Justin Klimek v. Nicolet National Bank

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.
June 16, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1615 Cir. Ct. No. 2022CV624

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JUSTIN KLIMEK,

PLAINTIFF-APPELLANT,

PATRICIA KOPELKE AND DARIEN FITTING,

PLAINTIFFS,

V.

NICOLET NATIONAL BANK,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Brown County:
JAMES A. MORRISON, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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. 2024AP1615

¶1 PER CURIAM. Justin Klimek1 appeals from an order of the circuit
court granting Nicolet National Bank’s motion to dismiss his complaint. Klimek,
an account holder at Nicolet, argues that the contract governing his relationship
with the bank unambiguously did not permit the bank to charge him multiple
“non-sufficient funds” (NSF) fees on one “item.” He argues, in the alternative,
that the contract is ambiguous on this issue, and, therefore, the court erred by
granting Nicolet’s motion. For the reasons that follow, we conclude that the court
did not err by granting Nicolet’s motion to dismiss, and we affirm.

BACKGROUND

¶2 Klimek filed a class action lawsuit against Nicolet alleging breach of
contract and violation of the covenant of good faith and fair dealing. The claims
pertained to a fee Nicolet charged to Klimek in July 2021.

¶3 According to Klimek’s amended complaint, Nicolet imposed an
initial $35 NSF fee2 sometime that month after a merchant requested that the bank
make a payment for an “item” in excess of Klimek’s available account balance.
Klimek does not dispute that Nicolet appropriately charged this first fee.

1
For reasons not relevant to our decision, Patricia Kopelke and Darien Fitting have not
filed a notice of appeal relevant to the claims addressed in this opinion, and we do not address
those parties further.
2
Although the names of the types of fees discussed in this opinion may vary from bank
to bank, for purposes of this appeal, we adopt the terminology used by the parties. In particular,
we refer to “overdraft” fees when discussing those fees imposed by a bank when the bank makes
payment as requested by a merchant, or other payee, despite the account holder lacking sufficient
funds. We refer to NSF fees when discussing those fees imposed by a bank when the bank denies
payment requested by a merchant, or other payee, because the account holder lacks sufficient
funds. We note that Klimek’s complaint appears to use the term “NSF Fees” to include both
types of fees.

2
No. 2024AP1615

¶4 However, following the merchant’s second request for payment on
the same “item,” made without “Klimek’s request to reprocess the transaction,”
Nicolet charged Klimek an “additional” $35 fee. Nicolet did so after either
denying the merchant’s new payment request or paying the merchant against
insufficient funds, due to Klimek’s account balance still being insufficient to cover
the cost of the “item.”3

¶5 Klimek included as exhibits to his amended complaint his “Deposit
Account Terms and Conditions” and Nicolet’s then-current “Fee Schedule”
(collectively, “the contract”). In relevant part, § 27 of the Deposit Account Terms
and Conditions states:

Insufficient Funds and Overdrafts. [Nicolet] has no
obligation to pay any item that is presented for payment
against insufficient available funds. [Nicolet] may
determine whether or not your account contains sufficient
available funds to pay an item at any time between the time
the item is presented and [Nicolet’s] return deadline, and
only one determination of the account balance is required.
If that determination reveals insufficient available funds to
pay the item, [Nicolet] is not required to pay the item and
may return it unpaid. Alternatively, [Nicolet] may pay the
item and create an overdraft in your account. Whether or
not [Nicolet] decides to pay the item and create an
overdraft is in the sole discretion of [Nicolet] and will
depend on various factors, including your history with
[Nicolet].…

3
Klimek did not allege in the amended complaint the dates of the merchant’s first or
second requests for payment or whether Nicolet paid the merchant’s second request. On appeal,
Nicolet attempts to fill these factual gaps by claiming that the merchant made its second request
for payment almost two weeks after the first and that Nicolet paid the merchant’s second request
and charged Klimek an overdraft fee. However, our review on appeal of Nicolet’s motion to
dismiss is limited to the facts alleged in the amended complaint, and we do not address these
additional factual allegations further. See Data Key Partners v. Permira Advisers LLC, 2014 WI
86, ¶¶18-19, 356 Wis. 2d 665, 849 N.W.2d 693. Therefore, it is unclear for purposes of this
appeal when the merchant made the requests for payment or whether Nicolet’s second imposed
fee was an overdraft fee or an NSF fee.

3
No. 2024AP1615

An insufficient balance or overdraft in your account and
each item presented for payment against insufficient
available funds in your account (whether paid, denied, or
returned) are each subject to an overdraft fee[4] as provided
in [Nicolet’s] then-current Fee Schedule.

The then-current Fee Schedule provides:

NON-SUFFICIENT FUNDS (NSF) AND
OVERDRAFT (OD) FEES*

Per item, nonsufficient funds* $35.00

Per item, overdraft* $35.00

….

Maximum NSF/OD fees assessed per day (Retail
Accounts) $140.00

….

*NSF items may be created by check, in-person
withdrawal, ATM withdrawal, or other electronic means.

¶6 According to Klimek, Nicolet impermissibly charged the second fee
because, under the contract, “[e]ach merchant request for payment was for a single
transaction[] and … should be subject to, at most, a single NSF Fee.” Klimek
additionally alleged that he understood the contract to mean that “each payment
[was] a single item … capable at most of receiving a single [fee] (if Nicolet
returned it or paid it).”

¶7 Nicolet filed a motion to dismiss the amended complaint for failure
to state a claim. Relevant to this appeal, Nicolet argued that the contract permits

4
Nicolet asserts that while the Deposit Account Terms and Conditions uses the term
“overdraft fee,” the term is used in this particular clause as a “catch-all” “to include fees charged
when Nicolet denies a payment request due to insufficient funds” (i.e., an NSF fee). Klimek does
not dispute this assertion.

4
No. 2024AP1615

Nicolet to charge a fee “when any item [is] presented for payment against
insufficient funds,” meaning that the second fee was allowed “even
assuming … two payment requests are not separate ‘items.’” In response, Klimek
contended that an “item,” as that term is used in the contract, “is the same ‘item’
even when it is reprocessed a second or third time, because an ‘item’ reasonably
refers to an account[ ]holder’s instruction for payment (no matter how many times
that instruction is re-processed by a bank or merchant).” “At best,” argued
Klimek, “Nicolet’s ‘per item’ promise is ambiguous” because the contract does
not define “item,” preventing the circuit court from granting Nicolet’s motion to
dismiss.

¶8 Following arguments by the parties, the circuit court orally granted
Nicolet’s motion to dismiss. The court concluded that the contract unambiguously
entitled Nicolet “to charge a fee, in this case $35[,] … on each presentment.” The
court determined that the only reasonable interpretation of the contract language at
issue is that each time an “item” is presented, “whether it’s presented the first time
or whether it comes back repeatedly, is an item presented for payment.” Once the
court ruled that the contract permitted the fee at issue, Klimek conceded that his
implied covenant of good faith and fair dealing claim was “moot.” The court then
entered a written order dismissing Klimek’s claims with prejudice.

¶9 Klimek now appeals.5

5
Klimek alleged a third claim under WIS. STAT. § 100.18 (2023-24) that the circuit court
dismissed as untimely upon Nicolet’s motion to dismiss. Klimek does not challenge the court’s
dismissal of the third claim on appeal.

All references to the Wisconsin Statutes are to the 2023-24 version.

5
No. 2024AP1615

DISCUSSION

¶10 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” Data Key Partners v. Permira Advisers LLC, 2014
WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). When we
review a motion to dismiss, the factual allegations in the complaint, and any
reasonable inferences therefrom, are accepted as true for purposes of our review.
Id., ¶¶18-19. “However, legal conclusions asserted in a complaint are not
accepted, and legal conclusions are insufficient to withstand a motion to dismiss.”
Id., ¶18. Whether a complaint states a claim upon which relief can be granted is a
question of law for our independent review. Id., ¶17.

¶11 This case turns on the interpretation of the parties’ contract. “The
primary goal in contract interpretation is to give effect to the parties’ intentions.”
Seitzinger v. Community Health Network, 2004 WI 28, ¶22, 270 Wis. 2d 1, 676
N.W.2d 426. “We ascertain the parties’ intentions by looking to the language of
the contract itself.” Id. “Such language is to be interpreted consistent with what a
reasonable person would understand the words to mean under the circumstances.”
Id. Moreover, we “consider the language of the contract as a whole, and analyze
contract clauses in context, as they are reasonably understood.” MS Real Est.
Holdings, LLC v. Donald P. Fox Fam. Tr., 2014 WI App 84, ¶29, 356 Wis. 2d
307, 853 N.W.2d 627. “If a contract provision is unambiguous, meaning that it is
susceptible of just one reasonable interpretation, we will construe it consistently
with that unambiguous meaning.” Buchholz v. Schmidt, 2024 WI App 47, ¶24,
413 Wis. 2d 308, 11 N.W.3d 212. We review de novo a circuit court’s contract
interpretation, including whether the contract is ambiguous. Chapman v. B.C.
Ziegler & Co., 2013 WI App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425.

6
No. 2024AP1615

¶12 To begin, Klimek does not allege that Nicolet is prohibited by
federal or state law from charging multiple NSF fees on one “item.” Klimek also
concedes that merchants are legally allowed to present “two repeat submissions on
the same returned transaction.” However, Klimek argues that the circuit court
erred by granting Nicolet’s motion to dismiss his breach of contract claim because
the contract authorized Nicolet to charge only one fee per “item” and the term
“item” “refers to the account[ ]holder’s single order or instruction for payment
from his or her account—not subsequent reprocessing attempts between the
merchant and the bank.” Klimek further argues, in the alternative, that the
contract is ambiguous because it does not define the term “item,” and the contract
can reasonably be interpreted to mean that a fee will be assessed upon an account
holder’s presentment for payment of an item, not a merchant’s presentment of
payment for an item. Klimek cites dozens of federal decisions allegedly in support
of these arguments.

¶13 We agree with the circuit court’s interpretation of the contract: it
unambiguously permitted the second fee imposed in this case. To reiterate, the
second paragraph of § 27 of the Deposit Account Terms and Conditions states that
“[a]n insufficient balance or overdraft … and each item presented for payment
against insufficient available funds” are each subject to a fee, consistent with the
Fee Schedule. (Emphasis added.) As the circuit court determined, and as Nicolet
argues on appeal,6 the term “presented” dictates that the fee imposed is not

6
Nicolet argues, in the alternative, that the second fee was permitted under the contract
even if this court were not to consider the “each item presented for payment” language because
§ 27 of the Deposit Account Terms and Conditions also states that “[a]n insufficient balance or
overdraft in your account … are each subject to an overdraft fee.” According to Nicolet, this
language is, by itself, dispositive because

(continued)

7
No. 2024AP1615

assessed on each “item,” but it is imposed when the request for payment on an
“item” is made on an account with insufficient funds. Stated differently, it is the
demand for payment on an “item” against an account with insufficient funds that
triggers the fee, not the nature of the item or whether the account holder
previously presented the same item for payment to the merchant.

¶14 This conclusion is supported by the first paragraph of § 27 of the
Deposit Account Terms and Conditions. See MS Real Est. Holdings, LLC, 356
Wis. 2d 307, ¶29 (stating that we “consider the language of the contract as a
whole, and analyze contract clauses in context, as they are reasonably
understood”). That paragraph provides that once an “item” is presented for
payment, Nicolet “may determine whether or not your account contains sufficient
available funds to pay an item at any time between the time the item is presented
and [Nicolet’s] return deadline.” The paragraph continues, “If that determination
reveals insufficient available funds to pay the item, [Nicolet] is not required to pay

[t]here was “[a]n insufficient balance … in [Klimek’s] account”
when the merchant presented its first (denied) request for
payment. There was an additional “insufficient balance or
overdraft in [Klimek’s] account”—in a different amount, due to
intervening transactions affecting Klimek’s balance—when the
merchant later re-presented its payment request, and Klimek
again lacked sufficient funds. Because an “insufficient balance
or overdraft” are “each” subject to a fee under [§] 27, Klimek’s
two failures to keep sufficient funds in his account subjected him
to two separate fees.

(Second, third, and fourth alterations in original.)

Klimek correctly observes, however, that under § 27 of the Deposit Account Terms and
Conditions, the $35 fees outlined in the Fee Schedule may not be charged merely for having an
overdrafted account if no item is presented for payment. While the Fee Schedule does permit a
$5 “[c]ontinous overdraft” fee “per day after 5 days,” neither party contends that this provision
applies to the type of challenged fee imposed in this case. We therefore conclude that Nicolet
was not entitled to dismissal of the amended complaint based upon this alternative argument.

8
No. 2024AP1615

the item and may return it unpaid.” As Nicolet argues, “[e]ach such determination
may result in a distinct ‘insufficient balance or overdraft in [Klimek’s] account’ if
Klimek repeatedly keeps insufficient funds in his account while permitting a
merchant to look to the account for payment.” Here, the merchant “presented” the
“item” a second time for payment, Klimek still had an insufficient balance, and
Nicolet could charge him a second fee pursuant to the Fee Schedule.

¶15 There is no other reasonable interpretation of the contract, and
Klimek’s arguments to the contrary are unavailing. First, the “[p]er item”
language in the Fee Schedule does not create ambiguity or otherwise dictate a
different construction of the contract as a whole. When read in conjunction with
§ 27 of the Deposit Account Terms and Conditions, the Fee Schedule simply
provides that an NSF fee is $35 “[p]er item” and that an overdraft fee is $35 “[p]er
item.” This language means that whenever an “item” is “presented” for payment
and the account lacks sufficient funds, Nicolet may charge a $35 fee on that item,
so long as the total NSF and overdraft fees on all items do not exceed $140 “per
day.” See Blum v. 1st Auto & Cas. Ins., 2010 WI 78, ¶20, 326 Wis. 2d 729, 786
N.W.2d 78 (stating that contracts “are to be read as a whole” and, as a result, it
may be “necessary to look beyond a single clause or sentence to capture the
essence” of a contract so that it is not “made ambiguous by isolating a small part
from the context of the whole” (citation omitted)). We agree with Nicolet that
nothing in the Fee Schedule “exempted Klimek from paying the $35 fee if the item
causing an insufficient balance or overdraft happened to have also caused a
different insufficient balance or overdraft on an earlier day.”

¶16 Second, an “item,” as that term is used in the contract, cannot be
understood to mean an account holder’s “single order or instruction for payment,”
as Klimek contends. The word “single” is not used in § 27 of the Deposit Account

9
No. 2024AP1615

Terms and Conditions, and § 27 does not otherwise limit the number of times an
“item” may be “presented” for payment. Indeed, Klimek concedes that a merchant
is legally permitted to present “two repeat submissions on the same returned
transaction.” We would be adding language to § 27 if we were to interpret the
term “item” as narrowly as Klimek. For these reasons, the contract’s omission of
a definition for the term “item” does not create ambiguity.

¶17 Third, we are not persuaded by the federal case law cited by
Klimek.7 Not only are the cases cited not binding on this court, see Lomax v.
Fiedler, 204 Wis. 2d 196, 217, 554 N.W.2d 841 (Ct. App. 1996), but of the dozens
of decisions cited by Klimek, he provides pinpoint citations to only a select few.
Moreover, Klimek provides little to no context for how or why these courts
reached their conclusions based on the specific contract language analyzed. This
court is under no obligation to search through each of these cases to find legal and
factual parallels to this case on Klimek’s behalf. See State v. Waste Mgmt. of
Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978); State v. Delebreau, 2014
WI App 21, ¶17, 352 Wis. 2d 647, 843 N.W.2d 441 (stating that the court could
reject a party’s arguments for being “poorly developed and lack[ing] proper
pinpoint case citations”).

¶18 Furthermore, as far as this court can discern, not a single case cited
by Klimek addresses contractual language identical to the language in the contract
at issue here. See, e.g., Hartnett v. Washington Fed. Bank, No. 21-888, 2021 WL

7
We pause to note that Klimek improperly cites two unpublished opinions of this court
issued before July 1, 2009, in violation of WIS. STAT. RULE 809.23(3)(b). We admonish counsel
that future violations of the Rules of Appellate Procedure may result in sanctions. See WIS.
STAT. RULE 809.83(2).

10
No. 2024AP1615

6494953, at *3 (W.D. Wash. Dec. 7, 2021) (interpreting contract language
permitting a bank to charge an NSF fee “per item” if it refuses “to pay an item
that … is drawn in an amount greater than the amount of funds then available for
withdrawal”). As at least one federal court has articulated in the context of
addressing a bank’s contractual ability to charge “multiple retry fees,” case law
interpreting other contracts with language different from the contract before the
court is of little help. Besser v. Sunflower Bank, N.A., No. 21-cv-01577, 2024
WL 1436283, at *4 (D. Colo. Mar. 11, 2024) (stating that the cases cited by the
parties are “of limited help in analyzing the language of this agreement” because
“the language in these Account Documents is different from” the language
analyzed in those cases). For this reason, we do not view Klimek’s cited case
law8—or the case law cited by Nicolet in response—as persuasive with respect to
our analysis of the contract language at issue in this case.

¶19 In his reply brief, Klimek asserts that by not considering the
nonbinding case law he has cited as persuasive, we “overlook[] that the common
ambiguity presented by ‘item’ in all these contract clauses is controlling while the
differences in the fee clauses are not.” To the extent Klimek attempts to draw
parallels between the language in the contracts in those cases and the contract
language here, we deem that argument undeveloped for the reasons explained
above. See Waste Mgmt. of Wis., Inc., 81 Wis. 2d at 564; Delebreau, 352
Wis. 2d 647, ¶17.

8
Our conclusion regarding the uncompelling and nonbinding case law cited by Klimek
extends to two Wisconsin circuit court decisions referenced by Klimek that addressed motions to
dismiss breach of contract claims related to NSF fees. Those cases did not involve the same
language as the contract at issue, and we do not find them persuasive.

11
No. 2024AP1615

¶20 Fourth, Klimek fails to persuade us with his argument that because
Nicolet has added language to its contract surrounding when it may charge NSF
fees, “even Nicolet understands” that an “item” “does not become a new ‘item’
each time it is re-presented.” However, as we have explained, whether the “item”
or its presentment are new or not is irrelevant, at least for purposes of imposing
overdraft and NSF fees for insufficient funds under the contract, because each
presentment of the item against insufficient funds triggers the fee.

¶21 Lastly, the Federal Deposit Insurance Corporation (FDIC) regulatory
guidance cited by Klimek both in the circuit court and on appeal is similarly
unhelpful to interpreting the contract language at issue. To the extent FDIC
guidance could be persuasive in interpreting a contract, the particular guidance
cited by Klimek is not helpful to our analysis because it did not consider the
contract language used here. Likewise, while the FDIC noted that it had
previously “identified consumer harm when financial institutions charged multiple
NSF fees for the re-presentment of unpaid transactions,” it explained that the
relevant terms in those agreements “were not clearly defined and disclosure forms
did not explain that the same transaction might result in multiple NSF fees if
re-presented.” As we have explained, the contract unambiguously permitted the
fee charged here.

¶22 In all, context is important, and we will not conclude that a contract
is ambiguous based on one undefined term, when the meaning of that term and the
contract as a whole is clear. See MS Real Est. Holdings, LLC, 356 Wis. 2d 307,
¶29. When the term “item” is considered in the context of the contract as a whole,
it is subject to only one reasonable interpretation: it is the demand for payment on
an item against an account with insufficient funds that triggers the fee, not the
nature of the item or whether the same item was previously presented for payment.

12
No. 2024AP1615

Thus, the contract unambiguously permitted Nicolet to charge a second fee on the
same “item” that was presented twice, and Nicolet did not breach the contract
when it charged that fee.9 We therefore affirm the circuit court’s decision granting
Nicolet’s motion to dismiss Klimek’s claims.

By the Court.—Order affirmed.

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

9
Because the contract unambiguously permitted Nicolet to charge Klimek the second
fee, Klimek’s claim based on a violation of the covenant of good faith and fair dealing also fails.
See Beidel v. Sideline Software, Inc., 2013 WI 56, ¶29, 348 Wis. 2d 360, 842 N.W.2d 240 (“A
party may not … employ the good faith and fair dealing covenant to undo express terms of an
agreement.”); Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis. 2d 568, 577, 431
N.W.2d 721 (Ct. App. 1988).

13