Clint Heiman v. Chris Roe

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.
October 25, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP2066 Cir. Ct. No. 2019SC993

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

CLINT HEIMAN,

PLAINTIFF-RESPONDENT,

V.

CHRIS ROE AND KELLY ROE,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Eau Claire
County: MICHAEL A. SCHUMACHER, Judge. Affirmed in part; reversed in
part and cause remanded with directions.

¶1 GILL, J.1 Chris and Kelly Roe appeal a circuit court judgment
dismissing their counterclaims against their former landlord, Clint Heiman. The

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2066

Roes argue that the court erred when it determined that Heiman did not unlawfully
retain the Roes’ security deposit in violation of WIS. ADMIN. CODE § ATCP
134.06(4)(a) (Oct. 2021).2 The Roes also challenge the court’s ruling that
although Heiman violated WIS. ADMIN. CODE § ATCP 134.09(8)(c) by
compounding their late fees, the Roes did not suffer a pecuniary loss.

¶2 We disagree with the circuit court’s conclusion that Heiman
complied with WIS. ADMIN. CODE § ATCP 134.06(4)(a). However, we agree with
the court that the Roes did not suffer any damages under WIS. ADMIN. CODE
§ ATCP 134.09(8)(c). We therefore affirm in part, reverse in part, and remand for
the circuit court to calculate the Roes’ damages for Heiman’s violation of § ATCP
134.06(4)(a).

BACKGROUND

¶3 The material facts leading up to this appeal are undisputed.
Beginning in 2009, the Roes rented a house from Heiman. By 2012, the Roes and
Heiman entered into a written agreement to lease the same house.3 In addition to a
one-time $700 security deposit, the lease stated that rent was $700 and was due by
the fifth of each month. The lease included a provision stating there would be a

2
All references to the Wisconsin Administrative Code are to the October 2021 register
unless otherwise noted. Although we cite to the October 2021 version of WIS. ADMIN. CODE
ch. ATCP 134, no relevant changes to that chapter occurred between the events material to this
case and October 2021.
3
Both parties cite the 2012 lease agreement as if it was still binding in 2018 when the
present dispute began. The lease agreement stated that the Roes would lease the house for a
one-year term, beginning in July 2012. It is unclear from the record if the lease agreement
applied beyond July 2013. Ultimately, the lease agreement does not change our analysis or the
outcome of the appeal. Therefore, we will assume without deciding that the lease agreement still
applied during the time period at issue in this appeal.

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“[$]5.00 per day late fee after” the fifth of each month if rent was not paid. The
lease also required the Roes to pay for all utilities, including water and electric.
From 2009 until 2017, there were no legal issues between the parties.

¶4 In 2017, the Roes missed four months’ payment of rent. The Roes
also failed to pay rent from November 2018 through March 2019. Additionally,
during these time periods, the Roes failed to timely pay certain utility bills. The
parties entered into at least two written agreements for the Roes to pay Heiman
back for the 2017 and 2018-2019 missed rent and utility payments, and by early
June 2019, the Roes had paid him over $6,000 in past-due rent and past-due utility
bills.4

¶5 Nonetheless, on June 12, 2019, Heiman served the Roes with a
five-day eviction notice by both mail and hand delivery. The eviction notice
stated that the Roes owed $3,604 in “unpaid rent and other charges” as well as
$486.51 for “past water bill and current bill for water[/]sewer.” Heiman
subsequently filed a small claims action against the Roes on June 17, 2019. He
demanded money damages in the amount of $4,090.51, as well as an eviction
order against the Roes. The circuit court granted Heiman’s request for the Roes’
eviction on July 18, 2019.5

¶6 Attached to Heiman’s complaint were two exhibits titled
“Handwritten Account Statement” (Exhibit 1) and “Handwritten Payment

4
The circuit court found that the Roes never paid any of the compounded late fees. The
Roes do not contest this finding on appeal. We will therefore assume without deciding that the
roughly $6,000 payment was for owed rent, utility bills, and/or non-compounded late fees.
5
The Honorable John F. Manydeeds issued the eviction order.

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Agreement” (Exhibit 2). Both exhibits showed calculations that Heiman used for
the late fee charges. Exhibit 1 was signed by both parties on November 27, 2017,
and Exhibit 2 was signed by the parties in April 2019. The Exhibit 2 calculations
determined that the Roes owed $2,250 in late fees by April 2019. Specifically,
Heiman calculated:

Nov[. 2018]—150 days late—[$]750 [in late fees]

Dec[. 2018]—120 days late—[$]600 [in late fees]

Jan[. 2019]—90 days late—[$]450 [in late fees]

Feb[. 2019]—60 days late—[$]300 [in late fees]

March [2019]—30 days late—[$]150 [in late fees]

¶7 Both parties agree that Heiman was compounding the late fees. In
other words, Heiman was charging multiple late fees per day. Exhibit 2 also
calculated that the Roes owed $365.57 for a “delinquent water bill on taxes,” as
well as $486.51 for a “city water bill.” In both exhibits, Heiman offered to stop,
and forgive, the late fees if the Roes would pay the rent and water bills owed.

¶8 Heiman later sent a handwritten letter dated July 30, 2019, to the
Roes stating: “You are not getting your security deposit back[.] [T]he money is
being used for the water bills [and the] clean up of [the] yard. [T]he remainder
that you will owe me will be settled in court on 8-5-19.”

¶9 The Roes filed an answer and counterclaims against Heiman. As
relevant here, they alleged that Heiman violated WIS. ADMIN. CODE § ATCP
134.09(8)(c) by “charging a late fee for non-payment of late fees,” thus entitling
them to double damages and costs pursuant to WIS. STAT. § 100.20(5). Further,
they asserted that Heiman “unlawfully withheld [the Roes’] security deposit

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without providing a writ[ten] descri[ption of] the amounts withheld in violation
of” WIS. ADMIN. CODE § ATCP 134.06(4)(a), and thus entitling them to further
damages and costs under § 100.20(5).

¶10 A trial was held before a court commissioner to determine damages.
There, Heiman increased his claim for late fees to $6,830. The commissioner
determined that the lease did not provide for that type of compounding and that
“the compounding calculated by [Heiman] would be a penalty under [WIS. ADMIN.
CODE §] ATCP 134.09(8)(c).” The commissioner therefore determined that under
the terms of the lease, the Roes owed Heiman $322 in late fees. The
commissioner also determined that Heiman did not violate WIS. ADMIN. CODE
§ ATCP 134.06(4)(a) by withholding the Roes’ security deposit. In total, the
commissioner awarded Heiman $5,296.84 in damages, including the $322 in late
fees.

¶11 The Roes requested a de novo hearing which was held before the
circuit court, after which the parties submitted briefs.6 At the hearing, Heiman
abandoned his demand for compounded late fees, and the parties stipulated that
$322 was the amount of actual late fees owed. Ultimately, the court awarded
Heiman $4,096.03 in damages, which encompassed $1,083.16 for the unpaid
water bill and $322 in late fees.

¶12 As to the Roes’ counterclaim regarding Heiman’s withholding of
their security deposit, the circuit court ruled:

I think the intent of the requirement [in WIS. ADMIN. CODE
§ ATCP 134.06(4)(a)] is that the landlord needs to show

6
The Honorable Michael A. Schumacher presided over the de novo hearing.

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No. 2020AP2066

the tenant that damages in some fashion total at least $700.
That’s the point, it seems to me. In this instance, there
wasn’t an itemization, but an indication that one of the
reasons was the water utility bills which exceeded $700.
And so I think given those specific facts, there’s no need to
itemize anything beyond $700. It would be really useless
information at that point. So I’m going to conclude that the
security deposit documentation was sufficient under the
circumstances.

¶13 The circuit court addressed the Roes’ counterclaim regarding late
fees, stating that because the parties stipulated to the late fees amount before the
Roes actually paid anything, “I don’t think the [Roes] suffered any damages, and
for that reason the counterclaim is denied as well.” The Roes now appeal.

DISCUSSION

¶14 This case involves the interpretation and application of WIS. STAT.
§ 100.20(5) and WIS. ADMIN. CODE §§ ATCP 134.09(8)(c) and 134.06(4)(a).
“The interpretation and application of a statute or code provision presents a
question of law that we decide independently of the circuit court.” Boelter v.
Tschantz, 2010 WI App 18, ¶6, 323 Wis. 2d 208, 779 N.W.2d 467 (2009).
Administrative code provisions and statutes are subject to the same principles of
construction. Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI 51, ¶18,
290 Wis. 2d 421, 714 N.W.2d 130. That is:

The purpose of statutory interpretation is to determine what
a statute means in order to give the statute its full, proper,
and intended effect. “We begin with the statute’s language
because we assume that the legislature’s intent is expressed
in the words it used.” Generally, language is given its
common, ordinary, and accepted meaning. In addition,
statutory language is interpreted in the context in which it is
used, in relation to the language of surrounding or
closely-related statutes, and interpreted to avoid absurd or
unreasonable results.

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Id., ¶16 (citations omitted).

¶15 WISCONSIN STAT. § 100.20(2)(a) states that the Department of
Agriculture, Trade and Consumer Protection (DATCP) “may issue general orders
forbidding methods of competition in business or trade practices in business which
are determined by the department to be unfair.” See also WIS. STAT. § 93.01(3)
(defining “the department”). “Any 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.” Sec. 100.20(5). “This language
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
[DATCP] promulgated under § 100.20(2). In other words, § 100.20(5) ‘supplies
the teeth’ to the DATCP orders.” Kaskin v. John Lynch Chevrolet-Pontiac Sales,
Inc., 2009 WI App 65, ¶9, 318 Wis. 2d 802, 767 N.W.2d 394.

¶16 WISCONSIN ADMIN. CODE ch. ATCP 134 was adopted under the
authority of WIS. STAT. § 100.20 and it “applies to the rental of dwelling units
located in this state,” subject to exceptions not relevant to this appeal. See WIS.
ADMIN. CODE § ATCP 134.01. “In unfair trade practices or unfair competition
actions, the [party asserting the violation] has the burden of establishing a
statutory violation to a reasonable certainty by clear, satisfactory and convincing
evidence.” Snyder v. Badgerland Mobile Homes, Inc., 2003 WI App 49, ¶10,
260 Wis. 2d 770, 659 N.W.2d 887.

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I. Security deposit

A. Heiman Violated WIS. ADMIN. CODE § ATCP 134.06(4)(a)

¶17 We start with the circuit court’s decision to dismiss the Roes’
counterclaim under WIS. ADMIN. CODE § ATCP 134.06(4)(a)7 (hereinafter, “the
withholding requirement”), which states:

If any portion of a security deposit is withheld by a
landlord, the landlord shall … deliver or mail to the tenant
a written statement accounting for all amounts withheld.
The statement shall describe each item of physical damages
or other claim made against the security deposit, and the
amount withheld as reasonable compensation for each item
or claim.

¶18 The Roes contend that the withholding requirement mandates that
landlords must list “each item or claim” and an “amount withheld” regardless of
whether that amount exceeds the total amount of the security deposit. According
to the Roes, the plain meaning of the withholding requirement “is that, when a
landlord decides to retain a security deposit, nothing short of an itemized list will
satisfy the provisions.” The Roes argue that Heiman provided neither the amount
of his claims nor whether his claims were enough to offset the value of the
security deposit. The Roes further claim that even if the circuit court’s analysis
was correct—i.e., that a landlord need only list claims that match the security
deposit amount—Heiman’s five-day notice still violated the withholding

7
The Roes do not argue that Heiman failed to send them the letter within twenty-one
days after the Roes vacated the premises, as required by WIS. ADMIN. CODE §§ ATCP 134.06(2)
and (3)(a). We will therefore assume without deciding that Heiman complied with the timing
aspect of the withholding requirement.

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requirement because it alleged only $486.51 for unpaid water bills, which is less
than the $700 security deposit.8

¶19 Conversely, Heiman argues that the unpaid water bill—$1,083.16—
exceeded the value of the security deposit—$700. According to Heiman, the
withholding requirement “does not require that [a] landlord provide a tenant with
an exhaustive list of each item or claim the landlord may have against a tenant. To
the contrary, it requires that the landlord ‘describe each item of physical damages
or other claim made against the security deposit.’” See WIS. ADMIN. CODE
§ ATCP 134.06(4)(a). As such, Heiman argues that “once a landlord describes
claims beyond the value of a tenant’s security deposit, all additional claims are
superfluous and fall outside the purview of the provision.” Further, Heiman
contends that a landlord is required to inform a tenant only of the general amount
withheld, as opposed to specific amounts. Heiman asserts that he met this
standard by stating in his letter the amount of the security deposit he was
withholding as compensation.

¶20 We begin by analyzing whether the withholding requirement
mandates landlords to list claims that exceed the amount of the security deposit.
WISCONSIN ADMIN. CODE § 134.06(4)(a) requires, “[i]f any portion of a security
deposit is withheld … the landlord shall … deliver … a written statement
accounting for all amounts withheld.” (Emphasis added.) This language plainly
mandates that a landlord must list all amounts that he or she is deducting from the

8
Heiman does not contend that the complaint, its attachments, or the five-day eviction
notice met the requirements of WIS. ADMIN. Code § 134.06(4)(a). We will therefore assume
without deciding that those documents did not meet the requirements of the withholding
requirement. Instead, our focus will be on whether Heiman’s letter complied with the
withholding requirement.

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security deposit. We therefore agree with the circuit court and Heiman that a
landlord is not required to list every amount of damages the landlord may later sue
to collect. Instead, a landlord is required to list only those damages that make up
the “portion of a security deposit” that is being withheld. See id.

¶21 With that conclusion in mind, we turn to whether, as Heiman
contends, the withholding requirement requires a landlord to inform a tenant only
of the general amount withheld, as opposed to specific amounts. Such an
argument goes against the plain meaning of the withholding requirement.
WISCONSIN ADMIN. CODE § ATCP 134.06(4)(a) requires that the withholdings
statement “describe each item of physical damages or other claim made against the
security deposit, and the amount withheld as reasonable compensation for each
item or claim.” (Emphasis added.)

¶22 Heiman’s July 30, 2019 letter fails to state “the amount withheld”
for: (1) unpaid water bills and (2) yard clean up. This failure is a clear violation
of the withholding requirement.

¶23 Heiman’s failure to state in his letter the amounts withheld for each
claim is compounded by the fact that his five-day eviction notice listed the amount
owed for the unpaid water bill at $486.51—significantly less than the security
deposit amount of $700—adding confusion to the actual amount being withheld
from the security deposit and the reason for the withholding. Exhibit 2 stated that
the “city water bill” totaled $486.51 and that there was an unpaid “water bill on
taxes” that totaled $365.57. Additionally, although Heiman argues on appeal that
his letter implied that the water bill was more than $700—specifically, he argues
that it was $1,083.16—that specific water bill amount was not determined until the
de novo hearing.

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¶24 Heiman’s failure to comply with the Wisconsin Administrative Code
made it more difficult for the Roes to determine the validity of Heiman’s claims
regarding their security deposit. See State v. Lasecki, 2020 WI App 36, ¶32, 392
Wis. 2d 807, 946 N.W.2d 137 (“The independent requirement of providing a
withholdings statement is the only means by which a tenant can learn why the
landlord did not return some or all of the security deposit—short of the tenant
either commencing litigation … or asking the DATCP to investigate.”). The Roes
therefore proved by clear, satisfactory, and convincing evidence that Heiman
violated WIS. ADMIN. CODE § 134.06(4)(a).

B. The Roes Are Entitled to Damages under WIS. STAT. § 100.20(5)

¶25 WISCONSIN STAT. § 100.20(5) dictates that once a tenant
demonstrates that he or she suffered a pecuniary loss because of a violation by his
or her landlord, the tenant “shall recover twice the amount of such pecuniary loss,
together with costs, including a reasonable attorney fee.” See also Armour v.
Klecker, 169 Wis. 2d 692, 698, 486 N.W.2d 563 (Ct. App. 1992) (“[I]f a court
determines that a landlord has violated [WIS. ADMIN. CODE ch. ATCP 134], it is
required under the plain unambiguous language of [§ 100.20(5)] to award double
damages and attorney fees.”). The dispute here requires us to answer two
interrelated questions. First, did the Roes suffer a pecuniary loss, and second, if
so, should the pecuniary loss be awarded independently of Heiman’s damages
award from the circuit court? In other words, are the Roes entitled to the
calculation of their damages based upon Heiman’s § ATCP 134.06(4)(a) violation
regardless of the amount the court determined that they owed to Heiman? In
analyzing these issues, we note that “remedial statutes should be liberally
construed to suppress the mischief and advance the remedy that the statute

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intended to afford.” Benkoski v. Flood, 2001 WI App 84, ¶8, 242 Wis. 2d 652,
626 N.W.2d 851.

¶26 The Roes argue that although they “may owe damages to Heiman in
excess of their security deposit, they should still recover double damages, attorney
fees, and costs for Heiman’s” withholding requirement violation. Conversely,
Heiman contends that the Roes did not suffer a pecuniary loss because “there is a
‘critical’ difference between cases where landlords provide tenants with no written
statement accounting for the amount withheld and when a landlord provides a
tenant with a deficient written notice.” See Pierce v. Norwick, 202 Wis. 2d 587,
595, 550 N.W.2d 451 (Ct. App. 1996). In the latter situation, Heiman argues that
a “tenant’s pecuniary loss only includes the amount of the security deposit which
would remain after the offset for the landlord’s actual damages.” According to
Heiman, the Roes are not entitled to any damages because the circuit court
determined that Heiman was entitled to $3,701.53—before attorney’s fees and
court costs—which is more than the $700 security deposit. We conclude that the
Roes suffered a pecuniary loss and are entitled to an evaluation of damages that is
independent and separate from the amount Heiman was awarded.

¶27 In Moonlight v. Boyce, 125 Wis. 2d 298, 299, 372 N.W.2d 479
(Ct. App. 1985), a landlord argued that a tenant did not suffer a pecuniary loss
under WIS. STAT. § 100.20(5) where the landlord violated WIS. ADMIN. CODE
§ ATCP 134.06 “because the amount of damages [the landlord] was awarded on
his counterclaim for damage to the apartment exceed[ed] the amount of the
security deposit.” The landlord in Moonlight did not send a withholding
statement within the required twenty-one-day period and instead retained the
entire security deposit. Id. at 301. We held that

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once it is determined that the landlord has violated the
Wisconsin Administrative Code provisions for the return of
a tenant’s security deposit, the tenant suffers a pecuniary
loss under [§ 100.20(5)] in the amount of the security
deposit regardless of the amount of damages the landlord
may recover on a counterclaim. The determination as to
whether a tenant has suffered a pecuniary loss under
[§] 100.20(5) and the amount of that loss must be made
prior to and independent from any consideration of the
landlord’s counterclaim. We believe this result is
commensurate with the purposes of the Wisconsin
Administrative Code provisions [and § ]100.20(5) …. We
are convinced that to hold otherwise would undercut the
purpose of the Wisconsin Administrative Code provisions
and [§] 100.20.

Moonlight, 125 Wis. 2d at 305-06 (citation omitted); see also Benkoski, 242
Wis. 2d 652, ¶¶24-29 (rejecting an argument by an owner of mobile home park
that the circuit court erred by doubling plaintiff’s loss under § 100.20(5) before
subtracting fair market value of mobile home); Paulik v. Coombs, 120 Wis. 2d
431, 438-39, 355 N.W.2d 357 (Ct. App. 1984) (holding that “a tenant who prevails
on a claim for double damages under [§ 100.20(5)] is entitled to reasonable
attorneys fees even if he [or she] does not prevail on counterclaims for damages
brought by the landlord”).

¶28 Heiman contends that Moonlight is distinguishable from this case
based on Pierce. In Pierce, within twenty-one days of their tenants’ eviction,
landlords sent a letter to the tenants “stating that the $1[,]000 security deposit
would be withheld, showing a reconciliation of $1[,]000 in unpaid rent and
$2[,]251.52 in additional damages.” Pierce, 202 Wis. 2d at 591. At trial, the jury
found that the landlords intentionally misrepresented or falsified their claims
against their tenants’ $1,000 security deposit in violation of WIS. ADMIN. CODE
§ ATCP 134.06(4)(b), and the jury further found that the landlords should have
returned the entire security deposit. Pierce, 202 Wis. 2d at 591-92. The jury also

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determined that the tenants owed the landlords $889 for unpaid rent and damages.
Id. at 592. After the trial, the landlords argued that the tenants were entitled only
to $111, which was the difference between the security deposit and the damages to
the rental. Id.

¶29 We determined that, unlike the landlord in Moonlight, the landlords
in Pierce did not fail to provide their tenants with a written statement accounting
for the amounts withheld. Pierce, 202 Wis. 2d at 595. We concluded “that the
method of damages calculation outlined in Moonlight should be confined to those
instances where a landlord retains a security deposit and fails to provide an
itemization of damages, in violation of WIS. ADMIN. CODE § ATCP [134.06
(4)(a)].” Pierce, 202 Wis. 2d at 595. Conversely, we held that

[w]hen a landlord complies with the notification
requirement and provides a tenant with a written statement
accounting for any amount withheld from the security
deposit, a later determination that the landlord has violated
[§ ATCP 134.06(4)(b)] and misrepresented or falsified
damages claims will result in a doubling of only that
pecuniary loss which remains after an offset for the
landlord’s actual damages has been included.

Pierce, 202 Wis. 2d at 596.

¶30 We fail to see how the situation in Pierce, and not Moonlight,
should control in the case at hand. Heiman did not violate WIS. ADMIN. CODE
§ ATCP 134.06(4)(b) like the landlords in Pierce, who misrepresented or falsely
claimed damages, but nevertheless complied with § ATCP 134.06(4)(a) by stating
in their letter to their tenants that the security deposit was being withheld because

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No. 2020AP2066

of “$1[,]000 in unpaid rent and $2[,]251.52 in additional damages.”9 See Pierce,
202 Wis. 2d at 591, 595. The Pierce tenants were able to determine the nature and
extent of the damages claimed and their validity based upon the information
contained in the landlords’ letter. Instead, Heiman violated § ATCP 134.06(4)(a)
like the landlord in Moonlight, as he failed to provide the Roes with a written
statement accounting for the amounts withheld. Thus, Moonlight clearly controls.
As such, the Roes proved by clear, satisfactory and convincing evidence that they
suffered a pecuniary loss and we conclude that their damages should be calculated
separately from Heiman’s circuit court award. 10

¶31 As we have stated previously, “We recognize that requiring a
landlord to pay double damages and attorney fees when he [or she] believes he [or
she] has a claim to the security deposit is harsh.” See Armour, 169 Wis. 2d at
701. But, such a conclusion is dictated by the legislature, which gave regulating
powers to the DATCP in order to “discourage the retention of security deposits
except in the clearest of cases.” See id. As such, we reverse and remand to the
circuit court to calculate the Roes’ damages resulting from Heiman’s violation of

9
It is unclear if the landlords in Pierce v. Norwick, 202 Wis. 2d 587, 591, 550 N.W.2d
451 (Ct. App. 1996), listed what the “additional damages” were. In any event, the claim for
unpaid rent encompassed the entirety of the tenants’ security deposit.
10
Because we find that language of WIS. STAT. § 100.20(5) to be unambiguous, we
decline to address the public policy argument raised by Heiman. See Orion Flight Servs., Inc. v.
Basler Flight Serv., 2006 WI 51, ¶17, 290 Wis. 2d 421, 714 N.W.2d 130 (“[I]f a statute is
ambiguous, we examine extrinsic sources, such as legislative history, to ascertain the legislative
intent.”).

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No. 2020AP2066

WIS. ADMIN. CODE § ATCP 134.06(4)(a), in accordance with this decision and
WIS. STAT. § 100.20(5).11

II. Late fees

¶32 The Roes also counterclaimed that Heiman unlawfully calculated
late fees under WIS. ADMIN. CODE § ATCP 134.09(8)(c), which states that “[n]o
landlord may charge any tenant a fee or penalty for nonpayment of a late rent fee
or late rent penalty.”12 Both parties agree that Heiman violated § ATCP
134.09(8)(c) by compounding the late fees. Therefore, the only remaining
question is whether the Roes suffered a pecuniary loss under WIS. STAT.
§ 100.20(5).

¶33 The circuit court determined that the Roes did not suffer a pecuniary
loss because the parties stipulated at trial to the amount of late fees and, therefore,
the Roes never paid money to Heiman for the unlawfully compounded late fees.
Heiman urges this court to adopt the same approach.

¶34 Conversely, the Roes contend they did suffer a pecuniary loss due to
“out of pocket expenses relating to” their late fees claim, and they “urge [this
court] to adopt a rule equating ‘pecuniary loss’ … with the amount of late fees

11
Under WIS. STAT. § 100.20(5), and Moonlight v. Boyce, 125 Wis. 2d 298, 372 N.W.2d
479 (Ct. App. 1985), the Roes are entitled to a pecuniary loss of $1,400 (their security deposit,
doubled). Therefore, on remand, we specifically order the circuit court to calculate the remaining
damages under § 100.20(5)—namely, the Roes’ “costs, including a reasonable attorney fee.”
12
The Roes also argue that Heiman’s late fee compounding violated the terms of the
lease, and thus he violated WIS. ADMIN. CODE § ATCP 134.09(8)(a). From our review of the
record, the Roes did not raise this argument in the circuit court, and we will therefore not address
it. See State Farm Mut. Auto. Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358 Wis. 2d 379, 856
N.W.2d 633 (noting that arguments raised for the first time on appeal are generally deemed
forfeited).

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actually requested by a landlord.”13 According to the Roes, they had to take time
off of work to attend court proceedings, they hired counsel, and they paid that
counsel a $1,000 advance fee. The Roes also note that they are responsible for
their counsel’s legal fees and that he spent 14.95 hours on the case before the
parties stipulated to the late fees amount. The Roes further argue that although
they did not pay Heiman’s unlawful late fees, the “fees functioned as an
inducement for the Roes to catch up on their rent payments.” Lastly, the Roes
contend that if Heiman is not penalized for his unlawful late fees, “a landlord
would have nothing to lose by pursing a claim for illegal late fees in small claims
court” as a collection strategy because such an interpretation would render WIS.
ADMIN. CODE § ATCP 134.09(8) “effectively unenforceable.”14

¶35 We previously analyzed the meaning of “pecuniary loss” as it relates
to DATCP orders in Kaskin. In Kaskin, a consumer took his truck into a repair
shop. Kaskin, 318 Wis. 2d 802, ¶3. The repair shop offered an estimate of one
penny because it incorrectly assumed the truck was still under warranty. See id.
A week later, the truck was fixed but the repair shop billed the consumer $5,000.
Id., ¶5. The repair shop would not return the truck until payment was received, so
the consumer paid the bill. Id. The consumer then filed suit, asserting that the
repair shop violated a DATCP order codified in WIS. ADMIN. CODE ch. ATCP 132

13
Again, the Roes do not argue that they actually paid any of the unlawfully
compounded late fees.
14
The Roes also argue that we should apply “the established rule of Moonlight in
calculating the resulting pecuniary loss prior to offsetting any damages owed to Heiman.” To the
extent the Roes argue that we should grant damages for late fees “regardless of the amount of
damages the landlord may recover on a counterclaim,” see Moonlight, 125 Wis. 2d at 305-06, we
need not reach that issue because we conclude the Roes did not suffer a pecuniary loss as it
relates to the unlawful late fees.

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No. 2020AP2066

that prevented repair shops from performing any repair not authorized by the
consumer. Kaskin, 318 Wis. 2d 802, ¶¶6, 10. The circuit court granted the repair
shop’s summary judgment motion, concluding that the consumer did not suffer a
pecuniary loss. Id., ¶6. On appeal, we analyzed three other cases interpreting
pecuniary loss, including Moonlight, and concluded that “where a general order
promulgated by DATCP … prohibits the retention or receipt of the customer’s
money, the consumer suffers a pecuniary loss … in the amount that was
wrongfully retained or received.” Kaskin, 318 Wis. 2d 802, ¶24.

¶36 The Roes contend that Kaskin and Moonlight stand for the
proposition that pecuniary loss may “involve no actual harm to the consumer in
the end.” According to the Roes, “the plaintiff [in Kaskin] could not be said to
have suffered any actual loss … beyond being the victim of a violation of the
Administrative Code.” Further, the Roes claim that the tenant in Moonlight did
not “suffer any out-of-pocket loss” because the tenant “lost his right to the security
deposit because of damages owed [to] the landlord.”

¶37 We disagree. Kaskin and Moonlight did involve harm to the
consumer and tenant, respectively. In Kaskin, we held that “using the common
understanding of the term ‘because of,’ we think that the ‘monetary’ or ‘pecuniary
loss’ is clearly the amount suffered to be paid as a result of the violation of the
code.” Kaskin, 318 Wis. 2d 802, ¶15 (emphasis added). In other words, the harm
to the consumer was the unexpected charges for repairs and compelled payment
for the same. See id., ¶18. Similarly, in Moonlight, the pecuniary loss was the
amount of the security deposit because it was already “retained” by the landlord,
irrespective of the damages owed to the landlord. See Moonlight, 125 Wis. 2d at
307. As discussed earlier, while the question in Moonlight was framed as whether
the tenant suffered a pecuniary loss, the main question answered in Moonlight was

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No. 2020AP2066

whether the determination of if a pecuniary loss occurs is not affected by the fact
that damages are owed to the landlord. Id. at 305-06. As such, we do not read
Kaskin or Moonlight to say that pecuniary loss includes intangible harm to a
victim of an administrative code violation.

¶38 Kaskin dictates the result in this case. A landlord must unlawfully
“retain[] or receive[]” an amount of money from his or her tenants in order for the
tenants to suffer a pecuniary loss for purposes of WIS. STAT. § 100.20(5). As
such, we disagree with the Roes’ contention that pecuniary loss is “the amount of
late fees actually requested by a landlord” without actual payment of the unlawful
late fees. Out-of-pocket expenses not paid to Heiman cannot be counted as a
pecuniary loss.

¶39 The Roes also point to Benkoski in support of their position that we
should adopt their proposed rule that pecuniary loss should be the amount of the
landlord’s unlawful claim, not the amount actually paid by the tenants. In
Benkoski, we had previously determined that the owner of a mobile home park
violated WIS. ADMIN. CODE ch. ATCP 125 by requiring the owner of certain
mobile homes in the park to remove his mobile homes upon their sale. Benkoski,
242 Wis. 2d 652, ¶1. On remand, the circuit court found that the owner of the
mobile home park “thwarted a potential sale” of one of the mobile homes for
$6,500. Id., ¶4. “After invoking the double damages provision of WIS. STAT.
§ 100.20(5), the court fixed [the plaintiff’s] pecuniary loss arising out of the lost
sale at $10,240.” Benkoski, 242 Wis. 2d 652, ¶4. The court also awarded roughly
$51,000 in attorney fees and $1,300 in costs. Id.

¶40 In affirming the circuit court’s calculations, we found “additional
support … in the law of contracts” and stated that the mobile park owner’s “unfair

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No. 2020AP2066

trade practices thwarting [the plaintiff’s] potential sale caused damages akin to
those caused by a breach of contract.” Id., ¶32. We cited WIS JI—CIVIL 3735
(1994), which states, in part, that

[t]he measure of damages for a breach of contract is the
amount which will compensate the plaintiff for the loss
suffered because of the breach. A party who is injured
should, as far as it is possible to do by monetary award, be
placed in the position in which he or she would have been
had the contract been performed.

Benkoski, 242 Wis. 2d 652, ¶32 (alteration in original; citation omitted). In all,
“[w]e conclude[d] that the ‘pecuniary loss’ concept set out in WIS. STAT.
§ 100.20(5) is similar to this concept of damages set out in the law of contracts.”
Benkoski, 242 Wis. 2d 652, ¶32.

¶41 The facts in Benkoski are materially different than those in the case
at hand. Benkoski dealt with the “Loss of Expectation” arising out of a situation
“akin” to a breach of contract. Id. Thus, the plaintiff suffered a pecuniary loss
because, had the owner of the mobile home park not violated WIS. ADMIN. CODE
ch. ATCP 125, the plaintiff would have been able to sell one of his mobile homes
for $6,500. See Benkoski, 242 Wis. 2d 652, ¶4. No such situation exists in this
case. The Roes may have suffered costs and attorney fees, but they did not suffer
anything close to a breach of contract like the breach in Benkoski. In other words,
there is not a “net gain [the Roes] would have realized from the contract but for
the failure of [Heiman] to perform.” See WIS JI—CIVIL 3735. Therefore, the
Roes are not “entitled to the benefit of [their] agreement” with Heiman, unlike the
plaintiff in Benkoski. See WIS JI—CIVIL 3735.

¶42 Our conclusion that the Roes did not suffer a pecuniary loss is
supported by the text of the statute, which, again, reads that a tenant “shall recover

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No. 2020AP2066

twice the amount of such pecuniary loss, together with costs, including a
reasonable attorney fee.” See WIS. STAT. § 100.20(5). Accordingly, “costs” and
“attorney fee[s]” are separate and distinct from a “pecuniary loss.” Thus, the
former cannot be the same as the latter. The Roes’ interpretation of the statute
would mean that one suffers a pecuniary loss as a result of legal representation or
costs alone. But the statute clearly states that attorney fees and costs can be
awarded only upon a showing of a pecuniary loss. A tenant seeking damages
under § 100.20(5) must demonstrate that he or she suffered a pecuniary loss, and
based on that loss, the tenant may recover twice the amount of that loss, as well as
costs and attorney fees. Therefore, the Roes did not suffer a pecuniary loss by
paying attorney fees or by missing work to attend court.15

¶43 We further disagree with the Roes’ reasoning that a landlord has
“nothing to lose” by unlawfully charging late fees and then withdrawing the claim
before payment is actually made. As Heiman correctly notes, a landlord can face
criminal penalties for unlawfully charging late fees under WIS. STAT. § 100.26(3),
which states that “[a]ny person who … intentionally refuses, neglects or fails to
obey any regulation or order made or issued under … [WIS. STAT. § ]100.20, shall,
for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in
the county jail for not more than one year or both.” See also Lasecki, 392 Wis. 2d
807, ¶63 (concluding landlord’s violation of WIS. ADMIN. CODE § ATCP

15
Even if we agreed with the Roes that missing work or paying attorney’s fees could
constitute a pecuniary loss, the Roes fail to explain how they missed work or paid attorney’s fees
only to contest Heiman’s unlawful late fees. As Heiman argues on appeal, the Roes had to be in
court if they wanted to contest the eviction and lawful damages sought by Heiman (e.g., unpaid
rent) and were not present solely to contest Heiman’s unlawful late fees. In fact, Kelly Roe
testified at the de novo hearing that the Roes would have still sought legal counsel even if
Heiman did not seek the unlawful late fees in his complaint.

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No. 2020AP2066

134.06(4) “is a cognizable crime under Wisconsin law”). Thus, Heiman, or any
other landlord, can be criminally charged for violations of WIS. ADMIN. CODE ch.
ATCP 134 with or without a pecuniary loss to tenants actually occurring.16

¶44 The Roes further argue that the unlawful late fees acted as “an
inducement for the Roes to catch up on their rent.” This argument is
underdeveloped and speculative. Heiman did, on two occasions, state in writing
that he would forgive late fees if the Roes paid the rent they owed. But, the Roes
do not point to any evidence in the record to show that Heiman’s unlawful late
fees actually induced them to pay overdue rent, and even if that evidence existed,
the Roes fail to explain how that result constitutes a pecuniary loss. We will
therefore not address this argument further. See Clean Wis., Inc. v. PSC, 2005 WI
93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address
undeveloped arguments.”).

¶45 Lastly, the Roes argue that our interpretation of pecuniary loss in
WIS. STAT. § 100.20(5) would violate the public policy behind the statute. See
Baierl v. McTaggart, 2001 WI 107, ¶36, 245 Wis. 2d 632, 629 N.W.2d 277
(“[P]ermitting a landlord to enforce a lease containing the prohibited provision
counteracts the larger goal of encouraging tenant enforcement of the
administrative code to deter unlawful conduct on the part of landlords and to
enforce public rights.”). However, to allow the Roes to recover damages for
Heiman’s violation of WIS. ADMIN. CODE § ATCP 134.09(8)(c) would be to
rewrite the Wisconsin Administrative Code because the Roes did not suffer a

16
This analysis is in no way meant to assess Heiman’s potential criminal liability, and
we offer no opinion on that issue.

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No. 2020AP2066

pecuniary loss. This we cannot do. See United Am., LLC, v. DOT, 2020 WI App
24, ¶16, 392 Wis. 2d 335, 944 N.W.2d, aff’d, 2021 WI 44, 397 Wis. 2d 42, 959
N.W.2d 317 38 (“We may not rewrite statutes; we must simply interpret them as
they are written.”).

¶46 No WIS. STAT. RULE 809.25 costs allowed to the parties.

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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