Jason Riel v. Scott P. Prager

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.
December 15, 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. 2021AP2112 Cir. Ct. No. 2019CV409

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JASON RIEL,

PLAINTIFF-APPELLANT,

V.

SCOTT P. PRAGER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed.

Before Kloppenburg, 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).

¶1 PER CURIAM. Jason Riel appeals an order of the Dodge County
Circuit Court dismissing his lawsuit against Scott Prager. We affirm because Riel
No. 2021AP2112

has not demonstrated that he is entitled to recover damages on his claims against
Prager brought pursuant to WIS. STAT. § 100.20(5) (2019-20).1

¶2 The following material facts are largely gleaned from the jury trial
transcript.

¶3 In 2017, Riel took his truck to Prager’s repair shop after Riel began
experiencing difficulties with the truck. Prager diagnosed an issue with the truck’s
head gasket and estimated for Riel that it would cost $4,000 to repair that problem.
Riel ultimately authorized the repairs and paid Prager $4,000 after Prager finished
those repairs. Riel continued experiencing difficulties with the head gasket and
brought the truck back to Prager for further repairs, but Prager could not identify
any particular problem with the head gasket. Riel eventually had the head gasket
repaired by another repair shop.

¶4 Riel brought claims against Prager in the circuit court for breach of
contract and breach of implied warranty. Riel also brought a claim under WIS.
STAT. § 100.20(5) alleging that Prager violated WIS. ADMIN. CODE
§ ATCP 132.03 (Oct. 2022)2 by failing to provide Riel with a written repair order
before starting repairs. Riel moved for partial summary judgment, seeking to
establish as a matter of law that Prager violated § ATCP 132.03 and that Prager
was personally liable for Riel’s alleged damages. The circuit court denied Riel’s

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The text of this administrative regulation is provided later in this opinion. All
subsequent references to WIS. ADMIN. CODE ch. ATCP 132 are to the October 2022 register date
unless otherwise indicated.

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motion, explaining that genuine issues of material fact caused the motion for
partial summary judgment to fail.

¶5 The case proceeded to a jury trial. After the parties finished
presenting evidence, the circuit court and the parties discussed the special verdict
and jury instructions. With respect to Riel’s WIS. ADMIN. CODE § ATCP 132.03
claim, the court directed a verdict for Prager on the ground that there was
insufficient evidence presented at trial that Prager violated that administrative
regulation. With respect to Riel’s breach of contract claim, the parties stipulated
that Riel would be entitled to $4,000 in damages if the jury found that Prager
breached a contract with Riel. The court did not include any questions on the
special verdict regarding Riel’s implied warranty claim on the ground that the
claim was duplicative of the breach of contract claim. The jury determined that
Prager did not breach his contract with Riel.3 Accordingly, the circuit court
entered an order dismissing Riel’s lawsuit. Riel appeals the court’s order for
dismissal.

¶6 On appeal, Riel argues that the circuit court erroneously directed a
verdict on his WIS. ADMIN. CODE § ATCP 132.03 claim. We begin by setting
forth our standard of review.

¶7 “A motion for a directed verdict challenges the sufficiency of the
evidence.” Emer’s Camper Corral, LLC v. Alderman, 2020 WI 46, ¶15, 391
Wis. 2d 674, 943 N.W.2d 513; WIS. STAT. § 805.14(4). A circuit court may direct
a verdict if it “is satisfied that, considering all credible evidence and reasonable

3
Riel does not challenge the circuit court’s dismissal of the implied warranty and breach
of contract claims on appeal, and we do not further discuss those claims.

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No. 2021AP2112

inferences therefrom in the light most favorable to the party against whom the
motion is made, there is no credible evidence to sustain a finding in favor of such
party.” Sec. 805.14(1). When a circuit court directs a verdict, we will uphold the
circuit court’s decision unless the circuit court was “clearly wrong.” Emer’s
Camper Corral, 391 Wis. 2d 674, ¶15. “A circuit court’s evidentiary
determination is clearly wrong when there is any credible evidence to support the
position of the non-moving party.” Id.4

¶8 This appeal also requires us to interpret a statute and administrative
regulations. We review the interpretation of statutes and administrative
regulations de novo. Aslakson v. Gallagher Bassett Servs., Inc., 2007 WI 39,
¶24, 300 Wis. 2d 92, 729 N.W.2d 712. “[S]tatutory interpretation ‘begins with the
language of the statute. If the meaning of the statute is plain, we ordinarily stop the
inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (citation omitted). “Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional
meaning.” Id.; see WIS. STAT. § 990.01(1). When interpreting administrative
regulations, we use the same rules of interpretation as we apply to statutes.
Aslakson, 300 Wis. 2d 92, ¶25.

¶9 We now discuss that, in order to recover pursuant to WIS. STAT.
§ 100.20(5), Riel must establish that he suffered a pecuniary loss as a result of

4
We note that Prager did not move for a directed verdict with respect to Riel’s WIS.
ADMIN. CODE § ATCP 132.03 claim, and the circuit court apparently directed a verdict for Prager
sua sponte. However, Riel does not argue that the court erred in directing a verdict without a
motion from Prager, and we do not address that further.

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Prager’s alleged violation of WIS. ADMIN. CODE § ATCP 132.03.
Section 100.20(5) provides a cause of action for consumers to sue for violations of
administrative regulations issued pursuant to that statute:

Any person suffering pecuniary loss because of a
violation by any other person of [WIS. STAT. §] 100.70 or
any order issued under this section may sue for damages
therefor in any court of competent jurisdiction and shall
recover twice the amount of such pecuniary loss, together
with costs, including a reasonable attorney fee.

Sec. 100.20(5); see also Kaskin v. John Lynch Chevrolet-Pontiac Sales, Inc.,
2009 WI App 65, ¶9, 318 Wis. 2d 802, 767 N.W.2d 394 (explaining that the
administrative regulations in ch. ATCP 132 are “orders” issued under § 100.20
and that § 100.20(5) “supplies the teeth” to those provisions). Dispositive to this
appeal, under § 100.20(5), a person can recover for a violation of an administrative
regulation only if the person suffers a pecuniary loss “because of” that violation.
Sec. 100.20(5). Interpreting this requirement, this court has held that “a party
asserting a pecuniary loss for the purposes of []§ 100.20(5) must show that there is
a causal connection between a prohibited trade practice … and the damage
incurred.” Grand View Windows, Inc. v. Brandt, 2013 WI App 95, ¶21, 349 Wis.
2d 759, 837 N.W.2d 611; see also Kaskin, 318 Wis. 2d 802, ¶14 (“We have no
quarrel with the assertion that a violation of the code must ‘cause’ a pecuniary loss
to the consumer.”).

¶10 Riel asserts that Prager violated several provisions of WIS. ADMIN.
CODE ch. ATCP 132. But, Riel’s sole contention that he suffered a pecuniary loss
as a result of Prager’s violation of § ATCP 132.03 concerns one subpart of that
administrative regulation: Prager’s failure to notify Riel of his right to inspect or

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No. 2021AP2112

receive replaced parts pursuant to § ATCP 132.03(3)(f).5 Solely for purposes of
this appeal we will assume, without deciding, that Prager violated
§ ATCP 132.03(3)(f).

5
WISCONSIN ADMIN. CODE § ATCP 132.03 states, in pertinent part:

(1) Requirement. Before a shop starts any repairs whose
total price may exceed $50.00, a shop representative shall
prepare a written repair order that clearly and legibly describes
the repairs authorized by the customer. The repair order shall be
dated and signed by the shop representative, and shall include all
of the information required under sub. (3).

(2) Customer copy. Before a shop starts any repairs
whose total price may exceed $50, a shop representative shall
provide the customer with a complete and accurate copy of the
repair order under sub. (1) for those repairs, except that a
customer copy is not required if there was no face-to-face
contact between the customer and a shop representative when the
repairs were authorized.

(3) Repair order contents. A repair order under sub. (1)
shall include all of the following:

….

(f) Notice that customer is entitled to inspect or receive
any components, parts or accessories replaced or removed by the
shop.

Sec. ATCP 132.03(1), (2), (3)(f).

Of importance to our analysis is that Riel makes no argument on appeal that Prager’s
purported violation of WIS. ADMIN. CODE § ATCP 132.03(1) and (2) (regarding the requirement
that the written repair order must describe the repairs authorized by the customer) caused a
pecuniary loss to Riel.

(continued)

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¶11 We reject Riel’s arguments for several reasons. First, Riel does not
establish, based on this record, any “causal connection” between an alleged
violation of WIS. ADMIN. CODE § ATCP 132.03(3)(f) and a pecuniary loss
incurred. See Grand View Windows, 349 Wis. 2d 759, ¶21. For instance, Riel
does not argue that he would have declined to authorize the repairs had Prager
given proper notice under § ATCP 132.03(3)(f) regarding the parts or that Prager’s
alleged failure to give proper notice about the parts contributed to faulty repairs of
the truck in some way. Riel also does not argue that Prager’s violation of
§ ATCP 132.03(3)(f) caused any other pecuniary loss, for instance by depriving
him of the value of the replaced parts. Instead, Riel makes a contention regarding
pecuniary loss and Prager’s violation of § ATCP 132.03(3)(f) that is divorced
from the record in this matter. More particularly, Riel asserts that Prager’s failure
to give notice about the replaced parts under § ATCP 132.03(3)(f) “should create

Separately, Riel argues on appeal that Prager failed to provide an invoice as required by
WIS. ADMIN. CODE § ATCP 132.08 and that Prager failed to retain copies of the repair order and
invoice as required by WIS. ADMIN. CODE § ATCP 132.10. Prager contends that Riel did not
raise these issues in the circuit court. Riel asserts that these issues were raised in evidence and
argument at trial, and he attempts to support that assertion with citations to portions of the trial
transcript. Based on our review of the record, Riel has misstated the record in his representations
that he presented evidence and made arguments in the circuit court regarding Prager’s alleged
violations of §§ ATCP 132.08 and 132.10. With respect to § ATCP 132.08, the portions of the
record relied on by Riel do not contain any discussion of Prager’s alleged failure to provide Riel
with an invoice or the requirements of § ATCP 132.08. Similarly, the portions of the record
relied on by Riel regarding § ATCP 132.10 do not contain any discussion of Prager’s alleged
failure to retain repair records. Accordingly, because Riel raises the arguments regarding
§ ATCP 132.08 and § ATCP 132.10 for the first time on appeal, we will not consider those
arguments in this opinion. Best Price Plumbing, Inc. v. Erie Ins. Exch., 2012 WI 44, ¶41, 340
Wis. 2d 307, 814 N.W.2d 419 (under WIS. STAT. § 805.13(3), a party’s failure to object to
proposed jury instructions or verdict questions at the jury instruction conference results in the
forfeiture of any error in the proposed instructions or verdict, and this statute represents the policy
that “parties should marshal the relevant facts and law prior to trial”); Ford Motor Co. v. Lyons,
137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987) (a party’s failure to include alleged errors
in its motions made after the verdict constitutes a forfeiture of those errors); see also Gibson v.
Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388 (“Generally, we
will not consider on appeal arguments not made to the trial court.”).

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an irrebuttable presumption that the defective parts were not replaced,” and Riel’s
pecuniary loss based on that presumption should be deemed “equal to the amount
paid for the repair work in question.”

¶12 Riel argues that this court’s opinion in Kaskin supports his
argument, and we now consider that opinion. Kaskin took his truck to a repair
shop and the shop gave him an estimate of one cent for the repairs because the
shop assumed the truck repairs would be covered by a warranty. Kaskin, 318
Wis. 2d 802, ¶3. The shop later called Kaskin to tell him that it had performed
$5,000 in repairs that were not covered by the warranty. Id., ¶5. Kaskin paid the
bill so that the shop would return his truck, then sued the shop under WIS. STAT.
§ 100.20(5) because the shop performed repairs without his authorization contrary
to WIS. ADMIN. CODE § ATCP 132.02 (“No shop may perform any repair that has
not been authorized by the customer.”). Id., ¶¶5, 6. The shop moved for summary
judgment, arguing that Kaskin did not suffer a pecuniary loss as a result of the
shop’s alleged violation of § ATCP 132.02 because the shop did not cause the
truck to need engine repair and because Kaskin paid a fair price for the repairs
necessary to fix the truck. Id., ¶6. The circuit court granted the motion, holding
that Kaskin did not suffer a pecuniary loss caused by the lack of authorization. Id.

¶13 On appeal, this court reversed the circuit court’s grant of summary
judgment. This court examined the case law interpreting WIS. STAT. § 100.20(5)
and held that, “where a general order promulgated … under … § 100.20(2)
prohibits the retention or receipt of the customer’s money, the consumer suffers a
pecuniary loss under § 100.20(5) in the amount that was wrongfully retained or
received.” Id., ¶24. Applying this rule to WIS. ADMIN. CODE § ATCP 132.02, the
court held that “when a motor vehicle repair shop receives money from a customer
for repairs that the customer did not authorize, or at a price not authorized, the

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customer’s pecuniary loss is the entire amount of the unauthorized charges that the
customer paid to the motor vehicle repair shop.” Id.

¶14 For his part, Riel points to language from Kaskin that he suggests
leads to the conclusion that any violation of WIS. ADMIN. CODE ch. ATCP 132
causes a pecuniary loss:

We hold that a repair shop, which finds itself
outside the law and which has taken money from a
consumer after violating the law, causes pecuniary loss to
the consumer because of the violation. This is so because
the consumer has been prevented from exercising a
statutory right—the right of informed consent. It is not the
consumer’s burden to prove that he or she would have done
something differently had the proper information been
given. Rather, the burden is wholly upon the repair shop.
Strict as it is, the policy makers obviously believed that
only by exposing the repair shop industry to strict
conformance at the risk of having to pay back double if
sued, could the problem of consumer exploitation be
resolved.

Id., ¶28. Kaskin also states: “A customer filing an action under [WIS.
STAT.] § 100.20(5) is … not required to prove anything except that (1) he or she
paid and (2) that payment was for unauthorized repairs or repairs otherwise
performed in violation of WIS. ADMIN. CODE ch. ATCP 132.” Id., ¶24.
According to Riel, these portions of Kaskin establish that “a shop owner’s
violation of the [ch. ATCP 132] notice requirements, per se, causes pecuniary loss
to the consumer.”

¶15 This language in Kaskin does not establish as broad a rule as Riel
contends. In Kaskin, the dispute involved only a challenge under WIS. ADMIN.
CODE § ATCP 132.02—a provision prohibiting unauthorized repairs. In resolving
that dispute, the court relied on prior decisions involving the unauthorized
retention of money and concluded that a customer suffers a pecuniary loss if he or

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she pays for unauthorized repairs in violation of § ATCP 132.02. This court did
not give any indication in Kaskin that it was creating an expansive rule that
applied to all provisions of ch. ATCP 132. Our reading of that opinion is
bolstered by a footnote in Kaskin in which this court clarified that its holding was
limited to unauthorized repairs and that customers are not entitled to recover
damages under WIS. STAT. § 100.20(5) for every violation of ch. ATCP 132:

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

Id., ¶24 n.6 (citations omitted) (citing Huff & Morse, Inc. v. Riordon, 118
Wis. 2d 1, 9-10, 345 N.W.2d 504 (Ct. App. 1984)). Additionally, if we were to
construe Kaskin as Riel suggests, we would be effectively eliminating the “causal
connection” requirement set forth in § 100.20(5). As a result, Kaskin must be read
as applying only when a repair shop violates the law by receiving or retaining a
customer’s money without authorization, such as by charging for unauthorized
repairs contrary to § ATCP 132.02. Thus, because Prager’s alleged violation
regarding the parts notice did not involve the unauthorized receipt or retention of
Riel’s money, Riel did not suffer a pecuniary loss under Kaskin.

¶16 Next, Riel suggests that he is entitled to damages under WIS. STAT.
§ 100.20(5) because Kaskin recognized that WIS. ADMIN. CODE ch. ATCP 132 is
designed to provide customers with “informed consent” when dealing with repair
shops. See Kaskin, 318 Wis. 2d 802, ¶¶16-17 (discussing the “informed consent”
rationale underlying ch. ATCP 132). However, as with his other arguments, Riel

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does not grapple with the requirement under § 100.20(5) that a violation of an
administrative regulation must cause a pecuniary loss. Significantly, Riel does not
explain how Prager’s alleged violation of § ATCP 132.03(3)(f) caused Riel to lack
informed consent before he authorized the repairs. Riel does not give any
explanation as to how that lack of knowledge caused the repairs to be
unauthorized or otherwise caused him to suffer a pecuniary loss.

¶17 Finally, Riel contends that statements in Moonlight v. Boyce, 125
Wis. 2d 298, 372 N.W.2d 479 (Ct. App. 1985) and Hughes v. Chrysler Motors
Corp., 197 Wis. 2d 973, 542 N.W.2d 148 (1996) support his argument that
Prager’s alleged violation of WIS. ADMIN. CODE § ATCP 132.03(3)(f) caused him
to suffer a pecuniary loss. In Moonlight, a landlord violated an administrative
regulation by withholding a tenant’s security deposit without providing the tenant
with a written statement of damages within 21 days, and the tenant sued under
WIS. STAT. § 100.20(5). Moonlight, 125 Wis. 2d at 304. This court held that the
tenant’s pecuniary loss was the amount of the security deposit, regardless of the
amount of damages that the landlord could recover on a counterclaim against the
tenant. Id. at 305-06. In reaching this conclusion, the court observed the
following purposes underlying § 100.20(5): to “encourage[] injured tenants to
bring legal actions to enforce their rights under the administrative regulations”; to
allow the consumer to act as a “private attorney general” and enforce his or her
rights under the administrative regulations; to deter impermissible conduct by the
regulated industry and strengthen the consumer’s bargaining power; and to
“provide a necessary backup to the state’s enforcement powers under sec. 100.20.”
Id. at 306 n.6. In Hughes, our supreme court analyzed a former version of
Wisconsin’s “lemon law,” the violation of which is subject to damages of “twice
the amount of any pecuniary loss.” Hughes, 197 Wis. 2d at 983 (quoting WIS.

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STAT. § 218.015(7) (1985)). Observing that “remedial statutes should be liberally
construed to suppress the mischief and advance the remedy that the statute
intended to afford,” the court held that the pecuniary loss for violation of the
lemon law included the full purchase price of the car, not just the amount of the
buyer’s out-of-pocket expenses. Id. at 979, 983-85.

¶18 Those statements in Moonlight and Hughes do not establish that, in
this factual scenario, Riel is entitled to damages pursuant to WIS. STAT.
§ 100.20(5). The proposition that “remedial statutes” such as § 100.20(5) should
be “liberally construed” does not call for us to ignore the unambiguous language
of that statute. See DOJ v. DWD, 2015 WI 114, ¶32, 365 Wis. 2d 694, 875
N.W.2d 545 (“[A] provision can be construed ‘liberally’ as opposed to ‘strictly’
only when there is some ambiguity to construe.”). Here, as discussed earlier, the
unambiguous language of § 100.20(5) establishes that Riel is not entitled to
damages because he has not demonstrated that Prager’s alleged violation of WIS.
ADMIN. CODE ch. ATCP 132 regarding the parts notice caused a pecuniary loss.
Further, the facts of Moonlight and Hughes are not analogous to the facts here. In
both of those cases, the court was only tasked with determining the amount of the
plaintiff’s pecuniary loss; there was no dispute that the plaintiff suffered a
pecuniary loss “because of” a violation of a statute or an administrative regulation.

¶19 In sum, Riel is not entitled to recover damages under WIS. STAT.
§ 100.20(5) because he has not demonstrated that he suffered a pecuniary loss as a
result of a violation of an administrative regulation. As a result, Riel is not
entitled to recover “double damages,” costs, or attorney’s fees under § 100.20(5).
See Grand View Windows, 349 Wis. 2d 759, ¶46 (“A pecuniary loss is a condition
precedent to recovery of costs and attorney’s fees.”); Paulik v. Coombs, 120 Wis.
2d 431, 438, 355 N.W.2d 357 (Ct. App. 1984) (“[T]he only requirement necessary

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for the tenant to be awarded attorneys fees is that he prevail on his claim for
double damages under sec. 100.20(5).” (emphasis omitted)). Thus, because Riel’s
claim for damages is tethered exclusively to § 100.20(5), we conclude that the
circuit court properly directed a verdict with respect to Riel’s WIS. ADMIN. CODE
§ ATCP 132.03 claim.6

¶20 Prager requests an award of costs and attorney fees incurred in this
appeal pursuant to WIS. STAT. RULE 809.25 on the ground that Riel’s entire appeal
is frivolous. Whether an appeal is frivolous is a question of law. Howell v.
Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621. Sanctions for a
frivolous appeal will be imposed if the court concludes that the “party or party’s
attorney knew, or should have known, that the appeal … [had no] reasonable basis
in law or equity and could not be supported by a good faith argument for an
extension, modification or reversal of existing law.” Id. (quoting
RULE 809.25(3)(c)2.). This standard is objective, so we must examine what a
“reasonable party or attorney knew or should have known under the same or
similar circumstances.” Id.

¶21 As discussed in this order, Riel’s arguments on appeal are weak and
do not succeed. However, we cannot conclude in these circumstances that Riel’s

6
Riel appeals the circuit court’s denial of his motion for summary judgment with respect
to the WIS. ADMIN. CODE § ATCP 132.03 claim. However, that motion did not request summary
judgment on the issue of damages for that claim. Riel also argues that the circuit court
erroneously denied his motion for partial summary judgment with respect to Prager’s personal
liability for Riel’s claims. Because we conclude that Riel is not entitled to any damages for his
ch. ATCP 132 claim and that claim fails, we need not address whether the circuit court erred in
denying Riel’s motion for partial summary judgment. See Barrows v. American Fam. Ins. Co.,
2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not
address every issue raised by the parties when one issue is dispositive.”).

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arguments lack any “reasonable basis in law or equity.” See id. Accordingly, we
conclude that Riel’s appeal is not frivolous, and we deny Prager’s motion.

By the Court.—Order affirmed.

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

14