Nathan Bikowski v. Pro Seamless of Wisconsin Inc.

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.
September 16, 2021
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. 2020AP1234 Cir. Ct. No. 2018CV209

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

NATHAN BIKOWSKI,

PLAINTIFF-APPELLANT,

V.

PRO SEAMLESS OF WISCONSIN INC.,
F/K/A PRO SEAMLESS,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Wood County:
TODD P. WOLF, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, 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. 2020AP1234

¶1 PER CURIAM. Nathan Bikowski contracted with Pro Seamless of
Wisconsin, Inc. to replace the roof and siding on his residence, and he was
unsatisfied with Pro Seamless’s performance. Following completion of these
projects, Bikowski sued Pro Seamless for breach of contract and trade violation
claims and Pro Seamless counterclaimed for unpaid contract amounts. Bikowski
appeals the judgment entered by the circuit court following a bench trial.
According to Bikowski, the court erred when it determined that he failed to meet
his burden of proof on portions of his breach of contract claims, and when it
denied relief for Pro Seamless’s alleged violations of various trade practices. We
reject Bikowski’s arguments and affirm.

BACKGROUND

¶2 This is an appeal of a judgment following a three-day bench trial.
The parties disputed many facts during the trial, but the following are undisputed
except as noted below.

¶3 Bikowski owns a home in Wisconsin Rapids. In September 2014,
following a hailstorm, he entered into two written contracts with Pro Seamless.
Both contracts contained a clause that required the work “to be completed in a
workmanlike manner according to standard practices.”

¶4 One of the contracts was for the installation of a new roof over
Bikowski’s house and garage. This contract, which we refer to as the “Roofing
Agreement,” called for the installation of an ice and water shield, a drip edge, and

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a continuous ridge vent, and also the replacement of the shingles, roof vents, and
flashing. The final price of the Roofing Agreement was $9,150.00.1

¶5 The other contract, which we refer to as the “Siding Agreement,”
called for the installation of vinyl siding, aluminum wrap around all windows and
doors, and new soffits and fascia.2 The contract price of the Siding Agreement
was $11,955.00.

¶6 Pro Seamless completed the work on the Roofing Agreement in
December 2014 and the work on the Siding Agreement the following spring.
Bikowski’s fiancée raised issues with Pro Seamless about the quality of its work in
March 2015. Pro Seamless submitted a final invoice for both projects on April 8,
2015, and Bikowski’s fiancée advised Pro Seamless of additional issues. The
parties engaged in the right to cure process found in WIS. STAT. § 895.07
(2019-20),3 but that process did not result in a resolution of their disputes.
Bikowski did not pay the final invoice.

1
The Roofing Agreement originally included repair work on the chimney. Pro Seamless
contends that, after determining that the chimney required more than just “repair work” and that
Pro Seamless would be unable to do the work, it provided Bikowski with a $1,150 credit so he
could have someone else replace the chimney. After this adjustment and another smaller credit,
the final price for the Roofing Agreement was reduced from $10,500 to $9,150.00.

On appeal, Bikowski alleges that the so-called chimney repair was a “throw in” designed
to induce him to enter into the agreement. We address this allegation in a footnote below. For
now, it suffices to say that it is undisputed that Pro Seamless did not perform any work on
Bikowski’s chimney and did not bill him for any chimney work.
2
The Siding Agreement also provided for the installation of river rock or vinyl stone in
select areas, 36 feet of gutter, and one 15-foot downspout. It is undisputed that the rock or stone
was not installed and that Bikowski was not charged for that item. Bikowski did not allege that
this resulted in a breach of contract. He did challenge the adequacy of the gutter and downspout
at trial, but he makes no argument about it on appeal, and we discuss it no further.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶7 Bikowski filed a complaint alleging that Pro Seamless breached both
contracts and violated various trade practices.4 Pro Seamless responded with a
counterclaim for $9,274.31, which it claimed represented the unpaid balance due
under the two contracts.

¶8 Following a bench trial and the submission of post-trial briefing, the
circuit court determined that Pro Seamless breached some but not all of its
contractual promises. It awarded damages based on its determination of whether
the work in question could be repaired or had to be replaced. Specifically, the
court found that some of the installation work contemplated by the Roofing
Agreement was not done in a workmanlike manner, but that there was no
“significant violation[]” of the Roofing Agreement and the minor issues could be
easily repaired. As for the Siding Agreement, the court determined that Pro
Seamless did not breach the portions of the Siding Agreement pertaining to the
soffits, but that it had breached the portions of the Siding Agreement pertaining to
the aluminum wrap and the vinyl siding and that this work had to be replaced.

¶9 As for a remedy, the court determined that Bikowski was entitled to
damages for breach of the Siding Agreement in the amount of $7,050.00, which
represented the cost to replace the siding and the aluminum wrap. The court
subtracted that amount from the $9,274.31 that Bikowski still owed on the
contracts. It ordered that the difference, $2,224.31, would be held in an attorney
trust account and used to pay for the minor repairs that were required under the

4
The complaint also included claims for slander of title and breach of WIS. STAT.
§ 895.07. The slander of title claim was dismissed during the trial. As for the § 895.07 claim,
Bikowski does not challenge any aspect of the circuit court’s determinations regarding that claim
on appeal.

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Roofing Agreement, and that any portion of these funds that remained after the
repairs were completed would belong to Pro Seamless.

¶10 As for the alleged trade practices violations, the circuit court
determined that Pro Seamless had violated some provisions in the Wisconsin
Statutes and the Wisconsin Administrative Code that regulate trade practices, but
that Bikowski failed to prove that he was entitled to relief for any violation.

¶11 Bikowski appeals. We present additional background and address
the parties’ disputes of fact as needed in our discussion below.

DISCUSSION

¶12 Our standard for reviewing a decision following a bench trial is well
established. We apply a highly deferential standard to the circuit court’s findings
of fact. Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d
264, 714 N.W.2d 530. The circuit court is the ultimate arbiter of witness
credibility, and when more than one reasonable inference can be drawn from the
credible evidence, the reviewing court must accept the inference drawn by the
circuit court. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274
N.W.2d 647 (1979). We will not set aside a fact found by the circuit court unless
the record shows it to be clearly erroneous—meaning that, after accepting all
credibility determinations made and reasonable inferences drawn by the fact
finder, the great weight and clear preponderance of the evidence supports a
contrary finding. Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d
575 (Ct. App. 1983).

¶13 We review questions of law independently and without deference to
the circuit court. Royster-Clark, Inc., 290 Wis. 2d 264, ¶13. Interpretation of

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statutes and administrative regulations are questions of law. Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery, Dairy Emps. & Helpers Loc.
No. 695 v. LIRC, 154 Wis. 2d 75, 84, 452 N.W.2d 368 (1990) (statutes);
Moonlight v. Boyce, 125 Wis. 2d 298, 303, 372 N.W.2d 479, 483 (Ct. App. 1985)
(administrative regulations).

I. Breach of Contract

¶14 We begin by addressing Bikowski’s arguments about the contracts.
As stated, the circuit court found that Pro Seamless breached the Siding
Agreement with regard to the aluminum wrap and siding, and Pro Seamless does
not challenge this determination on appeal. As for the remainder of Bikowski’s
contract claims, the court found that Pro Seamless had committed only minor
breaches of the Roofing Agreement and no breach of the portion of the Siding
Agreement that called for replacements of the soffits. The court granted Pro
Seamless’s counterclaim in part on the same basis.

¶15 Bikowski argues that the circuit court erred by awarding only partial
relief on his breach of contract claims, and by partially granting Pro Seamless’s
counterclaim for the unpaid balance. He contends that the court should have
applied the Uniform Dwelling Code when considering Pro Seamless’s contract
performance, and that the facts demonstrate that Pro Seamless breached the
Roofing Agreement in its entirety and the portion of the Siding Agreement that
called for the installation of soffits. We address these arguments in turn,
concluding that any error on the court’s part with regard to the Uniform Dwelling
Code is inconsequential, and that the court properly found that Bikowski did not
meet his burden of proof regarding the portions of the Roofing Agreement and
Siding Agreement for which the court did not find any breach.

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A. The Uniform Dwelling Code

¶16 The Uniform Dwelling Code (UDC), found in WIS. ADMIN. CODE
chs. SPS 320-325 (August 2021)5, is a statewide building code for one- and two-
family dwellings. Various municipalities, including Wisconsin Rapids, have
adopted the UDC.

¶17 During trial, the parties disputed whether the UDC’s requirements
are applicable to the siding and roofing work that Pro Seamless performed on
Bikowski’s residence, which was originally constructed in 1953.6 The circuit
court determined that the UDC’s requirements were inapplicable because
Bikowski’s residence was constructed prior to the UDC’s effective date.
Therefore, the court analyzed Bikowski’s breach of contract claims solely under
the workmanlike manner and standard practices standard, without considering
whether Pro Seamless’s work was consistent with the UDC.

¶18 Bikowski contends that the circuit court erred, and that the UDC’s
requirements apply to Pro Seamless’s work. He appears to be arguing that the
5
All subsequent references to the Wisconsin Administrative Code are to the
August 2021 register unless otherwise indicated.
6
The dispute related to the scope provision of the Uniform Dwelling Code (UDC),
which provides that the UDC applies to all one- and two-family dwellings built on or after the
effective dates under § SPS 320.03. WIS. ADMIN. CODE § SPS 320.02(1)(a). The UDC’s
effective dates were in 1978 and 1980, long after Bikowski’s residence was constructed. WIS.
ADMIN. CODE § SPS 320.03. However, § SPS 320.02(2)(d) also states that “[a]ny municipality
may, by ordinance, adopt the provisions of chs. SPS 320 to 325 to apply to any additions or
alterations to existing dwellings,” (emphasis added), and Wisconsin Rapids expressly adopted by
reference SPS chs 320-325 “to all remodeling or alterations in existing one- and two-family
dwellings,” Wisconsin Rapids Building Code Section 14.06(2) (emphasis added). The parties
disputed whether the siding and roofing work should be considered an “alteration” covered by the
UDC and the Wisconsin Rapids Building Code, or a “repair” that is not covered by the UDC and
the Wisconsin Rapids Building Code. We do not resolve this dispute because, as discussed
below, its resolution is not dispositive to any issue on appeal.

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court’s failure to consider the UDC’s requirements made a difference in the
outcome of this case. However, after carefully reviewing the record and
Bikowski’s appellate briefing, we are not persuaded that the court would have
reached any different conclusions even if it had considered the UDC’s
requirements when evaluating Bikowski’s breach of contract claims.

¶19 Bikowski generally asserts that Pro Seamless’s work was not
consistent with the UDC. However, he cites just one specific provision in the
UDC, WIS. ADMIN. CODE § SPS 321.28(3)(a)3., that is even arguably pertinent to
the issues he raises on appeal. This section specifically pertains to the Roofing
Agreement, and it provides that “[s]hingles shall be installed in accordance with
manufacturer’s recommendations.” WIS. ADMIN. CODE § SPS 321.28(3)(a)3.

¶20 The parties vigorously dispute whether Pro Seamless followed the
manufacturer’s recommendations when installing the shingles. Bikowski argues
that the manufacturer’s manual recommends “hand-sealing” shingles if installed in
fall or winter, and that Pro Seamless did not follow this recommendation.7
According to Bikowski, “the mere fact that [Pro Seamless] did not hand seal the
shingles is a breach.” Pro Seamless tacitly acknowledges that it did not hand seal
the shingles, but it counters that the manual does not actually require shingles to
be hand sealed at the temperatures at which they were installed.

7
More specifically, the manual provides: “All shingles, which contain a factory-applied
self-sealing strip, must be subjected to sunlight for several days before full sealing will occur.
Shingles installed in fall or winter may not seal until the following spring; consequently, the
shingles should be hand-sealed.” It further provides: “Shingles which do not receive direct
sunlight or which are not exposed to adequate surface temperatures may never seal.”

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¶21 We need not wade into these evidentiary disputes to conclude that
the application of WIS. ADMIN. CODE § SPS 321.28(3)(a)3. would not have altered
any of the circuit court’s determinations with regard to the Roofing Agreement.
This is because proof of damages is one element of a breach of contract claim,8
and Bikowski did not introduce any evidence that any shingles failed to seal
despite the failure to hand seal them.9 After hearing the evidence, the circuit court
found: “Nobody found any shingles that weren’t properly sealed. They tested a
few of them. They appeared all to be sealed properly, so I don’t find that the
plaintiffs have made their burden of proof ….” Bikowski does not make any
developed argument that this finding is clearly erroneous.

¶22 For these reasons, we conclude the application of WIS. ADMIN.
CODE § SPS 321.28(3)(a)3. would not have changed the circuit court’s ultimate
determination about the Roofing Agreement. And Bikowski does not identify any
other UDC provision that the court should have considered that might have made a
difference in its determinations about the Roofing Agreement or the portion of the
Siding Agreement that called for the installation of soffits.10 Under these
8
See Brew City Redev. Grp., LLC v. The Ferchill Grp., 2006 WI App 39, ¶11, 289
Wis. 2d 795, 714 N.W.2d 582 (providing that the three elements of a breach of contract claim are
(1) a contract between the plaintiff and the defendant; (2) a failure of the defendant to do what it
undertook to do; and (3) damages).
9
Bikowski presented the written report and testimony of an expert who inspected the
roof the summer after the shingles were installed. In his written report, Bikowski’s expert
acknowledged that “the vast majority of the shingles were sealed down.” The written report did
not identify any shingle that was not sealed at the time the inspection occurred, and the expert did
not testify that he found any shingles that were unsealed. Additionally, during his trial testimony,
Bikowski’s expert acknowledged that there was no evidence of water infiltration through the roof.
10
Bikowski’s expert also identified provisions of the UDC that pertain to the proper
installation of a waterproof barrier under the siding. However, the circuit court found that Pro
Seamless breached this portion of the Siding Agreement even without reference to these UDC
provisions. Accordingly, consideration of the UDC would not have changed the court’s
conclusions about the Siding Agreement.

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circumstances, we need not decide whether the circuit court erred when it
concluded that the UDC was inapplicable. Any potential error did not alter the
outcome of the trial. See Milton v. Washburn Cnty., 2011 WI App 48, ¶8 n.5, 332
Wis. 2d 319, 797 N.W.2d 924 (“[I]f a circuit court reaches the right result for the
wrong reason, we will nevertheless affirm.”).

B. The Roofing Agreement

¶23 Bikowski argues that the circuit court erroneously determined that he
had not met his burden to prove that Pro Seamless breached the Roofing
Agreement in its entirety. We have already addressed Bikowski’s arguments
about the shingles, and we now address the remaining issues about the Roofing
Agreement.

¶24 The circuit court made the following findings of fact. It found that
the drip edge was separating from the roof in two distinct areas, and that the ridge
vent was buckling and warped and needed to be reattached to the roof. The court
determined that the drip edge and ridge vent had not been installed in a
workmanlike manner, but that the problems could be repaired. It noted that both
parties had taken an “all or nothing approach” to damages, and that neither party
provided estimates of the cost for repairs. As the court explained, given the
parties’ submissions, “the best way [it could] handle” damages under the Roofing
Agreement was to order that the minor repairs would be paid from the $2,224.31
that was otherwise owed to Pro Seamless.

¶25 As we understand his appellate briefing, Bikowski does not appear
to challenge the circuit court’s determination about the ridge vent. Apart from the
shingles, which we have addressed, Bikowski’s argument about the Roofing
Agreement is focused on the drip edge and the adequacy of the remedy imposed

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by the court. Bikowski appears to be arguing that the evidence showed that
improper installation of the drip edge created the potential for water infiltration,
that it could not be repaired, and that the entire roof must instead be replaced. He
contends that Pro Seamless’s breach of the Roofing Agreement excuses
Bikowski’s obligation to pay for any of the roofing work.

¶26 Bikowski’s argument is not consistent with our standard of review.
Whether Pro Seamless materially breached the Roofing Agreement in its entirety
is a question of fact. See Volvo Trucks N. Am. v. DOT, 2010 WI 15, ¶50
nn.28-29, 323 Wis. 2d 294, 779 N.W.2d 423 (explaining that the determination
whether a material breach has occurred is generally a question of fact for the
circuit court); see also Shy v. Industrial Salvage Material Co., 264 Wis. 118, 125,
58 N.W.2d 452 (1953) (explaining that the issue of whether a party’s breach
excuses future performance by the non-breaching party presents a question of
fact). As stated above, we defer to a circuit court’s decision on questions of fact
unless clearly erroneous, and the circuit court is the ultimate arbiter of witness
credibility. Cogswell, 87 Wis. 2d at 249-50.

¶27 Bikowski presents the opinion offered by his expert witness
regarding the drip edge as if it were established fact, and he fails to address the
expert testimony about proper installation techniques that was provided by a Pro
Seamless employee. During the trial, that employee testified that, when installing
a square drip edge on the roof of an existing building that has shifted and moved,
it sometimes needs to be fastened with a nail to keep it straight, which is what
occurred in this case. The employee acknowledges that the drip edge has lifted in
a couple places, and he testified that to fix this problem, these places “should be
resealed ... and tacked down.” The circuit court implicitly credited this opinion
and discredited the opinion of Bikowski’s expert, who testified that the entire drip

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edge would need to be replaced. It is for the fact finder to sort between competing
expert opinions, and that is precisely what the court did here. Adams Outdoor
Advert., Ltd. v. City of Madison, 2006 WI 104, ¶27, 294 Wis. 2d 441, 717 N.W.2d
803 (The “weight and credibility to be given to the opinions of expert witnesses is
‘uniquely within the province of the fact finder.’” (quoted source omitted)). We
discern no erroneous exercise of discretion.

¶28 Bikowski also argues that the remedy imposed by the circuit court
for the roof repairs is inadequate. He contends that the court erred when it
“limited” the damages to the remaining balance due on the contract. We disagree.
At trial, Bikowski took an all-or-nothing approach, maintaining that the entire roof
needed to be replaced. As a result of this approach, he did not provide an estimate
of the cost to repair. Under the circumstances, in which the court did not find that
the roof needed to be replaced in its entirety and there was no evidence about the
cost to repair the minor issues identified by the court, it might have been within
the court’s discretion to entirely deny recovery for Bikowski. See Thorp Sales
Corp. v. Gyuro Grading Co., Inc., 107 Wis. 2d 141, 153, 319 N.W.2d 141 (Ct.
App. 1982) (stating that a plaintiff in a breach of contract bears the burden of
proving reasonably certain damages). Here, the court instead endeavored to craft a
remedy that aimed to address the minor issues that the court found needed to be
addressed. Bikowski does not provide any basis for us to disturb the court’s
reasonable exercise of discretion.11 See Cords v. Anderson, 80 Wis. 2d 525, 552-
53, 259 N.W.2d 672 (1977) (“In reviewing damage awards granted in either a

11
Pro Seamless does not appeal the circuit court’s decision to set aside $2,224.31 in trust
to be used for the repairs that the court found were needed on the roof.

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bench or jury trial this court does not substitute its judgment for that of the fact
finder, but rather determines whether the award is within reasonable limits.”)

C. The Siding Agreement

¶29 We now address Bikowski’s argument about the Siding Agreement.
As stated above, the circuit court found that Pro Seamless breached the Siding
Agreement with regard to the aluminum wrap and siding, but not with regard to
the soffits.

¶30 By way of background, the original soffits were wooden, and the
Siding Agreement called for the installation of aluminum soffits. The Siding
Agreement did not state that the original wooden soffits would be removed, but
Bikowski’s fiancée testified that she asked Pro Seamless to remove them and Pro
Seamless agreed. Bikowski asserts that Pro Seamless’s failure to remove the
original soffits resulted in airflow being reduced by “fifty percent,” consistent with
his trial testimony that he observed ice damming for the first time since the soffits
were installed. However, these assertions were not supported by expert testimony.
The only evidence of testing was done by Pro Seamless’s expert, who testified that
he used a wire to verify that the vent in the old soffit had been widened and
ultimately determined that the venting met industry standards and was more than
adequate. For his part, Bikowski’s expert acknowledged that he had not done any
testing to substantiate Bikowski’s assertions about airflow and further testified: “I
still to this day do not know whether there is enough sufficient flow at the eaves.”

¶31 It is apparent that the circuit court did not credit Bikowski’s
fiancée’s testimony about an oral agreement, and it found “no indication in the
[Siding Agreement] that the old soffits would be ... totally removed.” As for

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damages, the court further found that Bikowski’s assertion that the soffits provided
poor ventilation was “pure speculation” that was not “supported by the evidence.”

¶32 Apart from asserting that the circuit court should have credited his
evidence, Bikowski does not develop any argument explaining how the court
erred. The Siding Agreement does not address the removal of the original soffits,
and it was within the court’s discretion to credit or discredit testimony about an
oral agreement. As for damages, the court could reasonably disregard Bikowski’s
unsubstantiated assertions as speculation. The court’s determination that
Bikowski failed to meet his burden of proof regarding the soffits is not clearly
erroneous.

¶33 For all these reasons, we reject Bikowski’s arguments that the circuit
court should have found that Pro Seamless materially breached the Roofing
Agreement in its entirety and the portion of the Siding Agreement pertaining to the
soffits.12

II. Trade Practices

¶34 We now turn to Bikowski’s argument about Pro Seamless’s trade
practices. Bikowski contends that Pro Seamless violated a number of Wisconsin

12
We likewise reject Bikowski’s argument, which he barely develops, that the circuit
court erred by granting Pro Seamless’s counterclaim to recover the balance due for services it
performed under the contracts. If Bikowski is now arguing on appeal that he should have been
excused from paying the amount due to Pro Seamless because the court found that portions of the
two contracts had been breached, we reject the argument because it was not adequately raised in
the circuit court. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis.
2d 572, 786 N.W.2d 177 (explaining that issues not raised in the circuit court may be forfeited
and supporting proposition that appellate courts generally do not address forfeited issues).
Indeed, in his post-trial submissions to the circuit court, Bikowski expressly advocated for a
component-by-component approach to damages for breach of contract.

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statutes and code provisions that regulate the home improvement industry,
including WIS. STAT. § 101.148(2), WIS. STAT. § 100.65(3), and various
provisions in WIS. ADMIN. CODE ch. ATCP 110. We address Bikowski’s
arguments about these statutes and regulations in turn, ultimately concluding that
the court did not err when it declined to grant relief.

A. WIS. STAT. § 101.148(2)

¶35 Under WIS. STAT. § 101.148(2), a contractor is required to deliver a
notice and a brochure concerning construction defects to a consumer before
entering into a written contract for remodeling work on a dwelling. During the
trial, the parties disputed whether Pro Seamless had timely delivered the notice
and brochure to Bikowski. The circuit court found that Pro Seamless violated
WIS. STAT. § 101.148(2), but it did not order any damages or any other type of
remedy.

¶36 Bikowski does not appear to assert that he suffered any harm as a
result of Pro Seamless’s failure to deliver the notice and brochure. Although his
appellate briefing is not entirely clear on this point, he may be arguing that he is
entitled to a “remedial penalty” as a result of the violation. We disagree for two
reasons.

¶37 First, Bikowski does not develop any argument that the circuit court
has authority to impose a remedial penalty for a violation of WIS. STAT.
§ 101.148(2). The text of § 101.148 does not specifically provide any penalty for
a person’s failure to deliver the notice and brochure. The enforcement mechanism
for that statute is found in WIS. STAT. § 101.02(13)(a), which provides: “If any …
person violates this subchapter, or fails ... to perform any duty specified under this
subchapter … for which no penalty has been specifically provided,” that person

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“shall forfeit and pay into the state treasury a sum not less than $10 nor more than
$100 for each such offense.”13 WIS. STAT. § 101.02(13)(a). Thus, the statute is
explicit—any forfeiture should be paid to the state, not to a consumer in a private
cause of action.

¶38 Second, we agree with Pro Seamless that Bikowski forfeited any
entitlement to a remedial penalty for a violation of WIS. STAT. § 101.148(2).
During the circuit court’s oral ruling, the court specifically determined that Pro
Seamless violated § 101.148(2), but it did not address whether Bikowski was
entitled to a remedy for this violation. After the court was done issuing rulings, it
specifically asked: “[I]s there anything that I am missing that I need to deal
with …?” Bikowski’s attorney responded in the negative, stating: “I think you’ve
covered all of the claims.” He did not raise the issue of any entitlement to a
remedial penalty for the violation of § 101.148(2). We normally do not consider
issues that were not raised in the circuit court, and we do not see any reason to do
so here. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327
Wis. 2d 572, 786 N.W.2d 177 (explaining the forfeiture rule).

B. WIS. STAT. § 100.65(3)

¶39 Under WIS. STAT. § 100.65(3)(a), residential contractors must
furnish certain customers with statements relating to the customers’ potential
expectations that proceeds from insurance claims will be used to pay for contract

The subchapter referred to in WIS. STAT. § 101.02(13)(a) is titled “REGULATION OF
13

INDUSTRY: GENERAL PROVISIONS” and consists of WIS. STAT. §§ 101.01-101.599.

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work.14 Additionally, § 100.65(3)(b) requires a residential contractor to provide a
form “NOTICE OF CANCELLATION” that the customer can use to cancel the
contract if the insurance carrier denies the claim. It appears to be undisputed that
Pro Seamless did not provide Bikowski with the statement and form required by
WIS. STAT. § 100.65(3) for either contract. The circuit court found that Pro
Seamless knew that Bikowski intended to use insurance proceeds to pay for at
least a portion of the work, and that Bikowski’s insurance company did in fact do
so.

¶40 In its oral ruling, the circuit court indicated that it was not
“concerned with any violations of [WIS. STAT.] § 100.65” because both parties
were already aware of and dealing with Bikowski’s insurance company. In
essence, the court took no action regarding Pro Seamless’s failure to comply with
§ 100.65(3) because Bikowski suffered no harm—his insurer was already
involved, and it was evident to the parties that it would not be denying the claim.

¶41 Bikowski argues that the circuit court misinterpreted the language of
WIS. STAT. § 100.65(3), which, Bikowski appears to suggest, mandates that the
statement and form be provided regardless of whether the parties are already on
notice that an insurer has approved payment of a claim. He points to § 100.65(9),
which provides: “Any person who violates this section shall forfeit not less than
$500 nor more than $1,000 for each violation.” Bikowski contends that the circuit
court erred when it failed to award him at least $2,000 in forfeitures—$500 for the

14
Specifically, the statement required by WIS. STAT. § 100.65(3)(a) asks the customer to
indicate whether “the work contemplated by this contract is related to a claim under a property
insurance policy,” and informs the customer, “[y]ou may cancel this contract at any time before
midnight on the third business day after you have received written notice from your insurer that
the claim has been denied in whole or in part under the property insurance policy.”

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No. 2020AP1234

violation of § 100.65(3)(a) and $500 for the violation of § 100.65(3)(b) for each of
two contracts—based on “the plain mandate” of § 100.65(9). Pro Seamless
counters that it is not clear “who this forfeiture should be paid to,” and further, that
Bikowski forfeited any entitlement to a forfeiture when his attorney failed to
specifically raise the issue at the close of the circuit court’s oral ruling.

¶42 To the extent that the circuit court determined that Pro Seamless did
not violate WIS. STAT. § 100.65 because Bikowski’s insurer was already involved,
we would not agree with that analysis. Yet, when a circuit court “reaches the right
result for the wrong reason, we will nevertheless affirm.” Milton, 332 Wis. 2d
319, ¶8 n.5. Here, we conclude that the circuit court nevertheless reached the right
result for two reasons.

¶43 First, Bikowski does not develop an argument that he would be
entitled to collect the forfeiture provided for in WIS. STAT. § 100.65(9). That
statute does not explicitly provide that the consumer may bring a private cause of
action to collect such forfeitures. And, as we have seen, “forfeitures” for
noncompliance with industry regulations are often paid to the state, not to
consumers in a private cause of action. See supra ¶37.

¶44 Second, we agree with Pro Seamless that Bikowski forfeited any
entitlement to these forfeitures by failing to raise the issue after the circuit court
made its oral ruling. As discussed above, the court ruled that there would be no
recovery under WIS. STAT. § 100.65(3) because Bikowski did not suffer any harm.
The court did not address Bikowski’s claim that he was entitled to forfeitures
under § 100.65(9). Yet, when the court then asked whether it was missing
anything that it needed to deal with, Bikowski’s attorney responded in the
negative. Bikowski’s attorney did not take the opportunity to allow the court to

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No. 2020AP1234

correct any error it made based on what Bikowski characterizes as the “plain
mandate” of § 100.65(9). We conclude that Bikowski forfeited this issue by
failing to bring the issue to the attention of the circuit court. See Schill, 327 Wis.
2d 572, ¶45 n.21 (one of the policies underlying the forfeiture rule is to give the
circuit court notice of any error and a fair opportunity to address it).

C. WIS. ADMIN. CODE § ATCP 110

¶45 Throughout the trial, Bikowski argued that Pro Seamless violated a
number of regulations adopted by the Wisconsin Department of Agriculture, Trade
and Consumer Protection in WIS. ADMIN. CODE ch. ATCP 110. These regulations
were adopted by the agency pursuant to WIS. STAT. § 100.20(2). See ch. ATCP
110 (Note).

¶46 Bikowski argues that he is entitled to double damages and attorney
fees pursuant to WIS. STAT. § 100.20(5) and Stuart v. Weisflog’s Showroom
Gallery, Inc., 2008 WI 22, ¶24, 308 Wis. 2d 103, 746 N.W.2d 762. Subsection
100.20(5) provides: “Any person suffering pecuniary loss because of a violation
by any other person of … any order issued under this section may sue for damages
therefor … and shall recover twice the amount of such pecuniary loss, together
with costs, including a reasonable attorney fee.” In Stuart, our supreme court
explained that recovery is appropriate under this section when there is a “clear
causal connection” between the pecuniary loss and the trade violation. Stuart, 308
Wis. 2d 103, ¶24.

¶47 Here, the circuit court appeared to conclude that Bikowski had to
prove some kind of deception or misrepresentation to prevail under WIS. STAT.
§ 100.25(5). In so doing, the court may have misinterpreted the language of the
pertinent statutes and administrative regulations, which do not necessarily require

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No. 2020AP1234

deception or misrepresentation.15 Under the circumstances, Bikowski argues, the
court erred by failing to engage in an analysis of whether there was a causal
connection between the alleged violations of WIS. ADMIN. CODE ch. ATCP 110
that he pursued in the post-trial brief and any pecuniary damages he purportedly
suffered. We disagree. In this case, despite its possible misinterpretation of the
statutory and regulatory requirements, we conclude that the court did not commit
reversible error. Bikowski failed to present any evidence or argument that would
have shown a causal connection between a violation of ch. ATCP 110 and any
pecuniary loss he purportedly suffered.

¶48 During the circuit court proceedings and again in his post-trial brief,
Bikowski pointed to sparse and disputed evidence purporting to show that Pro
Seamless violated various trade regulations found in WIS. ADMIN. CODE ch. ATCP
110.16 However, with one exception discussed below, Bikowski did not attempt to

15
The circuit court referenced WIS JI CIVIL 2720, which specifically addresses the
provisions of WIS. ADMIN. CODE § ATCP 110.05, most of which involve some kind of deception
or misrepresentation. However, Bikowski pursued violations of different sections of ATCP
ch. 110, see infra note 16, and these sections do not appear to address deception and
misrepresentations.

Separately, Bikowski asserts that he did in fact prove that Pro Seamless made misleading
representations about performing work on his chimney. First, Bikowski did not develop this
argument in the circuit court. Second, he does not cite any specific section of WIS. ADMIN. CODE
ch. ATCP 110 on appeal that would entitle him to relief. Third, his argument also fails because,
again, Bikowski does not show any causal connection between the alleged misrepresentation and
any pecuniary loss. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (we need not
consider arguments that are unsupported by adequate factual and legal citations or are otherwise
undeveloped).
16
Specifically, in his post-trial brief to the circuit court, Bikowski argued that he had
proven that Pro Seamless violated the following provisions in WIS. ADMIN. CODE ch. ATCP 110:
(1) § ATCP 110.04 by failing to timely provide copies of written warranties; (2) § ATCP
110.05(2)(a) by failing to identify the agent who solicited the contract; (3) § ATCP 110.05(2)(b)
by failing to adequately describe the roofing and siding works contemplated by the agreements;
(4) § ATCP 110.05(2)(d) by failing to provide a start date and end date in the Siding Agreement;
(5) § ATCP 110.05(2)(f) by failing to furnish statements of guarantees or warranties;
(continued)

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No. 2020AP1234

connect any alleged violation to any pecuniary loss. He merely asserted in
conclusory fashion that he was entitled to double the contract amounts, which
were “the amount[s] necessary to remedy the issues caused by [Pro Seamless’s]
failure to comply with the [UDC], the manufacturer’s installation instructions, and
their own practice and policy.” As such, the argument Bikowski advanced in the
circuit court in favor of double damages appeared to be based on his allegations
that Pro Seamless breached the Roofing Agreement and the Siding Agreement—
not on his allegation that Pro Seamless violated any provision in ch. ATCP 110.

¶49 Bikowski makes just one attempt to show a causal connection
between a violation of WISCONSIN ADMIN. CODE ch. ATCP 110 and a pecuniary
loss. That sole attempt pertains to the shingles and fails for reasons we now
explain.

¶50 WISCONSIN ADMIN. CODE § ATCP 110.027(1) provides that “[a]
seller must give the buyer timely notice of any impending delay in the home
improvement contract performance if performance will be delayed beyond a
deadline specified in the home improvement contract,” and further, that “no
change in performance deadlines is effective unless the buyer agrees in writing to
the change.” Here, the Roofing Agreement specified that the work would be
completed in the “fall.” Bikowski contends that Pro Seamless delayed the shingle

(6) § ATCP 110.05(4) by failing to furnish insurance protections within the agreement;
(7) § ATCP 110.05(5) by failing to identify a person performing some of the contract work as an
independent contractor; and (8) § ATCP 110.027 by failing to provide written notice regarding a
delay in performance on the Roofing Agreement.

We note that the facts pertaining to these violations were vigorously disputed at trial, as
were the interpretation and application of the pertinent regulations. The court did not make any
specific findings of fact about whether Pro Seamless actually violated any of these regulations.

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No. 2020AP1234

installation until mid-December without written notice or his agreement, and that
“[t]his led to various issues with the roof, i.e., the arcing shingles, all the shingles
not sealing, [and] the separation of the ice and water protection.” The parties
dispute whether there was actually any delay in the contract performance, and
whether December is or is not considered part of “fall.”

¶51 We need not resolve these disputes because, even if we were to
agree that performance was delayed contrary to WIS. ADMIN. CODE § ATCP
110.027(1), Bikowski’s assertion that the delay caused him to suffer a pecuniary
loss is not supported by evidence in the record. As we have already explained, the
circuit court reasonably found that the evidence presented at trial did not establish
that the shingles were not sealed. Nor does Bikowski identify any portion of the
record showing that any shingles were arcing or suggesting that any delay in
shingle installation caused the ice and water protection to separate from the roof in
two places. Indeed, Bikowski’s own expert specifically testified that the
separation was caused by the method by which the drip edge was installed.
Bikowski does not connect the issues with the drip edge to any violation of
ch. ATCP 110.

¶52 In sum, we reject Bikowski’s argument that he is entitled to double
damages under WIS. STAT. § 100.20(5).17

17
In his appellate brief, Bikowski also argues that the circuit court erred with respect to
his post-appeal petition for waiver of fees and costs associated with the appeal. Although
Bikowski’s petition is in the appellate record, there is no circuit court order in the record that
addresses Bikowski’s petition. Bikowski did not separately appeal any such order. We question
whether we have jurisdiction over any order that was entered following the judgment, and we will
not address a ruling that is not reflected within the record. We instead assume that material
missing from the record supports the circuit court’s decision. Fiumefreddo v. McLean, 174
Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993).

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No. 2020AP1234

CONCLUSION

¶53 For the reasons stated above, we reject Bikowski’s arguments and
affirm.

By the Court.—Judgment affirmed.

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

23