COURT OF APPEALS

DECISION

DATED AND FILED

August 5, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP895 Cir. Ct. No. 2019CV242

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

CHRISTOPHER HOOKSTEAD,

 PLAINTIFF-APPELLANT,

 V.

GARY BEAL AND PERI BEAL,

 DEFENDANTS-RESPONDENTS.

APPEAL from a judgment and an order of the circuit court for 

Dodge County: JOSEPH G. SCIASCIA, Judge. Affirmed. 

Before Blanchard, P.J., Graham, and Nashold, JJ.

¶1 BLANCHARD, P.J. Christopher Hookstead filed an adverse 

possession claim for title to a strip of land that separates his property from 

property held by Gary and Peri Beal. This claim was tried to a jury, along with 

counterclaims made by the Beals for common law trespass and conversion as well 
No. 2020AP895

2

as a counterclaim pursued under WIS. STAT. § 895.446(1) (2019-20) for property 

damage caused by a crime.

1

 The jury found in the Beals’ favor on all issues. This 

included awarding the Beals punitive damages of $250,000, which the circuit 

court reduced to $200,000. Hookstead appeals the judgment and the circuit 

court’s order denying his post-verdict motions for a new trial or in the alternative

to reduce the punitive damages award. We affirm all of the challenged circuit 

court decisions.

¶2 Hookstead argues that the circuit court should not have rejected his

request to give the jury a special verdict question that would have distinguished 

one portion of the disputed property from another. We conclude that the court did 

not erroneously exercise its discretion in making this decision. This is because 

Hookstead made this request for the first time after the close of evidence at trial 

and the court could reasonably conclude that, up to that point, Hookstead had 

made only an all-or-nothing adverse possession claim, and had not claimed

entitlement to just a portion of the disputed property. 

¶3 Regarding some of the Beals’ counterclaims for “property damage or 

loss caused by crime,” Hookstead argues that the circuit court erred in rejecting 

Hookstead’s request to apply the two-year statute of limitations in WIS. STAT.

§ 893.93(2)(a), which governs actions “by a private party upon a statute penalty.” 

Construing § 893.93(2)(a) narrowly, we conclude that a civil action under WIS.

STAT. § 895.446(1) is not an action “by a private party upon a statute penalty.” 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP895

3

¶4 Regarding the punitive damage award, Hookstead argues that the 

circuit court erred in ruling that the amount awarded did not violate the due 

process clause. We agree with the circuit court on this issue.

BACKGROUND

¶5 At all relevant times, Hookstead or his predecessor in interest owned 

farmland that shared a border with farmland owned by the Beals.2 Pertinent here, 

Hookstead and the Beals each owned two nearly square parcels separated by a 

boundary area that they disputed. The boundary area ran roughly north-south. 

The northwest and southwest parcels belonged to Hookstead. The northeast and 

southeast parcels belonged to the Beals. We refer to the disputed portions of these

four parcels along their north-south boundaries as the “disputed property.” 

¶6 The disputed property ran north-south approximately one-half mile,

and east-west between five and twenty-four feet. Its eastern edge lay along the

approximate center of a tree line that separated land used by the parties and their 

predecessors to grow crops. Its western edge was defined by a survey line that the 

parties agree accurately reflects the legal descriptions of the two western parcels. 

¶7 Hookstead’s consistent position has been that the eastern edge of the 

disputed property should be recognized as the boundary between his parcels and 

the Beals’ parcels because, through the actions of himself and his predecessors, he 

adversely possessed all land between the survey line and this eastern edge, i.e., the

approximate center of the tree line. The Beals argue that the survey line marks the 

 

2

 At least at some pertinent times, the northeast parcel was owned by a trust. However, 

there is no dispute that, at all pertinent times, the Beals possessed all rights to this parcel that 

could matter here. For ease of reference, we refer to the Beals as the owners of this parcel. 
No. 2020AP895

4

western edge of their land, because the activities of Hookstead and his 

predecessors did not meet the requirements for adversely possessing any land east 

of the survey line. 

¶8 Turning to a chronology, according to Hookstead, he decided in 

February 2016 to stop using his parcels to grow crops and to start pasturing cattle, 

which would have required erecting a fence around his parcels. It is undisputed 

that in 2016 Hookstead erected fencing along the eastern edge of the disputed 

property—the center of the tree line—and that in doing so he removed some trees. 

After this, the Beals paid for a survey of the disputed property. In December 

2016, the Beals erected their own fence along the survey line and in December of 

2017, removed Hookstead’s fencing. Also in 2017, and then again in 2019, 

Hookstead damaged the Beals’ fence. 

¶9 Hookstead commenced this action in 2019. He sought a declaratory 

judgment that he adversely possessed the disputed property under WIS. STAT.

§ 893.25. The Beals brought counterclaims of common law trespass and

conversion, and counterclaims of property damage caused by crimes pursuant to

WIS. STAT. § 895.446(1) (specifically, multiple claims for damage to trees and two 

sets of damage to fencing). The Beals alleged that, because Hookstead had not 

adversely possessed the disputed property, all of the following were located on the 

Beals’ property: the fence that Hookstead erected, the trees that Hookstead 

removed, and the fence erected by the Beals that Hookstead damaged.

¶10 After both sides rested at the end of a five-day trial, Hookstead 

requested for the first time that the circuit court give the jury a special verdict 

question on the issue of adverse possession that would distinguish between the 

northern half and the southern half of the disputed property, and that would permit 
No. 2020AP895

5

the jury to award Hookstead a northern or a southern portion of the disputed 

property if it did not award him all of it. The court rejected this request and 

instead gave the jury a special verdict question that asked only if Hookstead had 

“proven adverse possession” of the disputed property, without distinguishing 

between northern and southern portions. 

¶11 The circuit court also denied Hookstead’s motion to preclude 

evidence on one of the Beals’ counterclaims pursued under WIS. STAT.

§ 895.446(1) as time barred under the two-year statute of limitations in WIS. STAT.

§ 893.93(2)(a) for actions “by a private party upon a statute penalty.”

¶12 The jury found that Hookstead did not prove adverse possession. 

The jury further found in the Beals’ favor on each of their counterclaims and that 

punitive damages were appropriate: $54,745 in compensatory damages and 

$250,000 in punitive damages. In its order for judgment on the verdict, the circuit 

court reduced the punitive damages award to $200,000, and there is no dispute in 

this appeal that the court was required to make this reduction. See WIS. STAT.

§ 895.043(6) (“Punitive damages received ... may not exceed” the greater of

“twice the amount of any compensatory damages” or $200,000). 

¶13 Hookstead did not prevail on three post-verdict motions, which

match the issues that he now raises on appeal. 

DISCUSSION

I. Jury Instructions For Adverse Possession

¶14 Hookstead argues that the circuit court should have granted his 

request to give the jury a special verdict question on his adverse possession claim

that distinguished between the northern and southern portions of the disputed 
No. 2020AP895

6

property. He contends that juries in all adverse possession cases must have the 

opportunity to, as he puts it, “find that portions of a disputed area have been 

adversely possessed, rather than [being given only] an all-or-nothing choice.” In 

addition to making this categorical argument, Hookstead argues that he was 

entitled to the special verdict question because there were references at trial to the 

existence of a northern portion and a southern portion that corresponded to the

Beals’ northeast and southeast parcels respectively. The Beals counter that it was 

not erroneous for the circuit court to frame the special verdict question in terms of 

a unitary disputed property because Hookstead consistently argued, from the filing 

of his pleadings through the close of evidence, that he was entitled to the disputed 

property in its entirety. We conclude that Hookstead does not show that the court 

erroneously exercised its discretion in not giving the instruction he wanted based 

on the court’s determination that he failed to place in dispute as a material issue 

whether he adversely possessed only the northern or only the southern portions of 

the disputed property.

3

A. Additional Background

¶15 Before trial, Hookstead filed a motion in limine requesting that the 

court instruct the jury that Hookstead had “established what property he is 

claiming occupancy over,” namely “the ‘Disputed Area,’ the area between where 

Hookstead built his fence in the treeline” and the survey line. However, in neither 

the motion nor in the proposed instruction did Hookstead distinguish between 

northern and southern portions of the disputed property.

 

3

 Because we conclude that Hookstead fails to establish that the circuit court erred in 

refusing to use the requested special verdict question, we do not address the parties’ arguments as 

to whether any error would have been harmless. 
No. 2020AP895

7

¶16 After this, the parties jointly submitted a set of proposed jury 

instructions and a special verdict question. The jointly proposed instructions did 

not address the possibility that Hookstead would seek to prove that he had 

adversely possessed only one portion of the disputed property. Moreover, it

referenced a single tree line, not a line divided into northern and southern portions. 

Similarly, the jointly proposed verdict question would have asked the jury to find 

whether Hookstead had proven each element of a claim of adverse possession as 

to the entire disputed property, without distinguishing among any portions of it. 

¶17 The parties also filed a joint pre-trial report that included stipulations 

of fact and a summary of legal issues. The report described Hookstead as 

“assert[ing] that his [2016] fence was on the actual boundary line between the 

Hookstead (west) and Beal (east) properties.” It further indicated that the issue for 

trial on Hookstead’s claim was “[w]hether Mr. Hookstead adversely possessed the 

Disputed Area.” While the report referenced separate tax parcels that 

corresponded to the parties’ four parcels of land, it did not distinguish between 

northern and southern portions of the disputed property. Similarly at the outset of 

the trial, in an “abbreviated statement of facts and issues in this case,” approved by 

both parties, the court described to the jury the unitary disputed property over 

which both parties claimed ownership, with the issue for trial identified as 

“whether Mr. Hookstead has Adverse Possession of the disputed area and whether 

Mr. Hookstead is liable for damages to the Beals.” 

¶18 In his opening statement, Hookstead’s counsel told the jury that 

Hookstead claimed title to the disputed property, which he referenced either as a 

single unit or as consisting of the northern and southern portion. He did not talk

about any purported differences between the portions relating to how Hookstead 

or his predecessors in interest used the land, or how it was enclosed, before 2016. 
No. 2020AP895

8

He merely mentioned distinctions in the permanence of the fencing that Hookstead 

erected in the northern and southern portions in 2016, and vaguely referenced a 

“distinction of trees in the tree line.” Further, so far as he made clear, even these 

references appeared to be simply for purposes of context, to orient the jury to the 

nature of the unitary disputed property.

¶19 At trial, both parties at times elicited testimony that distinguished in 

some ways between the northern and southern portions, but neither side suggested

that the jury would be asked to determine whether only a portion should be 

awarded to Hookstead.

4

¶20 After the close of evidence and before closing arguments, at a jury 

instruction conference, Hookstead requested that the circuit court pose a verdict 

question reflecting alternative theories of liability. That is, he proposed to ask

whether he had adversely possessed the northern portion, and separately to ask 

whether he had possessed the southern portion (leaving the possibility that the jury 

would find that Hookstead had possessed the whole disputed area by answering 

yes to both questions). Hookstead asserted that he went into trial planning to 

define his claim over the disputed property as including two portions—northern

and southern—and that he had put on his case consistent with that strategic 

decision. Hookstead contended that the evidence at trial showed that there were 

factual differences between the northern and southern portions, and suggested that 

 

4

 Examples of distinctions included the following. The trees in the tree line to the south 

tended to be older and more mature than those to the north. Hookstead testified that he planted 

his crops closer to the tree line in the northern portion, but in the southern portion he left more 

space between the edge of his planting rows and the tree line, in order to prevent erosion and to 

more easily turn around farming equipment. Hookstead also testified that it was easier to identify 

evidence of an “old” barbed wire fence marking the true boundary line in the northern portion 

compared to the southern portion, where there were only spools of barbed wire. 
No. 2020AP895

9

the jury could reasonably make alternative findings based on these differences. 

We observe, however, that Hookstead did not provide the court with a proffer

summarizing trial evidence that showed material differences between the northern 

and southern portions. Nor did Hookstead explain how he could have relied on 

any such evidence to present a satisfactory closing argument, one that would have 

adequately addressed the court’s apparent concerns about fairness to the Beals and 

potential jury confusion. 

¶21 The Beals opposed Hookstead’s request, arguing that at no point 

before the jury conference had Hookstead raised the notion that he had alternative 

theories under which he adversely possessed only the northern or only the 

southern portion of the disputed property. The Beals contended that allowing 

Hookstead to pursue this new strategy at such a late stage in the litigation would 

“completely screw[] up the damages questions” related to their counterclaims. 

¶22 The court rejected Hookstead’s request to include the alternative 

theories on the verdict question. The court acknowledged that the jury had heard 

evidence that distinguished between the northern and southern portions, but called

this “a distinction without a difference.” Further, the court ruled, there was “no 

evidence in the record that would support a finding that Mr. Hookstead had 

adverse possession of the north part and didn’t have the adverse possession of the 

south part or vice versa.” The court explained that “to [its] knowledge” both sides 

had tried the case consistently with Hookstead exclusively pursuing a theory of a 

unitary disputed property.

¶23 In his post-verdict motion for a new trial, Hookstead argued that the 

circuit court erred in failing to recognize that the evidence at trial created a 

material issue as to whether Hookstead had proven adverse possession over only 
No. 2020AP895

10

the northern portion or only the southern portion, as opposed to only an all or 

nothing choice. However, this motion did not contain a developed argument 

explaining how various distinctions between the two portions would be material in 

an attempt to apply the elements of adverse possession to one portion as opposed 

to the other. 

¶24 The circuit court denied Hookstead’s post-verdict motion. The court 

determined that the “pleadings did not raise an issue of adverse possession of two 

separate parcels” and the “case was pled on the basis of one “‘Disputed Area.’” 

The court further reasoned in pertinent part as follows, with a name substituted for 

a party designation: 

The first time the Court was alerted to the possibility that 

Hookstead was making separate claims to the north and 

south portions is when he moved to have a separate verdict 

after the evidence was closed. It came as a complete shock 

to the Court that Hookstead entertained the idea that the 

evidence might support a finding of adverse possession as 

to one part of the [disputed] property and not the other.[5] 

B. Legal Standards

¶25 Under WIS. STAT. § 805.12(1), the circuit court prepares the special 

verdict “in the form of written questions relating only to material issues of 

ultimate fact and admitting a direct answer.” Our supreme court has described the 

pertinent standards for reviewing whether a circuit court has erroneously exercised 

its discretion in creating a special verdict:

 

5

 As it had at the instruction conference, the circuit court in its order expressed the view

that there was “no distinction in the evidence which could possibly support a verdict” for 

Hookstead as to one portion but not the other. However, as we discuss below, we do not affirm 

based on this concept. 
No. 2020AP895

11

A circuit court has wide discretion in determining the 

words and form of a special verdict. We will not disturb a 

circuit court’s determination unless the court has 

erroneously exercised its discretion.

A court erroneously exercises its discretion if the 

special verdict questions fail to cover all issues of fact or 

are inconsistent with the law. Whether a special verdict 

reflects an accurate statement of the law applicable to the 

issues of fact in a given case presents a question of law that 

we review independently ....

Gumz v. Northern States Power Co., 2007 WI 135, ¶¶23-24, 305 Wis. 2d 263, 

742 N.W.2d 271 (citations omitted).

¶26 “The special verdict form is cabined by the issues raised by the 

pleadings and in dispute.” Hansen v. Texas Roadhouse, Inc., 2013 WI App 2, 

¶13, 345 Wis. 2d 669, 827 N.W.2d 99 (emphasis added) (citing Lagerstrom v. 

Myrtle Werth Hosp.-Mayo Health Sys., 2005 WI 124, ¶97, 285 Wis. 2d 1, 700 

N.W.2d 201).

¶27 Turning to the substantive standards, “evidence of [adverse] 

possession must be ‘clear and positive and must be strictly construed against the 

claimant.’” Wilcox v. Estate of Hines, 2014 WI 60, ¶20, 355 Wis. 2d 1, 849 

N.W.2d 280 (quoted source omitted); see also WIS. STAT. § 893.25(2). Pertinent 

here, claimants bear the burden to prove: that they “actually occupied” claimed 

land; that the land is either “[p]rotected by a substantial enclosure” or “[u]sually

cultivated or improved,” see § 893.25(2)(b); and that there is evidence that 

“clearly define[s] the area in which specific activities or improvements occurred.” 

See Pierz v. Gorski, 88 Wis. 2d 131, 134 n.2, 276 N.W.2d 352 (Ct. App. 1979).
No. 2020AP895

12

C. Analysis

¶28 At the outset, we clarify that we do not rely on the circuit court’s 

determination that the jury was not presented with evidence that could have 

supported a theoretical argument by Hookstead for claims to only the northern 

portion or only the southern portion of the disputed property. Instead, as we now 

explain, our focus is on the circuit court court’s “surprise” and “shock” at 

Hookstead’s late request for a special verdict question based on the alternative

theories of adverse possession, and the court’s assessment that Hookstead failed to 

present those theories at trial. The court’s statements reflect implicit findings that 

Hookstead failed, until after the close of evidence, to apprise his opponent or the 

jury of the alternative theories. 

¶29 As for notice to Hookstead’s opponents, the court implicitly found 

that Hookstead failed to properly place the Beals on notice of any alternative

theories of adverse possession, and that they would have suffered prejudice if the 

court had given the special verdict question requested by Hookstead because the 

Beals had already committed to decisions at trial regarding how to present their

defenses to adverse possession and their counterclaims based on Hookstead’s 

exclusive theory of a unitary disputed property. 

¶30 As for notice to the jury, the court implicitly found that Hookstead 

failed to apprise the jury, during the course of trial before the close of evidence,

that the jury would need to decide whether he had possessed only the northern 

portion or only the southern portions, and that the requested special verdict 

question risked confusing jurors. In other words, jurors paying proper attention to 

the evidence and the arguments during trial would have reasonably understood

that Hookstead had exclusively made an all-or-nothing argument, and therefore 
No. 2020AP895

13

the special verdict question requested by Hookstead would have diverged enough 

from the content of trial to risk confusing them. 

¶31 Hookstead fails to show that either of these implicit findings were

clearly erroneous. And based on these implicit findings, we conclude that the 

court did not omit a material issue of ultimate fact by declining to give the 

requested special verdict question.

¶32 In our analysis of this issue, we make several assumptions in 

Hookstead’s favor without deciding that they are correct. First, we assume that,

Hookstead’s operative complaint was pled in a way that would have permitted him 

to pursue at trial the alternative theories that he articulated for the first time at the 

jury instruction conference after the close of evidence.6 Second, we assume that, 

 

6

 Based on this first assumption in Hookstead’s favor regarding the operative complaint, 

we need not address his reliance on Gutierrez v. People’s Management of Texas I, Ltd., 277 

S.W.3d 72, 79 (Tex. App. 2009), which he cites as purported persuasive authority based on Texas 

law governing what claimants must particularly plead in an adverse possession case in order to 

make particular claims at trial. Explaining briefly, Hookstead cites Gutierrez for the proposition 

that, when a claim of adverse possession describes property that contains “constituent parts, with 

separate legal descriptions,” there is a “reasonable inference” that “the claim will run to those 

constituent parts or elements individually.” Id. at 79. The court in Gutierrez determined that the

trial court erred in denying a request to charge the jury with adverse possession verdicts 

addressing constituent parts. See id. 

If Hookstead intends to make a broader argument based on Gutierrez, we would reject 

that argument. The broader argument would be based on the fact that the court in Gutierrez went 

beyond the issue of whether the alternative claim was preserved by the pleadings, and proceeded 

to consider differences in the constituent parts of the overall possession claim. See id. The court 

applied a rule of the Texas Rules of Civil Procedure that creates “a substantive, non-discretionary 

directive requiring trial courts to submit requested questions to the jury, if the pleadings and any 

evidence support them.” Id. at 78 (citing TEX. R. CIV. P. 278) (emphasis added). Under this 

Texas standard, “it is reversible error to refuse” “to support submission of a valid theory of 

recovery” if there is “more than a scintilla of evidence to support submission.” Id. In contrast, 

under Wisconsin law, Hookstead was obligated to do more than point to a “scintilla” of evidence. 

He had to show that the theories that he now pursues were placed in dispute at trial, which at a 

minimum required him to apprise the opposing party and jury of those theories and at least 

suggest how the evidence supported the articulated theories. See Hansen v. Texas Roadhouse, 

(continued)
No. 2020AP895

14

leading up to and during trial, Hookstead clearly identified northern versus

southern portions of the disputed property. Third, we assume that there was at 

least some material evidence presented at trial that a jury could have relied on to 

support a verdict of adverse possession of only the northern or only the southern 

portion, despite the circuit court’s contrary finding.7 

¶33 Even with these assumptions in Hookstead’s favor, we conclude that 

the circuit court did not clearly err in finding that his only clear adverse possession 

theory at trial, up to the time of the instruction conference, was based on an all-ornothing claim. We have summarized above some of the pretrial submissions that 

appeared to commit the parties to an agreement of a trial on that basis. Against the 

backdrop of these submissions, it was reasonable for the court to determine that 

Hookstead’s limited references at trial distinguishing—in what were on their face 

only possibly material ways—between northern and southern portions would have 

been reasonably construed by the other side and by jurors as merely for general 

context or orientation purposes, as part of an exclusive theory of adverse 

possession to the entire disputed property.

8

 In the same vein, as we have 

 

Inc., 2013 WI App 2, ¶13, 345 Wis. 2d 669, 827 N.W.2d 99 (“The special verdict form is cabined 

by the issues ... in dispute). 

7

 In making this assumption, we recognize that the circuit court’s conclusion that there 

was no evidence regarding material differences between the northern and southern portions was 

reasonable to the extent that the court essentially meant to convey that various differences were 

too subtle to matter. While some details regarding the northern and southern portions varied

(e.g., the age and thickness of the trees, the width of disputed property), even now on appeal 

Hookstead fails to point to evidence that the character of the two portions was not generally the 

same. The evidence was that the disputed property was primarily boundary land between 

agricultural fields featuring a continuous line of trees, brush, and rocks.

8

 We assume without deciding that Hookstead’s joining in pre-trial submissions that did 

not distinguish between the northern and southern portions did not constitute any form of 

forfeiture, waiver, or estoppel by Hookstead, such that any of these doctrines barred him from 

being able to pursue the special verdict question after the close of evidence.
No. 2020AP895

15

summarized it, Hookstead’s opening argument did not alert opposing counsel or 

the jury to the possibility that any difference between the northern and southern 

portions mattered in any way other than to help the jury understand Hookstead’s 

claim to the disputed property in its entirety. To the contrary, the opening 

previewed that, as counsel expressed it to the jury, the “critical factual 

determination[s]” it would need to make related to “the property” or “the center of 

the tree line” without reference to having to make those determinations for 

multiple constituent parts. 

¶34 It supports the circuit court’s determination that evidence 

presentation at trial was spread out over five days. The evidence that Hookstead 

might have, but did not, rely on to potentially distinguish between northern and 

southern portions in a possibly material way was interspersed with other evidence 

and argument that frequently involved references to the disputed property in its 

entirety.

¶35 On the prejudice-to-the-Beals issue, the Beals point out that they did 

not elicit testimony at trial from their tree expert regarding how much of the 

damages caused by Hookstead’s removal of trees was attributable to the northern 

or the southern portions specifically. Hookstead’s argument in reply has no merit. 

He points out that this expert had to deduce the number of removed trees because 

he inspected the tree line only after their removal. This fails to explain why we 

should conclude that the Beals, if timely apprised of the issue by Hookstead, could 

not have elicited from the expert a reasonably reliable account of how much of the 

tree removal had occurred in each portion. 

¶36 For the first time in his reply brief, Hookstead makes an off-point 

argument. It is that the Beals were alerted through discovery to the existence of 
No. 2020AP895

16

physical differences between the two portions. We put to one side the fact that 

this argument comes too late in the appellate briefing process, and we also assume

without deciding that various references in the discovery materials established the 

existence of differences (even though, as with the evidence adduced at trial, the 

discovery materials included frequent references to a unitary disputed area, 

consisting of a single stretch of land between the survey and tree lines). Even with 

those points ignored, this argument does not help Hookstead on the point that 

matters: the court’s implicit finding, not shown to be clear error, that Hookstead

failed throughout the course of trial to apprise opposing counsel and the jury of the

alternative theories of liability. 

¶37 On a related note, Hookstead contends that the Beals should have 

been aware by the time of trial that his claim over the unitary disputed property

would necessarily require them to defend claims over only portions of that 

property. But the issue here is not whether Hookstead could have gone to trial 

with theories that alternatively sought possession of only portions. Hookstead’s 

argument is based on hypothetical facts contrary to the circuit court’s findings—

the hypothetical in which a party seeking adverse possession clearly and timely 

apprises opposing counsel and the jury of the theory of liability at issue—and does 

not constitute an argument that the circuit court clearly erred in making the 

findings we have summarized above. At most, Hookstead identifies evidence that 

could have potentially supported a contrary finding that—even though Hookstead

did not clearly state the alternative theories—the Beals were constructively on 

notice that he was implicitly pursuing the alternative theories. 

¶38 Hookstead stresses that, in a footnote in Pierz, we stated that “the 

finder of fact should be offered an opportunity to find that portions of the land 

have been adversely possessed rather than an all-or-nothing choice.” Pierz, 88 
No. 2020AP895

17

Wis. 2d at 134 n.2. Hookstead effectively interprets this statement, considered in 

isolation, to support the proposition that adverse possession claims over any 

possible portions of property subject to a claim are inherently material at every 

adverse possession trial and are implicitly placed in dispute, regardless how 

indistinctly the alternative claims to portions are raised before and during trial. 

Under this reading of Pierz, the circuit court omitted a material issue from the 

verdict question in a way that is inconsistent with Pierz. However, Hookstead 

pulls the statement in Pierz out of its context and omits qualifications that are 

important here. In the same footnote of Pierz cited by Hookstead, we further 

explained that “[i]t is the burden of the party claiming adverse possession to 

clearly define the area in which specific activities or improvements occurred.” Id. 

Under all the circumstances we have discussed, and even with the assumptions in 

Hookstead’s favor stated above, the circuit court made a reasonable decision based 

on its implicit findings that giving Hookstead’s requested special verdict would 

have amounted to trial-by-ambush on the Beals and also risked confusing the jury. 

¶39 Put another way, the statement in Pierz about avoiding all-ornothing choices for factfinders has limited applicability when the adverse 

possession claimant “elects to proceed on an all-or-nothing basis.” See Droege v. 

Daymaker Cranberries, Inc., 88 Wis. 2d 140, 147, 276 N.W.2d 356 (Ct. App. 

1979). In Droege, we explained that when

the adverse possessor elects to proceed on an all-or-nothing 

basis and fails to provide the trial court with evidence of 

the extent of actual occupancy upon which the land could 

be partitioned, failure to prove adverse occupancy of any 

substantial portion of the land is fatal to the entire claim.

Id. It is true that our assumption that Hookstead presented some material evidence

distinguishes this case in some ways from the context in Droege. Nevertheless, 
No. 2020AP895

18

the larger point made in this statement applies. Contrary to Hookstead’s reading 

of Pierz, Droege shows that the way that an adverse possessor pursues a claim can 

limit the claimant to the risks of an all-or-nothing choice under certain 

circumstances. The rule that emerges from the two cases is that adverse 

possession claimants certainly can, and must generally be allowed to, pursue 

theories of adverse possession to portions within claims on larger parcels of 

property, so long as they pursue those theories in a timely manner.9 See Pierz, 88 

Wis. 2d at 134 n.2; see also WIS. STAT. § 893.25(2)(b) (allowing adverse 

possession “[o]nly to the extent” actual occupancy, along with other requirements, 

are proven); Droege, 88 Wis. 2d at 147 (When “evidence was presented as to the 

extent of occupancy of only a portion of the land, only that portion may be 

awarded.”). Here, Hookstead does not show that the circuit court erred in 

concluding that he proceeded on an all-or-nothing basis by failing to take any 

steps to notify opposing counsel or the jury that he was pursuing the theories of 

liability based on what we assume was material evidence of actual occupancy.

II. Statute Of Limitations For Damage To Property Counterclaims

¶40 Under WIS. STAT. § 895.446(1), a person “who suffers damage or 

loss by reason of intentional conduct” that violates any of a number of criminal 

statutes, including WIS. STAT. § 943.01, criminal damage to property, “has a cause 

of action against the person who caused the damage or loss.” Among the Beals’ 

 

9

 Hookstead draws our attention to numerous Wisconsin cases that, in his words, 

“involv[e] partial adverse possession success” in the context of jury trials. See Krembs v. Pagel, 

210 Wis. 261, 246 N.W. 324 (1933); Menzner v. Tracy, 247 Wis. 245, 19 N.W.2d 257 (1945); 

Fabry v. Jagiello, No. 2018AP89, unpublished slip op. (WI App Mar. 19, 2019). But these 

references are unavailing. These cases do not stand for the proposition that, when a claimant fails 

to apprise the opponent and the jury of a theory of partial adverse possession throughout trial, a 

circuit court must nevertheless give a special verdict question of the type Hookstead sought here. 
No. 2020AP895

19

counterclaims are some for intentional damage to property under § 895.446(1). 

Separately, WIS. STAT. § 893.93(2)(a) establishes in pertinent part a two-year 

statute of limitations for “[a]n action by a private party upon a statute penalty, ...

except when the statute imposing it provides a different limitation.”

¶41 Bearing those statutes in mind, Hookstead argues that the circuit 

court erred in concluding that the two-year limitations period in WIS. STAT.

§ 893.93(2)(a) for actions “by a private party upon a statute penalty” did not apply

to the Beals’ counterclaims under WIS. STAT. § 895.446(1). 

¶42 The Beals do not dispute that, if it applies, a two-year statute of 

limitations would bar one of the Beals’ counterclaims. The only counterclaim that 

Hookstead identifies as purportedly time-barred is the one under WIS. STAT.

§ 895.446(1) that specifically relates to Hookstead’s 2016 removal of trees. Thus, 

Hookstead does not argue that the Beals’ trespass or conversion counterclaims 

were barred, nor does he argue that the Beals’ other counterclaim pursued under 

§ 895.446(1) (based on conduct in 2017 and 2019) was barred. 

¶43 “Determining which statute of limitations applies to an action is a 

question of law which we review de novo.” Hegarty v. Beauchaine, 2001 WI 

App 300, ¶14, 249 Wis. 2d 142, 638 N.W.2d 355; see also South Milwaukee Sav. 

Bank v. Barrett, 2000 WI 48, ¶18, 234 Wis. 2d 733, 611 N.W.2d 448 (applying 

independent review to whether the two-year statute of limitations for a private 

party action upon a statute penalty applied).

¶44 As we explain below in applying precedent of our supreme court, we 

narrowly construe WIS. STAT. § 893.93(2)(a), and conclude that an action pursued 

under WIS. STAT. § 895.446(1) is not an action “by a private party upon a statute 

penalty” and therefore the two-year limitation does not apply to § 895.446(1) 
No. 2020AP895

20

actions. Although § 895.446(1) actions bear some resemblance to “statute 

penalty” actions, we conclude that the mixed evidence regarding the statute’s 

purpose weighs against being deemed actions “by a private party upon a statute 

penalty.” We do not address what other statutes of limitations might apply to 

§ 895.446(1) actions, because Hookstead exclusively relied on § 893.93(2)(a) in

the circuit court and now on appeal.10

A. Additional Legal Standards

¶45 WISCONSIN STAT. § 893.93(2)(a) calls for a determination whether 

the counterclaims at issue here pursued under WIS. STAT. § 895.446(1) are actions 

“by a private party upon a statute penalty.”11 This in turn requires us to determine

whether the purposes of § 895.446 are more “penal” or more “remedial” in nature, 

because the more penal they are the more likely the cause of action provided in the 

statute is to be categorized as a “statute penalty.” See South Milwaukee Sav. 

Bank v. Barczak, 229 Wis. 2d 521, 532-33, 600 N.W.2d 205 (Ct. App. 1999) (The

issue of whether to apply the “statute penalty” limitations period “requires us to 

 

10

 Hookstead does not dispute that the Beals’ counterclaims were not time barred if, as 

the Beals assert, the six-year limitations periods contained in WIS. STAT. § 893.93(1)(a) (2015-

16) or WIS. STAT. § 893.52(1) applied, instead of the two-year limitation in § 893.93(2)(a).

Separately, because we conclude that the circuit court did not err in failing to apply the 

two-year limitation in WIS. STAT. § 893.93(2)(a) to the WIS. STAT. § 895.446 counterclaims, we 

need not address the parties’ arguments regarding whether any error would have been harmless. 

11

 WISCONSIN STAT. § 893.93(2)(a) provides: 

(2) The following actions shall be commenced within 2 

years after the cause of action accrues or be barred:

(a) An action by a private party upon a statute penalty, 

or forfeiture when the action is given to the party prosecuting

therefor and the state, except when the statute imposing it 

provides a different limitation.
No. 2020AP895

21

interpret the statute in question, to ascertain its intended purpose, and to decide 

whether the statute redressed a public wrong or remedied an individual harm.”).

12

 

¶46 A statutory cause of action is deemed penal if it is designed to 

redress wrongs done to the public, and remedial if designed to redress wrongs 

done to individuals. Erdman v. Jovoco, Inc., 181 Wis. 2d 736, 762, 512 N.W.2d 

487 (1994); see also Barczak, 229 Wis. 2d at 533-35 (weighing benefit to the 

public relative to the benefit to individuals).

¶47 The following are pertinent factors to be used in determining 

whether the purposes of a statute are more punitive in nature and therefore the 

statute is more likely to be a statute penalty, or instead if the statute’s purposes are

more remedial and therefore the statute is less likely to be a statute penalty. If a 

statute provides for the awarding of treble damages to the plaintiff, this weighs in 

favor of a determination that it has an overall punitive purpose. See Barczak, 229 

Wis. 2d at 533 (citing Erdman, 181 Wis. 2d at 761). Amplified damages suggest 

redress of wrongs to the public, because they “encourage private enforcement in 

an area where government regulation alone would not be adequate.” Erdman, 181 

Wis. 2d at 761. An additional feature of a statute that can weigh in favor of it 

being deemed a statute penalty is when it provides mechanisms for both “public 

and private enforcement,” that is, when it allows private claimants to pursue relief 

and also allows prosecutors, as agents of the government, to pursue criminal 

penalties, civil forfeitures, or fines. See Barczak, 229 Wis. 2d at 534 (concluding 

that the absence of criminal penalties and other “public and private enforcement 

 

12

 See also South Milwaukee Sav. Bank v. Barrett, 2000 WI 48, ¶23, 234 Wis. 2d 733, 

611 N.W.2d 448 (adopting the statute of limitations analysis in South Milwaukee Sav. Bank v. 

Barczak, 229 Wis. 2d 521, 531-36, 600 N.W.2d 205 (Ct. App. 1999)). 
No. 2020AP895

22

mechanisms” weighed against applying the two-year limitation for statute 

penalties). 

¶48 But the case law contains nuanced distinctions. A statutory cause of 

action may bear some hallmarks of a punitive, public-oriented purpose, but 

nonetheless be primarily remedial in nature. See id. at 534-35 (noting some 

factors supporting penal purpose, but concluding the cause of action at issue was 

nonetheless not a statute penalty); see also Erdman, 181 Wis. 2d 760-61 (noting 

that statutory anti-trust claims are both remedial and punitive in nature, and 

qualify as “actions by a private party upon a statute penalty”). Thus, for example,

while the awarding of double or treble damages in itself signals a potentially 

punitive purpose, this does not necessarily render a statutory cause of action a 

statute penalty. See Erdman, 181 Wis. 2d at 762 (double damages provision of 

statutory cause of action at issue did not change its “fundamental nature” as 

“primarily intended to benefit individual” claimants); Barczak, 229 Wis. 2d at 

534-35 (concluding that a statutory cause of action was not a statute penalty 

despite treble damages provision). On a related note, a statutory cause of action is 

not a statute penalty when the “benefit derived by individuals” from the cause of 

action “substantially outweigh[s]” the “benefit derived by the general public”

despite bearing some signs of having a penal purpose. See Barczak, 229 Wis. 2d 

at 534-35. 

¶49 We also bear in mind that appellate courts “interpret[] statutes of 

limitations so that ‘no person’s cause of action will be barred unless clearly 

mandated by the legislature.’” Erdman, 181 Wis. 2d at 760 (quoting Saunders v. 

DEC International, Inc., 85 Wis. 2d 70, 74, 270 N.W.2d 176 (1978)). Consistent 

with this rule of interpretation, “[a]bsent a clear legislative mandate, case law 

instructs that the two-year statute of limitations must be narrowly construed in 
No. 2020AP895

23

favor of plaintiffs to avoid extinguishing otherwise meritorious claims.” Barczak, 

229 Wis. 2d at 535 (discussing WIS. STAT. § 893.93(2)(a)).

¶50 Turning to the substantive type of action at issue here, WIS. STAT.

§ 895.446(1) is a vehicle for those “who suffer[] damages or loss by reason of

intentional conduct” that is prohibited by an enumerated series of criminal statutes. 

Such a person has “a cause of action against the person who caused the damage or 

loss.” Sec. 895.446(1). Each of the enumerated criminal prohibitions come from 

WIS. STAT. ch. 943 (Crimes against property) and pertinent here includes 

intentionally causing damage to property under WIS. STAT. § 943.01(1). See 

§ 895.446(1).

¶51 If a civil plaintiff prevails on a claim under WIS. STAT. § 895.446(1), 

“he or she may recover all of the following:”

(a) Actual damages, including the retail or 

replacement value of damaged, used, or lost property, 

whichever is greater, [including] for a violation of s. 943.01

....

(b) All costs of investigation and litigation that 

were reasonably incurred, including the value of the time 

spent by any employee or agent of the victim.

(c) Exemplary damages of not more than 3 times 

the amount awarded under par. (a). No additional proof is 

required under this section for an award of exemplary 

damages under this paragraph.

Sec. 895.446(3); see also Estate of Miller v. Storey, 2017 WI 99, ¶49, 378 Wis. 2d 

358, 903 N.W.2d 759 (interpreting sub. (3)(b) to allow awarding of attorney fees).

B. Analysis

¶52 For reasons we have explained, the possibility that a plaintiff can 

obtain exemplary damages of up to three times the actual damages lends some 
No. 2020AP895

24

support to a determination that an action filed under WIS. STAT. § 895.446(1) has a 

punitive purpose. See Estate of Miller, 378 Wis. 2d 358, ¶69 n.32 (“‘Exemplary 

damages’ are synonymous with ‘punitive damages.’”). It undermines this point, 

however, that exemplary damages are not automatically awarded under 

§ 895.446(3) to a plaintiff who has met each of the elements of his or her claim 

under sub. (1), nor are the damages necessarily trebled. See id., ¶69 (trier of fact 

has discretion over whether to award exemplary damages and if so, the amount). 

This contrasts the exemplary damages under § 895.446(3)(c) with other statutory 

causes of action under which automatic double and treble damages are awarded 

based on proof of the elements. See Cieslewicz v. Mutual Serv. Cas. Ins. Co., 84 

Wis. 2d 91, 101-02, 267 N.W.2d 595 (1978) (unlike common law punitive 

damages, “multiple damages” like treble damages do not require the additional

showing of “particular state of mind or outrageous character of the conduct” and

“are assessed whenever the statutory requirements are met, and the plaintiff is 

entitled to multiple damages on that showing alone”).

¶53 Hookstead notes that our supreme court, in the context of discussing 

a predecessor statute to WIS. STAT. § 895.446, stated that “[a] statute creating a 

treble damages remedy is regarded as punitive rather than remedial.” See TriTech Corp. of Am. v. Americomp Servs., Inc., 2002 WI 88, ¶¶1, 21, 254 Wis. 2d 

418, 646 N.W.2d 822 (discussing WIS. STAT. § 895.80 (1999-2000)). The first 

problem with Hookstead’s reliance on this statement as dispositive here is that the 

predecessor version of § 895.446 awarded automatic treble damages and, as we 

have explained, the current version does not. See id., ¶20; 2003 Wis. Act 138, 

§§ 21, 23. Second, the court in Tri-Tech was not addressing a statute of 

limitations issue, but instead considering application of the rule that punitive 

statutes are strictly construed, which is a different context. See Tri-Tech, 254 
No. 2020AP895

25

Wis. 2d 418, ¶21. Third, there is no suggestion in Tri-Tech that the court intended 

to alter the comprehensive approach laid out in Erdman and applied in Barczak, 

under which even a statute that may tend to show some punitive purpose through 

the availability of treble damages does not necessarily create a statute penalty 

action.

¶54 Turning to the legislature’s apparent purpose in authorizing actions 

under WIS. STAT. § 895.446(1), Hookstead emphasizes that such actions vindicate 

the public’s “right to be free from crime.” See Estate of Miller, 378 Wis. 2d 358, 

¶59 (noting that criminal prosecutions are the “exclusive province” of government 

actors and a private action “that enforces criminal proscriptions” “vindicates the 

public right to be free from crime”). It is also true that, while § 895.446 does not 

itself provide for criminal penalties or other public enforcement mechanisms, it 

operates in parallel to the potential criminal prosecution of the crimes enumerated 

by statutory references in § 895.446(1). See e.g., WIS. STAT. § 943.01(1) 

(classifying intentional damage to physical property without the owner’s consent 

as a Class A misdemeanor).

¶55 These factors weigh somewhat in favor of penal purpose as 

understood in statute penalty context. The discussion of WIS. STAT. § 895.446 in 

Estate of Miller suggests that this is not the easy case in which the direct benefits

to plaintiffs who bring actions under § 895.446 are substantially outweighed by 

the more general benefits to the public. 

¶56 However, the following factors persuade us against application of 

the two-year statute. Claimants such as the Beals here, pursuing claims under 

WIS. STAT. § 895.446(1), like the plaintiffs in Erdman and Barczak, are motivated 

in significant part to remedy the harms that they claim have been done to them 
No. 2020AP895

26

individually as the victims of property crimes. See § 895.446(1) (granting cause 

of action to a “person who suffers damage or loss,” i.e., the victim of one of the 

enumerated crimes (emphasis added)). In the course of discussing the awarding of 

litigation costs, our supreme court has noted that § 895.446(3) provides financial 

incentives for individual plaintiffs to advance both the public interest and their 

own private interests. See Estate of Miller, 378 Wis. 2d 358, ¶59. On balance,

and in the final analysis applying the rule of narrow construction highlighted in 

cases such as Erdman and Barczak, we do not discern “a clear legislative 

mandate” to apply a two-year limitation to such actions, particularly given the 

mixed signals provided by the available remedies under § 895.446(3).

III. Punitive Damages

¶57 Hookstead argues that even the reduced punitive damages award of 

$200,000 violated his due process rights because it was “disproportionate to his 

wrongdoing and was more than necessary to deter him from future wrongdoing.” 

Applying the pertinent factors under the constitutional analysis, we conclude that 

the punitive damages award was not excessive.

A. Additional Background

¶58 Gary Beal’s pertinent trial testimony included the following. During 

a visit to the Beals’ residence, Hookstead initially agreed to help the Beals pay for 

a survey of the boundary line, but then reversed course and demanded that the 

Beals “stop the survey.” When Gary Beal refused this demand, Hookstead 

threatened to “put [Beal] through a blood bath of Court and lawyer’s fees” if Beal 

did not leave “the fence where [Hookstead had] it.”
No. 2020AP895

27

¶59 In a later incident, when Beal was inspecting the places where 

Hookstead had removed trees, Hookstead drove up to Beal in his truck and started 

“screaming” at him. This included screaming that Beal was trespassing and that 

Beal needed to “get off [Hookstead’s] land.” Beal further testified that Hookstead

three times “screamed” at Beal, “‘I’m going to steal your land by adverse 

possession.’” The testimony was corroborated by the testimony of an arborist who

was present. 

¶60 To repeat, the jury made the following findings: that Hookstead 

intentionally damaged and converted the Beals’ property and trespassed on it; and 

that “Hookstead’s conduct toward the Beals” was “malicious or in intentional 

disregard of the Beals’ rights.” This verdict was supported in part by 

uncontradicted testimony that Hookstead, without permission, entered land that 

the jury determined belonged to the Beals, removed trees, erected fencing cutting 

off part of this land, and later damaged fencing erected by the Beals.

¶61 As part of its reasoning in denying Hookstead’s motion to reduce the 

punitive damages award, the circuit court stated the following, with party names 

substituted for party designations:

The jury could have found that[,] in view of Hookstead’s

net worth [of] $13,000,000, the Beals were financially 

vulnerable as compared to Hookstead. The evidence 

supports a finding that Hookstead’s conduct involved 

repeated actions over a period of time and were not an 

isolated incident. The evidence would also support a 

finding that the harm was the result of intentional malice, 

which the jury explicitly found in its verdict.

B. Legal Standards

¶62 A party may recover punitive damages “if evidence is submitted 

showing that the defendant acted maliciously toward the plaintiff or in an 
No. 2020AP895

28

intentional disregard of the rights of the plaintiff.” WIS. STAT. § 895.043(3). 

“Once the judge has determined that the issue of punitive damages is properly 

before the jury, whether to actually award punitive damages ‘in a particular case is 

entirely within the discretion of the jury.’” Kimble v. Land Concepts, Inc., 2014 

WI 21, ¶44, 353 Wis. 2d 377, 845 N.W.2d 395 (quoted source omitted). However, 

“[t]he Due Process Clause of the Fourteenth Amendment ‘imposes substantive 

limits on the size of a punitive damages award.’” Id. (quoted source omitted). We 

review the size of an award of punitive damages under a de novo standard “to 

ensure it accords with the constitutional limits of due process.” Id., ¶38. 

¶63 “A punitive damages award is ‘excessive, and therefore violates due 

process,’ if it is more than necessary to serve the purposes of punitive damages, or 

inflicts a penalty or burden on the defendant that is disproportionate to the 

wrongdoing.’” Id., ¶45 (quoted source omitted). Appellate courts consider the 

following six factors in determining whether an award of punitive damages is 

constitutionally excessive: 

(1) The grievousness of the acts; (2) The degree of 

malicious intent; (3) Whether the award bears a reasonable 

relationship to the award of compensatory damages;

(4) The potential damage that might have been caused by 

the acts; (5) The ratio of the award to civil or criminal 

penalties that could be imposed for comparable 

misconduct; and (6) The wealth of the wrongdoer. 

Id., ¶47.13 

 

13

 Our supreme court has described these factors as “substantively identical” to a federal 

test that is applied in reviewing the size of a punitive damages awards, which we do not recite 

here. Kimble v. Land Concepts, Inc., 2014 WI 21, ¶46-47, 353 Wis. 2d 377, 845 N.W.2d 395 

(quoting another Wisconsin case that in turn cites BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 

568 (1996)). 
No. 2020AP895

29

¶64 Our review of constitutional principles is de novo, but we accept 

pertinent findings of fact by the circuit court unless they are clearly erroneous. 

See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 440 & n.14 

(2001) (noting that federal district courts can make credibility assessments and 

that, although the overall review of the size of punitive damages on a due process 

challenge is de novo, “it of course remains true that the Court of Appeals should 

defer to the District Court’s findings of fact unless they are clearly erroneous.”).

C. Analysis

¶65 Applying the factors noted above to the uncontested findings of the 

jury and the circuit court, we conclude that the amount of punitive damages 

awarded in this case does not exceed due process limits.

¶66 Hookstead either concedes or fails to dispute that three relevant 

factors support the conclusion that the punitive damages award was not excessive: 

the award as reduced by the circuit court bears a reasonable relationship to the 

award of compensatory damages; he is wealthy relative to the size of the award; 

and the ratio of the award to civil or criminal penalties that could be imposed for 

comparable misconduct is proportionate.

14

 

14

 On the last point, Hookstead does not respond to the Beals’ contention that 

Hookstead’s conduct, as found by the jury and credited by the circuit court, could have supported 

criminal charges of multiple counts each for criminal trespass and criminal damage to property, 

including at least one count of damage worth more than $2,500. See WIS. STAT. §§ 943.01(1), 

(2)(d), 943.13(1m). A conviction for criminal trespass is punishable by a forfeiture of $1,000, 

and a conviction for criminal damage to property that reduces the property’s value by more than 

$2,500 is punishable by fines not exceeding $10,000, 3.5 years imprisonment, or both. See WIS.

STAT. §§ 939.50(3)(i), 939.52(3)(b), 943.01(2)(d), 943.13(1m). We take Hookstead’s silence on 

this point as a concession that this factor supports upholding the punitive damages award. See

United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 

(appellant’s failure to respond in reply brief to an argument made in response brief may be taken 

as a concession). At the same time, we bear in mind that, while a comparison of a defendant’s 

(continued)
No. 2020AP895

30

¶67 Hookstead primarily argues that his conduct was not so grievous or 

maliciously intended as to justify the punitive damages award. This argument

evokes the rule that “‘the degree of reprehensibility of the defendant’s conduct’” is 

the most important “‘indicium of the reasonableness of a punitive damage[s] 

award.’” See Kimble, 353 Wis. 2d 377, ¶48 (quoted source omitted and alteration 

in Kimble). Our supreme court has adopted from the U.S. Supreme Court the 

following considerations as relevant in weighing the degree of reprehensibility:

“whether: the harm caused was physical as opposed to

[merely] economic; the tortious conduct evinced an 

indifference to or a reckless disregard of the health or 

safety of others; the target of the conduct had financial 

vulnerability; the conduct involved repeated actions or was 

an isolated incident; and the harm was the result of 

intentional malice, trickery, or deceit, or mere accident.”

Id., ¶49 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419

(2003)).

¶68 Hookstead’s argument fails for at least this reason: the facts found 

by the jury and the circuit court support the conclusion that Hookstead acted 

maliciously. For example, the harms caused by a neighbor shouting threatening 

language, and sneaking onto the neighbor’s property without permission in order 

to do damage, are not solely economic in nature. The jury found that Hookstead

intentionally damaged and trespassed on the Beals’ property, all against the 

backdrop of uncontested testimony that Hookstead threatened to “steal” that land 

through adverse possession and make the Beals pay big legal bills when they told 

him they were going to order a survey. The conduct credited by the jury and the 

 

conduct with pertinent criminal or civil penalties bears on the “‘seriousness’” of the conduct, such 

a comparison has “‘less utility’” in assessing the amount of a damage award against a 

constitutional standard. See Kimble, 353 Wis. 2d 377, ¶69 (quoted source omitted).
No. 2020AP895

31

circuit court did not involve merely expressing disagreement with a neighbor over 

disputed property, nor did it involve an isolated incident or short period of 

aggressive interactions. It is true that there was evidence that could have 

supported a jury finding that Hookstead believed at the time of his abusive 

conduct that he rightfully possessed the disputed property through adverse 

possession. However, he fails to explain why the jury could not reasonably decide 

to discount this evidence regarding his beliefs and reach the findings that we 

describe above. More generally, Hookstead makes only selective references to the 

evidence and fails to analyze all pertinent findings under the correct legal 

standards. 

CONCLUSION

¶69 For the foregoing reasons we affirm the judgment and the circuit 

court’s denial of Hookstead’s post-judgment motions.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.