GARTZKE, P.J.
The appellant, Management Computer Services, Inc. (MCS), designs and programs computer software. One part of its business is licensing computers, software, training, supplies and support designed to meet the accounting needs of public housing authorities (PHA's). Respondent Hawkins, Ash, Baptie & Co. (HABCO) is a Wisconsin partnership and [591]*591a public accounting firm. It provides accounting services to PHA's. Respondent Hawkins, Ash, Baptie, Inc. (HABINC) is a corporation owned by HABCO. It licenses turnkey computer systems1 to PHA's. The individually named defendants are HABCO partners.2
MCS's complaint alleged that HABCO conspired to copy, use and sell MCS products, including its computer software, without authority from MCS in breach of its agreement with MCS, contrary to Wisconsin criminal and civil statutes. HABCO counterclaimed that MCS's breach of the contract excused HABCO's obligation, if any, to purchase equipment from MCS and to make certain payments to MCS.
The case was tried in 1991. The jury found: (1) HABCO had materially breached its 1979 contract with MCS by failing to purchase computer hardware from MCS, failing to pay twenty-five percent of the program value to MCS for use of the contract software, and by failing to compensate MCS for the use of proprietary software, and that MCS's damages from those breaches amounted to $740,000, $530,000 and $250,750, respectively; (2) MCS breached the contract by failing to pay HABCO ten percent of the program value for contract software provided and installed for HABCO's clients, and that HABCO's damages in this regard were $5,140; (3) HABCO intentionally converted MCS's software contained on backup tapes without MCS's consent, that HABCO's actions seri[592]*592ously interfered with MCS's right to possess and use that property, and that MCS's conversion damages in this regard were $65,000; (4) HABCO was unjustly enriched by copying MCS’s software, and the reasonable value of the benefit HABCO retained is $1 million; and (5) HABCO's copying MCS's backup tapes was outrageous. The jury assessed $1,750,000 in punitive damages against HABCO.
The trial court changed answers in the verdict. It eliminated the contract and unjust enrichment damages, reduced MCS's conversion damages to $62,000, and ordered a new trial under § 805.15(6), Stats., on punitive damages (both as to whether defendant's conduct was outrageous and as to the amount of punitive damages), unless MCS accepted a reduced award of $50,000. MCS rejected the $50,000 award. At the second trial, MCS called only one witness, asked five introductory questions and rested. The court dismissed MCS's punitive damages claim. That appeal brings before us all prior orders and rulings adverse to MCS, none of which have been previously appealed. Rule 809.10(4), Stats.
The respondents have cross-appealed. They assert that the trial court should have dismissed MCS's conversion claim for failure to prove its damages and should have granted frivolous costs and sanctions against MCS for its default of proof at the retrial of the punitive damage issue.
The issues are: (1) whether the trial court correctly set aside the breach-of-contract verdict against HABCO; (2) whether the evidence supports the finding that the respondents were unjustly enriched; (3) whether the evidence supports the award for conversion; (4) whether (a) the punitive damages award is excessive, (b) the trial court erred by ordering a retrial [593]*593after MCS had declined a remittitur and (c) MCS waived its right to complain about the scope of the second punitive damages trial; (5) whether the court erred in tolling interest on the verdict from June 1992 until October 1992; and (6) whether the court erred in dismissing MCS's Wisconsin Organized Crime Control Act claim.
1. BREACH OF CONTRACT
MCS alleged in its complaint that by the terms of the agreement between it and HABCO, the latter agreed to pay MCS twenty-five percent of the value of MCS software on each computer system HABCO installed and operated, and HABCO agreed to purchase computers through MCS for the MCS software it used on non-MCS computers. HABCO failed to pay MCS twenty-five percent of the value of the software, and HABCO failed to purchase computers through MCS for each installation on which it used MCS contract software.
Probably because the agreement between the parties contains no provisions directly providing as MCS contends, MCS claimed the provisions of the contract were ambiguous and it sought leave before the trial to submit parol evidence on the intention of the parties regarding their contractual obligations. The trial court held that the agreement was ambiguous, and at the trial it admitted parol evidence on the parties' intent. The jury found that HABCO had materially breached the contract with MCS by "failing to purchase computer hardware from MCS," "failing to pay 25 percent of the program value to MCS for use of the contract software," and "failing to compensate MCS for the use of the proprietary software," and MCS sustained dam[594]*594ages of $740,000, $530,000, and $250,750, for those respective breaches.
After the verdict BLAB CO moved the court to reverse its pretrial ruling. The court did so. It held that the contract was too indefinite to be enforced in the respects that MCS claimed, and vacated the jury's answers to the breach of contract questions, including, of course, the damage questions. We affirm the ruling.
When a trial court is asked to change an answer to the verdict, the evidence is viewed in the light most favorable to the verdict and the answer must be affirmed if it is supported by any credible evidence. Nelson v. Travelers Ins. Co., 80 Wis. 2d 272, 282-83, 259 N.W.2d 48, 52-53 (1977). MCS contends that the evidence so viewed supports the verdict on the breach of contract questions.
But the rule MCS relies on applies to issues the jury must decide. Whether an agreement is ambiguous is a question of law for the court. Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 467, 449 N.W.2d 35, 40 (1989). Whether the contract is sufficiently definite to be enforced as one party contends it should be enforced is also a question of law. The court's pretrial decision that the contract was ambiguous did not prevent it from later deciding whether, as a matter of law, the contract is sufficiently definite to be enforced, insofar as it covers the party's contractual obligations that the jury found HABCO had violated.
To be enforceable the contract must express the essential commitment and obligations of each party with reasonable certainty. Witt v. Realists, Inc., 18 Wis. 2d 282, 297, 118 N.W.2d 85, 93 (1962). The minds of the [595]*595parties must meet on the essential terms. Todorovich v. Kinnickinnic Mut. Loan & Bldg. Ass'n, 238 Wis. 39, 42, 298 N.W. 226, 227 (1941).
When we review a trial court’s ruling on whether a contract is sufficiently definite, we examine the contract to determine what the parties contracted to do, not to make or reform it. What the parties contracted to do is not necessarily what they intended to agree on but what they did agree on, as evidenced by the language they chose. Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 115, 69 N.W. 354, 354 (1897) (quoted with approval, Marion v. Orson's Camera Ctrs., Inc., 29 Wis. 2d 339, 345, 138 N.W.2d 733, 736-37 (1966)).
The first question asked of the jury, whether HABCO violated the contract by failing to purchase computer hardware from MCS, is quickly answered. The agreement provides that HABCO is to purchase a single-computer system, and it is undisputed that HABCO did. Nothing in the contract required HABCO to purchase computers from MCS other than the single system it in fact purchased. And nothing in the contract provides that HABCO is to purchase additional computer systems from MCS. The court properly vacated the jury's answer to the first question and the $740,000 award.
The second question, whether HABCO breached the agreement by failing to pay twenty-five percent of the program value to MCS for the use of contract software, is answered by reference to the following provision in the contract:
[596]*596HABCO shall pay MCS 25 percent of the program value as identified in this Agreement for the use of the jointly owned software on each additional computer system purchased through MCS and installed or operated by HABCO.
(Emphasis added.) It is undisputed that HABCO did not purchase additional systems from MCS. The trial court properly vacated the jury's finding that HABCO had breached the contract as to the twenty-five percent provision and the $530,000 award based on that breach.
The trial court properly vacated the jury's affirmative answer to the question whether HABCO had breached the agreement by "failing to compensate MCS for use of the proprietary software." This question must have been put to the jury in accordance with MCS's theory of the case: that when HABCO purchased computer equipment from a vendor other than MCS, the contract required HABCO to pay twenty-five percent of the program value for the use of MCS software with that equipment. MCS's president, Robert A. Sierp, testified that this was his understanding of the agreement. Since it is undisputed that HABCO used MCS software with computers it bought from vendors other than MCS, it is arguable that HABCO breached the contract when it used MCS software on non-MCS computers. For that reason, the jury could have been asked whether HABCO's use of MCS software on non-MCS computers breached the contract between the parties, and MCS's damage, given that breach. But the jury was not asked those questions. The jury was asked whether HABCO breached the agreement by "failing to compensate MCS for their use of the proprietary software." That question referred the jury to the agree[597]*597ment, and it makes no provision for compensation to MCS for HABCO's use of proprietary software on non-MCS equipment. The jury could answer the question affirmatively only on the basis of parol evidence. When the court subsequently ruled that the contract was insufficiently definite to be enforced, as MCS would have it enforced, MCS was left with the quoted question and award based on a theory of the case which no longer applied.3
We conclude that we must affirm the trial court's ruling vacating the verdict with respect to MCS's claim that HABCO breached the contract.
2. DAMAGES FOR CONVERSION
In the early 1980's, to ensure that it had a copy of its software if a fire or other damage occurred at its place of business, MCS stored copies of its computer program backup tapes in HABCO's vault. Sierp testified there was no written agreement regarding storage. Nor was there a written agreement that HABCO had to keep the tapes secure or could not "look" at them. He could not recall whether MCS paid HABCO for storage.
In 1981 or 1982, HABCO's data-processing manager and a HABCO partner loaded MCS's backup tapes on HABCO's computer and copied MCS's payroll, accounts receivable and accounts payable software, all without the permission or knowledge of MCS. HABCO concedes that it converted the software and used some of it. In 1990, HABCO replaced the payroll and [598]*598accounts payable software with new software it bought from an organization other than MCS.
An owner of converted property may recover its value at the time of the wrongful taking. Production Credit Assoc. v. Nowatzski, 90 Wis. 2d 344, 354, 280 N.W.2d 118, 123 (1979). Interest to the date of trial may also be recovered. Id. The jury was instructed only that if HABCO "wrongfully took or converted software from MCS's backup tapes, then you are to award MCS as damages, the value of its property at the time of the wrongful taking." The jury awarded $65,000 to MCS to compensate it for the value of the software copied from the backup tapes. On motions after verdict, the trial court reduced the award to $62,000. It held that the only evidence on the conversion damages was the amount HABCO paid in 1989 and 1990 to replace the copied software, $62,000. MCS argues that the $65,000 award must be reinstated, and we agree.
Damages need only be proved to a reasonable certainty. Production Credit Assoc., 90 Wis. 2d at 356, 280 N.W.2d at 124. Unliquidated tort damages need not be fixed with mathematical precision. Cutler Cranberry Co. v. Oakdale Elec. Coop., 78 Wis. 2d 222, 233, 254 N.W.2d 234, 240 (1977). A fair and reasonable estimate is all that the law requires. Id. at 234, 254 N.W.2d at 240. Conversion, of course, is a tort.
MCS established its damages for conversion with sufficient definiteness. The jury could have taken into account that between the conversion in the early 1980's to the date of trial in 1991, the value of the use of [599]*599$62,000 amounts to some $3,000.4 We vacate that part of the order which reduces the award and direct the trial court to reinstate it and to award judgment to MCS for that amount.5
3. UNJUST ENRICHMENT
That HABCO's tortious conduct unjustly enriched it is undisputed. The trial court made no finding or conclusion to the contrary. The court ruled, however, that the separate awards for conversion and unjust enrichment duplicated each other because, it said, the damages for unjust enrichment, in this case, were the same as the damages for the conversion. It set aside the $1 million unjust enrichment award for the additional reason that no credible evidence supported it. We need not discuss the duplication issue.6
Tort damages and restitution are different in purpose and measurement. The differences are critical to this case. Damages for conversion are designed to compensate the plaintiff "for the loss sustained because his property was taken." Traeger v. Sperberg, 256 Wis. 330, 333, 41 N.W.2d 214, 216 (1950). Restitution, the recovery for an unjust enrichment, is granted for another [600]*600reason, that it would be inequitable to allow a defendant to retain a benefit without paying for it. Ramsey v. Ellis, 168 Wis. 2d 779, 785, 484 N.W.2d 331, 333 (1992). Unjust enrichment is not dependent on loss to the plaintiff.
The differences between tort damages and restitution are the reason why a tort victim may seek restitution from the tortfeasor. The tort victim may bring an action for restitution because the victim has suffered little loss from the tort. Lord Goff & Gareth Jones, The Law of Restitution 714 (4th ed. 1993). See also George E. Palmer, The Law of Restitution § 2.3 at 60 (1978):
In many instances the most important difference between quasi contract and the tort remedy lies in the measure of recovery. Sometimes there will be no such difference, but often there will be, since the damage action is designed to provide money compensation for harm to the victim of the tort, whereas quasi contract is aimed at awarding him the money value of the benefit to the tortfeasor. When this leads to differences in the amount of recovery, the advantage will sometimes be in the tort action but frequently it will be in the quasi contract action. (Footnote omitted.)
MCS offered two exhibits to establish its loss from the conversion, and that evidence was admitted. MCS argues in this appeal that the evidence it provided to establish its conversion damages is a basis for the jury's award of $1 million for unjust enrichment.7 We disagree.
[601]*601The two exhibits MCS offered to establish its conversion damages are accounting studies. The studies are designed, on the basis of HABCO's own records, to show that HABCO used MCS's software to process over 200,000 items for itself and its clients, that MCS could have provided that service to HABCO, and that the charges MCS would have made to HABCO for that service amount to $191,880.
There is no doubt but that MCS offered the two exhibits to establish its damages for the conversion. When arguing admissibility of the exhibits, trial counsel for MCS noted several times that the exhibits were offered in support of its conversion claim.
When moving for admission of the two exhibits, trial counsel for MCS correctly argued that two methods exist to calculate damages for conversion: (1) the value of the property at the time it is taken plus interest, and (2) the value of the property plus its rental value. Interest and rental value are alternative measures of damages to be added to the value of converted property. Production Credit Assoc., 90 Wis. 2d at 356, 280 N.W.2d at 124.
Although the trial court admitted both exhibits, its jury instructions made them irrelevant for the conversion claim. The trial court instructed the jury: "If the defendant wrongfully took or converted software from MCS's backup tapes, then you are to award MCS damages, the value of its property at the time of the wrongful taking." No mention is made of rental value. Because the jury awarded MCS only $65,000 damages for the conversion, the only reasonable inference is that the jury relied on the instruction quoted above and did not rely on the two exhibits and the $191,880 they reflect.
[602]*602On appeal MCS proposes to use the two exhibits to prove unjust enrichment by equating the "rent" it would have received had HABCO paid MCS for the use of the software or had MCS used the software to serve HABCO and its clients and charged for that service. The two exhibits do not support those contentions.
The exhibits do not show the cost HABCO would have incurred had it paid MCS for the use of the software. HABCO would have used its own computers and its own personnel, all at its own cost, had it "rented" the software. Moreover, the exhibits show only the charges MCS would have made and the "direct expenses" MCS would have incurred had it used the tapes with its computers and personnel to serve HABCO. Had MCS charged HABCO for those services, MCS would have had a profit, but lost profits to a plaintiff do not prove unjust enrichment to a defendant. Graf v. Neith Co-op. Dairy Prods. Assoc., 216 Wis. 519, 523, 257 N.W. 618, 620 (1934).
MCS relies upon a third exhibit, "HABCO/PHA Initial Contract Sales Data"8 to establish $357,300 of unjust enrichment to HABCO. MCS arrives at that number by adding two columns in the document identified as "AP" and "GPR." The first column, "AP" refers to "accounts payable" and the second column "GPR" refers to "general payroll," these being parts of the software HABCO converted. The total for the first column is $216,000 and the total for the second is $141,300.9
[603]*603MCS contends that the three exhibits "are sufficient to support the jury's verdict of $1 million for unjust enrichment." We disagree.
First, as we have said, the two earlier exhibits showing a total value of $191,880 conversion damages do not establish unjust enrichment to MCS. Second, even adding that amount to the $357,300 total of the third exhibit results in a far cry from the $1 million the jury awarded for unjust enrichment. Third, the gross sales of HABCO's accounts payable and payroll software to housing authorities do not measure the benefit to HABCO, since gross revenues do not account for HABCO's sales expenses and updating costs HABCO required to keep software current. MCS's president admitted that software cannot be used without such continuous updating, and the record so reflects. HABCO also asserts that only small portions of MCS's accounts payable and payroll software found their way into HABCO's software. MCS's reply brief does not rebut those contentions. A proposition asserted by a respondent on appeal and not disputed by the appellant's reply is taken as admitted. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99, 101 (Ct. App. 1994).
MCS cites Topzant v. Koshe, 242 Wis. 585, 588-89, 9 N.W.2d 136, 137-38 (1943), as establishing both a tort damages rule and an unjust enrichment rule for our application in this case. The Topzant court examined the traditional measure of damage for conversion. That measure includes an option available to the plaintiff when a tortfeasor has subsequently sold the converted [604]*604chattel for more than its value on the date of taking. In that circumstance, the plaintiff may elect to recover as tort damages the sale price with interest from the date of sale to the date of trial. Id. at 588-89, 9 N.W.2d at 138. The Topzant court cited Ingram v. Rankin, 47 Wis. 406, 420-21, 2 N.W. 755, 766 (1879), for that option. The Ingram court commented that the rule
will prevent the defendant from making profit out of his own wrong, will give the plaintiff the benefit of any advance in the price of the chattels when [the] defendant holds possession of the same at the time of the trial, and on the whole will be much more equitable....
Ingram, 47 Wis. at 421, 2 N.W. at 766.
The Topzant and Ingram decisions are not in point. As we showed at the beginning of this section of our opinion, there is a significant difference between conversion damages (designed to compensate for a loss) and an award for unjust enrichment (designed to prevent the wrongdoer from unjustly retaining a benefit). An attempt to apply the conversion rule to establish unjust enrichment of the wrongdoer fails to take into account the expenses the wrongdoer has had. The Topzant rule prevents the wrongdoer from retaining the gross purchase price it received on sale of the converted goods, since that is a price to which the property owner would have been entitled had it made the sale, and in that sense the rule measures a loss to the owner. But loss to the owner does not equate with unjust enrichment of the wrongdoer and is not an alternative method of establishing unjust enrichment to the wrongdoer.
[605]*605We therefore conclude that the trial court correctly held that the credible evidence does not establish that HABCO enjoyed, and therefore must disgorge, unjust enrichment to it in the amount of $1 million.
4. PUNITIVE DAMAGES
The jury found that HABCO's conduct was outrageous and awarded $1,750,000 for punitive damages. When reducing the award to $50,000, the trial court said that HABCO's conduct for which punitive damages could be awarded was not so outrageous or malicious as to merit the award, the award was not reasonably related to MCS's actual damages and the award was so disproportionate to HABCO's conduct that it amounted to a denial of due process of law. The court did not discuss the evidence. The court added only that had the HABCO defendants been charged criminally with theft of the MCS software, the maximum penalty imposable for the theft would have been a $10,000 fíne. The court's order for remittitur gave MCS the option of a new trial under § 805.15(6), Stats.,10 or to accept a $50,000 award. MCS elected a new trial.
We reject the trial court's conclusion that the punitive damage award violates due process. Due process is provided if the standards imposed by a state's trial and [606]*606appellate courts "impose [ ]a sufficiently definite and meaningful constraint" on a jury's discretion in awarding punitive damages. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991). Those standards must ensure that a particular award is no greater than reasonably necessary to punish and deter. Id.
Wisconsin's statutes and case law impose definite and meaningful constraints on a jury's discretion to award punitive damages. The case law establishes the factors to be considered in determining the proper amount to be awarded as punitive damages. They include "the grievousness of the defendant's acts; the degree of malicious intention; the potential damage which might have been done by such acts as well as the actual damage; and the defendant's ability to pay." Fahrenberg v. Tengel, 96 Wis. 2d 211, 234, 291 N.W.2d 516, 527 (1980). The jury was instructed regarding those factors, the purpose of punitive damages, and the jury's right to decline to award punitive damages.
Due process requires that the size of a punitive damage award be judicially reviewable to protect a defendant from the danger of arbitrary deprivation of property. Honda Motor Co. v. Oberg, 512 U.S. —, —, 129 L.Ed.2d 336, 349-50 (1995). Wisconsin provides that review. Section 805.15(6), Stats., establishes a procedure by which a trial court provides relief from an excessive damage award by determining the amount which as a matter of law is reasonable and ordering a new trial on the issue of damages unless the party to whom the option of remitting the excess amount is offered elects to accept judgment in the changed amount. Case law establishes the scope of appellate review of such an order. Powers v. Allstate Ins. Co., 10 [607]*607Wis. 2d 78, 102 N.W.2d 393 (1960); Carlson & Erickson Builders v. Lampert Yards, 190 Wis. 2d 651, 670-71, 529 N.W.2d 905, 912 (1995).
The Powers court recognized that the circuit court which sees and hears the witnesses has an advantage over an appellate court which can only review the record. Thus a reviewing court will reverse a circuit court's remittitur order only when it finds that the circuit court erroneously exercised its discretion. A reviewing court will not reverse a circuit court's discretionary determination if the record shows that discretion was in fact exercised and there exists a reasonable basis for the circuit court's determination after resolving any direct conflicts in the testimony in favor of the prevailing party, even if the reviewing court would have reached a different conclusion than the circuit court.
If, however, a circuit court fails to analyze the evidence supporting its conclusion that the damage award is excessive, or fails to state the reasoning behind its decision, the reviewing court should place no weight upon the trial court's findings. In such a situation, the reviewing court must then review the entire record and determine, as a matter of first impression, whether the jury award is excessive. In conducting its analysis, the reviewing court must view the evidence in the light most favorable to the party prevailing with the jury.
Carlson & Erickson Builders, 190 Wis. 2d at 670-71, 529 N.W.2d at 912 (footnotes omitted).
Our review of the trial court's order reducing the punitive damages award has two parts: first, whether the court properly exercised its discretion when it set aside the $1,750,000 punitive damage award as excessive; second, if it did, whether the court properly gave [608]*608MCS the option of accepting a $50,000 award or a new trial.
Because the trial court's reasons for setting aside the $1,750,000 award are sketchy and largely con-clusory, we give little weight to that decision. We review the record de novo to determine whether, as a matter of first impression, viewing the evidence in the light most favorable to MCS, the award is excessive. Carlson & Erickson Builders, 190 Wis. 2d at 670-71, 529 N.W.2d at 912. We conclude that it is excessive.
Punitive damages are awarded "to punish the wrongdoer and to deter him and others from future similar wrongdoing." Fahrenberg, 96 Wis. 2d at 234, 291 N.W.2d at 526-27. If the award is more than enough to meet those purposes, it is excessive. To determine whether it is excessive, we examine the evidence presented to the jury in the light most favorable to its decision. Carlson & Erickson Builders, 190 Wis. 2d at 670-71, 529 N.W.2d at 912.
HABCO's wrongdoing — its copying and use of the MCS software — was outrageous and malicious to a high degree. It was done secretly, without the knowledge or consent of MCS. It was done solely for the financial benefit of HABCO. It was done with criminal intent, and MCS rightly refers to it as theft. It was done by HABCO personnel possessing significant responsibilities. HABCO's manager of data processing and a partner of HABCO copied the backup tapes. They worked together. They searched the backup tapes for specific program items HABCO lacked, and they copied those items to their computer, copied from the computer to another tape, printed off the source code and [609]*609removed it from their computer.11 They changed the billing output generated by the stolen accounts receivable software to disguise what they had done.12 The partner kept the newly created tapes in his office. The manager kept the source code print outs in his office. The theft enabled HABCO to use MCS's software for years.
However, the high degree of outrageousness and maliciousness present here are not the only factors we must consider. The compensatory award and the potential criminal penalties are additional factors for our consideration.
In Wozinak v. Local 1111 of UE, 57 Wis. 2d 725, 731, 205 N.W.2d 369 (1973), Meke v. Nicol, 56 Wis. 2d 654, 664, 203 N.W.2d 129 (1973), and Lisowski v. Chenenoff, 37 Wis. 2d 610, 634, 155 N.W.2d 619 (1968), this court recognized that compensatory damages and criminal fine[s] are relevant to the assessment of punitive damages. This court has never held, however, that there is any mathematical formula for calculating punitive damages on the basis of the compensatory damages or the criminal fine. Plaintiff argues that the award of $125,000 is about six times the maximum fine of $20,000, if defendant were found guilty of just two counts of receiving stolen property. In Lisowski v. Chenenoff, 37 Wis. 2d 610, 155 N.W.2d 619 (1964), the ratio of punitive damages to penalty was 10 to 1, and in Dalton v. Meister, 52 Wis. 2d 173, 188 N.W.2d 494 (1971), it was 75 to 1. In Meke v. Nicol, 56 Wis. 2d 654, 664, 203 N.W.2d 129 (1973), the punitive damages were 13 times the maximum fine for a similar [610]*610offense. In Malco v. Midwest Aluminum Sales Co., 14 Wis. 2d 57, 66, 109 N.W.2d 516 (1961), the court stated that "[t]here is no arbitrary rule that punitive damages cannot equal 15 times the compensatory damages." In Dalton v. Meister, 52 Wis. 2d 173, 181, 188 N.W.2d 494 (1971), the court noted that "there is no arithmetic proportion to which punitive damages should relate to the wealth of the defendant or to the damage done the plaintiff
Fahrenberg, 96 Wis. 2d at 233, 291 N.W.2d at 526.13
The high ratios of the punitive damage award to the compensatory award for tort damages and to the potential criminal fine lead us to conclude that the initial award of $1,750,000 is unnecessary to serve the purposes of deterrence or punishment. The punitive award is almost twenty-seven times the compensatory award of $65,000. The punitive award must bear "a reasonable relationship to the award of compensatory damages." Tucker v. Marcus, 142 Wis. 2d 425, 447, 418 N.W.2d 818, 826 (1988). Even with "due regard for the discretion of the jury in assessing punitive damages," id. at 447-48, 418 N.W.2d at 826, the award does not bear a reasonable relationship to MCS's compensatory damages. The potential criminal penalty for willfully, knowingly and without authorization copying computer programs where the damages are greater than $2,500 is a fine not exceeding $10,000 or imprisonment not exceeding five years, or both. Sections 943.70(2)(a) [611]*611and (3)(b)3, and 939.50(3)(d), Stats. The punitive damages award is 175 times the maximum fine.
We also conclude that the reduced punitive award of $50,000 is insufficient to punish HABCO and to deter others in the future from similar wrongdoing. The compensatory award is in a sense a starting place, since punitive damages equal to compensatory damages are reasonable. Dalton, 52 Wis. 2d at 181, 188 N.W.2d at 498. The $50,000 award by the trial court does not even match the compensatory award for conversion, $65,000. The high degree of outrageous conduct and maliciousness exhibited by HABCO is such that a punitive award merely equal to the compensatory award fails to serve the purposes of punishment and deterrence.
We reach that conclusion because the record shows how easy it is to steal computer programs, once possession of the physical software is obtained. One contemplating such a theft and watching the development of the law might well consider that the ease of theft, the low risk of detection and the potential profit are worth the cost if punitive damages merely approximate the amount of compensatory damages. We should dissuade software thieves from reaching that conclusion. In this age of computers and the many uses to which they are put in almost every professional, commercial, industrial and governmental context, deterrence of others similarly situated is even more important than punishing the wrongdoer. We conclude that a punitive award only approximating MCS's compensatory damages is far too little.
To accomplish the dual purposes of punishment and deterrence, we conclude that, as a matter of law, [612]*612reasonable punitive damages in this case are $650,000.14 This amount is approximately ten times the amount of the compensatory damages award, a far more reasonable relationship in this case, and sixty-five times the maximum fine for computer theft. It better satisfies those purposes in the case before us than does the $50,000 award the trial court directed in its remittitur order. Accordingly, MCS should be given the option of accepting judgment for $650,000 in punitive damages, or having a new trial limited to the issue of the amount of punitive damages.
We direct the trial court to modify the judgment by decreasing the amount of the punitive damages award to MCS from $1,750,000 to $650,000, exclusive of costs, unless within twenty-one days from the date of remitti-tur, MCS files with the clerk of the circuit court a notice in writing that the plaintiff elects to have a new trial limited to the issue of the amount of punitive damages. If such notice is timely filed, the modified judgment for $650,000 punitive damages shall stand reversed and a new trial had on punitive damages.15
[613]*6135. ISSUES ON RETRIAL
The trial court stated that the retrial if MCS elected it, included the issue whether HABCO's conduct was outrageous. The court erred. No reason exists to retry the issue whether HABCO's conduct was outrageous. Liability for punitive damages has been fixed. To retry that issue would deprive MCS of a liability finding. The amount HABCO must pay because of that liability is the only remaining issue. Evidence relevant to the degree of that outrageousness may be presented by both MCS and HABCO, but the jury should be instructed that as a matter of law HABCO's conduct was outrageous. The only question for the jury is the amount of punitive damages, and it should consider the degree of outrageousness in fixing that amount.
The trial court apparently interpreted Badger Bearings, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 331 N.W.2d 847 (Ct. App. 1983), as holding that a trial court has unlimited discretion in fixing the scope of a new trial. That was not our holding.
In Badger Bearings, we said that the trial court might grant a partial new trial when the error is confined to an issue which is "entirely separable" from the others. We concluded that "compensatory and punitive damages are separable and that justice would not be served by mandating a new trial on all damages questions as the invariable alternative to acceptance of a changed amount of punitive damages." Id. at 673-74, 331 N.W.2d at 855.
Consequently, because the liability of the respondents for punitive damages will not be an issue, and that issue is separable from the amount of damages, the only issue at the second trial will be the amount of [614]*614the punitive damages, and evidence relevant to outra-geousness will be admissible only on the degree of that outrageousness.
6. INTEREST ON VERDICT
After MCS rejected the $50,000 punitive award, the court scheduled the second trial for June 23, 1992. On June 3, 1992, MCS moved to a continuance, on grounds that counsel (who had been substituted for trial counsel) was not prepared to try the case on that date. HABCO consented to a continuance, provided that interest on the verdict was tolled through the date of the adjourned trial. Counsel for MCS had no objection to that and obtained the oral consent of MCS's president to the continuance. The court scheduled the trial for October 27,1992, and tolled interest until that date. MCS claims error.
MCS asserts that it has a statutory right to the interest the trial court tolled. Section 814.04(4), Stats., provides that if a judgment is for the recovery of money, interest at the rate of twelve percent per year from the time of the verdict until judgment is entered shall be computed by the clerk and added to the costs. As MCS points out, the statute has no pertinent exceptions.
However, because counsel for MCS and an officer of MCS consented to a continuance and to tolling interest on the verdict through the date of the adjourned trial, and the trial court relied on that consent, MCS is judicially estopped from claiming that it did not consent. See Coconate v. Schwarz, 165 Wis. 2d 226, 231, 477 N.W.2d 74, 75 (Ct. App. 1991) (judicial estoppel precludes a party from asserting a position in a legal proceeding that is inconsistent with a position previously taken). Having consented to the adjournment [615]*615and to the tolling of interest, it has waived the right to interest on the judgment.
7. WISCONSIN ORGANIZED CRIME CONTROL ACT (WOCCA) CLAIM
MCS sought damages under WOCCA, § 946.80-88, STATS. Section 946.87(4), Stats., provides that a person who is injured by reason of any violation of § 946.83 or § 946.85 has a cause of action for twice the actual damages sustained, attorney fees and costs reasonably incurred and, when appropriate, punitive damages. Section 946.83(3), STATS., provides that no person employed by, or associated with, any enterprise may conduct or participate, directly or indirectly, in the enterprise through a "pattern of racketeering activity." Section 946.82(3), Stats., provides in pertinent part:
"Pattern of racketeering activity" means engaging in at least 3 incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, provided at least one of the incidents occurred after April 27,1982 and that the last of the incidents occurred within 7 years after the first incident of racketeering activity.
Section 946.82(4) defines "racketeering activity" as any activity specified in 18 U.S.C. § 1961(1) in effect as of April 27, 1982, or the attempt, conspiracy to commit, or commission of any of the felonies specified in particular chapters and sections of the Wisconsin statutes, including § 943.70, the computer-crimes statute. The wilful, knowing and unauthorized copying of data, computer programs or supporting documentation is a crime. Section 943.70.
[616]*616HABCO moved for summary judgment dismissing MCS's WOCCA claim. The trial court granted the motion because it concluded that any violation of § 943.70, STATS.; that occurred before its effective date is not racketeering activity under § 946.82(4), Stats., and HABCO's copying and use of software are not violations of § 943.70. For that reason, the court concluded that MCS did not establish the requisite number of predicate acts necessary to establish a "pattern of racketeering activity" under § 946.82(3).
MCS contends that each unauthorized copying of the stolen software after § 943.70, Stats., became effective is a separate violation of § 943.70, and therefore each act of unauthorized copying is a separate predicate act under WOCCA. MCS submitted an affidavit to the trial court identifying sixty-three acts of copying which occurred after § 943.70 became effective.
The Seventh Circuit rejected MCS's same contention on the same facts in Management Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48 (7th Cir. 1989). In that case MCS sought damages from HABCO under 18 U.S.C. § 1961-68, the Racketeer Influenced and Corrupt Organizations Act (RICO). Violation of RICO requires a "pattern of racketeering activity." 18 U.S.C. § 1962. A "pattern of racketeering activity" requires at least two acts of racketeering activity within a defined period. 18 U.S.C. § 1961(5). MCS argued that each time HABCO made another use of the software it had copied, it committed another predicate act under RICO. The Seventh Circuit said,
If, as MCS alleged, the contract software at issue was proprietary to MCS, then when HABCO first copied that software it in essence stole the software. HABCO's subsequent use of the allegedly stolen [617]*617software cannot be characterized as subsequent thefts. When a thief steals $100, the law does not hold him to a new theft each time he spends one of those dollars. . . . This is simply not a case that involves long-term criminal conduct or activity that could, in common-sense, be called a pattern of racketeering.
Management Computer Servs., Inc., 883 F.2d at 51.
Because WOCCA is patterned after RICO, federal case law interpreting RICO is persuasive authority in our interpretation of WOCCA. State v. Evers, 163 Wis. 2d 725, 732, 472 N.W.2d 828, 831 (Ct. App. 1991). We see no reason in this case to apply WOCCA differently from the Seventh Circuit's application of RICO to the same facts. We conclude that the trial court properly granted summary judgment dismissing MCS's WOCCA claim.
8. CROSS-APPEAL
In their cross-appeal, the defendants argue that the trial court should have dismissed MCS's conversion claim because MCS failed to prove its damage's, and the court should have granted sanctions against MCS or its counsel.
As we have already said, our disposition of MCS's appeal regarding its compensatory damages for conversion disposes of the first issue in the cross-appeal. The second issue is based upon §§ 802.05 and 814.025, Stats., and results from MCS's default of proof at the scheduled new trial on punitive damages. Our disposition of MCS's appeal regarding punitive damages disposes of the second issue.
[618]*618By the Court. — Judgment and orders affirmed in part, reversed in part and cause remanded with directions.