Colin Hoffman v. Frank Gribble

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 16, 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. 2021AP1355 Cir. Ct. No. 2020CV686

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

COLIN HOFFMAN,

PLAINTIFF-APPELLANT,

V.

FRANK GRIBBLE,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, 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).
No. 2021AP1355

¶1 PER CURIAM. Colin Hoffman appeals an order granting summary
judgment to Frank Gribble and dismissing Hoffman’s claim for violations related
to Hoffman’s residential lease with Gribble. We affirm the circuit court’s order.

BACKGROUND

¶2 The following material facts are undisputed, except where otherwise
noted. Hoffman signed a lease and rented a one-bedroom apartment from Gribble
beginning in July 2018. Hoffman vacated the premises in either July or August
2020. Hoffman paid Gribble a $700 security deposit before moving into the
apartment. The total amount that Hoffman paid Gribble in connection with the
lease was approximately $18,000. On September 4, 2020, Gribble returned $605
of the $700 security deposit to Hoffman, along with a written statement
accounting for the amount withheld from the security deposit.

¶3 The lease contained certain conditions, including requiring that
Hoffman “obey all lawful orders, rules, and regulations of all governmental
authorities.” The lease did not contain a “Notice of Domestic Abuse Protections”
as required by WIS. STAT. § 704.14 (2021-22) and WIS. ADMIN. CODE § ATCP
134.08(10) (Nov. 2021) (the “domestic abuse protection notice”).1 Pursuant to
§ ATCP 134.08(10), a lease is “void and unenforceable” if it “[a]llows the
landlord to terminate the tenancy of a tenant for a crime committed in relation to
the rental property and the rental agreement does not include the notice required
under [§] 704.14.”

1
The text of WIS. STAT. § 704.14 is set forth in note 4 of this opinion. All references to
the Wisconsin Statutes are to the 2021-22 version unless otherwise noted. All references to WIS.
ADMIN. CODE ch. ATCP 134 are to the November 2021 register date unless otherwise indicated.

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¶4 In March 2020, while still residing at Gribble’s rental property
pursuant to the lease, Hoffman filed a class action complaint against Gribble on
behalf of himself and other tenants residing at Gribble’s properties. The complaint
was brought pursuant WIS. STAT. § 100.20(1) and (5) and alleged that Gribble’s
lease constituted an unfair trade practice in violation of WIS. ADMIN. CODE
§ ATCP 134.08 because it allowed Gribble to terminate the tenancy of a tenant for
a crime committed in relation to the rental property but did not include the
domestic abuse protection notice required by WIS. STAT. § 704.14. Hoffman
sought damages as provided for in § 100.20(5). Hoffman did not experience
domestic violence during the term of the lease.

¶5 The circuit court held a hearing on Hoffman’s motion for class
certification. The court denied the motion for class certification without prejudice
and scheduled the case for summary judgment proceedings.2 Hoffman filed a
motion for partial summary judgment, arguing that (1) Gribble’s lease violated the
law in failing to include the domestic abuse protection notice, and (2) Hoffman is
entitled to damages of double the total amount he paid to Gribble in connection
with the lease. Gribble filed a response, arguing that he is entitled to summary
judgment and that Hoffman’s complaint should be dismissed because, among
other things, Hoffman had not shown a pecuniary loss caused by Gribble’s failure
to include the domestic abuse protection notice in the lease.

¶6 At a subsequent summary judgment hearing, Gribble conceded that
the lease did not contain the domestic abuse protection notice required by law. As
a result, the court stated that it was granting partial summary judgment to Hoffman

2
Hoffman does not appeal denial of the class certification.

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in that the court declared the lease illegal.3 Thus, the only issues remaining were
whether Hoffman is entitled to damages, and if so, how they should be calculated.

¶7 The circuit court issued a written decision concluding that, although
the lease violated the pertinent statutory and administrative code provisions,
Hoffman failed to show he incurred a pecuniary loss as a result of the violation
and therefore is not entitled to damages under WIS. STAT. § 100.20(5).
Accordingly, the court denied Hoffman’s motion for partial summary judgment,
granted summary judgment to Gribble, and dismissed Hoffman’s claim.

¶8 Following the circuit court’s decision, Hoffman filed a motion for
reconsideration, requesting that the court address the arguments based on
principles of rescission and restitution that Hoffman made in his summary
judgment motion. The court issued an amended decision concluding that Hoffman
is not entitled to damages based on rescission and restitution principles for the
same reason he is not entitled to damages under WIS. STAT. § 100.20(5): he did
not show that he incurred a pecuniary loss resulting from Gribble’s failure to
include the domestic abuse protection notice in the lease. Accordingly, the court
reaffirmed its grant of summary judgment in favor of Gribble. Hoffman appeals.

3
Although it does not affect our decision in this case, we note that Gribble’s counsel
represented at the hearing that, beginning in 2020, Gribble changed his leases to add the domestic
abuse protection notice.

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DISCUSSION

I. Applicable Standards of Review.

¶9 We review the circuit court’s decision to grant summary judgment
de novo. Snyder v. Badgerland Mobile Homes, Inc., 2003 WI App 49, ¶7, 260
Wis. 2d 770, 659 N.W.2d 887. Summary judgment is appropriate if there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law. WIS. STAT. § 802.08(2). Additionally, statutory construction
and the construction of administrative rules or regulations both present questions
of law. Moonlight v. Boyce, 125 Wis. 2d 298, 303, 372 N.W.2d 479 (Ct. App.
1985). Accordingly, this court owes no deference to the circuit court’s
construction of statutes or administrative rules and regulations. Id.

II. Hoffman Fails to Show That He Suffered a “Pecuniary Loss Because of a
Violation” Under WIS. STAT. § 100.20(5).

¶10 As stated, WIS. STAT. § 704.14 requires residential rental agreements
to include a “Notice of Domestic Abuse Protections,” which delineates various
protections provided to tenants who are victims of domestic abuse, sexual assault,
or stalking.4 It is undisputed that Gribble failed to include this notice in the lease

4
WISCONSIN STAT. § 704.14 provides:

Notice of domestic abuse protections. A residential
rental agreement shall include the following notice in the
agreement or in an addendum to the agreement:

NOTICE OF DOMESTIC ABUSE PROTECTIONS

(1) As provided in section 106.50(5m)(dm) of the Wisconsin
statutes, 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
(continued)

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with Hoffman. It is also undisputed that, by failing to include this notice,
Hoffman violated WIS. ADMIN. CODE § ATCP 134.08, which describes prohibited
rental agreement provisions, the inclusion of which renders a rental agreement
void and unenforceable. Pertinent here, § ATCP 134.08(10) states:

Prohibited rental agreement provisions — rental
agreement that contains certain provisions is void.
Notwithstanding s. 704.02, Stats., a rental agreement is
void and unenforceable if it does any of the following:

….

(10) Allows the landlord to terminate the tenancy
of a tenant for a crime committed in relation to the rental
property and the rental agreement does not include the
notice required under s. 704.14, Stats.

conduct related to domestic abuse, sexual assault, or stalking
committed by either of the following:

(a) A person who was not the tenant’s invited guest.

(b) A person who was the tenant’s invited guest, but the
tenant has done either of the following:

1. Sought an injunction barring the person from the
premises.

2. Provided a written statement to the landlord stating
that the person will no longer be an invited guest of
the tenant and the tenant has not subsequently invited
the person to be the tenant’s guest.

(2) A tenant who is a victim of domestic abuse, sexual assault,
or stalking may have the right to terminate the rental
agreement in certain limited situations, as provided in
section 704.16 of the Wisconsin statutes. If the tenant has
safety concerns, the tenant should contact a local victim
service provider or law enforcement agency.

(3) A tenant is advised that this notice is only a summary of the
tenant’s rights and the specific language of the statutes
governs in all instances.

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In addition, WIS. STAT. § 100.20(1) prohibits “unfair methods of competition” and
“unfair trade practices” in business, which include the methods and practices
prohibited by ch. ATCP 134. See § 100.20 (1), (2)(a); § ATCP 134.01. Thus,
because the lease allowed Gribble to terminate Hoffman’s lease for a crime
committed in relation to the rental property but did not include the domestic abuse
protection notice required under § 704.14, Gribble’s lease violated § 704.14,
§ 100.20, and § ATCP 134.08(10). The only issue remaining on appeal is whether
Hoffman is entitled to damages.

¶11 Hoffman argues that he is entitled to damages under WIS. STAT.
§ 100.20(5). Section 100.20(5) provides that “[a]ny person suffering pecuniary
loss because of a violation by any other person of … any order issued under this
section may sue for damages … and shall recover twice the amount of such
pecuniary loss, together with costs, including a reasonable attorney fee.” The
language in § 100.20(5) “provides a private remedy for consumers who fall victim
to the unfair methods of competition and trade practices prohibited by, inter alia,
general orders of the Department of Agriculture, Trade and Consumer Protection
[DATCP] promulgated under § 100.20(2).” Kaskin v. John Lynch Chevrolet-
Pontiac Sales, Inc., 2009 WI App 65, ¶9, 318 Wis. 2d 802, 767 N.W.2d 394. “In
other words, § 100.20(5) ‘supplies the teeth’ to the DATCP orders.” Id. (quoted
source omitted). As indicated, such “orders” include the prohibited rental
practices set forth in WIS. ADMIN. CODE § ATCP 134.08. See § 100.20(2);
§ ATCP 134.01; Baierl v. McTaggart, 2001 WI 107, ¶23, 245 Wis. 2d 632, 629
N.W.2d 277.

¶12 This appeal requires us to interpret the meaning of the phrase
“pecuniary loss because of a violation,” as used in WIS. STAT. § 100.20(5).
“[S]tatutory interpretation ‘begins with the language of the statute. If the meaning

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of the statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(quoted source omitted). “Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially defined words or phrases are
given their technical or special definitional meaning.” Id.; see also WIS. STAT.
§ 990.01(1).

¶13 This court has previously concluded that WIS. STAT. § 100.20(5) is
unambiguous. Kaskin, 318 Wis. 2d 802, ¶14. Interpreting this statutory
provision, this court has also stated that “a party asserting a pecuniary loss for the
purposes of WIS. STAT. § 100.20(5) must show that there is a causal connection
between a prohibited trade practice … and the damage incurred.” Grand View
Windows, Inc., v. Brandt, 2013 WI App 95, ¶21, 349 Wis. 2d 759, 837 N.W.2d
611; see also Paulik v. Coombs, 120 Wis. 2d 431, 436-37, 355 N.W.2d 357 (Ct.
App. 1984) (“Under [§] 100.20(5), a person who suffers damages because of a
violation of the promulgated regulations, including Wis. Adm. Code ch. Ag 134,
has a right to recover twice the amount of pecuniary loss, together with costs,
including reasonable attorneys fees.”) (emphasis added); Kaskin, 318 Wis. 2d 802,
¶14 (“We have no quarrel with the assertion that a violation of the code must
‘cause’ a pecuniary loss to the consumer. In fact, that is exactly what the statute
and the code mean to say.”).

¶14 Hoffman argues that he incurred a “pecuniary loss” in the amount of
all of the rental and other payments (including his security deposit) that he made to
Gribble over the two-year course of the lease—approximately $18,000. The
circuit court rejected this argument on the ground that Hoffman failed to show that
his alleged pecuniary loss was “because of a violation,” as required under the plain

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language of WIS. STAT. § 100.20(5). For the reasons that follow, we agree with
the circuit court.

¶15 Hoffman fails to show that he can establish any “causal connection”
between Gribble’s failure to include the domestic abuse protection notice in the
lease and Hoffman’s payment of rent, security deposit, or any other fees. See
Grand View Windows, 349 Wis. 2d 759, ¶21. Because Hoffman develops no
argument with respect to any fees aside from rent or the security deposit, we
decline to consider these other fees. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped arguments).
Regarding the $700 security deposit, Hoffman’s brief-in-chief largely ignores the
fact that, with the exception of $95, Gribble returned it. He makes no argument
that the $95 was improperly withheld. His only argument as to a “loss” involving
the security deposit is made in his reply, in which he compares his situation to that
in Baierl, 245 Wis. 2d 632, a case that he describes as standing for the proposition
that “because the lease was void, there was no basis for the lessor to receive or
retain the deposit, and so it was doubled.” Hoffman continues:

The lease here is similarly void, and Gribble received and
held onto Hoffman’s deposit for 24 months because of the
void lease. Even though it was eventually returned,
Hoffman suffered the pecuniary loss of his deposit for 24
months. Allowing Gribble to profit from the interest he
could earn on illegally obtained security deposits, and not
recognizing that Hoffman suffered a loss of his security
deposit the moment he paid it pursuant to an illegal lease, is
where the [circuit] court erred.

Hoffman likewise relies on Baierl (and on other cases discussed below) for his
argument that he is entitled to recover damages for the rent he paid over the course
of the lease. Hoffman’s reliance on Baierl is misplaced.

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¶16 In Baierl, the tenants vacated an apartment prior to the expiration of
the lease term and instructed the landlord to deduct an amount equaling one
month’s rent from the security deposit. Unable to re-rent the apartment, the
landlord not only deducted amounts for one month’s rent and for (uncontested)
damages, but also withheld the remainder of the deposit because of the landlord’s
inability to re-rent. Id., ¶5. The landlord also brought an action to collect
damages for lost rent under the lease. Id., ¶6. The tenants counterclaimed and
sought damages under WIS. STAT. § 100.20(5), arguing that the lease was void and
unenforceable because it included a provision in violation of WIS. ADMIN. CODE
§ ATCP 134.08(3) requiring the tenants to pay the landlord’s attorney’s fees for
any legal action brought by the landlord to enforce the lease. Id., ¶7. On appeal,
our supreme court framed the issue as involving “the enforceability of the lease by
[the landlord] in light of the intent underlying the regulation at issue.” Id., ¶20.
The court concluded that the landlord could not enforce the lease and it affirmed
the circuit court’s award of damages to the tenants “in the amount of the security
deposit remaining after deduction of the [month of] rent and other uncontested
deductions,” with that remaining amount doubled pursuant to § 100.20(5). Id.,
¶¶8, 40.

¶17 Baierl is not on point for several reasons. First, this appeal involves
an action brought by Hoffman, not an enforcement action by Gribble. Second,
unlike Hoffman, the tenants in Baierl did not claim, nor did our supreme court
conclude, that because of the violation of WIS. ADMIN. CODE § ATCP 134.08, the
tenants were entitled to recover all of the rent paid over the course of their lease.
Nor was there any claim by the tenants, much less a holding by the court, that the
tenants were entitled to receive damages for a security deposit amount that was
returned or even for all of the security deposit they had paid that had not been

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returned. As explained above, the holding in Baierl was much more limited—
namely, that the landlord could not enforce the lease and, therefore, could not
retain the part of the security deposit or seek additional damages for lost rent as a
result of the tenants’ early termination of the lease and the landlord’s inability to
re-rent the premises. Third, unlike the tenants in Baierl, Hoffman is seeking to
recover all of the rent he paid, and all of his security deposit even though most of
the security deposit was returned to him and he does not separately contest the
amount that was not returned.

¶18 In addition, as the circuit court in this case aptly observed, the nature
of the administrative code violation in Baierl was central to our supreme court’s
determination. The Baierl court noted that the provision at issue, WIS. ADMIN.
CODE § ATCP 134.08(3), was “intended not only to prevent the extraction of the
concession of reimbursed attorney fees and costs from tenants by landlords, but
also to prevent the chilling effect that the inclusion of a clause claiming to require
the payment of attorneys fees and costs has on a tenant’s assertion of legal rights.”
Id., ¶30. The court was persuaded by the likelihood that “tenants who read such a
clause in a residential lease will forgo pursuing their rights under the lease out of
fear that they will be forced to bear the landlord’s litigation expenses.” Id. The
court noted that enforcement of a lease containing such a provision would be
contrary to the legislative purpose of WIS. STAT. § 100.20(5), which “encourages
private litigation by tenants to enforce their legal rights through the attorneys fees
and double damages provisions of WIS. STAT. § 100.20(5).” Id., ¶31. Enforcement
would also undermine the ability of tenants to “serve as ‘private attorneys
generals,’ enforcing the tenant rights preserved under the administrative code.”
Id. (quoted source omitted). The court concluded: “Having examined the subject
matter, history, and object of § ATCP 134.08(3) to determine the intent underlying

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the regulation, we conclude that enforcement of a lease containing the prohibited
provision would not only fail to advance the goals of § ATCP 134.08(3), but
would undermine them entirely.” Id., ¶33.

¶19 Unlike the lease provision in Baierl, the lease provision at issue here
did not undermine Hoffman’s ability to enforce his own or others’ rights under the
lease. As the circuit court correctly noted in this case, the absence of the domestic
abuse protection notice here “did not inhibit Hoffman’s ability to bring a suit
under [WIS. ADMIN. CODE §] ATCP 134.08 because it does not pose the same
barrier as the allocation of attorney’s fees” in Baierl.

¶20 Other cases upon which Hoffman relies are likewise inapposite and,
contrary to Hoffman’s assertions, do not create what he contends is a general “rule
that a consumer’s pecuniary loss equals all payments made while subjected to an
unfair trade practice,” even in the absence of any causal connection between the
violation and the loss.

¶21 Hoffman relies heavily on Kaskin, 318 Wis. 2d 802, in which we
examined WIS. ADMIN. CODE § ATCP 132.09(1) and (4) (Oct. 2004), provisions
that prohibit automobile repair shops from demanding or receiving payment for
unauthorized repairs. Kaskin, 318 Wis. 2d 802, ¶1. The repair shop charged
Kaskin almost $5,000 in unauthorized truck repairs when Kaskin expected the
repairs to be made under warranty. Id., ¶¶5-6. When Kaskin protested, the repair
shop would not give him back his truck unless he paid, so Kaskin paid. Id., ¶5.
Kaskin filed an action under WIS. STAT. § 100.20(5), claiming that he never
authorized the nonwarranty repairs. Id., ¶6. Noting that Kaskin’s appeal
“require[d] us to interpret the meaning of ‘pecuniary loss because of a violation’
as used in ... § 100.20(5),” we concluded that consistent with the “unambiguous”

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language of § 100.20(5) and § ATCP 132.09 (Oct. 2004), “the pecuniary loss is
precisely the amount the consumer paid for unauthorized repairs.” Id., ¶14.
Quoting a prior decision, we reiterated that § ATCP 132.09 (Oct. 2004) “‘was
promulgated to prevent shops from proceeding with repairs unless they have
received permission to do so.’” Id., ¶16 (quoting Huff & Morse, Inc., v. Riordon,
118 Wis. 2d 1, 9, 345 N.W.2d 504 (Ct. App. 1984)). We further observed that “by
requiring shops to receive permission from the consumer to perform repairs at a
certain price, the code was ensuring that consumers have the power to choose
whether to have the repair work performed, in the manner and price suggested by
the repair shop, or seek other options.” Kaskin, 318 Wis. 2d 802, ¶16. In other
words, “the code promulgated a concept of ‘informed consent’ for the consumer.”
Id. Thus, we concluded that “when a motor vehicle repair shop receives money
from a customer for repairs that the customer did not authorize, or at a price not
authorized, the customer’s pecuniary loss is the entire amount of the unauthorized
charges that the customer paid to the motor vehicle repair shop.” Id., ¶24.

¶22 As is evident from Kaskin, there must be a causal nexus between the
amounts paid and the violation. Kaskin does not support Hoffman’s strict liability
interpretation, under which as Hoffman puts it, “the consumer’s pecuniary loss is
all payments made while subjected to an unfair trade practice,” regardless of how
disconnected the violation and the payments are. In fact, Kaskin explicitly rejects
this expansive interpretation in which a violation always results in a pecuniary
loss:

We acknowledge that not every violation of WIS.
ADMIN. CODE ch. ATCP 132 amounts to the repairs being
unauthorized by the customer. In Huff & Morse, we
explained that WIS. STAT. § 100.20(5) does not prohibit a
motor vehicle repair shop from collecting or receiving
payment for repairs that have not been authorized by the
exact requirements of the code. Instead, a customer finding
a violation of the written estimate requirement has not

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suffered a pecuniary loss if the customer admits to
authorizing to the repairs.

Id., ¶24 n.6. (citations omitted). As the circuit court in this case explained,
Hoffman’s interpretation “would allow every tenant to recover all of their rent,
security deposit, and other fees even if the tenant admitted to agreeing to the
payment terms of an illegal lease, as discouraged by Huff & Morse.”

¶23 The required causal nexus is evident in other cases upon which
Hoffman relies. See Moonlight, 125 Wis. 2d at 305-06 (when landlord violated
administrative code provision by withholding tenant’s security deposit without
providing tenant with written statement of damages within 21 days, tenant’s
pecuniary loss under WIS. STAT. § 100.20(5) was the amount of the security
deposit withheld); Pierce v. Norwick, 202 Wis. 2d 587, 591-96, 550 N.W.2d 587
(Ct. App. 1996) (when landlord violated administrative code provision by
unlawfully withholding a security deposit based on false representation, the
pecuniary loss under § 100.20(5) was the amount that remains of the security
deposit after an offset for the landlord’s actual damages); Pliss v. Peppertree
Resort Villas, Inc., 2003 WI App 102, ¶21, 264 Wis. 2d 735, 663 N.W.2d 851
(when purchasers “were induced into buying a time share because of the referral
selling plan” that violated an administrative code provision, the “pecuniary loss”
under § 100.20(5) was “the money paid for the product that the consumer[s]
[were] improperly induced into buying due, in part or in whole, to the referral
selling plan”).

¶24 Unlike all of the cases upon which Hoffman relies, in which there is
a causal relationship between the pecuniary loss and the violation, here, Hoffman
has not shown a pecuniary loss “because of a violation” as required by the plain
and unambiguous language of WIS. STAT. § 100.20(5). Therefore, he cannot seek
damages under this provision. Accordingly, the circuit court properly denied

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Hoffman’s motion for summary judgment and properly granted summary
judgment to Gribble on this issue.5

III. Hoffman Forfeited His Arguments Based on Rescission and Restitution.

¶25 Hoffman argues that, under common law doctrines, he is entitled to
rescission and restitution because “Gribble made a material misrepresentation
when he represented the lease as a legally valid agreement” and “because Gribble
subjected him to an illegal lease contract.” Hoffman contends that he should be
awarded restitution in the amount of all the payments he made to Gribble under
the lease.

¶26 In considering this argument on Hoffman’s motion for
reconsideration, the circuit court concluded that Hoffman is not entitled to
restitution for the same reason he is not entitled to damages under WIS. STAT.
§ 100.20(5): he did not show that he suffered a pecuniary loss because of
Gribble’s failure to include the domestic abuse protection notice in the lease. On
appeal, Gribble advances an additional ground for rejecting Hoffman’s arguments.
He argues that Hoffman’s complaint alleged only one cause of action—violations
of statutory and administrative code provisions for failing to include the domestic

5
In light of our conclusion that Hoffman cannot establish he is entitled to damages under
WIS. STAT. § 100.20(5), we need not address the parties’ arguments regarding Gribble’s ability to
offset damages through quantum meruit.

Hoffman also makes an argument that “[n]ominal damages may also be an appropriate
remedy” to “effectuate the purpose of the law.” Presumably, “the law” he refers to is WIS. STAT.
§ 100.20, given that he also seeks attorney fees, as provided for in § 100.20(5). But rather than
“effectuate the purpose of the law,” adoption of Hoffman’s position would require us to disregard
the law because, as we have explained, under a plain language interpretation of § 100.20(5),
recovery of damages is permitted only when there is a pecuniary loss “because of” a violation of
the administrative code. Here, because we have concluded that Hoffman has failed to establish
such a nexus, he is not entitled to damages, nominal or otherwise, under § 100.20(5).

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abuse protection notice—and that Hoffman therefore cannot now allege claims
based on misrepresentation or other forms of illegality not raised in his complaint.
See Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶18 n.11, 291 Wis. 2d 283,
717 N.W.2d 17 (both circuit court and appellate court decline to consider
misrepresentation issue because “misrepresentation was not pleaded”); Young v.
Welytok, 2011 WI App 59, ¶27, 333 Wis. 2d 140, 798 N.W.2d 881 (because party
“did not plead a bad faith claim,” appellate court “will not consider it”). Because
we agree with Gribble’s position, we affirm the circuit court’s decision on that
ground. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d
16 (Ct. App. 1995) (on appeal, we may affirm on different grounds than those
relied on by the circuit court).

¶27 As stated, Hoffman’s cause of action was based on the statutory and
administrative code provisions related to failure to include the domestic abuse
protection notice. Thus, the cases he cites in his brief-in-chief to support his
misrepresentation argument are inapplicable because they involve actions based
on complaints that alleged fraud or misrepresentation. See Schnuth v. Harrison,
44 Wis. 2d 326, 330-31, 171 N.W.2d 370 (1969) (complaint sought rescission and
restitution based on claim that defendant fraudulently induced plaintiff into
entering contract by making false representations); Head & Seemann, Inc. v.
Gregg, 104 Wis. 2d 156, 158, 311 N.W.2d 667 (Ct. App. 1981), aff’d and
adopted, 107 Wis. 2d 126, 318 N.W.2d 381 (1982) (claim alleging fraud and
breach of contract).

¶28 In his reply brief, Hoffman argues that, even though his complaint
alleged “a single cause of action,” that does not limit the “kind of relief” to which
he is entitled. He cites a 1925 Yale Law Journal article and Benkoski v. Flood,
229 Wis. 2d 377, 393, 599 N.W.2d 885 (Ct. App. 1999), which, according to

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Hoffman, support his position that “[w]ithin [a] single cause of action, a court can
apply many legal bases to determine the appropriate relief.” He states that “the
facts regarding Gribble’s misrepresentation fall squarely within Hoffman’s cause
of action” because “Gribble represented that the lease was legally valid” when
“[i]n reality, the lease was not valid because it violated the Wisconsin
Administrative Code.” (Emphasis omitted.) Therefore, according to Hoffman,
“Gribble’s misrepresentation forms one possible basis for calculating relief and it
arises directly from Gribble’s violation of the Administrative Code.”

¶29 We reject this as a circular argument that is unsupported by logic or
the authority Hoffman cites. Hoffman provides no authority for the proposition
that misrepresentation is a remedy rather than a cause of action. He likewise does
not reply in any way to Gribble’s arguments, predicated on the civil jury
instructions, that the elements of misrepresentation and the elements of the
violation alleged in Hoffman’s complaint are not the same. Indeed, contrary to
Hoffman’s position, and as Gribble points out, a claim alleging a violation and
damages under WIS. STAT. § 100.20 is a distinct statutory cause of action, not
simply a mechanism for additional relief under common law claims for
misrepresentation or breach of contract. See Stuart v. Weisflog’s Showroom
Gallery, Inc., 2006 WI App 109, ¶33, 293 Wis. 2d 668, 721 N.W.2d 127, aff’d,
2008 WI 22, ¶33, 308 Wis. 2d 103, 746 N.W.2d 762 (“Section 100.20, together
with [WIS. ADMIN. CODE ch.] ATCP 110, give no indication that the legislature
intended to simply add a remedy to common law misrepresentation claims or
breach of contract claims.”).

¶30 We similarly reject Hoffman’s argument that, because the lease is
illegal, Hoffman is entitled to damages under criteria other than that set forth in
WIS. STAT. § 100.20(5). As Hoffman himself agrees, he brought a single cause of

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No. 2021AP1355

action alleging a violation of the domestic abuse protection notice requirement.
Recovery for such a violation is provided for in § 100.20(5), which delineates a
specific requirement that the pecuniary loss be “caused by” the violation. Thus,
under a plain language interpretation of this statute, and contrary to Hoffman’s
assertion, “illegality” in itself is insufficient to recover damages. We are not
persuaded by Hoffman’s unsupported attempt to establish an end-run around the
statutory requirements of § 100.20(5).6

¶31 In sum, Hoffman makes no cogent argument supported in law as to
why he is entitled to damages based on a claim and theory not alleged in his
complaint.

CONCLUSION

¶32 For the reasons stated, we affirm the circuit court order denying
summary judgment to Hoffman, granting summary judgment to Gribble, and
dismissing Hoffman’s complaint.

By the Court.—Order affirmed.

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

6
We further observe that Hoffman’s reliance on Hiltpold v. T-Shirts Plus, Inc., 98
Wis. 2d 711, 298 N.W.2d 217 (Ct. App. 1980), is misplaced. Hiltpold involved a rescission
action under the Wisconsin Franchise Investment Law, WIS. STAT. ch. 553, which, as noted by
the Hiltpold court, includes specific provisions allowing for rescission and damages. See id. at
714 & n.2; WIS. STAT. § 553.51(1), (2).

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