Brandon Henchey v. Wausau Landmark Corp.

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.
May 2, 2023
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. 2021AP1684 Cir. Ct. No. 2019SC2013
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
BRANDON HENCHEY AND TOMMY R. BLAKLEY,
PLAINTIFFS-APPELLANTS,
V.
WAUSAU LANDMARK CORP.,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Affirmed in part; reversed in part and cause
remanded with directions.
¶1 STARK, P.J.1 In this landlord-tenant dispute, Wausau Landmark
Corp. (“Landmark”) was ordered to pay $1,250 to its former tenant, Tommy
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
(continued)
No. 2021AP1684
Blakley, which included $250 in attorney fees. Blakley and his co-plaintiff,
Brandon Henchey, (collectively, “Blakley”) now appeal, raising four arguments.
First, Blakley argues that Landmark violated WIS. ADMIN. CODE
§ ATCP 134.09(9)(a) (Oct. 2021)2 and WIS. STAT. § 100.18(1) by failing to inform
Blakley that he would be charged an additional fee, beyond his monthly rent, to
park his car in the parking lot adjacent to his apartment building. Second, Blakley
argues that his rental agreement was void and unenforceable under WIS. STAT.
§ 704.44(9) and WIS. ADMIN. CODE § ATCP 134.08(9). Third, Blakley argues
that the appropriate remedy for a void rental agreement is the return of all rent
paid under the agreement. Fourth, Blakley argues that the circuit court
erroneously exercised its discretion by awarding him only $250 in attorney fees
and by failing to award him costs.
¶2 We reject Blakley’s argument that Landmark violated WIS. ADMIN.
CODE § ATCP 134.09(9)(a) and WIS. STAT. § 100.18(1). We therefore affirm with
respect to that issue.
¶3 We agree with Blakley, however, that the rental agreement was void
and unenforceable under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9). We also agree with Blakley that the appropriate remedy for a
void rental agreement is the return of all rent paid under the agreement. In
addition, we agree that the circuit court erroneously exercised its discretion by
On September 27, 2021, the appellants filed a motion for a three-judge panel, which this
court held in abeyance pending the completion of briefing. Based on our review of the parties’
briefs and the record, we conclude that a three-judge panel is not necessary. Therefore, the
motion is denied.
2
All references to WIS. ADMIN. CODE ch. ATCP 134 are to the October 2021 register.
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awarding Blakley only $250 in attorney fees and by failing to award him costs,
without providing a reasoned explanation for its decision in that regard.
¶4 We therefore reverse the circuit court’s judgment in part, with
respect to Blakley’s claim that the rental agreement was void and unenforceable
and the court’s award of attorney fees and costs. We remand for the court
to: (1) determine the amount of damages that Blakley is entitled to recover as a
result of the void rental agreement; and (2) reconsider the amount of attorney fees
and costs that Blakley is entitled to recover, including an award of attorney fees
and costs on Blakley’s claim that the rental agreement was void and
unenforceable.
BACKGROUND
¶5 In June 2016, Blakley entered into a written residential rental
agreement with Landmark to rent an apartment in Landmark’s building for $500
per month. Blakley moved into the apartment on June 20, 2016, and ultimately
moved out in June 2017.
¶6 Blakley filed the instant small claims lawsuit against Landmark in
June 2019. He asserted various causes of action under the Wisconsin Statutes and
administrative code, including claims for “rent abatement, unreturned sec[urity]
deposit, improper property disposal, self-help eviction, failure to disclose code
violations; breach of contract, statutory civil theft, conversion, fraudulent
inducement, [and] personal injury-tort.” Blakley also alleged that he was entitled
to punitive damages because Landmark’s conduct was malicious or in reckless
disregard of his rights.
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¶7 The case was tried before a court commissioner in December 2019.
The court commissioner found in favor of Blakley on only one of his claims—
specifically, his self-help eviction claim, which alleged that Landmark had
changed the locks on Blakley’s apartment before he finished moving out. The
court commissioner determined that Blakley was entitled to double damages on
that claim and therefore awarded him $1,000—double the amount of one month’s
rent. See WIS. STAT. § 100.20(5). The court commissioner acknowledged that
Blakley was also entitled to recover attorney fees and costs on his self-help
eviction claim. See id. Blakley’s attorney submitted a “Petition in Support of
Costs and Attorney Fees,” which sought $8,900 in attorney fees and $124.50 in
costs.
¶8 Landmark subsequently requested a trial de novo before the circuit
court. Before trial, Blakley moved for partial summary judgment with respect to
several of his claims. The court issued a written decision denying Blakley’s
motion. As relevant to this appeal, the court concluded, as a matter of law, that
Blakley’s rental agreement was not void and unenforceable under WIS. STAT.
§ 704.44(9). The court also concluded that Blakley was not entitled to summary
judgment on his claim regarding fees that Landmark had charged him to park his
car in the parking lot adjacent to Landmark’s building.
¶9 The trial de novo took place on three dates over a four-month period.
Following the trial, the circuit court found in favor of Blakley on a single claim—
albeit not the same claim as the court commissioner. Namely, the court found that
Landmark had failed to provide Blakley with a security deposit withholding
statement. The court awarded Blakley $1,000 in damages on that claim—double
the amount of his $500 security deposit. See WIS. STAT. § 100.20(5). The court
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also awarded Blakley $250 in attorney fees. See id. The court did not award any
amount of costs.
¶10 Blakley now appeals, arguing that the circuit court erred by rejecting
his claim regarding the parking fees and by concluding that his rental agreement
was not void and unenforceable. Blakley also argues that the court erroneously
exercised its discretion by awarding him only $250 in attorney fees and $0 in
costs. Additional facts relevant to these issues are included below.
DISCUSSION
I. Parking fees
¶11 As noted above, Blakley argues that Landmark violated WIS.
ADMIN. CODE § ATCP 134.09(9)(a) and WIS. STAT. § 100.18(1) by failing to
inform him that he would be charged an additional fee, beyond his monthly rent,
to park in the parking lot next to Landmark’s building. Blakley asserts that the
circuit court erred by denying his motion for summary judgment on this claim, and
he further asserts that the court erred by ruling against him on this claim following
the trial de novo.
A. Summary judgment
¶12 We review a circuit court’s decision on a summary judgment motion
independently, using the same methodology as the circuit court. Hardy v.
Hoefferle, 2007 WI App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary
judgment is appropriate if there is no genuine issue of material fact and the
undisputed facts establish that the moving party is entitled to judgment as a matter
of law. WIS. STAT. § 802.08(2). Here, our review of the circuit court’s summary
judgment decision requires us to interpret and apply WIS. ADMIN. CODE
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§ ATCP 134.09(9)(a) and WIS. STAT. § 100.18(1). Statutory interpretation and the
interpretation of administrative code provisions present questions of law that we
review independently. DNR v. Bowden, 2002 WI App 129, ¶5, 254 Wis. 2d 625,
647 N.W.2d 865.
¶13 In support of his summary judgment motion with respect to the
parking fees claim, Blakley submitted the rental agreement and security deposit
agreement that he had signed in June 2016 and a “Transaction Listing” from
Landmark enumerating all of the rent and parking fees that were charged to (and
paid by) Blakley during his tenancy. Blakley contends that these documents alone
are “dispositive” of his parking fees claim and show that he was entitled to
summary judgment on that claim.
¶14 Blakley’s rental agreement identified the number of the apartment
that he was renting and stated that his monthly rent would be $500. The
agreement also stated that if Blakley desired an air conditioner, he would be
required to pay a $20 installation fee and an electric fee of $30 per month. In
addition, the security deposit agreement stated that Blakley was required to pay a
security deposit of $500. Notably, neither the rental agreement nor the security
deposit agreement made any reference to parking.
¶15 The “Transaction Listing” shows that Blakley moved into his
apartment on June 20, 2016. On July 1, 2016, he was charged a parking fee of $50
for a portion of June and all of July. Blakley paid that fee and was not charged for
parking again until November 1, 2016. From that point forward, Blakley was
charged (and paid) a monthly parking fee of $35 for the remainder of his tenancy.
¶16 Contrary to Blakley’s assertion, these documents do not show that he
was entitled to summary judgment on his parking fees claim. Blakley contends
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that Landmark’s failure to disclose the parking fees to him at the time he rented
his apartment violated WIS. ADMIN. CODE § ATCP 134.09(9)(a), which states:
No landlord may do any of the following for the purpose of
inducing any person to enter into a rental agreement:
1. Misrepresent the location, characteristics or equivalency
of dwelling units owned or offered by the landlord.
2. Misrepresent the amount of rent or non-rent charges to
be paid by the tenant.
3. Fail to disclose, in connection with any representation of
rent amount, the existence of any non-rent charges
which will increase the total amount payable by the
tenant during tenancy.
¶17 The documents that Blakley submitted in support of his summary
judgment motion do not show, as a matter of law, that Landmark violated WIS.
ADMIN. CODE § ATCP 134.09(9)(a). As a general matter, § ATCP 134.09(9)(a),
prohibits a landlord from taking certain actions “for the purpose of inducing any
person to enter into a rental agreement.” Nothing in the rental agreement or
security deposit agreement supports a reasonable inference that Landmark made
any misrepresentation regarding parking or failed to disclose the parking fees for
the purpose of inducing Blakley to enter into a rental agreement. The mere fact
that Blakley was later charged (and paid) parking fees does not establish, as a
matter of law, that Landmark’s actions with respect to the parking fees were for
the purpose of inducing Blakley to rent an apartment at Landmark’s building.
¶18 Moreover, WIS. ADMIN. CODE § ATCP 134.09(9)(a)1. and 2. both
prohibit landlords from making misrepresentations regarding certain topics.
However, neither the rental agreement nor the security deposit agreement
contained any representation—let alone a misrepresentation—regarding parking.
The agreements were simply silent regarding that issue. Blakley cites no legal
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authority directly supporting the proposition that a landlord’s silence can
constitute a misrepresentation for purposes of § ATCP 134.09(9)(a)1. or 2. For
these reasons, we conclude that Blakley was not entitled to summary judgment on
his claim that Landmark violated § ATCP 134.09(9)(a).
¶19 We also conclude that Blakley was not entitled to summary
judgment on his claim that Landmark violated WIS. STAT. § 100.18(1). To prevail
on a claim under that statute, a plaintiff must prove three elements: (1) that the
defendant made a representation to the public with the intent to induce an
obligation; (2) that the representation was untrue, deceptive, or misleading; and
(3) that the representation caused the plaintiff a pecuniary loss. K & S Tool & Die
Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70, ¶19, 301 Wis. 2d 109, 732
N.W.2d 792.
¶20 “Silence—an omission to speak—is insufficient to support a claim
under WIS. STAT. § 100.18(1).” Tietsworth v. Harley-Davidson, Inc., 2004 WI
32, ¶40, 270 Wis. 2d 146, 677 N.W.2d 233. Section 100.18(1) does not “impose a
duty to disclose, but, rather, prohibits only affirmative assertions, representations,
or statements of fact that are false, deceptive, or misleading.” Tietsworth, 270
Wis. 2d 146, ¶40. In this case, neither the rental agreement nor the security
deposit agreement provides any evidence that Landmark made an affirmative
representation regarding parking fees or regarding Blakley’s ability to park in the
lot adjacent to Landmark’s building. While Blakley contends that Landmark
failed to disclose that he would be charged an additional fee to park in that lot, the
mere failure to disclose is insufficient to support a claim under § 100.18(1). See
Tietsworth, 270 Wis. 2d 146, ¶40.
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¶21 Furthermore, WIS. STAT. § 100.18(1) requires a plaintiff to prove
that the defendant made an untrue representation with the intent to induce an
obligation. K & S Tool & Die Corp., 301 Wis. 2d 109, ¶19. As discussed above,
the documents that Blakley submitted in support of his summary judgment motion
did not establish, as a matter of law, that Landmark made any representation
regarding parking with the intent to induce Blakley to rent an apartment in
Landmark’s building. Consequently, Blakley was not entitled to summary
judgment on his claim that Landmark violated § 100.18(1).
B. Trial de novo
¶22 When we review a challenge to the sufficiency of the evidence at a
bench trial, we affirm unless the circuit court’s findings of fact are clearly
erroneous. See WIS. STAT. § 805.17(2). The circuit court, not this court, is
responsible for determining witness credibility and resolving conflicts in the
evidence. Global Steel Prods. Corp. v. Ecklund, 2002 WI App 91, ¶10, 253
Wis. 2d 588, 644 N.W.2d 269. We accept reasonable inferences that the circuit
court drew from the evidence, and we search the record for evidence that supports
the court’s findings. Id.¶23 The parties presented additional evidence regarding the parking fees
issue during the trial de novo. Blakley testified that he was never told there would
be a fee to park at his apartment building. Landmark’s president, Scott Williams,
testified that although there is parking on site at Landmark’s building, parking is
not “part of the lease” for the building’s residential tenants. Williams explained:
[W]e provide parking for the general public and rent the
spaces out, and a lot of times that is a tenant who says, by
the way, do you have a place for me to park my car? And
we say, yes, we do; if you’d like to rent a space it’s $35 a
month, which was the cost. And then they tell us, yes, we
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want to rent the space or, no, we don’t want to rent the
space, but it’s independent of the lease on the apartment.
Williams clarified that Landmark does not evict tenants from their apartments if
they fall behind on their parking payments; instead, Landmark simply prohibits
them from parking in the lot.
¶24 Williams further testified that if a tenant who had not paid for
parking parked in Landmark’s lot, Landmark would inform the tenant that the lot
“was not for the general public, it was not for the apartment tenants, it was only
for people that specifically agreed to pay for a space every month.” He explained,
“[I]f anybody asked us, is there parking included, the answer is no. If you want to
rent a space, you know, you can, but it was not included with the apartment.”
¶25 During its oral ruling following the trial de novo, the circuit court
concluded that there was “insufficient evidence in the record to support
Mr. Blakley’s claim regarding the parking fees.” The court found that “[i]nitially
that parking was paid for voluntarily by Mr. Blakley.” The court further found
that while one would expect free parking “in a less urban setting,” “the location of
[Landmark’s building] and its available parking negates [Blakley’s] claim that he
was somehow shocked or surprised by that assessment.”
¶26 We agree with the circuit court that the evidence was insufficient to
support Blakley’s claim regarding the parking fees. Blakley did not present any
evidence at trial showing that Landmark made a representation that parking was
included in his monthly rent or that his status as a tenant entitled him to park in the
lot adjacent to Landmark’s building. At best, the evidence shows that Blakley
simply assumed, based on Landmark’s silence, that parking was included. As
explained above, a landlord’s silence on a particular issue is insufficient to support
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a claim under WIS. ADMIN. CODE § ATCP 134.09(9)(a)1. or 2. or WIS. STAT.
§ 100.18(1), all of which require an affirmative misrepresentation.
¶27 In addition, the evidence presented at trial does not support a
conclusion that Landmark failed to disclose the parking fees for the purpose of
inducing Blakley to enter into the rental agreement, as required by WIS. ADMIN.
CODE § ATCP 134.09(9)(a) and WIS. STAT. § 100.18(1). Instead, Williams
testified that, as a general rule, parking is not included for the building’s
residential tenants, and a residential tenant who wants to park in the lot adjacent to
the building must make arrangements to do so and pay a separate fee. Moreover,
the circuit court expressly found, given the building’s location, that Blakley would
not have been “shocked or surprised” that parking was not included in his monthly
rent. The court’s finding in that regard is not clearly erroneous. See WIS. STAT.
§ 805.17(2). On this record, the court properly concluded that Blakley had not
presented sufficient evidence to establish a violation of § ATCP 134.09(9)(a) or
§ 100.18(1).
II. Void and unenforceable rental agreement
¶28 Blakley next argues that his rental agreement was “void and
unenforceable” under WIS. ADMIN. CODE § ATCP 134.08(9) and WIS. STAT.
§ 704.44(9) “because its plain language would allow the landlord to evict a victim
of a crime committed on the premises.” In its decision on summary judgment, the
circuit court concluded, as a matter of law, that the rental agreement was not void
and unenforceable. Again, the interpretation of statutes and administrative code
provisions present questions of law that we review independently. Bowden, 254
Wis. 2d 625, ¶5.
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¶29 WISCONSIN STAT. § 704.44(9) states that a residential rental
agreement is “void and unenforceable” if it allows a landlord to terminate a
tenant’s tenancy “based solely on the commission of a crime in or on the rental
property if the tenant, or someone who lawfully resides with the tenant, is the
victim, as defined in [WIS. STAT. §] 950.02(4), of that crime.” WISCONSIN
ADMIN. CODE § ATCP 134.08(9) contains identical language. The term “victim”
includes “[a] person against whom a crime has been committed” but does not
include “the person charged with or alleged to have committed the crime.”
Sec. 950.02(4)(a)1., (b).
¶30 Blakley asserts that two provisions of his rental agreement
“separately or together” violate WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9). Specifically, the rental agreement states that the tenant agrees:
4. Not to make or permit use of the Premises (by Tennant
[sic] or guests) for any unlawful purpose or any
drug/alcohol purpose that would be illegal.
5. To not make excessive noise or engage in activities
which unduly disturb neighbors or other Tenants in the
building.
¶31 Blakley asserts that under paragraphs 4 and 5 of the rental
agreement,
if any tenant or guest does anything illegal (i.e., makes use
of the premises for any unlawful purpose) or lets anyone
else do something illegal, or engages in something
disorderly on the premises,[3] the tenant is in breach and
subject to eviction if that conduct constitutes a crime, even
3
With respect to paragraph 5 of the rental agreement, Blakley notes that making
excessive noise or engaging in activities that unduly disturb other tenants could constitute the
misdemeanor crime of disorderly conduct under WIS. STAT. § 947.01.
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if they or anyone residing with them (such as a child or
significant other) was a victim of the crime.
Blakley further contends that the rental agreement contains “no exception to
eviction for victims of any crimes that constitute a breach of the agreement under”
paragraphs 4 and 5.
¶32 Paragraph 4 of the rental agreement prohibits a tenant
from: (1) making use of the premises for an unlawful purpose; and (2) permitting
the premises to be used for an unlawful purpose. If a tenant makes use of the
premises for an unlawful purpose, then the tenant is not a victim of that unlawful
conduct, as the term “victim” “does not include the person charged with or alleged
to have committed the crime.” See WIS. STAT. § 950.02(4)(b). Similarly, if a
tenant “permits” the premises to be used by another for an unlawful purpose, it
follows that the tenant would not be a victim of that crime. As the circuit court
aptly noted, “[V]ictims are victims because of things that happened against their
will, and [paragraph 4 of the rental agreement] is not violated if the tenant did not
permit the criminal activity to occur (i.e., if it occurred without the tenant’s
permission).” Thus, we do not agree with Blakley that paragraph 4 of the rental
agreement permits Landmark to terminate a tenant’s tenancy based solely on the
commission of a crime in the rental premises under circumstances where the
tenant was the victim of that crime.
¶33 However, WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9) do not merely state that a rental agreement is void and
unenforceable if it allows the landlord to terminate the tenant’s tenancy based on
the commission of a crime in the rental premises if the tenant was the victim of
that crime. Section 704.44(9) and § ATCP 134.08(9) also state that a rental
agreement is void and unenforceable if it allows the landlord to terminate the
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tenant’s tenancy based on the commission of a crime in the rental premises if
someone who lawfully resides with the tenant was the victim of that crime. Here,
paragraph 4 of the rental agreement would permit Landmark to terminate a
tenancy if a tenant made use of the premises for an unlawful purpose or permitted
another to make use of the premises for an unlawful purpose and a person who
lawfully resided with the tenant was a victim of that crime.4 For this reason, we
agree with Blakley that the rental agreement is void and unenforceable under
§ 704.44(9) and § ATCP 134.08(9).5
¶34 The circuit court reasoned that “[r]ather than running afoul of WIS.
STAT. § 704.44, [paragraph 4 of the rental agreement] does little more than
incorporate WIS. STAT. § 704.17(3m), which authorizes evictions for criminal
activity.” Blakley does not argue, however, that the rental agreement is void
because it authorizes evictions for criminal activity. He contends that the rental
agreement is void because it authorizes such evictions without providing an
exception that applies when the victim of the criminal activity is the tenant or a
person who lawfully resides with the tenant. And, as Blakley correctly notes,
§ 704.17(3m)(c) expressly states that para. (b)—which permits a landlord to evict
a tenant based on criminal activity by the tenant, a member of the tenant’s
4
For instance, consider a situation in which a tenant and a person whom the tenant had
invited into the apartment got into a fight, and a person lawfully residing with the tenant was
accidentally injured. In that situation, paragraph 4 of the rental agreement would allow Landmark
to terminate the tenancy based solely on the tenant’s criminal activity in the apartment, even
though a person lawfully residing with the tenant was a victim of that criminal activity.
5
Because we conclude that paragraph 4 of the rental agreement renders the agreement
void and unenforceable under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE § ATCP 134.08(9),
we need not address Blakley’s argument that paragraph 5 also renders the agreement void under
those provisions. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8
n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (court of appeals decides cases on the narrowest possible
grounds).
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household, or a guest or invitee—does not apply “to a tenant who is the victim, as
defined in [WIS. STAT. §] 950.02(4), of the criminal activity.”
¶35 The circuit court also stated that paragraph 4 of the rental agreement
“must be read in light of the lease addendum that was attached as a second page,
which sets forth the text of WIS. STAT. § 704.14.” Section 704.14(1) provides that
a tenant “has a defense to an eviction action if the tenant can prove that the
landlord knew, or should have known, the tenant is a victim of domestic abuse,
sexual assault, or stalking and that the eviction action is based on conduct related
to domestic abuse, sexual assault, or stalking” committed by certain individuals.
While this statute provides a defense to eviction for tenants who are the victims of
domestic abuse, sexual assault, or stalking, it does not prohibit a landlord from
terminating the tenancy of a tenant who is a victim of another type of crime that
occurred in the rental premises. Thus, the fact that Landmark included the text of
§ 704.14 as an addendum to the rental agreement does not save the agreement
from being void under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9).
¶36 We recognize that this result appears to be harsh under the specific
facts of this case, where Blakley has not alleged that any crime occurred in the
rental premises, that he or anyone else legally residing in the apartment was a
victim of a crime, or that he was evicted based on any criminal activity in the
rental premises. In fact, the record shows that Blakley was not evicted from his
apartment at all. Instead, he gave notice to Landmark of his intent to terminate his
tenancy and then voluntarily moved out of his apartment.
¶37 WISCONSIN STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9) do not state, however, that a rental agreement is void and
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unenforceable if a landlord actually terminates a tenant’s tenancy based solely on
a crime committed in the rental premises if the tenant or a person lawfully residing
with the tenant was a victim of that crime. Instead, § 704.44(9) and
§ ATCP 134.08(9) state that a rental agreement is void and unenforceable if it
allows a landlord to terminate a tenant’s tenancy under those circumstances. Here,
we have concluded that paragraph 4 of the rental agreement would allow
Landmark to terminate a tenant’s tenancy based solely on the commission of a
crime in the rental premises under circumstances where a person lawfully residing
with the tenant was a victim of that crime. Under the plain language of
§ 704.44(9) and § ATCP 134.08(9), the rental agreement is therefore void and
unenforceable.
¶38 Because we conclude that the rental agreement is void and
unenforceable under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9), we now turn to Blakley’s argument regarding the appropriate
remedy. Blakley contends that when a rental agreement is “void” it is invalid, see
WIS. STAT. § 704.02, and a “legal nullity,” see Baierl v. McTaggart, 2001 WI 107,
¶20, 245 Wis. 2d 632, 629 N.W.2d 277. Blakley therefore asserts that when a
rental agreement is void, the tenant is entitled to recover all the rent that he or she
paid under the agreement.
¶39 Blakley further asserts that when a rental agreement is void, the
landlord is not entitled to an offset for the value of the benefit that the tenant
received from living in the apartment. In support of that proposition, Blakley
notes that under the Wisconsin Consumer Act, when a transaction is void the
customer “shall be entitled to retain the goods, services or money received
pursuant to the transaction without obligation to pay any amount” and “shall be
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entitled to recover any sums paid to the merchant pursuant to the transaction.”
WIS. STAT. § 425.305.
¶40 Blakley also cites Kaskin v. John Lynch Chevrolet-Pontiac Sales,
Inc., 2009 WI App 65, 318 Wis. 2d 802, 767 N.W.2d 394. There, we held that a
customer had no obligation to pay for repairs performed by an automotive repair
shop when the repair shop violated the administrative code by failing to obtain the
customer’s advance consent for the repairs. Id., ¶1. We reasoned that allowing
the repair shop an offset for the value of the repairs would “defeat the manifest
object of the code by allowing repair shops to perform unauthorized repairs
without the severe penalty of nonpayment.” Id., ¶25. We further explained:
The repair shop and amicus curiae, Wisconsin Auto and
Truck Dealers Association, believe this construction to be
unfair, especially if, as they claim is undisputed in this
case, the repairs made actually fixed the vehicle in a
satisfactory manner such that the consumer received a
valuable benefit. We understand that and commiserate
with the repair shop and amicus curiae to the extent that the
repair shop acted in good faith in not engaging in excessive
and unnecessary repair. But to paraphrase an oft-repeated
and now trite expression, the law is what the law is. If the
association feels that the statutory damage provision is out
of proportion to the harm done by the lack of authorized
consent, its recourse is through the legislature, not the
courts.
Id., ¶26.
¶41 By analogy to these authorities, Blakley contends that he is entitled
to recover all of the rent that he paid under the rental agreement and that
Landmark is not entitled to any offset for the value of the benefit that Blakley
received from living in the apartment. Landmark has not provided a developed
response to this argument. Instead, Landmark’s entire response to Blakley’s
argument regarding the appropriate remedy is as follows: “The circuit court
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further explained in a footnote that, even if the lease were void for violating WIS.
STAT. § 704.44(9), the applicable law does not provide for a return of all rents and
double damages.” Landmark does not explain: (1) why the circuit court rejected
Blakley’s argument regarding the appropriate remedy; (2) why the court’s
reasoning was correct; or (3) why Blakley’s analysis is incorrect. Under these
circumstances, we agree with Blakley that Landmark has conceded his argument
regarding the appropriate remedy. See Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted
arguments may be deemed conceded).
¶42 In summary, we conclude that Blakley’s rental agreement is void
and unenforceable under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9). Based on Landmark’s concession of the issue, we accept
Blakley’s assertion that the appropriate remedy under these circumstances is the
return of all rent paid under the rental agreement, without any offset for the value
of the benefit that Blakley received from living in the apartment. 6 We further
conclude that Blakley is entitled to double damages on this claim, as well as costs
and reasonable attorney fees. See WIS. STAT. § 100.20(5); Shands v. Castrovinci,
115 Wis. 2d 352, 357, 340 N.W.2d 506 (1983).
6
We reject Blakley’s assertion that because the rental agreement is void, he should also
be permitted to recover all parking fees that he paid to Landmark. As discussed above, the rental
agreement was silent on the issue of parking and did not impose any obligation on Blakley to pay
parking fees. Accordingly, the fact that the rental agreement is void does not entitle Blakley to
return of the parking fees that he paid.
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III. Attorney fees and costs
¶43 Any person who suffers pecuniary loss because of a violation of
WIS. ADMIN. CODE ch. ATCP 134 “shall recover … costs, including a reasonable
attorney fee.” WIS. STAT. § 100.20(5); Shands, 115 Wis. 2d at 357. “Our review
of the circuit court’s value of reasonable attorney fees and costs is limited to
whether the circuit court properly exercised its discretion.” Anderson v. MSI
Preferred Ins. Co., 2005 WI 62, ¶19, 281 Wis. 2d 66, 697 N.W.2d 73. A court
properly exercises its discretion when it employs a logical rationale based on the
facts of record and appropriate legal principles. Id.¶44 During its oral ruling following the trial de novo, the circuit court
concluded that Blakley had prevailed on only one of his claims under WIS.
ADMIN. CODE ch. ATCP 134, and it therefore awarded him only $250 in attorney
fees. Blakley’s counsel then asserted that, when determining the amount of
attorney fees that a party is entitled to recover, a court should apply the lodestar
method—that is, the court should multiply a reasonable hourly rate times a
reasonable number of hours. The court responded:
All right, and I did—that’s why I specifically said I find the
reasonable attorney fees are—I recognize there was an
insane amount of time invested in this case. I guess what I
attempted to do was ascertain on my own what a reasonable
amount of attorney fees would be directed only toward that
specific issue [i.e., the security deposit claim], and I came
up with $250.
¶45 Following the circuit court’s oral ruling, Blakley’s attorney filed a
“Supplemental Petition in Support of Attorney Fees,” which asserted that counsel
had an hourly rate of $250 and had worked on Blakley’s case for over 150 hours—
which resulted in attorney fees in excess of $37,000. In addition, the supplemental
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No. 2021AP1684
petition incorporated Blakley’s previous attorney fee petition, which had asserted
that Blakley was entitled to $124.50 in costs.
¶46 The circuit court subsequently entered a written order stating that
Blakley was entitled to $250 in “reasonable attorney fees” “due to the limited
nature of attorney work on this matter … solely on the issue on which Plaintiff
prevailed.” The court did not award Blakley any amount of costs. Blakley argues
that the court erroneously exercised its discretion in this regard. Specifically, he
contends that the court erred by failing to apply the lodestar method when
determining the amount of reasonable attorney fees to which he was entitled and
by failing to provide a reasoned explanation for its decision regarding attorney
fees and costs.
¶47 Under the lodestar method, a court “must first multiply the
reasonable hours expended by a reasonable rate.” Anderson, 281 Wis. 2d 66, ¶39.
The court may then make adjustments to the amount of attorney fees awarded
based on the factors set forth in SCR 20:1.5(a). Anderson, 281 Wis. 2d 66, ¶39.
¶48 As Landmark notes, the legislature altered the analysis for
determining reasonable attorney fees in 2011, when it enacted WIS. STAT.
§ 814.045. See 2011 Wis. Act 92, § 1. That statute provides that, in any action
involving a dispute over the reasonableness of attorney fees, a court shall consider
all of the following factors:
(a) The time and labor required by the attorney.
(b) The novelty and difficulty of the questions involved in
the action.
(c) The skill requisite to perform the legal service properly.
(d) The likelihood that the acceptance of the particular case
precluded other employment by the attorney.
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No. 2021AP1684
(e) The fee customarily charged in the locality for similar
legal services.
(f) The amount of damages involved in the action.
(g) The results obtained in the action.
(h) The time limitations imposed by the client or by the
circumstances of the action.
(i) The nature and length of the attorney’s professional
relationship with his or her client.
(j) The experience, reputation, and ability of the attorney.
(k) Whether the fee is fixed or contingent.
(L) The complexity of the case.
(m) Awards of costs and fees in similar cases.
(n) The legitimacy or strength of any defenses or
affirmative defenses asserted in the action.
(p) Other factors the court deems important or necessary to
consider under the circumstances of the case.
Sec. 814.045(1). The statute further provides that in an action in which
compensatory damages are awarded, the court shall “presume” that reasonable
attorney fees do not exceed three times the amount of compensatory damages.
Sec. 814.045(2). That presumption may be overcome, however, if the court
determines that a greater amount of attorney fees is reasonable after considering
the factors set forth above. Id.
¶49 It is clear the circuit court believed that Blakley’s attorney over-tried
this case. The court referred to the “insane amount of time invested in this case”
and the “limited nature of attorney work” on the single issue on which Blakley
prevailed. The court did not, however, apply the lodestar method or consider the
factors set forth in WIS. STAT. § 814.045(2). The court simply stated, without
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further analysis or explanation, that $250 was a reasonable award of attorney fees
under the circumstances.
¶50 We cannot conclude that this was a proper exercise of the circuit
court’s discretion. The record shows that Blakley’s attorney charged $250 per
hour for his services. Even if Blakley had brought only a single claim against
Landmark—the security deposit claim on which he ultimately prevailed following
the trial de novo—it is inconceivable that Blakley’s attorney would have spent
only one hour of time on that claim. As a matter of common sense, merely
preparing the summons and complaint and appearing at the original trial before the
court commissioner would have taken more than one hour of counsel’s time.
Furthermore, counsel was obviously required to expend additional time on the
security deposit claim in connection with the trial de novo. Under these
circumstances, while it is clear the circuit court did not believe that Blakley’s
attorney was entitled to the full amount of his claimed attorney fees, there is no
basis in the record for us to conclude that the court’s award of only $250 was a
proper exercise of discretion.
¶51 Landmark argues that the factors set forth in WIS. STAT.
§ 814.045(1) support the circuit court’s decision to award Blakley only $250 in
attorney fees. It is true that, when a circuit court fails to adequately explain its
reasoning, we may search the record to determine whether it supports the court’s
discretionary decision. Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1,
612 N.W.2d 737. Here, our review of the record and our application of the factors
in § 814.045(1) suggest that the court could have reasonably declined to award
Blakley the full amount of his claimed attorney fees. The record does not,
however, provide any readily discernible basis for the court’s decision to award
Blakley only $250 in attorney fees. Thus, even after independently reviewing the
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No. 2021AP1684
record with respect to this issue, we cannot conclude that the court’s award of only
$250 in attorney fees was a proper exercise of discretion.
¶52 Moreover, we note that Blakley’s original fee petition requested
$124.50 in costs—comprised of a filing fee of $122.50 and a mail service fee of
$2. The circuit court did not award Blakley any amount of costs, nor did the court
provide an explanation for its failure to do so. The record provides no basis for us
to conclude that the court properly exercised its discretion by declining to award
Blakley his requested costs—which he was entitled to recover under WIS. STAT.
§ 100.20(5).
CONCLUSION
¶53 For the reasons explained above, we affirm the circuit court’s
decision on Blakley’s claim regarding the parking fees that he paid to Landmark.
However, we reverse the court’s decision that Blakley’s rental agreement was not
void and unenforceable under WIS. STAT. § 704.44(9) and WIS. ADMIN. CODE
§ ATCP 134.08(9), and we also reverse the court’s decision regarding attorney
fees and costs. We remand for further proceedings on those two issues.
¶54 On remand, the circuit court must determine the amount of damages
that Blakley is entitled to recover as a result of the void rental agreement,
consistent with the guidance set forth in this opinion. The court must also
reconsider the amount of attorney fees and costs that Blakley is entitled to recover,
providing a reasoned explanation for its decision in that regard.7 The court must
7
Blakley asserts that instead of remanding for the circuit court to determine a reasonable
award of attorney fees and costs, this court should simply award Blakley the entire amount of the
attorney fees and costs requested in the two fee petitions that Blakley filed. Blakley contends that
this court “is in at least as good of a position to assess a fees petition as the circuit court.”
(continued)
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No. 2021AP1684
keep in mind that Blakley is entitled to recover attorney fees and costs on both his
security deposit claim and his claim regarding the void rental agreement. We also
note that the court’s award of attorney fees on those claims should include
attorney fees that Blakley has incurred in connection with this appeal. See
Shands, 115 Wis. 2d at 359 (“[A] tenant who has suffered pecuniary loss because
of a violation of [WIS. ADMIN. CODE ch. ATCP] 134 shall recover reasonable
attorney fees for appellate review undertaken to attack or defend a [circuit] court’s
decision in the suit.”).
¶55 Blakley may recover appellate costs under WIS. STAT.
RULE 809.25(1). Landmark shall not receive appellate costs.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
We disagree. The deferential standard of review that we apply when reviewing a circuit
court’s award of attorney fees “acknowledges the circuit court’s advantageous position in
determining the reasonableness of a firm’s rate and preparations.” Bernier v. Bernier, 2006 WI
App 2, ¶23, 288 Wis. 2d 743, 709 N.W.2d 453 (2005). Moreover, “[t]he function of this court is
not to exercise discretion in the first instance but to review the circuit court’s exercise of
discretion.” Franke v. Franke, 2004 WI 8, ¶55, 268 Wis. 2d 360, 674 N.W.2d 832. We
therefore decline Blakley’s request that we exercise our discretion in the first instance to
determine a reasonable award of attorney fees and costs. Instead, we remand for the circuit court
to make that determination.
24