., ¶15. Heritage Farms petitioned this court for review, which we granted on April 12, 2011. II. STANDARD OF REVIEW ¶24 must This case presents two principal issues. determine whether Heritage Farms is First, we entitled to double damages under Wis. Stat. § 26.21(1) as a matter of course, or whether an award of double damages is discretionary. assuming Heritage § 26.21(1) as a Farms is matter of entitled course, to we double must Second, damages determine under whether Heritage Farms is entitled to 12 percent interest on its award of double damages from the date of the jury's verdict, pursuant to Wis. Stat. § 814.04(4). Relatedly, Heritage Farms requests 12 percent interest on its award of attorney fees and costs from the date of the jury's verdict. Both of these principal issues are questions of statutory interpretation and application. The interpretation and application of a statute are questions of law that we review de novo while benefitting from the analyses of the court of appeals and circuit court. Affeldt v. Green Lake Cnty., 2011 WI 56, ¶32, 335 Wis. 2d 104, 803 N.W.2d 56. ¶25 In addition, Markel raises several derivative questions, including whether our interpretation of Wis. Stat. 12 No. § 26.21(1) should apply only prospectively, and 2010AP355 whether Wis. Stat. § 814.04(4) is unconstitutional. The first is a question of court. policy Steenberg (1997); to be determined Homes, Kurtz Inc., v. City N.W.2d 757 (1979). 209 of by this Wis. 2d 605, Waukesha, 91 613, See Jacque 563 N.W.2d 154 Wis. 2d 103, 108, v. 280 The second is a question of law that we also review independently. See State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90. III. ANALYSIS ¶26 "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Because we presume that the legislature "'says in a statute what it means and means in a statute what it says there,'" id., ¶39 (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)), statutory interpretation begins with the language of the statute, id., ¶45. Statutory language is given its "except common and ordinary meaning, that technical or specially-defined words or phrases are given their technical or special definitional meaning." our inquiry ends. ¶27 At interpreted relation statutes. the in to If the meaning is plain, Id. same time, isolation the Id. language Id., ¶46. but of statutory rather as language part surrounding or of cannot a whole, be in closely-related In addition, we must construe statutory language reasonably, in order to avoid absurd results. 13 Id. An No. unreasonable interpretation statute's manifest purpose. ¶28 Generally, legislative intent, we is as not consult legislative statute's language is ambiguous. is ambiguous meaning. ¶29 if it that contravenes the See id., ¶49. do such one 2010AP355 reasonably extrinsic sources of history, unless the Id., ¶50. gives rise Statutory language to more than one Id., ¶47. To resolve the two principal issues in this case, we must apply the above canons of statutory interpretation to Wis. Stat. §§ 26.21(1) and 814.04(4). We analyze the statutes in turn. A. Wisconsin Stat. § 26.21(1) 1. Whether Heritage Farms is entitled to double damages under Wis. Stat. § 26.21(1) as a matter of course, or whether an award of double damages is discretionary ¶30 Wisconsin Stat. § 26.21(1) provides, in relevant part, that "private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence." In this case, the jury found that Heritage Farm's property was injured or destroyed by a forest fire that occurred through Knaack's negligence. Heritage Farms argues that, as a result, double damages under § 26.21(1) are mandatory, or at least presumed. Markel, on the other hand, maintains that an award of double damages under § 26.21(1) is discretionary. ¶31 We agree with Heritage Farms that it is entitled to double damages under Wis. Stat. § 26.21(1). 14 Our conclusion, No. 2010AP355 however, is based on a slightly different rationale than that espoused by Heritage Farms. We conclude that pursuant to § 26.21(1), if it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course. ¶32 We begin with the language of Wis. Stat. § 26.21(1). Again, § 26.21(1) states that a property owner, "whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount occurred through of damages willfulness, suffered, malice or if the fires negligence." The parties focus their arguments on the meaning of the phrase "may recover." or to The word "may" is ordinarily used to grant permission indicate Dictionary of possibility. the English See The Language American 1112 (3d ed. Heritage 1992). Accordingly, when interpreting a statute, we generally construe the word "may" as permissive. Hitchcock v. Hitchcock, 78 Wis. 2d 214, 220, 254 N.W.2d 230 (1977); Schmidt v. Dep't. of Local Affairs & Dev., 39 Wis. 2d 46, 53, 158 N.W.2d 306 (1968); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963). By contrast, we presume that the word "shall" is mandatory. Eby v. Kozarek, 153 Wis. 2d 75, 79, 450 N.W.2d 249 (1990); Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978); State v. Rosen, 72 Wis. 2d 200, 205, 240 N.W.2d 168 (1976). The distinction is particularly significant when the words "may" and "shall" are used in the same statutory section, as they are in § 26.21. 15 No. 2010AP355 While § 26.21(1) provides that a property owner, whose property is injured or destroyed by a forest fire, "may" recover, in a civil action, double damages against the tortfeasor, § 26.21(2) directs that the tortfeasor "shall" be liable to the State and to municipalities for all damages done to state and municipal lands and for all expenses incurred in fighting the forest fire. When the words "may" and "shall" are used in the same statutory section, we "can infer that the legislature was aware of the different denotations precise meanings." ¶33 and intended the words to have their Karow, 82 Wis. 2d at 571. In light of the foregoing, Markel contends that the court of appeals properly construed the plain language of Wis. Stat. § 26.21(1) as merely permitting Heritage Farms to recover double damages, as opposed to mandating it. ¶34 While recognizing that we generally construe the word "may" as permissive, Heritage Farms urges us to nevertheless read the phrase "may recover" in Wis. Stat. § 26.21(1) as "shall recover," in intent. order carry Heritage As to out Farms the points statute's out, this legislative court has occasionally ruled that the word "may" in a statute can properly be construed as mandatory when such a construction is necessary to carry out the intent of the legislature. v. Smith, Klisurich 100 v. Wis. 2d 609, DHSS, 98 616-17, Wis. 2d 274, 302 See, e.g., Miller N.W.2d 468 278-79, 296 (1981); N.W.2d 742 (1980); Hitchcock, 78 Wis. 2d at 220; Schmidt, 39 Wis. 2d at 53; City of decision Wauwatosa, in Heritage 22 Wis. 2d at Farms I, 16 191-92. Heritage Relying Farms on contends our that No. § 26.21(1) expresses the legislature's intent 2010AP355 to "severely punish" those responsible for starting forest fires. Wis. 2d 47, punishment ¶¶29, under 35. According § 26.21(1) is to best Heritage carried See 316 Farms, out severe through a mandatory, as opposed to a merely discretionary, recovery of double damages. ¶35 As their arguments make clear, the parties focus on the phrase "may recover" in Wis. Stat. § 26.21(1) only as it relates to double damages. However, in fact, § 26.21(1) states that a property owner "may recover, in a civil action, double the amount Accordingly, of damages we must suffered . . . ." interpret the (Emphasis phrase "may added.) recover" in relation to the entire clause that it precedes: "in a civil action, double the amount of damages suffered." ¶36 With that in mind, we decline to rewrite Wis. Stat. § 26.21(1), as Heritage Farms suggests, by replacing the word "may" with the word "shall." The cases in which this court construed the word "may" in a statute as "shall," or vice-versa, must be understood in context. In each case, the court was interpreting a statutory provision that imposed, usually upon 17 No. 2010AP355 the circuit court or a litigant, a power or duty to act.8 The issue was then was discretionary considered or such whether the power mandatory. To factors the as make or duty that statute's to act determination, we objectives, the statute's history, the consequences that would follow from the 8 See, e.g., Eby v. Kozarek, 153 Wis. 2d 75, 79, 450 N.W.2d 249 (1990) (interpreting Wis. Stat. § 655.445(1) (198788), which provided that a claimant under chapter 655 (1987-88) "shall, within 15 days after the date of filing an action in court, file a request for mediation"); Miller v. Smith, 100 Wis. 2d 609, 616, 302 N.W.2d 468 (1981) (interpreting Wis. Stat. § 807.12(2) (1977-78), which provided that "[w]hen the name of such defendant [designated by a fictitious name] is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed"); Klisurich v. DHSS, 98 Wis. 2d 274, 27778, 296 N.W.2d 742 (1980) (interpreting Wis. Stat. § 46.10(2) (1975-76), which provided that the Department of Health and Social Services "may bring action for the enforcement of such liability" under § 46.10 (1975-76)); Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978) (interpreting Wis. Stat. § 63.10(2) (1975-76), which provided that the county civil service commission "shall appoint a time and place for the hearing of said charges [allegedly meriting an employee's demotion or dismissal], the time to be within 3 weeks after the filing of the same"); Hitchcock v. Hitchcock, 78 Wis. 2d 214, 219, 254 N.W.2d 230 (1977) (interpreting Wis. Stat. § 247.101 (1971-72), which provided that the circuit court "may grant a judgment of divorce or legal separation to the party whose equities on the whole are found to be superior"); State v. Rosen, 72 Wis. 2d 200, 202-03, 240 N.W.2d 168 (1976) (interpreting Wis. Stat. § 161.555(2)(b) (1973-74), which provided that "the action [brought to cause the forfeiture of property seized under Wis. Stat. § 161.55 (1973-74)] shall be set for hearing within 60 days of the service of the answer"); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184, 187-88, 125 N.W.2d 386 (1963) (interpreting Wis. Stat. § 59.07(52)(a) (1959-60), which provided that the Milwaukee County Board "may pay to the municipality in which said [county] buildings are situated for the transmission and disposal of sewage, such proportion of the expense thereof"). 18 No. 2010AP355 alternative interpretation, and whether the statute imposed a penalty for the failure to exercise the power or duty. 153 Wis. 2d at 80; Karow, 82 Wis. 2d at 571-72; See Eby, Rosen, 72 Wis. 2d at 207. ¶37 upon a Wisconsin Stat. § 26.21(1), however, does not impose property owner any power or duty to act. More specifically, § 26.21(1) does not impose upon a property owner, whose property is injured or destroyed by a forest fire, a power or duty to "recover, in a civil action, double the amount of damages suffered"; unreasonable. indeed, imposing such a duty would be Certainly, the statute does not provide for a penalty if the property owner chooses not to take such action. Rather, § 26.21(1) provides for the opportunity, if the property owner so chooses, to "recover, in a civil action, double the amount of damages suffered." § 26.21(1), a property Stated another way, pursuant to owner, whose property is injured or destroyed by a forest fire, may bring a civil action against the tortfeasor to recover double damages. See Heritage Farms I, 316 Wis. 2d 47, ¶23 (explaining that § 26.21(1) is "drafted from the perspective of who may bring an action"). When § 26.21(1) is understood in that context, it makes sense for us to interpret the word "may" according to its common and ordinary meaning of granting permission. By contrast, it would be unreasonable for us to interpret the word "may" as "shall," thereby effectively mandating that the property owner recover double damages. 19 bring a civil action to No. ¶38 2010AP355 Consequently, we agree with Markel that the word "may" in Wis. Stat. § 26.21(1) is permissive. follow, as Markel contends, that an under § 26.21(1) is discretionary. Still, it does not award of double damages The language in § 26.21(1) that permits a property owner to "recover, in a civil action, double the isolation. amount of damages suffered" cannot be read in Section 26.21(1) goes on to state that the property owner "may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence." (Emphasis added.) ¶39 The word "if" is a conjunction that ordinarily means "[i]n the event that," "[g]ranting that," or "[o]n the condition that." 897 The American Heritage Dictionary of the English Language (3d ed. 1992). Therefore, we interpret Wis. Stat. § 26.21(1) as providing that a property owner, whose property is injured or destroyed by a forest fire, is permitted to "recover, in a civil action, double the amount of damages suffered," in the event that or on the condition that "the fire[] occurred through willfulness, malice or negligence." once it is willfulness, determined malice, that or the forest negligence, Stated another way, fire the occurred property through owner is entitled to double damages as a matter of course. ¶40 double Still, Markel asks us to conclude that an award of damages under Wis. Stat. § 26.21(1) is discretionary, even if it is determined that the forest fire occurred through willfulness, malice, or negligence. To conclude otherwise, Markel argues, would lead to "blind punishment" punishment for 20 No. 2010AP355 the sake of punishment, without regard to the particular conduct that gave rise to the forest fire. policy argument, § 26.21(1). it The is not statute While we appreciate Markel's supported permits a by the property language owner, of whose property is injured or destroyed by a forest fire, to "recover, in a civil action, double the amount of damages suffered," contingent on only one requirement: the fire must have "occurred through willfulness, interpretation, malice however, or negligence." effectively places Markel's an additional condition on the property owner's recovery of double damages, namely, a showing that the tortfeasor's conduct whether willful, malicious, or negligent warrants the payment of double damages. The legislature did not impose such a condition under § 26.21(1), and this court is not permitted to create such a condition. Rather, as noted in Heritage Farms I, we must presume that the legislature intended to "cast a wide net when punishing those who start forest fires," subjecting the tortfeasor to double damages regardless of whether the fire was set willfully, ¶41. maliciously, or negligently. 316 Wis. 2d 47, A discretionary award of double damages would thwart that purpose. ¶41 Moreover, § 26.21(1) does it not is important state that the to note court that may Wis. award Stat. double damages, if the fires occurred through willfulness, malice or negligence. Using that type of language would have been a simple matter, had the legislature contemplated a discretionary award of double damages. Instead, 21 as previously explained, No. 2010AP355 § 26.21(1) is directed at the property owner, providing that the property owner "may recover," in a civil action, double damages, if the fires occurred through willfulness, malice or negligence. As such, "[i]t would certainly be odd" for us to interpret § 26.21(1) as giving the circuit court the discretion to decline to award double damages even after it has been determined that the fire occurred through willfulness, malice, or negligence, see Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶19, 275 Wis. 2d 1, 683 N.W.2d 58, particularly when the statute is silent as to what standard the court ought to follow when exercising such discretion. ¶42 Finally, § 26.21(1) runs Markel's counter to interpretation the language sections in Wis. Stat. ch. 26. Chapter 26, entitled Productivity," is at of Forest safeguarding state's most valued natural resources. 26 are subject criminally. to severe Relevant to imposes multiplied damages. of other case, Lands Stat. statutory and forests, one Forest of our Violations under Chapter consequences, this Wis. There can be no question that "Protection aimed of both Chapter civilly 26 and consistently For example, pursuant to Wis. Stat. § 26.06(3), any person who knowingly transports, receives, or conceals any forest products unlawfully severed from another's land "shall be thereof . . . ." liable to the owner for double the value Likewise, pursuant to Wis. Stat. § 26.09(3), any person who cuts, removes, or transports raw forest products without the owner's consent is liable for up to four times the stumpage value or two times the fair market value of the raw 22 No. forest products, whichever is greater. that the legislature would have 2010AP355 It is counter-intuitive intended for a person who unlawfully cuts down another's tree to be liable for as much as quadruple forest damages, fire maliciously, only at and or while intending destroys another's negligently to the circuit court for or be a person land be liable for fact-finder's who it sets a willfully, double damages discretion. Our canons of statutory interpretation preclude us from interpreting Wis. Stat. § 26.21(1) in a manner that produces such an absurd result. ¶43 See Kalal, 271 Wis. 2d 633, ¶46. In summary, we conclude that pursuant to Wis. Stat. § 26.21(1), if it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course.9 9 In this case, Markel contends that the decision to award double damages under Wis. Stat. § 26.21(1) is reserved for the fact-finder and cannot be submitted to the court without offending Markel's constitutional right to a jury trial. Markel's contention is premised upon an argument that we have already rejected, namely, that an award of double damages under § 26.21(1) is subject to a discretionary determination based upon the defendant's particular conduct. We conclude today that pursuant to § 26.21(1), if it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course. In other words, once it is determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, the property owner's damages are doubled by operation of law. See Hartlaub v. Coachmen Indus., Inc., 143 Wis. 2d 791, 804, 422 N.W.2d 869 (Ct. App. 1988). "Such a function is properly performed by the trial court not the finder of fact." Id. 23 No. 2010AP355 the jury determined that Heritage Farms' property was damaged by a forest fire caused by Knaack's negligence. Accordingly, Heritage Farms is entitled to double damages as a matter of course.10 2. Whether our interpretation of should apply only prospectively ¶44 Wis. Stat. § 26.21(1) This court, like all courts, generally adheres to the doctrine that a new rule of law applies retroactively. State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶46, 301 Wis. 2d 178, 732 N.W.2d 804. The doctrine, referred to as the "Blackstonian doctrine," is traditionally implicated in cases in which the court decides to overrule 10 or repudiate an earlier Alternatively, Markel argues that Wis. Stat. § 26.21(1) is unconstitutionally vague as applied to Markel. More specifically, Markel maintains that § 26.21(1) is so ambiguous that it failed to provide notice to Markel that the statute is applicable to Markel. At the outset, we note that Markel failed to raise an as-applied constitutional challenge to § 26.21(1) in Heritage Farms I. In any event, we reject Markel's argument that § 26.21(1) is unconstitutionally vague as applied to Markel. A statute is unconstitutionally vague if it does not give fair notice of the conduct prohibited by the legislation. City of Madison v. Baumann, 162 Wis. 2d 660, 672, 470 N.W.2d 296 (1991); see also State ex rel. Kalt v. Bd. of Fire & Police Comm'rs, 145 Wis. 2d 504, 510, 427 N.W.2d 408 (Ct. App. 1988). At the same time, the challenged statute need not define the prohibited conduct with absolute clarity and precision. State v. Pittman, 174 Wis. 2d 255, 276-77, 496 N.W.2d 74 (1993). Rather, a statute is unconstitutionally vague if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . ." Kalt, 145 Wis. 2d at 510 (internal quotations omitted). In this case, our interpretation and application of § 26.21(1) is based upon the statute's plain meaning. By definition, therefore, the language in § 26.21(1) is not so vague as to compel Markel to guess at its meaning or question its application to Markel. 24 No. decision. See State v. Picotte, Wis. 2d 249, 661 N.W.2d 381. "The 2003 WI 42, Blackstonian 2010AP355 ¶42, 261 doctrine is based on the jurisprudential theory that 'courts declare but do not make law. In consequence, when a decision is overruled, it does not merely become bad law, it never was the law, and the later pronouncement is regarded as the law from the beginning.'" Id. (quoting Laabs v. Tax Comm'n, 218 Wis. 414, 416-17, 261 N.W. 404 (1935)). ¶45 Still, on occasion, this court has departed from the general rule of retroactivity and chosen instead to apply a new rule of law only prospectively. The decision to apply a new rule of law only prospectively, or to "sunburst"11 the new rule of law, is driven by our attempt to alleviate the unsettling effects of a party justifiably relying on a contrary view of the law. Buswell, 301 Wis. 2d 178, ¶46. Accordingly, in determining whether to apply a new rule of law prospectively instead of retrospectively, we consider three factors: (1) whether our holding establishes a new rule of law, either by overruling clear past precedent 11 on which litigants may have "Sunbursting," named after the United States Supreme Court's decision in Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), is a technique in which the court applies a new rule of law prospectively. See Thomas E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Prospective Overruling" or "Sunbursting", 51 Marq. L. Rev. 254, 255 (1968). In Sunburst Oil, the Court made clear that "[a] state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward." 287 U.S. at 364; see also State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶46 n.12, 301 Wis. 2d 178, 732 N.W.2d 804. 25 No. relied, or by deciding an issue of first 2010AP355 impression, the resolution of which was not clearly foreshadowed; (2) whether retroactive application would further or impede the operation of the new rule; and (3) whether retroactive produce substantial inequitable results. application could Id., ¶47; see also Kurtz, 91 Wis. 2d at 109. ¶46 In this case, in the event that we interpret the word "may" in Wis. Stat. § 26.21(1) as "shall," Markel requests that we "sunburst," or apply only prospectively, our holding so as to mitigate any hardship to Markel. As a preliminary matter, for the reasons set forth above, we do not interpret the word "may" in § 26.21(1) as "shall." Furthermore, we are not persuaded that of our interpretation § 26.21(1) "sunbursting" in the first instance. is subject to As explained above, the decision of whether to apply a new rule of law prospectively instead of retrospectively is traditionally implicated only in cases in which the court decides to overrule or repudiate an earlier decision. Judge-Made Law Overruling" or (1968). For interpretation prospectively Cf. Thomas E. Fairchild, Limitation of New to Prospective "Sunbursting", example, of in Wis. because 51 Effect Marq. Buswell, Stat. our we Only: L. Rev. decided § 19.84(2) interpretation "Prospective 254, to 254-55 apply (2003-04) established our only a reasonableness standard which was a clear departure from the bright-line standard established by the court of appeals' interpretation of Wis. Stat. § 19.84(2) (1997-98) in an earlier decision. See 301 Wis. 2d 178, ¶¶21, 48 (overruling State ex 26 No. 2010AP355 rel. H.D. Enters. II, LLC v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999)). are not overruling any past By contrast, in this case, we precedent; rather, we are interpreting the plain language of § 26.21(1) as it has existed since 1905. See § 18, ch. 264, Laws of 1905. Accordingly, here, the policy concern that typically supports a decision to "sunburst" a new rule of law is simply not present; we are not overruling a contrary rule of law on which Markel could have justifiably relied. ¶47 Nevertheless, even if we were to agree with Markel that our interpretation of Wis. Stat. § 26.21(1) is subject to "sunbursting," we would still decline to apply our holding only prospectively. case, we Applying the above three factors to the instant conclude that our interpretation properly applied retroactively. of § 26.21(1) is First and foremost, as already mentioned, our interpretation of § 26.21(1) is not a clearly new rule of law. We are not overruling any past precedent. Instead, we are interpreting statutory language that has existed in its present form since 1905. 1905. See § 18, ch. 264, Laws of Indeed, Markel's only argument that our interpretation of § 26.21(1) was not clearly foreshadowed rests on Markel's assumption that we would construe the word "may" as "shall," an interpretation application we do furthers, not adopt rather today. than Second, impedes, § 26.21(1) as we have interpreted it. the retroactive operation of Our interpretation is based in part on the legislature's intent to severely punish those who set forest fires, regardless of whether the conduct 27 No. was willful, malicious, or negligent. 2010AP355 Applying our holding to Markel, who was found by a jury to have negligently set a forest fire that damaged Heritage Farms' property, carries out that legislative intent. Finally, we are not persuaded that retroactive application would produce substantially inequitable results. Even under Markel's theory that an award of double damages under § 26.21(1) is discretionary, Markel still faced the prospect of being liable for double damages. consistent with our general practice, we Therefore, conclude that our holding today applies retroactively. ¶48 We turn now to the second principal issue before us: whether Heritage Farms is entitled to 12 percent interest on its award of double damages and its award of attorney fees and costs from the date of the jury's verdict, pursuant to Wis. Stat. § 814.04(4). B. Wisconsin Stat. § 814.04(4) ¶49 This court has long recognized the "basic principle that prejudgment interest cannot be awarded on an unliquidated amount or one which is not capable application of some fixed standard." of determination by Nelson v. Travelers Ins. Co., 102 Wis. 2d 159, 167, 306 N.W.2d 71 (1981); see also Smith v. Atco Co., 6 Wis. 2d 371, 395, 94 N.W.2d 697 (1959) ("'In order to recover interest there must be a fixed and determinate amount which could have been tendered and interest thereby stopped; the amount of the claim must be known and determined, or readily determinable.'" (quoting Maslow Cooperage Corp. v. 28 No. 2010AP355 Weeks Pickle Co., 270 Wis. 179, 192-93, 70 N.W.2d 577 (1955))). Wisconsin Stat. § 814.04(4) applies that basic principle, employing an interest rate of 12 percent per year.12 Section 814.04(4), "Interest on verdict," provides, in relevant part: "[I]f the judgment is for the recovery of money, interest at the rate of 12% per year from the time of verdict, decision or report until judgment is entered shall be computed by the clerk and added "designates to the the costs."13 date of the In other verdict as words, the § 814.04(4) point interest is payable." Nelson, 102 Wis. 2d at 170. point, nonmonetary the plaintiff's claims are at which At that converted into dollars, "the parameters of the [defendant's] debt have been established and the case no longer involves damages which are wholly at large." Id. (internal quotations omitted). 12 On November 16, 2011, the legislature amended Wis. Stat. § 814.04(4), replacing the annual 12 percent interest rate with an annual rate "equal to 1 percent plus the prime rate in effect on January 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of that year, as reported by the federal reserve board in federal reserve statistical release H. 15 . . . ." See 2011 Wis. Act 69, § 2. The new interest rate applies to judgments entered on or after December 2, 2011. See id., § 4. 13 Wisconsin Stat. § 815.05(8) imposes the same interest rate on the amount recovered "from the date of the entry of the judgment until it is paid." Like Wis. Stat. § 814.04(4), see supra note 12, Wis. Stat. § 815.05(8) was amended by 2011 Wis. Act 69. See id., § 3. 29 No. ¶50 Relying on Wis. Stat. § 814.04(4), 2010AP355 Heritage Farms argues that it is entitled to 12 percent interest on its award of double damages and its award of attorney fees and costs from the date of the jury's verdict, October 13, 2006. Markel disagrees, maintaining that neither of those amounts was known or capable verdict. is of determination as of the date of the jury's In the alternative, Markel contends that § 814.04(4) unconstitutional. We consider the parties' arguments in turn. 1. Whether Heritage Farms is entitled to 12 percent interest on its award of double damages from the date of the jury's verdict ¶51 Heritage Farms argues that it is entitled to 12 percent interest on its award of double damages from the date of the jury's verdict, October 13, 2006.14 ¶52 In Campenni v. Walrath, We agree. 180 Wis. 2d 548, 560, 513 N.W.2d 602 (1994) (per curiam), in a nearly identical context, this court concluded that interest under Wis. Stat. § 814.04(4) shall be calculated on the total award of double damages from the date of the jury's verdict, even though the defendant's liability for double damages was not established until the case was appealed. In that case, the plaintiff filed suit against 14 Markel has already paid the judgment, plus interest, on the jury's $568,422 compensatory damages award. Heritage Farms does not seek any more interest on that award. Rather, Heritage Farms seeks 12 percent interest on its $568,422 double damages award from the date of the jury's verdict to the date of payment. 30 No. the defendant plaintiff after and her the defendant's two dogs. dog twice Campenni v. Wis. 2d 548, 552-53, 509 N.W.2d 725 (1994). 2010AP355 attacked the Walrath, 180 The jury awarded the plaintiff $18 for the first incident and over $75,000 for the second. Id. at 553. The plaintiff then moved the circuit court for double damages under Wis. Stat. § 174.02(1)(b) (199192).15 Id. The circuit court denied the plaintiff's motion by operation of law when it failed to act on the motion within 90 days after the verdict was rendered, as required by Wis. Stat. § 805.16(3) (1991-92). The plaintiff Id. appealed The court of appeals affirmed. to this court, and we Id. reversed, concluding that the defendant was liable for double the full amount of damages awarded by the jury. ¶53 The defendant moved which we denied. curiam). this Id. at 560a. court for reconsideration, Campenni, 180 Wis. 2d 548, 513 N.W.2d 602 (per However, in response to the defendant's motion, we supplemented our decision by, inter alia, clarifying that the plaintiff was entitled to 12 percent interest under Wis. Stat. § 804.14(4) on the total doubled damages from the date of the jury's verdict. from this Id. at 560c. court's decision In so concluding, we drew support in Nelson, 102 Wis. 2d 159. Campenni, 180 Wis. 2d 548, 560c, 513 N.W.2d 602 (per curiam). 15 Wisconsin Stat. § 174.02(1)(b) (1991-92) provided, in relevant part, that "the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person . . . if the owner was notified or knew that the dog previously injured or caused injury to a person . . . ." 31 No. ¶54 2010AP355 In Nelson, this court held that pursuant to Wis. Stat. § 814.04(4), when a personal injury action results in a jury verdict in favor of the plaintiff, but, upon appeal, the liability portion of the verdict is set aside and the issue of contributory negligence is retried, again resulting in a verdict in favor of the plaintiff, interest must be calculated from the date of the first verdict when the damages were determined. Wis. 2d at 160-61. 102 The court made clear that interest under § 814.04(4) runs from the date the damages are liquidated or determinable, regardless of outstanding legal issues concerning liability for those damages. Id. at 170-71. In Nelson, the damages were fixed by the first verdict, even though adjustment for the plaintiff's comparative negligence could not be made until after liability was established in the subsequent trial. Id. at 171. Consequently, the court concluded that the plaintiff was entitled to statutory interest on the net damage award the total damages established by the first verdict reduced by the plaintiff's contributory negligence established by the second from the date of the first verdict. ¶55 Id. Turning back to the instant case, we conclude that this court's decisions in Campenni and Nelson are determinative. Pursuant to Wis. Stat. § 814.04(4), Heritage Farms is entitled to 12 percent interest on its award of double damages from the date of the jury's verdict, October 13, 2006, even though Markel's liability for double damages was not firmly established until our decision today. The damages were liquidated and determinable on October 13, 2006, when the jury awarded Heritage 32 No. Farms compensatory damages of $568,422. 2010AP355 At that point, Heritage Farms' nonmonetary claims for negligence, trespass, and nuisance were converted into dollars, and the case no longer involved "damages which are wholly at large." See id. at 170. The only outstanding legal issue was whether Markel was liable for double the amount of $568,422. Regardless of the outcome on appeal, Markel could have tendered the total doubled amount any time after the jury returned its verdict and thereby stopped the interest from running. 2. Whether Heritage Farms is entitled to 12 percent interest on its award of attorney fees and costs from the date of the jury's verdict ¶56 Heritage Farms argues that it is also entitled to 12 percent interest on its award of attorney fees and costs from the date of the jury's verdict. ¶57 On this point, we disagree. The circuit court awarded Heritage Farms its attorney fees and costs on November 19, 2009. On February 12, 2010, Markel fees paid the judgment of attorney interest running from November 19, 2009. and costs, plus Heritage Farms now seeks 12 percent interest on its award of attorney fees and costs from the date of the jury's verdict, October 13, 2006, until November 19, 2009. ¶58 We conclude that Heritage Farms is entitled to 12 percent interest on its award of attorney fees and costs only from the date of that award, November 19, 2009, not from the date of the jury's verdict. On the date of the jury's verdict, the amount of Heritage Farms' attorney fees and costs was not 33 No. known or determinable. 2010AP355 By that time, Heritage Farms had merely asserted a claim for reasonable costs for legal representation under Wis. Stat. § 26.21(1). That claim was not converted into dollars until November 19, 2009, when the circuit court awarded Heritage Farms its attorney fees and costs. Markel has already paid that judgment and all interest running from November 19, 2009. No more could have been expected of Markel. 3. Whether Wis. Stat. § 814.04(4) is unconstitutional on its face or as applied to Markel ¶59 In any case, Markel contends § 814.04(4) is unconstitutional. that Wis. Stat. According to Markel, the 12 percent interest rate under § 814.04(4) is so severe and so far removed from the national prime lending rate that it tends to "chill" defendants appeal, lest from they properly may suffer defending "the effect, Markel argues, claims catastrophic disaster that results in the event of loss." chilling their § 814.04(4) on financial In light of that violates Markel's rights to due process and equal protection as guaranteed by both the federal and state constitutions. ¶60 fleshed Markel's out, constitutional and it is argument unclear to us is not whether entirely Markel is challenging Wis. Stat. § 814.04(4) on its face or as applied to Markel. Nevertheless, in either case, we conclude that Markel has failed to prove beyond a reasonable doubt that § 814.04(4) is unconstitutional. ¶61 Statutes Wis. 2d 377, ¶8. are presumed constitutional. Smith, 323 Accordingly, a party challenging a statute's 34 No. constitutionality bears a heavy burden. to establish merely that the Id. statute's 2010AP355 It is insufficient constitutionality doubtful or that the statute is probably unconstitutional. "Instead, must the 'prove party challenging that the reasonable doubt.'" statute a statute's is is Id. constitutionality unconstitutional beyond a Id. (quoting State v. Cole, 2003 WI 112, ¶11, 264 Wis. 2d 520, 665 N.W. 2d 328). ¶62 In this case, Markel merely objects to the 12 percent interest rate under Wis. Stat. § 814.04(4) without undertaking a bona fide constitutional analysis. Markel does not attempt to argue that § 814.04(4) is irrational or that it unreasonably disadvantages one class over another. McManus, Rather, Markel's 152 Wis. 2d 113, Markel's 130-31, constitutional contention that the See id., ¶12; State v. 447 argument N.W.2d 654 interest seems rate to under (1989). hinge on § 814.04(4) must correspond to the national prime lending rate. However, there is no requirement that the interest rate under § 814.04(4) stay in "lock-step with every fluctuation in market conditions." Mgmt. Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 224 Wis. 2d 312, 326, 592 quotations omitted). N.W.2d 279 (Ct. App. 1998) (internal Such a contention is more appropriately addressed to the legislature.16 Moreover, while Markel complains that the 12 percent interest rate is so severe that it tends to deter defendants from properly defending themselves on appeal, 16 Indeed, the legislature has recently amended Wis. Stat. § 814.04(4) in a manner that may address Markel's concerns. See supra note 12. 35 No. 2010AP355 Markel fails to explain why a defendant could not protect itself against such a financial burden by simply ahead of appeal, before interest accrues. tendering payment For these reasons, we conclude that Markel has failed to prove beyond a reasonable doubt that § 814.04(4) is unconstitutional. IV. CONCLUSION ¶63 it is We conclude that pursuant to Wis. Stat. § 26.21(1), if determined that the owner's property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, then the property owner is entitled to double damages as a matter of course. retrospectively. We apply this holding Consequently, in this case, because the jury determined that Heritage Farms' property was damaged by a forest fire caused by Knaack's negligence, Heritage Farms is entitled to double damages as a matter of course. ¶64 We further conclude that pursuant to Wis. Stat. § 814.04(4), Heritage Farms is entitled to 12 percent interest on its double damages award from the date of the jury's verdict. At the same time, we determine that Heritage Farms is entitled to 12 percent interest on its award of attorney fees and costs only from the date of that award, not from the date of the jury's verdict. prove beyond Finally, we conclude that Markel has failed to a reasonable doubt that § 814.04(4) is unconstitutional on its face or as applied to Markel. By the reversed, Court. The and the cause decision remanded of to the the court of circuit appeals court with instructions to enter judgment in accordance with this opinion. 36 is No. 37 2010AP355 No. ¶65 ANN WALSH BRADLEY, J. (dissenting). 2010AP355.awb The question in this case is whether an award of double damages is mandatory, or whether it is within a circuit court's discretion. ¶66 I statutory agree term "may" mandatory "shall." it with nevertheless the should majority's not be conclusion interpreted that the mean the to I part ways with the majority, however, when concludes that the court has no discretion because the plain meaning of the statute makes the award of double damages mandatory. ¶67 The result. plain meaning of the statute mandates no such Rather than being supported by the plain language of the statute, the majority's interpretation instead rests upon a leap of logic. ¶68 After examining the language and the history of the statute, I agree with the circuit court and a unanimous court of appeals that the legislature intended circuit courts to exercise discretion in awarding double damages. Accordingly, I respectfully dissent. I ¶69 Wisconsin Stat. addition to the § 26.21(1) [forfeiture] 26.20, . . . private owners, destroyed fires, by forest penalties whose may provides property recover, in as follows: provided is a "In in s. injured or civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence." Here, determined that the fire was the result of negligence. 1 the jury No. ¶70 concludes In its that examination the of statutory interpreted to mean "shall." the statute, term "may" 2010AP355.awb the majority should Majority op., ¶36. not be It determines that the function of the phrase "may recover, in a civil action" is to permit the property owner to bring a civil action to recover double damages. ¶71 Id., ¶38. Nevertheless, the majority ultimately concludes that the statute mandates the award of double damages. Id., ¶39. It asserts that its interpretation is based on the "plain meaning" of the statute. ¶72 The Id., ¶43 n.10. majority's meaning is surprising. appeals, text, in assertion Additionally, that although majority, that statutory interpretation the statute's plain Both the circuit court and the court of well-reasoned concluded about decisions double damages Heritage an award of analyzing Farms double advanced are not concludes, damages by the is Heritage statutory mandatory. like mandatory, Farms does resemble the interpretation settled upon by the majority. the the not Id, ¶31. ¶73 The majority embraces its unique interpretation, proclaiming that it alone understands the plain meaning of the statute. If the meaning of the statute were so plain, one would expect that of the circuit court, the court of appeals, and Heritage Farms, at least one would have advanced the same interpretation as the majority. ¶74 In my estimation, the majority's interpretation is not based on the plain meaning of the statute at all. 2 Rather, it is No. based upon a leap of logic. owner is permitted to 2010AP355.awb After determining that a property recover double damages, the majority inexplicably leaps to the conclusion that the property owner is entitled to recover double damages as a matter of law. Id., ¶37. ¶75 Permitted does not mean entitled. Nothing in the plain language of the statute supports such a leap of logic. II ¶76 Contrary to the majority, I conclude that the statute is ambiguous. It may be that the legislature intended that the award of double damage be mandatory as the majority contends. However, it is equally likely that the legislature, in permitting the recovery of double damages, intended that the decision be left to the circuit court's discretion as both the circuit court and the court of appeals concluded. ¶77 The history of the statute provides some useful clues. By comparing the history of Wis. Stat. § 26.21(1) (forest fires) to the history of a neighboring and closely related statute, Wis. Stat. § 26.09 (forest trespass), I conclude that the legislature did not intend to mandate double damages for damage to property caused by forest fires. ¶78 The text of what originally enacted in 1905. is now Wis. Stat. § 26.21 § 18, ch. 264, Laws of 1905. was That bill ushered in two parallel provisions, one addressing civil liability for forest fires, and liability for forest trespass. another addressing civil When these two provisions were created, they contained nearly identical language providing that 3 No. 2010AP355.awb private owners "may recover in a civil action double the amount of damages suffered." ¶79 When originally enacted in 1905, the provision addressing civil liability for forest fires provided as follows: In addition to the penalties provided in [the previous section], . . . private owners, whose property is injured or destroyed by such fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through wilfullness, malice or negligence . . . . Wis. Stat. § 1494-58 (Supp. 1906) (emphasis added). With similar language, the provision addressing civil liability for forest trespass provided as follows: In addition to the penalties provided in [the previous section] for wilful trespass on forest lands, . . . private owners upon whose lands the wilful trespass was committed, may recover in a civil action double the amount of damages suffered. . . . Wis. Stat. § 1494-60 (Supp. 1906) (emphasis added). As with the current version of Wis. Stat. § 26.21(1), neither of the 1905 enactments explicitly mandated double damages. ¶80 In the 107 years that followed their original enactment, these two civil liability provisions took divergent paths. Wis. The provision regarding forest fires was renumbered as Stat. § 26.21(1), but otherwise, it remained largely unchanged. ¶81 By contrast, during that same time period, the provision regarding forest trespass was renumbered as Wis. Stat. § 26.09, revisions. and it underwent three significant substantive As a result of the amendments to Wis. Stat. § 26.09, 4 No. 2010AP355.awb multiple damages for some instances of forest trespass are now clearly mandated by the legislature. ¶82 As stated above, the original text of the forest trespass statute referenced the double damages penalty when it stated that a property owner "may recover in a civil action double the amount of damages suffered." In 1949, this text was repealed and recreated as follows: Civil liability for unlawful cutting. In addition to the penalties provided in sections 26.04 and 26.05, any person unlawfully cutting forest products shall be liable to the owner . . . to the land on which the unlawful cutting was done, in a civil action, for double the amount of damages suffered. . . . Wis. Stat. § 26.09 (1949) (emphasis added). ¶83 Then, in 1981, the provision was again amended as follows: Civil liability for unlawful cutting, removal and transport. In addition to the other penalties and costs, any person unlawfully cutting, removing or transporting raw forest products is liable to the owner . . . to the land on which the unlawful cutting was done or from which it was removed, in a civil action, for double the amount of damages suffered. . . . Wis. Stat. § 26.09 (1981-82) (emphasis added). ¶84 Accordingly, in addressing civil liability for forest trespass, the legislature changed the language providing that private language owners "may providing double damages. that the statutory recover" that a double trespasser damages "shall to be mandatory liable" for It then changed the language again to mandate trespasser "is history § 26.09 of liable" for evinces 5 double the damages. The legislature's clear No. intent to mandate double damages for unlawful 2010AP355.awb cutting and removal of forest products. ¶85 When the legislature changed the language of Wis. Stat. § 26.09 to mandate double damages for forest trespass, it did not make any parallel changes to the forest fire statute, Wis. Stat. § 26.21(1). The fact that the legislature chose to significantly amend Wis. Stat. § 26.09 (forest trespass) and, at the same time, declined to make the analogous amendments to the neighboring Wis. Stat. § 26.21(1) (forest fires) signals that the legislature intended that these provisions be treated differently. ¶86 The last significant substantive revision to the forest trespass statute occurred in 1999, when the legislature again repealed and recreated § 26.09. 1999 Wis. Act 190, § 15. In relevant part, the amendments provided that "an owner of raw forest products that were harvested without the consent of the owner may bring a civil action against the person who harvested the raw forest products to recover the damages caused by the harvesting." Wis. Stat. § 26.09(2)(a). As amended, § 26.09(3)(a) provides that "[a] person against whom an action is brought . . . is liable for the applicable damages under par. (b) . . . ." single, double, (Emphasis added.) or quadruple Paragraph (b) provides for damages, depending upon culpability of the tortfeasor.1 1 (2)(a) In addition to any other enforcement action that may be taken . . . an owner of raw forest products that were harvested without the consent of the owner may bring a civil action against the person 6 the No. ¶87 The underscores 1999 the revision legislative to the intent forest that 2010AP355.awb trespass multiple statute damages forest trespass are, in some instances, mandatory. for Again, no analogous changes were made to the forest fire statute. ¶88 The majority suggests that the legislature's manifest imposition trespass of must multiple signal damages an damages for forest fires. intent for to some instances likewise Majority op., ¶42. of forest mandate double I reach the opposite conclusion. ¶89 The fact that the legislature clearly imposed multiple damages for some instances of forest trespass indicates that the who harvested the raw forest products to recover the damages cause by the harvesting. . . . . . . (3)(a) A person against whom an action is brought as provided in sub. (2) is liable for the applicable damages under par. (b) or (c), . . . (b)1. A court shall award damages that equal the stumpage value of the raw forest products harvested if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied upon a recorded survey . . . 2. A court shall award damages that are equal to 2 times the stumpage value of the raw forest products harvested if a recorded survey was not relied upon as specified in subd. 1. but the person harvesting the raw forest products took reasonable precautions in identifying harvesting boundaries. 3. A court shall award damages that are equal to 4 times the stumpage value or 2 times the fair market value of the raw forest products harvested, whichever is greater, if a recorded survey was not relied upon as provided in subd. 1. and the person harvesting the raw forest products did not take reasonable precautions in identifying the harvesting boundaries. 7 No. 2010AP355.awb legislature knows how to use language imposing multiple damages when it wants to do so. Under these circumstances, the legislature's failure to amend the forest fire statute, Wis. Stat. § 26.21(1), by adding damages signals its intent. clear language mandating double The legislature did not intend that the award of double damages be mandatory. Rather, the decision of whether the facts of a particular case warrant the award of double damages under Wis. Stat. § 26.21(1) is left to the sound discretion of the circuit court. ¶90 Accordingly, I respectfully dissent. 8 No. 1 2010AP355.awb
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