Kathleen Kundert v. Westerhof Homes, LLC ( 2022 )

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.
December 30, 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. 2021AP314 Cir. Ct. No. 2018CV1545
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
KATHLEEN KUNDERT,
PLAINTIFF-RESPONDENT,
CALI JOLIE FREITAG,
PLAINTIFF,
V.
WESTERHOF HOMES, LLC,
DEFENDANT-APPELLANT,
GENERAL CASUALTY COMPANY OF WISCONSIN,
INTERVENOR.
APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.
No. 2021AP314
Before Kloppenburg, Graham, and Nashold, 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).
¶1 PER CURIAM. Westerhof Homes, LLC appeals an order on
summary judgment that dismissed its counterclaims for negligent property damage
and breach of contract brought against its former tenant, Kathleen Kundert. For the
following reasons, we affirm the circuit court order granting summary judgment to
Kundert.
BACKGROUND
¶2 The following facts and procedural history are undisputed unless
otherwise noted. Beginning on September 1, 2015, Kundert rented a residential unit
owned by Westerhof Homes, a business owned and operated by Jacob Westerhof.
Kundert lived in the unit with her then-minor child, Cali Jolie Freitag,1 until shortly
after the events giving rise to this litigation.
¶3 On June 30, 2016, Kundert sent an email to Westerhof, stating:
Jake,
[The upstairs neighbor’s] air conditioner is leaking or
som[e]thing is leaking into my closet! The whole thing is
Mold!! Maybe you should move me next door?
Mine is easier to rent but also needs carpet in the front room
and front bedroom and Paint[.]
1
Freitag was a minor during the events giving rise to this litigation and during the circuit
court proceedings but is now an adult.
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I will not be able to stay in the bedroom with mold!
Thanks[,]
Kathleen
¶4 As discussed in more detail below, the parties dispute whether
Kundert contributed to the damage in the unit by not reporting issues of mold and
water leakage to Westerhof Homes in a timely manner. It is not disputed, however,
that: (1) mold infiltration and water leakage occurred in Kundert’s unit as a result
of drainage failure in the drain line of the upstairs neighbor’s combination
furnace/air conditioner, causing water leakage into Kundert’s downstairs unit; and
(2) the brick on the exterior of the building had been improperly installed, resulting
in extensive water damage, including the appearance of “black stuff,” on the exterior
sheathing between the drywall and the brick.2
¶5 Kundert and Freitag vacated the unit in July 2016, although some of
their personal items remained in the unit until October or November. Kundert paid
rent through July 31.
2
The evidence reflects that water may have also leaked into Kundert’s unit from the
upstairs neighbor’s toilet; however, Kundert does not identify the leaking toilet as a specific cause
of the resulting damage to the unit.
The parties agree that water leakage from the upstairs unit caused mold infiltration and
water damage. Kundert further argues that improperly installed exterior brick caused water and
moisture to gather behind the brick, eventually causing mold to grow behind the drywall. On this
point, Oscar Gutierrez—the representative of the remediation firm that performed work on the unit
after Kundert and Freitag moved out—testified during his deposition that “there was extensive
damage to the exterior sheathing … from the brick layer, because it was installed improperly” and
that the “black stuff” appearing in photographs “shows extensive damage to sheathing due to water
damage.” However, Gutierrez did not specifically testify that the “black stuff” was mold or that
the water damage from the improperly installed brick caused mold growth.
As it did in the circuit court, Westerhof Homes disputes on appeal that improperly installed
exterior brick caused water and mold to appear in Kundert’s unit. Our analysis, and the resolution
of this appeal, do not turn on any conclusion that the installation of exterior brick was a second
potential source of mold and water leakage in Kundert’s unit.
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¶6 In June 2018, Kundert and Freitag (collectively, “Plaintiffs”) brought
a negligence claim against Westerhof Homes and its insurer, later identified as
General Casualty Company of Wisconsin. They alleged that they “were exposed to
high levels of airborne mold” during the course of their tenancy; that they were
allergic to mold; that, around July 2016, a building inspector discovered “evidence
of mold in the mechanical room” of the unit; and that “[a]s a result of the exposure
to airborne mold[, they] were forced to vacate the residence and to dispose of their
personal property including furniture, clothing, and other possessions because they
were saturated with mold and could not be salvaged.” Plaintiffs sought, among
other relief, compensation for their physical injuries and property damage.
Kundert’s rental insurer, American Family Mutual Insurance Company, was named
as an involuntary plaintiff because of its potential subrogation right to recover
payments made to Plaintiffs under Kundert’s policy.
¶7 American Family brought a claim against Westerhof Homes and
General Casualty and a cross-claim against Plaintiffs to be made whole. American
Family alleged that, around June 2016, a water leak developed in the unit above
Kundert’s unit; that “[a]s a result of that leak, water ran into [Kundert’s unit] causing
damage to personal property and resulting in the infiltration of mold in the
building”; that Westerhof Homes’ negligence in this regard damaged Plaintiffs’
personal property and forced them to vacate the unit; and that American Family had
paid them approximately $29,000 for property damage and temporary lodging.
¶8 Westerhof Homes answered Plaintiffs’ and American Family’s
complaints and counterclaimed, alleging that Kundert negligently failed to warn it
of a significant water leak and resulting mold in the unit and that Kundert interfered
with its remediation efforts, leading to additional and unnecessary damage to the
unit. Westerhof Homes also counterclaimed for lost rent and unpaid utilities,
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alleging that Kundert’s yearly lease ended April 30, 2017; that Kundert’s rent
payments and security deposit covered rent through only August 2016; that Kundert
improperly vacated the unit around that time; and that Westerhof Homes could not
re-rent the unit until March 2017.
¶9 Following various insurance coverage disputes, in December 2019,
General Casualty notified the circuit court that Plaintiffs and American Family had
agreed to settle their respective claims against Westerhof Homes and General
Casualty. In January, 2020, the court approved a settlement agreement as to Freitag
and, pursuant to that agreement, ordered General Casualty to pay approximately
$81,000.
¶10 Over the next few months, all other claims were dismissed pursuant
to stipulations and the only claims remaining were Westerhof Homes’ negligence
and contract counterclaims against Kundert.
¶11 Pursuant to the circuit court’s scheduling order, a final pretrial
conference was scheduled for February 6, 2020, and a trial was scheduled for March
9-13, 2020. Meanwhile, beginning in January 2020, Kundert and Westerhof Homes
each filed numerous motions and briefs related to Westerhof Homes’ counterclaims.
We discuss the submissions germane to this appeal chronologically and by category.
¶12 In January, Kundert filed a motion and supporting affidavit
requesting, in pertinent part, that the circuit court limit the length of Westerhof
Homes’ depositions of Kundert and Freitag. Kundert argued that the length of time
that Westerhof Homes was demanding—one day for Kundert and a half day for
Freitag—was excessive, “[g]iven that the only [remaining] issue is whether
Ms. Kundert [timely] notified Westerhof … of the water and mold in her apartment”
and that Freitag was fifteen years old at that time and twelve years old at the time
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No. 2021AP314
of the events giving rise to the litigation. Westerhof Homes responded that the
requested deposition lengths were appropriate because there were additional
remaining issues, including whether Kundert interfered with its mold- and water-
remediation efforts and whether Kundert owed back rent for unlawfully terminating
their lease. Following a January hearing, the court orally denied Kundert’s motion.
¶13 At that January hearing, both parties also complained of dilatory
discovery tactics by opposing counsel. Kundert argued that Westerhof Homes was
preventing certain depositions from taking place and was improperly declining to
provide documents responsive to requests for production. Westerhof Homes argued
that it had been prevented from obtaining Kundert’s medical records. Kundert had
initially agreed to provide the records to counsel defending Westerhof Homes
pursuant to a signed release, but Kundert ultimately declined to provide them to
Westerhof Homes after she and Freitag settled their claims with General Casualty.
The circuit court largely declined to address the discovery issues, but noted that it
would revisit matters, if necessary, at the close of discovery.
¶14 Also in January 2020, Kundert filed a “motion for sanctions” under
WIS. STAT. § 802.05 (2019-20),3 on grounds that Westerhof Homes’ counterclaims
were frivolous. In a brief filed on the same day as the motion for sanctions, Kundert
sought dismissal of Westerhof Homes’ counterclaims, and attorney fees and costs.
One basis for the dismissal request was Kundert’s argument that there were no facts
showing that she had contributed to the damage in the unit, which she contended
was solely due to leakage from the upstairs unit and the improper construction of
exterior brick on the building. Kundert further argued that Westerhof Homes could
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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not prove any damages on either its negligence or its contract claim because General
Casualty had compensated Westerhof Homes in full for all property damage and
lost rent. Although Kundert did not file any separate document captioned as a
motion for dismissal, the court and parties characterized her request for dismissal as
a motion and we follow their lead.
¶15 On February 3, 2020, Westerhof Homes filed its response, setting
forth facts that, it argued, showed that Kundert had negligently contributed to the
property damage by not timely informing it of the mold and water leakage in her
unit and by interfering with its repair and remediation efforts. Westerhof Homes
further argued that it had not been fully compensated by its insurer, namely, for its
insurance deductible or for its time, pursuant to WIS. STAT. § 704.07(3)(a)2. (set
forth in footnote 5, below). Westerhof Homes also contended that, as a matter of
law, a tenant may be required to pay negligence damages regardless of whether the
landlord was reimbursed from other sources. Westerhof Homes further argued that
sanctions should be imposed against Kundert for bringing a frivolous dispositive
motion on the eve of trial.
¶16 On February 6, 2020, Kundert filed a reply and accompanying
exhibits, addressing matters already briefed and further arguing that Westerhof had
“obstructed the deposition of his repair person, Bob Baker.”
¶17 Meanwhile, on February 4, 2020, Westerhof Homes wrote a letter to
the circuit court stating its intention to file a motion for default judgment “due to the
events that transpired” at Kundert’s February 4 deposition. On February 6,
Westerhof Homes filed a “submission of facts in support of motion for default for
Kundert’s defiance of the court and egregious discovery abuse.” In this “submission
of facts,” Westerhof Homes argued—with reference to Kundert’s deposition
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No. 2021AP314
transcript—that Kundert’s counsel preemptively limited the length of Kundert’s
deposition to three hours, improperly denied Westerhof Homes any opportunity to
depose Freitag, and “egregiously interfered” with the course of Kundert’s
deposition.
¶18 Thus, as of the February 6, 2020 final pretrial conference, the circuit
court was aware of ongoing discovery disputes between the parties and had before
it Kundert’s motion for sanctions, Kundert’s motion for dismissal, and Westerhof
Homes’ submissions requesting default judgment. With the parties’ agreement, the
court canceled the trial date scheduled for the following month and ordered several
briefing schedules to address the various categories of motions. The court permitted
additional briefing on Kundert’s motion for dismissal, which the parties submitted
in March 2020.
¶19 Between the February 6, 2020 final pretrial conference and July 2020,
the parties filed additional motions and briefing—some overlapping with or
complementing briefing already filed—seeking sanctions, including Westerhof
Homes’ request for default judgment based on its allegations of Kundert’s discovery
violations. As part of this briefing, and based on medical documents it had recently
obtained, Westerhof Homes also alleged that Kundert’s claims were “a fraud from
the beginning” because Kundert filed suit claiming to be allergic to mold, despite
allegedly knowing that she was not allergic to mold.
¶20 On July 14, 2020, the circuit court held a status conference, at which
Westerhof Homes did not appear. The court asked Kundert whether the motion to
dismiss could be decided first, and Kundert stated that the motion could and should
be decided first. The court determined that it would decide the motion to dismiss
first, following an oral argument that it scheduled for July 28. The court noted,
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No. 2021AP314
however, that it usually obtained both parties’ input on these sorts of decisions and
that it was open to changing the scheduling if Westerhof Homes “oppos[ed] the
plan” and provided “a reasonable justification for not participating [in the July 14
status conference].” The record does not contain any indication that Westerhof
Homes objected to the court’s scheduling decision.
¶21 On July 28, 2020, as scheduled, the circuit court heard oral arguments
on Kundert’s motion to dismiss. Preliminarily, the court noted—and Kundert
agreed—that Kundert’s motion was in fact a motion for summary judgment, given
that Kundert had supported her motion with documents outside the pleadings. The
court noted that both parties had filed documents outside the pleadings, and it
determined that it would construe Kundert’s motion as one for summary judgment.
(Going forward, this opinion will refer to Kundert’s motion to dismiss as a motion
for summary judgment or as a dispositive motion.)
¶22 After giving Westerhof Homes the opportunity to state what material
facts remained in dispute, the circuit court determined that the undisputed facts
failed to show that Kundert’s actions contributed to the damage in the unit. The
court therefore granted Kundert’s motion for summary judgment and determined
that the parties’ motions alleging discovery violations were moot. The court also
denied the parties’ motions alleging frivolous claims and denied Westerhof Homes’
motion based on fraud.
¶23 Westerhof Homes subsequently submitted a letter to the circuit court
requesting clarification on whether the court had also dismissed its breach of
contract claim for lost rent. The court construed this submission as a request for
relief from judgment and ordered briefing on the breach of contract claim.
Following briefing, the court determined that Westerhof Homes was not owed any
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No. 2021AP314
lost rent because the undisputed facts showed that the unit was uninhabitable at the
time Plaintiffs moved out and remained so for several months. As a result, the court
also granted summary judgment on the breach of contract claim. Westerhof Homes
appeals. We will set forth additional facts where relevant.
DISCUSSION
¶24 We review a decision granting summary judgment de novo, affirming
if the pleadings and evidence show that there is no genuine issue of material fact
and that the movant is entitled to judgment as a matter of law. WIS. STAT.
§ 802.08(2); State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶12, 275
Wis. 2d 35, 683 N.W.2d 75. We review for an erroneous exercise of discretion the
circuit court’s decisions on matters relating to scheduling and controlling its docket,
along with whether and how to impose sanctions. See Hefty v. Strickhouser, 2008
WI 96, ¶28, 312 Wis. 2d 530, 752 N.W.2d 820.
¶25 Westerhof Homes raises four arguments as to why summary judgment
was inappropriate.4 We address and reject these arguments, concluding that the
circuit court properly granted summary judgment to Kundert.
4
Westerhof Homes alludes to various additional arguments in the “statement of facts”
section of its brief-in-chief that are not further developed in its “argument” section. For example,
Westerhof Homes implies that there was some unfairness stemming from the circuit court’s
decision to construe Kundert’s motion as a motion for summary judgment, and requiring Westerhof
Homes to state at the hearing what material facts it believed were in dispute and what evidence
there was to show such a dispute. In its reply brief, Westerhof Homes again mentions these issues,
only this time in its argument section, adding that the circuit court did not provide notice to
Westerhof Homes that the court was converting Kundert’s motion to dismiss to a motion for
summary judgment. Westerhof Homes is presumably referring to WIS. STAT. § 802.06(2)(b),
which requires a court to provide notice and the opportunity to provide countervailing evidence
before converting a motion to dismiss to a motion for summary judgment. Notably, however,
Westerhof Homes did not raise this issue in the circuit court and we may decline to entertain this
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I. The Circuit Court Did Not Erroneously Exercise Its Discretion by Deciding
Kundert’s Motion for Summary Judgment Before Deciding Westerhof Homes’
Motion Raising Discovery Disputes.
¶26 Westerhof Homes argues that the circuit court was precluded from
granting summary judgment in Kundert’s favor because Kundert’s counsel
prevented Westerhof Homes from taking deposition testimony from Kundert and
Freitag, “the most important witnesses.” Westerhof Homes argues that only
Kundert and Freitag had information about “what actually happened inside” their
unit. It is undisputed that, contrary to the circuit court’s order denying Kundert’s
motion to limit the length of time for depositions, Kundert’s counsel informed
Westerhof Homes that she was limiting Kundert’s testimony to three hours and
would not make Freitag available for deposition. It is also undisputed that it was
Westerhof Homes that ultimately terminated Kundert’s deposition (after
approximately two and a half hours) based on its view that Kundert’s counsel was
inappropriately interfering with Westerhof Homes’ examination of Kundert by
“making baseless objections, improperly instructing [Kundert] not to answer,
continually coaching, and physically kicking Kundert when she failed to obey
[counsel’s] coaching.”
argument on forfeiture grounds. See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶15, 273
Wis. 2d 76, 681 N.W.2d 190.
Aside from forfeiture, we also reject any arguments Westerhof Homes may mean to make
on these topics and any other topic raised in the fact section of its brief-in-chief for the following
reasons. First, an appellant must specifically set forth its arguments in the “argument” section of
its brief-in-chief. See WIS. STAT. RULE 809.19(1)(e). Second, although Westerhof Homes’ reply
brief reiterates these assertions in its argument section, we do not consider issues that are raised for
the first time in a reply brief. See State v. Marquardt, 2001 WI App 219, ¶14 n.3, 247 Wis. 2d
765, 635 N.W.2d 188. Third, Westerhof Homes has failed to present a developed legal argument
in either of its briefs as to why the summary judgment procedure employed by the circuit court was
improper. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“We may
decline to review issues inadequately briefed.”).
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No. 2021AP314
¶27 Westerhof Homes suggests that, to the extent its response to Kundert’s
motion for summary judgment was “imprecise” or not as “specific” as it could have
been, this was because Kundert’s counsel prevented Westerhof Homes from taking
deposition testimony from Kundert and Freitag. We construe Westerhof Homes to
argue that the circuit court erroneously exercised its discretion in scheduling and
deciding Kundert’s motion for summary judgment without first deciding or
resolving Westerhof Homes’ motions or arguments relating to this discovery
dispute.
¶28 We do not agree that the circuit court erroneously exercised its
discretion in this regard. As previously noted, during a July 14, 2020 status
conference, the court determined that, of all the pending motions, it would decide
Kundert’s dispositive motion first, on the same day and immediately following an
oral argument it scheduled for July 28. Westerhof Homes did not attend the July 14
conference despite being properly noticed. The court nonetheless stated that it
would revisit its scheduling decision —i.e., “back the train up the tracks and … start
off again where we started this afternoon”—if Westerhof Homes informed the court
that it “oppose[d] the plan[]” and provided “a reasonable justification” for missing
the conference. There is no indication in the record that Westerhof Homes opposed
the court’s plan, provided a reasonable justification for missing the July 14 status
conference, or otherwise sought to reschedule the July 28 oral argument and ruling.
¶29 Moreover, the record reflects that, at least as of July 27, 2020,
Westerhof Homes was aware that Kundert’s dispositive motion was the subject of
the July 28 hearing. On that date, Westerhof Homes wrote a letter to the circuit
court “in anticipation of” the next day’s hearing, which addressed substantive
matters relating to Kundert’s dispositive motion.
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¶30 Thus, at some point after the July 14, 2020 status conference,
Westerhof Homes learned that Kundert’s dispositive motion was to be argued and
decided on July 28. At that time, Westerhof Homes was aware of Kundert’s
counsel’s conduct during Kundert’s deposition, and was aware that counsel had
refused to allow Westerhof Homes to depose Freitag. Again, however, the record
reflects that Westerhof Homes never opposed the circuit court’s plan to address
Kundert’s dispositive motion before addressing any other pending motions. We
conclude that Westerhof Homes, by its conduct, acquiesced to the court’s
scheduling decision and forfeited its right to challenge that decision on appeal. See
Village of Trempealeau v. Mikrut, 2004 WI 79, ¶15, 273 Wis. 2d 76, 681 N.W.2d
190 (“Issues that are not preserved at the circuit court ... generally will not be
considered on appeal.”).
II. The Undisputed Facts Establish That Kundert Is Entitled to Summary Judgment
Dismissing Westerhof Homes’ Negligence Counterclaim.
¶31 On summary judgment, the circuit court determined that Kundert is
entitled to summary judgment dismissing Westerhof Homes’ negligence
counterclaim because the undisputed facts show that the damage to Kundert’s unit
was caused by circumstances outside Kundert’s control and that Westerhof Homes
presented no evidence establishing or raising a genuine issue of fact as to whether
Kundert’s actions contributed to the damage. See WIS. STAT. § 802.08(3) (where
the movant makes a prima facie case for summary judgment, the opposing party
may not simply rest on allegations in the pleadings but must set forth specific facts
creating a genuine issue for trial). Westerhof Homes argues that Kundert is not
entitled to summary judgment because the undisputed facts show that Kundert
contributed to the damage by: (1) not timely notifying Westerhof Homes upon first
becoming aware of mold infiltration, water leakage, or resulting damage in the unit;
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No. 2021AP314
and (2) interfering with Westerhof Homes’ efforts to repair the unit.5 We examine
each argument in turn, concluding that there is no genuine issue of material fact on
these points and that the undisputed facts show that Kundert’s conduct did not
contribute to the damage.
¶32 As background, it is undisputed that Kundert notified Westerhof
Homes of mold and water leakage in her unit in the June 30, 2016 email reproduced
above. See ¶3. Kundert testified during her deposition that she discovered these
problems on or around June 30, after arriving home from a trip to California.
Kundert testified that “there was water coming down the carpet,” “[e]verything was
5
In support of its negligence counterclaim, Westerhof Homes relies in part on WIS. STAT.
§ 704.07(3)(a)2., which provides:
If the premises are damaged, including by an infestation
of insects or other pests, due to the acts or inaction of the tenant,
the landlord may elect to allow the tenant to remediate or repair
the damage and restore the appearance of the premises by
redecorating. However, the landlord may elect to undertake the
remediation, repair, or redecoration, and in such case the tenant
must reimburse the landlord for the reasonable cost thereof; the
cost to the landlord is presumed reasonable unless proved
otherwise by the tenant. Reasonable costs include any of the
following:
.…
2. At a reasonable hourly rate, time the landlord spends
doing any of the following:
a. Purchasing or providing materials.
b. Supervising an agent of the landlord.
c. Hiring a 3rd-party contractor.
(Emphasis added.)
Because we conclude for the reasons set forth above that the undisputed material facts do
not show that any damage occurred “due to the acts or inaction of the tenant,” this statute does not
assist Westerhof Homes in establishing a negligence counterclaim.
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No. 2021AP314
soaked, covered with fuzz,” “[t]here was black in the back walls,” “[t]he ceiling
light [was] filled with water and [there was] water running down the walls.” As to
location, she specifically testified to standing water and mold in her closet, a wet
bedroom carpet, and water running intoFreitag’s closet. Kundert testified that Bob
Baker, Westerhof Homes’ repairman, was on the premises when she arrived home
from her trip. Kundert immediately told Baker about these issues, and Baker visited
her unit that day. Baker attempted to investigate or remediate the problems by
pulling out some drywall.
¶33 It is undisputed that at some point during the first half of July 2016,
following an argument between Kundert and Westerhof, Kundert changed the locks
on her unit. However, the parties dispute whether Kundert’s actions prevented
Baker from doing further work in the unit during that time. According to an email
from Westerhof to Kundert, Baker was able to return to Kundert’s unit on July 17.
In that email, Westerhof informed Kundert that he was contacting his insurance
company and would later inform Kundert of his “plan.” It is also undisputed that
Baker was a repairman and not a professional remediator and that, on September 6,
Westerhof Homes contacted a professional remediation firm to restore the unit. The
remediation firm began work in the unit on September 19 and completed its work
on both the upper and lower units on November 21. Although the record is unclear
as to the precise date the firm finished its work on the lower (Kundert’s) unit, the
unit was repaired no later than October 14.6
6
Westerhof Homes states that remediation work in Kundert’s unit was completed on
September 17, 2016, but the underlying summary judgment evidence does not support this
assertion.
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No. 2021AP314
A. Timely Notification
¶34 Westerhof Homes points to evidence that it argues raises a reasonable
inference that Kundert did not timely notify it of water leakage, mold, and resulting
damage to the unit. We conclude that even under the summary judgment standard—
under which all reasonable inferences are drawn in favor of the nonmoving party,
WIS. STAT. § 802.06(2)—none of the evidence Westerhof Homes points to supports
the conclusion that Kundert waited an unreasonable (or any) amount of time
between when she was first aware of the mold, water leakage, and resulting damage
and when she informed Westerhof Homes of those conditions.
¶35 First, Westerhof Homes points out that Kundert complained that the
unit “smelled moldy” the first time she walked into the unit (which was August 28,
2015) and in March 2016; that she stated in a July 5, 2016 email, “There is still
Mold in there and has been for some time. This did not just happen.”; and that, on
or around October 24, 2016, she “told her physician [that] she was in a ‘home for 6-
9 months that had black mold.’”7 According to Westerhof Homes, this evidence
supports the conclusion that “Kundert delayed notifying [it] of the water/mold
problem for … 6 to 9 months.” However, these facts do not support the reasonable
inference that Kundert actually observed or otherwise knew of any mold, water
leakage, or resulting damage in her unit before June 30, 2016 (in fact, Kundert
specifically testified that she did not see any mold or know it was there when she
7
It is somewhat unclear when Kundert allegedly made this statement to her physician
because Westerhof Homes quotes excerpts from its own circuit court briefing on this point and
because Kundert’s medical records are not part of the appellate record. The implication from
Westerhof Homes’ circuit court briefing, however, is that Kundert made this statement to her
physician on or around October 24, 2016, since this was, apparently, when the physician made this
note in Kundert’s medical record. Kundert does not point to evidence to the contrary.
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No. 2021AP314
had complained prior to June 30, 2016). In sum, these facts—that Kundert believed
she smelled mold in August 2015 and March 2016; that Kundert believed, once she
viewed the mold in her unit, that it had “been there for some time”; and that Kundert
believed, several months after moving out and once she already knew that the unit
contained mold, that she had lived with black mold for six to nine months8––do not
support the conclusion that Kundert delayed notifying Westerhof Homes of known
water and mold problems in the unit.
¶36 Second, Westerhof Homes argues that “Kundert testified that it may
have taken her a week or two from when she discovered [the mold and water
leakage] to inform Westerhof of the problem.” This assertion misstates Kundert’s
deposition testimony: when asked how long she waited to email Westerhof after
discovering these problems and if she waited more than two weeks to do so, Kundert
repeatedly stated that she did not remember, not that she may have waited a week
or two. Thus, Kundert’s testimony does not support the inference that she waited
one or two weeks before informing Westerhof of the mold and water issues.
¶37 To the extent Westerhof Homes means to suggest that Kundert knew
of the problem prior to the day she notified Westerhof Homes’ maintenance man,
Bob Baker, Westerhof Homes presents no evidence to contradict Kundert’s
undisputed testimony on this point. Kundert testified that she informed Baker of
the mold and water issues the day she discovered them, and that Baker immediately
attempted to address the problem, including by removing drywall. Consistent with
8
Because Kundert moved into the unit in September 2015 and stopped living there
sometime shortly after discovering mold on or around June 30, 2016, the reasonable inference from
this evidence is that Kundert—having already moved out—expressed to her physician that black
mold had been in the unit the entire time she lived there. Even viewing this evidence in the light
most favorable to Westerhof Homes, there is no basis to conclude that Kundert knew about the
mold six to nine months before reporting it.
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No. 2021AP314
this testimony, when Westerhof asked Kundert whether she could have waited more
than a week to notify Westerhof of the issue, Kundert responded: “You were
conferring with Bob at that point. Was he not your maintenance man? He was
telling you what was going on. That’s what he told me. He was telling you exactly
what was going on, and you were instructing him on what to do. So you knew
through Bob what was going on.” Thus, even if Kundert’s June 30 email to
Westerhof informing him of the water and mold issues was not sent the same day
that Kundert first learned of them, that fact is insignificant given the uncontroverted
testimony that Westerhof Homes’ own maintenance man learned of the problems
the same day that Kundert did.
¶38 Third, Westerhof Homes argues that Kundert must have known about
problems in the unit before June 30, 2016, because “[a]ccording to Oscar Guttierrez,
the remediator, the amount of mold was so great that it would have been visible for
months.” But it is undisputed that Gutierrez did not visit the unit until, at the earliest,
September 7. Additionally, Gutierrez described mold as mainly growing behind the
drywall and testified that “[y]ou’d have to look for it” to see it. Therefore,
Gutierrez’s testimony that the mold he saw in September 2016 would have been
visible for “[m]onths” is consistent with Kundert’s testimony that she viewed and
reported the mold on or around June 30, 2016. Gutierrez’s testimony does not
support the inference that Kundert saw or knew about the mold before June 30.
¶39 Fourth, Westerhof Homes argues that “it is within the ordinary
experience of jurors to have to deal with leaks in their home,” so jurors know that
most tenants “remedy the problem as soon as possible to prevent additional
damage.” Therefore, Westerhof Homes’ argument continues, “[b]ased upon
common experience, a jury reasonably could conclude that the mold and water
damages from an upstairs leak should never have become so extensive.” This
18
No. 2021AP314
argument ignores Kundert’s undisputed testimony that she noticed the mold upon
returning from a trip to California, and the testimony discussed above from
Gutierrez. There is no evidence that Kundert, acting with reasonable vigilance,
should have known about the problem earlier and taken additional steps to “remedy
the problem as soon as possible.”
¶40 Finally, Westerhof Homes argues, “Here, too, additional deposition
testimony from Kundert and any deposition testimony from Freitag could have been
very illuminating.” As discussed above, however, we have already concluded that
Westerhof Homes’ conduct during the litigation precludes it from now arguing that
its briefing and motions relating to this discovery dispute should have been
addressed and resolved prior to Kundert’s motion for summary judgment.
Accordingly, we do not address this argument further.
¶41 Based on the foregoing, we conclude that none of the evidence upon
which Westerhof Homes relies supports the inference that Kundert delayed
reporting water leakage, mold infiltration, or resulting damage to the unit.
B. Interference with Attempted Repairs
¶42 Westerhof Homes argues that “by changing the locks, kicking Baker
out, and delaying repairs, Kundert obstructed abatement for another two weeks” and
that “[t]his is more than sufficient evidence from which a jury could reasonably
conclude that Kundert was a substantial factor in causing damage to Westerhof’s
property.” We conclude that none of the evidence supports the reasonable inference
that Kundert’s purported interference with Westerhof Homes’ attempted repairs
contributed to the property damage or increased remediation costs.
19
No. 2021AP314
¶43 Westerhof Homes directs us to emails between Kundert and
Westerhof, sent between July 4 and July 18, 2016. In one of these emails, sent
July 4, Westerhof stated that Kundert “kicked … out” Westerhof’s repairman Bob
Baker that day, and Westerhof asked Kundert when she would “allow my people to
come in to do the work that needs to be done.” After a few days of back-and-forth
emails, Kundert suggested that Baker return Saturday, July 9. The parties
corresponded about related matters (including Kundert’s proposal that she move
into a different unit for the same rental price, which Westerhof rejected), and on
July 8, Kundert wrote, “I will fight in court that this has been a racket from the get
go…. I will start moving out an[d] have my attorney contact you…. In the
meantime Stop emailing. I’m done with this place.” On July 10, Westerhof wrote
to Kundert, “Bob informed me that you changed the locks…. [Y]ou are delaying
our efforts to make repairs in your townhouse.” In a July 18 email, Westerhof stated
that “Bob finally got in there yesterday.”
¶44 We first observe that, although these emails establish that Westerhof
wrote that these events occurred, they do not establish that the events in fact
occurred. We nevertheless assume that Westerhof would have presented testimony
at trial consistent with the facts stated in the emails, and a fact finder could have
credited Westerhof’s testimony about the parties’ actions between July 4 and 18,
2016.
¶45 Even with that assumption in Westerhof Homes’ favor, the undisputed
evidence indicates that Westerhof Homes could have allowed Baker to enter the unit
to perform repairs at any point during this time period but chose not to. During his
deposition, Westerhof agreed that “in an emergency [he] as a landlord ha[s] a right
to enter one [of his] apartments without notice” and that he “probably” has the “right
to enter an apartment with a 24-hour notice stuck to the door.” When asked why he
20
No. 2021AP314
did not instruct Baker to call a locksmith and remove Kundert’s new locks on the
apartment, Westerhof testified that it was because he considered Kundert to be
someone he “needed to be very careful with” and that he “didn’t want her making
more accusations against” him.
¶46 Further, in response to Kundert’s argument on appeal that Westerhof
admitted he had the right to enter the unit, Westerhof Homes merely responds in a
footnote, “Sure, Baker was physically able to break in. But that does not mean it
would have been smart, let alone a legal obligation.” But the question here is not
whether removing the locks would have been “smart” or a “legal obligation,” but
rather, whether Kundert prevented Westerhof Homes from performing remediation
work during the time period in question. The undisputed facts establish that
Westerhof Homes was not prevented from performing this work.
¶47 Even assuming, however, that there is a genuine dispute about
whether Kundert’s actions prevented Baker from entering the unit during this time
period, the dispute is not material. This is because the evidence does not show that
any temporary obstruction by Kundert ultimately contributed to the property
damage or increased remediation costs. Westerhof Homes provides no expert or
other evidence supporting its position on these points. Rather, the undisputed
evidence is that Westerhof Homes contracted for remediation work from a different
contractor, which eventually took place in September and October 2016, after
Kundert had already vacated the premises. Under these circumstances, there is no
reasonable inference that Kundert’s interference with Baker’s repairs during the first
21
No. 2021AP314
half of July, even if it occurred, contributed to the costs Westerhof Homes ultimately
incurred in September or October to make the unit habitable again.9
¶48 In sum, because the only conclusion from the undisputed evidence is
that the mold, water leakage, and resulting damage was caused by circumstances
outside Kundert’s control, Westerhof Homes’ negligence claim fails as a matter of
law.10
III. The Undisputed Evidence Shows That Kundert Is Entitled to Summary
Judgment Dismissing Westerhof Homes’ Counterclaim for Breach of Contract.
¶49 Westerhof Homes argues that Kundert is not entitled to summary
judgment dismissing Westerhof Homes’ counterclaim for breach of the lease.
Kundert responds she is entitled to summary judgment because—among other
reasons—it is undisputed that General Casualty reimbursed Westerhof Homes for
all lost rent. Kundert correctly notes that we may affirm the circuit court’s summary
judgment order on a ground not relied on by the circuit court. See Vanstone v. Town
of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995) (“[W]e may
9
Gutierrez, on behalf of the remediation firm, testified that the firm did not remediate the
mold in the building because “we were not paid for mold remediation, we were paid to mitigate the
loss and rebuild it.” Elsewhere, however, Gutierrez testified that the work the firm performed
resulted in the unit meeting some type of mold testing standard, allowing the unit to be deemed
habitable again. This opinion uses the term “remediation” generally, to refer not solely to mold
remediation (which Gutierrez apparently did not do, as he defined the term) but also to the
mitigation work Gutierrez’s firm performed in the unit.
10
Because we conclude that there is no evidence supporting a reasonable inference that
Kundert’s actions contributed to mold and water leakage problems, we do not address Kundert’s
additional argument that Westerhof Homes’ claim fails as a matter of law because it cannot show
any damages, given that General Casualty reimbursed it for all remediation costs. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An
appellate court need not address every issue raised by the parties when one issue is dispositive.”).
22
No. 2021AP314
affirm on grounds different than those relied on by the trial court.”); Langridge, 275
Wis. 2d 35, ¶12 (we review a decision granting summary judgment de novo).
¶50 In its reply brief, Westerhof Homes does not dispute that General
Casualty reimbursed it for these contract damages, nor does it make any other
argument as to why it should nonetheless be allowed to seek these same amounts in
lost rent from Kundert.11 Because the undisputed facts show that Westerhof Homes
was already compensated for all damages that it could recover in its breach of
contract claim, and Westerhof Homes does not develop an argument to the contrary,
we conclude that Kundert is entitled to summary judgment dismissing Westerhof
Homes’ breach of contract counterclaim.
11
Westerhof Homes argues in its reply that it was not reimbursed for its $3,000 insurance
deductible, but appears to make that argument only with respect to its negligence claim. However,
to the extent Westerhof Homes means to argue that it was not fully reimbursed by its insurer with
respect to its contract claim because of its deductible, it does not develop that argument.
Specifically, Westerhof Homes does not show that it was required to pay the deductible for its
insurance claim for lost rent, nor does it show why the deductible would not have been incurred
regardless, given that Westerhof Homes did extensive remediation work for which it was
reimbursed by its insurer.
Similarly, Westerhof Homes argued in the circuit court and argues in its reply on appeal
that, with respect to its negligence claim, the collateral source rule allows Westerhof Homes to
recover from “the tortfeasor,” Kundert, regardless of whether Westerhof Homes was reimbursed
by its insurer for the damage caused to the property. Although we do not construe Westerhof
Homes to also be advancing a collateral source rule argument with respect to its contract claim, we
note that Westerhof Homes points to no legal authority that stands for the proposition that a plaintiff
landlord may recover under contract (as opposed to under tort) where the plaintiff has already been
reimbursed. See Paulson v. Allstate Ins. Co., 2003 WI 99, ¶30, 263 Wis. 2d 520, 665 N.W.2d 774(under the collateral source rule, a “tortfeasor who is legally responsible for causing injury is not
relieved of [the tortfeasor’s] obligation to the victim simply because the victim had the foresight to
arrange, or the good fortune to receive, benefits from a collateral source for injuries and expenses.”
(emphasis added; internal quotation marks and quoted source omitted)); see also Blumenfeld v.
Jeans, 2011 WI App 107, ¶4, 336 Wis. 2d 430, 804 N.W.2d 692 (“[T]he collateral source rule
provides that a personal injury plaintiff’s recovery is not to be reduced by the amount of
compensation received from other sources, i.e., sources ‘collateral’ to the defendant.” (emphasis
added; internal quotation marks and quoted source omitted)).
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No. 2021AP314
IV. The Circuit Court Did Not Err in Not Granting Westerhof Homes’ Motion for
Sanctions, Including Default Judgment.
¶51 Westerhof Homes argues that the circuit court erred by not granting
its motion for sanctions, including default, because “Kundert’s discovery violations
were egregious and without excuse and because her claims were fraudulent from
the start.”12
¶52 As to discovery violations, Westerhof again argues that Kundert’s
counsel improperly curtailed Kundert’s deposition and prohibited Freitag’s
testimony. Westerhof Homes further argues that counsel failed to provide medical
records in response to a discovery request until two days before discovery closed
(and perhaps did not provide all the medical records requested). As discussed
above, however, we have concluded that the circuit court did not erroneously
exercise its discretion in first hearing and deciding Kundert’s motion for summary
judgment. Once Kundert’s motion for summary judgment was decided in Kundert’s
favor, the court determined that the parties’ other motions were moot. By this
statement, the court recognized the reality that Westerhof Homes’ motion for default
judgment for Kundert’s alleged discovery violations could not, by that point, be
decided in Westerhof Homes’ favor (at least, not without retracting the summary
judgment ruling the court had just made).
¶53 In addition, after deciding Kundert’s motion for summary judgment
and determining that the parties’ other motions were moot, the circuit court asked
12
Westerhof Homes also appears to request that we independently sanction Kundert for
this same alleged misconduct. Westerhof Homes fails to provide any legal authority or a developed
legal argument supporting such a request, and we reject it on that basis. See Pettit, 171 Wis. 2d at
646-47 (undeveloped legal arguments and “[a]rguments unsupported by references to legal
authority will not be considered”). We further note that as an appellate court, we are not in the
position to independently sanction Kundert or to resolve, in the first instance, the bulk of Westerhof
Homes’ motions and arguments on these matters.
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No. 2021AP314
the parties if there were any additional issues that needed to be addressed “to make
sure I’m not missing something that I should have decided.” Westerhof Homes did
not at that time, or later by motion to reconsider, argue that it was due attorney fees
and costs as a sanction for Kundert’s alleged discovery violations. Thus, a separate
reason exists to uphold this portion of the court’s ruling, namely, that Westerhof
Homes forfeited the specific argument that it was due attorney fees and costs
incurred as a result of Kundert’s conduct during discovery. See Mikrut, 273 Wis. 2d
76, ¶15.
¶54 In response to the circuit court’s question about “missing something,”
Westerhof Homes did argue that the circuit court should grant default judgment
because Kundert perpetrated “a fraud on the Court” by filing suit even though she
allegedly knew that she was not allergic to mold. The court responded that
Westerhof Homes had not pled a fraud claim. Westerhof Homes does not present
any cogent argument as to how the court erred in rejecting its fraud claim as not
properly pled. Moreover, and crucially, Westerhof Homes never explained below,
and does not explain on appeal, how the issue of whether Kundert’s (now-
dismissed) claims were fraudulent is relevant to Westerhof Homes’ counterclaims
for negligence and breach of contract. In its reply brief, Westerhof Homes suggests
that the fraud issue is related to the contract counterclaim because Kundert might
have alleged that she terminated the lease because she was allergic to mold.
However, this argument is undeveloped and unconvincing, particularly in light of
the undisputed evidence that Kundert’s unit was infiltrated with mold and was
uninhabitable regardless of whether Kundert was allergic to mold. We decline to
consider further Westerhof Homes’ inadequately developed arguments. See Pettit,
171 Wis. 2d at 646.
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No. 2021AP314
CONCLUSION
¶55 For the foregoing reasons, we affirm the order of the circuit court.13
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
13
Westerhof Homes repeatedly cites solely to its appendix and not to the appellate record.
Westerhof Homes also, at times, cites to incorrect page numbers or to records that either do not
exist or are located in a different location in the appellate record. Along similar lines, Kundert at
times cites solely to Westerhof Homes’ appendix or to the circuit court record instead of to the
appellate record, and at times does not cite to the correct page number. These practices waste court
time and resources because they require the court to independently locate the cited material in an
extensive record without assistance from the parties. We remind both parties that citations must be
accurately made to the appellate record and that failure to follow the rules of appellate procedure
is grounds for sanctions. See WIS. STAT. RULES 809.15, 809.19(1)(d), (e), (3)(a)2., (4)(b),
809.83(2).
26