Wis JI-Civil 2722

Theft by contractor, is committed by one who, under an agreement for the

improvement of land, receives money from the owner, and who, without consent of the

owner, contrary to his or her authority, intentionally uses any of the money for any purpose

other than the payment of claims due or to become due from the defendant for labor or

materials used in the improvements before all claims are paid [in full] [proportionally in

case of a deficiency].2

To sustain a claim based on theft by contractor, the plaintiff must prove the following

elements:

First, (defendant) entered into an oral or written agreement for the improvement of

land. (Building) (Repairing) (Altering) (______) a (house) (garage) (_____) is an

improvement of land.

Second, (defendant) received money from the owner under the agreement for the

improvement of land. [“Owner” means the owner of any interest in land who, personally

or through an agent, enters into a contract for the improvement of the land.3]

Third, (Defendant) [intentionally]4 (used) (retained) (concealed) part or all of the

money for a purpose other than the payment of claims due or to become due from

(defendant) for labor or materials used in the improvements before all claims were paid [in

full] [proportionally in case of a deficiency].5 [In deciding whether this element has been

proved, you may consider whether the claim was subject to a bona fide dispute. A “bona

fide” claim arises from a dispute that is real, actual, genuine, and in fact exists and is not

merely pretextual or feigned on the part of the party in an attempt to avoid his or her

obligations under the law.]6

[You cannot look into a person’s mind to find intent. 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 intent.]7

Fourth, the use of the money was without the consent of the owner of the land and

contrary to (defendant)’s authority.

Fifth, (plaintiff) suffered a monetary loss as a result of (defendant)’s use of the money.

It is your duty to find whether the plaintiff has proven the elements by a preponderance

of the credible evidence.8

[Burden of Proof: Ordinary, see Wis JI-Civil 200]

[Note: In cases where exemplary damages are requested, the trial judge serves as

gatekeeper and must determine whether the issue goes to the jury.]

[If you find that questions concerning exemplary damages are appropriate, add the

following:

Exemplary damages are an issue in this case. Exemplary damages may be awarded, in

addition to compensatory damages, if you find that the defendant committed theft by

contractor. The purpose of exemplary damages is to punish a wrongdoer or deter the

wrongdoer and others from engaging in similar conduct in the future. Exemplary damages

are not awarded to compensate the plaintiff for any loss he or she has sustained. A plaintiff

is not entitled to exemplary damages as a matter of right. Even if you find that the defendant

committed theft by contractor, you do not have to award exemplary damages. Exemplary

damages may be awarded or withheld at your discretion under these instructions and the

evidence in this case. You may not, however, award exemplary damages unless you have

awarded compensatory damages.9

(Plaintiff) must satisfy you by a preponderance of the credible evidence that exemplary

damages should be awarded. If you believe that you should assess exemplary damages

against (defendant) by way of punishment and as a warning to others, then you should

award such damages as you deem just and proper. Otherwise, you will insert the word

“zero” in answer to question eight.10]

VERDICT

Question No. 1: Did (Defendant) enter into an agreement for the improvement of land?

ANSWER: _________

(Yes/No)

Question No. 2: If you answered “yes” to Question 1, then answer this question:

Did (Defendant) receive money from the owner under an agreement for the

improvement of land?

ANSWER: _________

(Yes/No)

Question No. 3: If you answered “yes” to Question 2, then answer this question:

Did (Defendant) [intentionally] (use) (retain) (conceal) part or all of the money for a

purpose other than the payment of claims due or to become due from (Defendant) for labor

or materials used in the improvements before all claims were paid [in full] [proportionally

in case of a deficiency]?

ANSWER: _________

(Yes/No)

Question No. 4: If you answered “yes” to Question 3, then answer this question:

Was (Defendant)’s use of the money without the consent of the owner of the land

and contrary to the (Defendant)’s authority?

ANSWER: _________

(Yes/No)

Question No. 5: If you answered “yes” to Question 4, then answer this question:

Did (Plaintiff) suffer a monetary loss as a result of (Defendant)’s use of the money?11

ANSWER: _________

(Yes/No)

Question No. 6: If you answered “yes” to Question 5, then answer this question:

What is the amount of the monetary loss suffered by (Plaintiff) as result of

(Defendant)’s use of the money?

ANSWER: $_____________

[IF THE PLAINTIFF REQUESTS EXEMPLARY DAMAGES UNDER

§895.446, ADD THE FOLLOWING QUESTIONS:

Question No. 7: If you answered “yes” to Question 4, then answer this question:

Did (Defendant) know that the use of the money was without the consent of the owner

of the land and contrary to the (Defendant)’s authority?

ANSWER: _________

(Yes/No)12

Question No. 8: If you answered “yes” to Question 7, then answer this question:

What sum of money, if any, do you assess against (Defendant) as exemplary damages

for theft by contractor?

$ ____________________]