Software One, Inc. v. Carol Eastman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 23, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1279 Cir. Ct. No. 2018CV2274

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

SOFTWARE ONE, INC.,

PLAINTIFF-RESPONDENT,

V.

CAROL EASTMAN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
WILLIAM J. DOMINA, Judge. Affirmed in part; reversed in part.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP1279

¶1 PER CURIAM. Carol Eastman appeals an order granting summary
judgment on SoftwareOne, Inc.’s (“SoftwareOne”) claims for civil theft, breach of
contract, a declaratory judgment of contractual rights, and a violation of the
computer crimes statute, WIS. STAT. § 943.70 (2019-20).1 As relevant here, the
substance of the action was to obtain monetary damages and injunctive relief after
Eastman removed a hard drive disk (HDD) from her SoftwareOne-issued laptop
computer and allegedly failed to return the HDD following the termination of her
employment.

¶2 The circuit court initially denied SoftwareOne’s summary judgment
motion, concluding there existed a genuine issue of material fact regarding
whether Eastman had returned the HDD. It subsequently granted SoftwareOne’s
motion for reconsideration after investigation by SoftwareOne revealed that the
FedEx information Eastman included with her affidavit was for a wholly unrelated
shipment. Based upon Eastman’s misrepresentation, the court concluded there
was no longer any factual issue for trial. It also found Eastman in contempt and
imposed a daily monetary forfeiture that was to continue until Eastman returned
the HDD to SoftwareOne.

¶3 On appeal, Eastman argues that her “mistake” in submitting false
information in her affidavit did not justify a contempt finding and the circuit court
erred by ordering a daily monetary forfeiture until the HDD was returned to
SoftwareOne. We conclude the court properly exercised its discretion when it
found that Eastman’s conduct was contemptuous, and we therefore affirm that

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1279

portion of its determination. However, the remedial sanction imposed by the
circuit court lacked a sufficient nexus to the contemptuous conduct, and we
therefore reverse that portion of the order.

¶4 Eastman also argues the circuit court improperly granted
SoftwareOne’s motion for summary judgment and awarded monetary damages
that were unsupported by the evidence. Even though Eastman acknowledges she
provided false shipment information in her initial affidavit, she argues her
continued assertion that she returned the HDD was sufficient to preclude summary
judgment. We conclude that under the circumstances here, Eastman’s bare
assertion that she returned the HDD, accompanied only by her speculative
statements that she may later be able to produce records demonstrating how that
was accomplished, was insufficient to warrant a trial. The time for presenting
opposing proofs is in response to a summary judgment motion, not after. We also
conclude there was sufficient evidence to support the monetary damages award.
Accordingly, we affirm the court’s summary judgment determinations.

BACKGROUND

¶5 Eastman became a SoftwareOne employee after her company was
acquired in March 2016. In connection with the acquisition, Eastman signed an
employment and non-disclosure agreement (NDA), as well as an asset purchase
agreement. She was subsequently issued a SoftwareOne laptop.

¶6 Eastman was terminated from her employment on July 20, 2018. At
the time of termination, SoftwareOne remotely locked Eastman’s laptop,
preventing her from accessing information on the HDD. Eastman initially retained

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the laptop. She ultimately decided to return it, but it is undisputed that before
doing so she removed the HDD from the laptop.2 SoftwareOne maintains
Eastman has never returned the HDD, and it submitted employee affidavits
averring as much.

¶7 SoftwareOne filed the present suit in December 2018, seeking
injunctive relief related to Eastman’s retention of the laptop HDD, as well as
attorney fees allowed under the NDA and allowable costs, disbursements and
penalties.3 SoftwareOne filed a motion for summary judgment, asserting that by
retaining the HDD Eastman had violated the NDA’s requirement that she
“immediately return to SoftwareONE all … material in Employee’s possession or
control incorporating Confidential Information and trade secrets relating to
SoftwareONE.” It also argued that retention of the HDD satisfied all of the
elements of civil theft, entitling it to monetary and exemplary damages. Finally, it
argued that Eastman violated the computer crimes statute by removing and
retaining the HDD and damaging the laptop.

2
Eastman stated at the summary judgment hearing that she kept the HDD because it had
her personal information on it.
3
SoftwareOne’s claim for declaratory judgment related to Eastman’s assertions that she
was entitled to certain stock allocations under the asset purchase agreement. Eastman has not
presented any argument regarding the circuit court’s decision to grant SoftwareOne summary
judgment on that claim, and therefore we do not address it.

We note Eastman was a pro se litigant throughout the Wisconsin circuit court
proceedings, but was apparently represented by an attorney in litigation she filed against
SoftwareOne in California. She has retained appellate counsel.

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¶8 As relevant here, Eastman defended against the summary judgment
motion on the basis that she had, in fact, returned the HDD to SoftwareOne. 4 The
affidavit she submitted in response contains the following averment:

22. I also did not retain possession of the Lenovo
Notebook hard drive, and returned it to SoftwareONE as
well, despite the fact that I still had not been able to access
any information, including my personal information,
remaining on the hard drive. I purchased an envelope to
return the hard drive from the UPS Store on Main Street, in
Huntington Beach, California. Attached hereto as Exhibit 6
is a true and correct copy of my receipt from
September 8, 2018[,] to purchase the envelope for returning
the hard drive. On September 8, 2018, I returned the hard
drive by FEDEX EXPRESS to SoftwareONE. Attached
hereto as Exhibit 7 is a true and correct copy of the
transaction record for my payment to FEDEX EXPRESS
for the return of the hard drive on September 8, 2018.

Exhibit 6 appears to be a photocopy of a UPS Store receipt with an illegible date
for the purchase of a white mailing envelope. Exhibit 7 appears to be a printout of
transaction details for an American Express account relating to the purchase of
FedEx shipping services.

¶9 At the summary judgment hearing, the circuit court correctly
observed that it was required to accept facts and reasonable inferences therefrom
in the light most favorable to the non-moving party (i.e., Eastman) and that it
could not “judge credibility and who’s honest or dishonest in a summary judgment
motion.” The court determined the competing affidavits gave rise to a genuine
dispute of material fact regarding whether Eastman had returned the HDD, and it
set the matter for trial.

4
Alternatively, Eastman argued she was not liable for breach of contract because she had
been locked out of access to the HDD and therefore was no longer in possession of any
confidential information or trade secrets.

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¶10 Several months later, SoftwareOne filed a motion for
reconsideration. As a basis for the motion, SoftwareOne represented that its
attorneys had subpoenaed FedEx for information relating to the reference number
and invoice numbers contained in Exhibit 7 to Eastman’s affidavit. According to
FedEx records, the numbers Eastman provided referred to an unrelated shipment
to a Clayton Lewis in New York with a ship date of August 31, 2018, and a
delivery date of September 6, 2018. SoftwareOne argued Eastman had perjured
herself by submitting a knowingly false affidavit and making untruthful statements
in open court, and it sought both contempt sanctions and an award of summary
judgment.

¶11 Eastman’s response brief characterized SoftwareOne’s motion as
“unnecessary” and intended merely to “irritate everyone during this difficult time
over a hard drive worth a few hundred dollars.” Eastman filed another affidavit, in
which she admitted she was “mistaken” about using FedEx to return the HDD but
denied that she had “retained possession” of it. She averred that she had attempted
to contact FedEx to determine the accuracy of the tracking number she had
previously provided, but she was told they could not provide information “from
that far back.” Eastman’s brief argued SoftwareOne’s motion should be denied
because “there is [a] possibility that Defendant could show she returned the hard
drive.” Specifically, Eastman argued it was possible she had used a different
carrier for the shipment or could locate “other records and potential other options
and sources to find the information regarding when Defendant returned the hard
drive.”

¶12 At the motion hearing, Eastman argued the circuit court could not
hold her in contempt for “a misunderstanding of a receipt and Fed Ex information
for an upcoming trial.” She explained that even though SoftwareOne was able to

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No. 2020AP1279

obtain shipment information from FedEx, they had done so by subpoena, and she
had not attempted to use that mechanism. She also maintained that the hard drive
was of minimal value and SoftwareOne had waited too long to file its
reconsideration motion.

¶13 The circuit court was unimpressed with Eastman’s arguments. It
determined SoftwareOne’s reconsideration motion was timely and noted that
Eastman had effectively conceded that the shipment information she had earlier
provided was “not applicable in any way, shape, or form to this case.” The court
concluded the information Eastman had provided to create a genuine issue of
material fact was false and Eastman had failed to substantiate her assertion that it
was merely a mistake. Contrary to Eastman’s claims about possibly having used
another carrier, the court noted that in one of Eastman’s California depositions,
she was adamant that she had used FedEx to return the HDD.

¶14 Having concluded that Eastman’s false averments were “a
purposeful attempt to create an evidentiary dispute in order to avoid a summary
judgment decision,” the circuit court granted SoftwareOne’s motion to reconsider.
It concluded SoftwareOne was entitled to summary judgment on all its claims,
ordered injunctive relief, and awarded trebled monetary damages consisting of the
replacement value of the laptop. It also found Eastman in contempt of court and
required her to return the HDD within ten days, with the failure to do so subject to
a daily $150 forfeiture. Finally, the court determined SoftwareOne was statutorily
and contractually entitled to its costs for investigation and litigation, including
reasonable attorneys’ fees, which it set by separate order.

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¶15 Eastman filed a notice of appeal. While the appeal was pending, she
filed a motion for reconsideration, which the circuit court in large part denied.5

DISCUSSION

I. Contempt of Court

¶16 Eastman first argues the circuit court erred by holding her in
contempt of court. Contempt of court, as relevant here, means “intentional …
[m]isconduct in the presence of the court which interferes with a court proceeding
or with the administration of justice, or which impairs the respect due the court.”
WIS. STAT. § 785.01(1)(a). Whether a circuit court’s finding of contempt was
proper is reviewed for an erroneous exercise of discretion. Frisch v. Henrichs,
2007 WI 102, ¶29 n.13, 304 Wis. 2d 1, 736 N.W.2d 85.

¶17 We conclude the circuit court did not erroneously exercise its
discretion when it found Eastman’s conduct contemptuous. Eastman had sworn in
an affidavit that Exhibit 7 was a “true and correct copy of the transaction record
for my payment to FEDEX EXPRESS for the return of the hard drive on
September 8, 2018.” In fact, and contrary to Eastman’s sworn representation to
the circuit court and statements during the summary judgment hearing, Exhibit 7
proved to be a transaction record for an entirely unrelated shipment, mailed on a
different date—none of which Eastman disputes. Moreover, the misrepresentation
was revealed only after significant investigative efforts by SoftwareOne.
Eastman’s conduct interfered with the court proceedings, hampered the

5
The only portion of the motion on which the court granted relief related to the date by
which Eastman had to return the HDD before contempt sanctions began.

8
No. 2020AP1279

administration of justice, and impaired the respect due the court, and we have no
trouble concluding the circuit court properly exercised its discretion when it
determined as much.

¶18 Eastman’s only argument to the contrary is that the circuit court
“disregarded” her explanation that she was merely mistaken about the shipment
information and she did not intend to commit a fraud upon the court. This
argument ignores our standard of review. Factual findings relating to contempt
are reviewed using the clearly erroneous standard. See Kaminsky v. Milwaukee
Acceptance Corp., 39 Wis. 2d 741, 747, 159 N.W.2d 643 (1968).6

¶19 As in Kaminsky, the circuit court here simply disbelieved Eastman’s
explanation that she was mistaken about the shipment information, and it
determined she had intentionally misrepresented Exhibit 7. Eastman offered
nothing more own than her own denial that she had intentionally submitted false
documentation, and she did not explain her failure to investigate the accuracy of
the shipping information before submitting it.7 Cf. id. (noting it is the potential
contemnor’s burden to explain a failure to comply with a court order). Even now,
Eastman only generally claims that she shipped the HDD back (perhaps using a
different carrier than the one she swore she used in her original affidavit). Her
statements that she might, at some point in the future, be able to prove she shipped

6
The “great weight and clear preponderance” standard and the “clearly erroneous”
standard are interchangeable. Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575
(Ct. App. 1983).
7
Even Eastman’s affidavit in support of her motion for reconsideration is silent on this
point. The circuit court specifically noted the lack of any explanation for Eastman’s conduct
when it granted SoftwareOne’s motion for reconsideration and to hold Eastman in contempt.

9
No. 2020AP1279

it back are purely speculative. The circuit court was entitled to make a finding of
intent based upon the record before it.

¶20 Eastman also challenges the sanction imposed by the circuit court
for her contemptuous conduct. The remedies authorized by statute are the
exclusive remedies available for contempt, and sanctions are classified as either
punitive or remedial. Christensen v. Sullivan, 2009 WI 87, ¶50, 320 Wis. 2d 76,
768 N.W.2d 798. The parties agree that the sanction at issue here was remedial in
nature.8 To the extent our review of the court’s discretionary determination
requires us to examine whether it applied the correct law, we do so de novo. State
v. Jones, 2018 WI 44, ¶27, 381 Wis. 2d 284, 911 N.W.2d 97.

¶21 Remedial sanctions may be imposed only for the purpose of
terminating a continuing contempt of court. Christensen, 320 Wis. 2d 76, ¶54.
Such sanctions are “not designed to punish the contemnor, vindicate the court’s
authority, or benefit the public.” Id., ¶55. The remedial sanctions available to the
court are enumerated in WIS. STAT. § 785.04(1) and include a monetary forfeiture
not to exceed $2,000 for each day the contempt continues.

¶22 Eastman argues the circuit court imposed an unauthorized remedial
sanction when it drew a “negative inference” that she retained possession of the
hard drive. We agree with SoftwareOne that the court did not impose a “negative
inference” as sanction for Eastman’s contemptuous conduct. As we further
address below, the court plainly regarded Eastman’s misrepresentation in her

8
The parties appear to be in agreement that the circuit court’s contempt determination
was made under WIS. STAT. § 785.01(1)(a), that the court used the nonsummary procedure
established by WIS. STAT. § 785.03(1)(a), and that the remedial forfeiture imposed by the court
was otherwise authorized under WIS. STAT. § 785.04(1)(c).

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No. 2020AP1279

initial affidavit to have resulted in a failure of proof. The sanctions for her
contempt were limited to the daily $150 forfeiture until she returned the HDD to
SoftwareOne.

¶23 Eastman also argues the daily forfeiture sanction was defective
because it was not formulated to terminate continuing contemptuous behavior.
We agree with Eastman’s assessment. Remedial sanctions require that the
contemptuous conduct is ongoing. Christensen, 320 Wis. 2d 76, ¶60. The
contemptuous conduct here was specifically identified by the circuit court’s order
as “lying about having returned Plaintiff’s hard drive.”

¶24 The circuit court’s identification of “lying” as the contemptuous
conduct is key. Eastman’s mere failure to return the HDD did not result in
contempt sanctions, but her misrepresentation of a significant document in her
affidavit did. Her concession that she made a mistake in her earlier affidavit—
regardless of whether the circuit court believed that explanation—effectively
terminated the contempt and severed the nexus between her contemptuous conduct
and the daily forfeiture sanction, which was purgeable only by returning the HDD.
In short, the contemptuous conduct identified by the court was no longer
“continuing” so as to warrant remedial sanctions.

¶25 In so holding, we recognize that a contemnor subject to a purge
condition must have the “keys to the jail house door.” Frisch, 304 Wis. 2d 1, ¶59.
The purge condition should serve remedial aims, the contemnor should be able to
fulfill the proposed purge condition, and the condition should be reasonably
related to the cause of the contempt. Id., ¶64 (citation omitted). Here, even if the
circuit court implicitly found that Eastman failed to return the HDD to
SoftwareOne, it does not necessarily follow that she continued to retain possession

11
No. 2020AP1279

of it. As a result, even ignoring the lack of a nexus between Eastman’s
contemptuous conduct and the daily forfeiture, there was an additional finding
necessary to warrant such a sanction beyond the mere fact that Eastman had lied in
her affidavit about returning the HDD. The omission of a “retained possession”
finding is especially notable given that the conduct at issue in the underlying
litigation involved a failure to return the HDD to SoftwareOne, not Eastman’s
continued possession of an item that apparently had been disabled, and the
sanction imposed could potentially continue indefinitely if Eastman no longer has
the HDD.

¶26 SoftwareOne defends the circuit court’s daily forfeiture sanction as,
alternatively, a proper exercise of the court’s equitable authority to grant
injunctive relief as part of the grant of summary judgment. We reject this
argument because the daily forfeiture was explicitly imposed in connection with
the court’s finding that Eastman “committed contempt by engaging in misconduct
… by lying about having returned Plaintiff’s hard drive.” We will not attempt to
reclassify the sanctions imposed as a grant of equitable relief on one or more of
SoftwareOne’s substantive claims.9

II. Summary Judgment

¶27 Eastman next argues the circuit court erred by granting
SoftwareOne’s motion for summary judgment. We review a grant of summary
judgment de novo. Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24,

9
Because we conclude the daily forfeiture imposed by the circuit court was not
authorized under Wisconsin law, we need not address Eastman’s alternative argument that it was
unconstitutional. See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300,
786 N.W.2d 15 (noting that cases should be decided on the narrowest grounds).

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No. 2020AP1279

323 Wis. 2d 682, 781 N.W.2d 88. We apply the same methodology as the circuit
court, which is set forth in WIS. STAT. § 802.08. Oracular Milwaukee, Inc., 323
Wis. 2d 682, ¶24.

¶28 Under WIS. STAT. § 802.08(2), summary judgment shall be rendered
if the parties’ evidentiary submissions show there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law. We
first review the complaint and answer to determine whether issue has been joined
on a properly stated claim for relief. Hoida, Inc. v. M & I Midstate Bank, 2006
WI 69, ¶16, 291 Wis. 2d 283, 717 N.W.2d 17. If so, we examine the moving
party’s affidavits to determine whether they establish a prima facie case for
summary judgment. Id. We then review the opposing party’s affidavits to
determine whether there are any material facts in dispute, or inferences from
undisputed facts, that would entitle the opposing party to a trial. Id.

¶29 Eastman argues the circuit court erred by making a credibility
determination when it granted SoftwareOne summary judgment on its claims.
Eastman fashions this as a case of “dueling affidavits” because she maintained in
her second affidavit that she returned the HDD to SoftwareOne, even though she
has admitted that her first affidavit misrepresented the shipment information.
Eastman argues a general issue of material fact exists as to SoftwareOne’s claims
because she avers she returned the HDD while SoftwareOne avers the opposite.10

10
Aside from the civil theft claim, which we discuss more in detail below, Eastman does
not separately analyze the elements for any of SoftwareOne’s claims. Accordingly, we assume,
without deciding, that Eastman’s failure to return the HDD to SoftwareOne was a material fact
necessary for SoftwareOne to establish to prevail on its claims for breach of contract and a
violation of the computer crimes statute.

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¶30 Typically (and as the circuit court recognized in its initial decision
denying summary judgment), the existence of sworn affidavits, each of which
makes material assertions that are contrary to the other, would create an issue to be
resolved by the trier of fact. But this case features a confluence of additional facts
that lead us to agree with the court that, on this record, no reasonable trier of fact
could render a verdict in Eastman’s favor on SoftwareOne’s claims.

¶31 First and foremost, it is undisputed that the affidavit Eastman used to
create a genuine issue of material fact in the first instance was false. Eastman’s
initial affidavit was quite specific, averring that she had returned the HDD by
FedEx on September 8, 2018, with the shipment information described in the
attached Exhibit. Exhibit 7 was not documentary material generated by FedEx,
but rather what appears to be information generated from Eastman’s American
Express transaction history. Eastman now acknowledges that, contrary to her
initial affidavit, Exhibit 7 has nothing to do with any shipment to SoftwareOne.

¶32 As the circuit court recognized, a motion for summary judgment is a
“put up or shut up moment.” This concept is embedded in WIS. STAT.
§ 802.08(3), which states that when a party makes a prima facie case for summary
judgment, the adverse party must present “specific facts showing that there is a
genuine issue for trial.” By submitting a false affidavit, Eastman failed to put any
specific evidentiary facts in dispute that would warrant a trial.

¶33 Second, Eastman has not offered any explanation for submitting a
false affidavit beyond the notion of a “mistake,” nor has she offered any
evidentiary material to support her continued assertion that she returned the HDD
to SoftwareOne on September 8, 2018. Eastman made no effort before the circuit
court nor this court to elaborate upon her assertion that she made a mistake.

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No. 2020AP1279

Specifically, she has not explained how she came to believe that Exhibit 7
pertained to the purported SoftwareOne shipment, why she did not verify the
accuracy of that information before submitting it with her affidavit, and why she
did nothing to correct or supplement her affidavit until confronted by the results of
SoftwareOne’s investigation.

¶34 Instead, Eastman posits that it was sufficient that she filed a second
affidavit, in which she acknowledged that she “may have been mistaken” about
the authenticity of Exhibit 7 but re-affirmed that she had returned the HDD to
SoftwareOne. Despite her sworn deposition testimony that she used FedEx,
Eastman hypothesized that she might have used a different shipping carrier and
might, at some undefined point in the future, be able to locate documentary
evidence supporting the claimed return of the HDD.

¶35 Under the circumstances here, Eastman’s bare assertion that she
returned the HDD, accompanied only by her speculative statements that she may
later be able to produce records demonstrating how that was accomplished, was
insufficient to rebut SoftwareOne’s averment that the HDD had not been returned
and her own documentary evidence showing that she had not done so. Eastman’s
initial affidavit was proven false, and her attempt to rehabilitate her affidavit by
submitting a new one excising all but her assertion that she returned the HDD is
unpersuasive in light of Eastman’s ever-changing explanations for how and when
she returned the HDD.

¶36 To that point, we note that Eastman’s initial affidavit included
exhibits that contradicted her own averments about how she returned the HDD.
Those exhibits consisted of emails in which Eastman told SoftwareOne personnel
first that she had returned the laptop and HDD together using a shipping label

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No. 2020AP1279

provided by human resources, then that she had returned the laptop and HDD
using separate labels SoftwareOne had given her. In the second email, Eastman
claimed the tracking information for the HDD shipment was in the exclusive
possession of SoftwareOne.

¶37 Notably, while Eastman initially stated that she returned the laptop
and HDD together, she later admitted that she removed the HDD in order to retain
personal information. At the summary judgment hearing, she stated that she
meant to keep the HDD only long enough to obtain SoftwareOne’s cooperation in
unlocking it to remove her personal information—which she never received.11
Then, according to Eastman, she decided to return the HDD anyway, even though
the shipping information she submitted to the court turned out to be false. Again,
she provided no information to explain these changing representations.

¶38 In short, Eastman’s own submissions throughout this litigation
combined with her final, bare contention that she had, in fact, returned the HDD,
resulted in a failure to produce evidence to show that her prior representations
were not false. Given that the burden of production had shifted to her in light of
SoftwareOne’s averment that the HDD was never returned, and additionally
considering her own prior documented misrepresentations, she failed to show that
she could establish at trial that the HDD had in fact been returned. Absent any
information about when or how that shipment occurred, the jury would be tasked
with speculating as to how that had happened. The circuit court did not err in

11
Eastman does not address how she believes her admitted retention of the HDD
satisfied her obligation under the NDA to “immediately return” confidential material belonging to
SoftwareOne.

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No. 2020AP1279

concluding that after Eastman’s initial affidavit proved false, she failed to meet her
burden of production to show that there was a genuine issue of fact.

¶39 The record demonstrates the circuit court did not casually disregard
Eastman’s renewed claim that she had returned the HDD. Eastman had additional
opportunities both in her response to SoftwareOne’s motion for reconsideration
and in her own motion for reconsideration to provide a detailed explanation of her
vacillations and corroborate her assertion that she sent the HDD back. She
produced no new evidentiary material. In fact, she acknowledged that even
though SoftwareOne had successfully subpoenaed FedEx for records, she had not
even attempted to do so. Eastman’s speculative assertions that she might be able
to prove that the HDD was returned at some point in the future is insufficient to
create a genuine issue of material fact now, at the time when “specific facts” are
necessary. See WIS. STAT. § 802.08(2).

¶40 Under these circumstances, we note that it was also well within the
court’s authority to declare Eastman’s second affidavit incredible as a matter of
law. See Ricco v. Riva, 2003 WI App 182, ¶16, 266 Wis. 2d 696, 669 N.W.2d
193, superseded by statute on other grounds as recognized in State v. Alger, 2013
WI App 148, 352 Wis. 2d 145, 841 N.W.2d 329. In instances where a party’s
averment is positively contradicted by documentary evidence, a trial need not
occur merely because an affiant says something is true. See Fox v. Wand, 50
Wis. 2d 241, 246, 184 N.W.2d 81 (1971). As set forth above, Eastman has
effectively conceded that she submitted false information in her initial affidavit,
and she is not entitled to the court system’s further indulgence in her attempts to
conjure evidence opposing summary judgment.

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No. 2020AP1279

¶41 Eastman also specifically argues there was a genuine issue of
material fact regarding whether she intended to permanently deprive SoftwareOne
of possession of its HDD, which was an essential element of SoftwareOne’s civil
theft claim.12 See WIS. STAT. § 943.20(1)(a). For the reasons previously
explained, her averment that she returned the HDD is insufficient to create a
genuine issue of material fact on this claim.

¶42 Additionally, the undisputed facts allow for no other inference than
that Eastman intended to permanently deprive SoftwareOne of its property.
Eastman’s argument that intent was not established because the HDD contained
her personal information and there was “no evidence that she intended to keep the
hard drive any longer than it took to secure SoftwareOne’s cooperation” falls flat.
Eastman’s own “hostage” reasoning demonstrates her intent to deprive
SoftwareOne of its property unless SoftwareOne met her demands, which it was
not obligated to do.

III. Damages

¶43 Last, Eastman argues the evidence was insufficient to support the
circuit court’s damages award for the value of the laptop computer. A civil action
under WIS. STAT. § 943.20 is authorized by WIS. STAT. § 895.446(1). The
plaintiff may recover “[a]ctual damages, including the retail or replacement value
of damaged, used, or lost property, whichever is greater.” Sec. 895.446(3)(a). In

12
Eastman also argues reversal is warranted because the circuit court made no finding of
intent. We regard the court’s finding to be implicit in its grant of summary judgment on the civil
theft claim.

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No. 2020AP1279

its discretion, the circuit court may treble any damages awarded under that
paragraph. Sec. 895.446(3)(c).

¶44 The circuit court found the replacement cost of the laptop was
$1,541, and it trebled that amount for a total damages award of $4,623. That
amount was based on SoftwareOne’s submission averring that the original cost of
the Lenovo Thinkpad X250 was approximately $1,400, the model was no longer
in production, and the cost of a comparable Microsoft Surface 3 was $1,541.
Eastman argues the court erred by relying on the cost of a “much newer, more
expensive tablet computer.”

¶45 We are unpersuaded that the circuit court erroneously exercised its
discretion when awarding damages for the value of the laptop. Eastman cites no
binding authority for the proposition that SoftwareOne was required to purchase a
used Lenovo Thinkpad X250 to replace the laptop she destroyed.13 Rather,
SoftwareOne’s affidavit stating that the Lenovo Thinkpad X250 was “reasonably
comparable” to, and had “specs in line” with, a Microsoft Surface 3, was sufficient
evidence of replacement value.

¶46 No WIS. STAT. RULE 809.25 costs are allowed.

By the Court.—Order affirmed in part; reversed in part.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

13
To the extent Eastman relies on general treatises, we similarly do not read them to
require replacement with the exact same equipment. Additionally, Eastman’s reference to
contract damages are inapt, as this case involves a statutory award.

19