Landmark Credit Union v. Ralph W. Streuly

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.
March 13, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2023AP124 Cir. Ct. No. 2019CV994

2023AP1333
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

LANDMARK CREDIT UNION,

PLAINTIFF-RESPONDENT,

V.

RALPH W. STREULY,

DEFENDANT-APPELLANT,

REPOSSESSORS INC.,

DEFENDANT.

APPEALS from a judgment and an order of the circuit court for
Rock County: JEFFREY S. KUGLITSCH, Judge. Affirmed.

Before Graham, Nashold, and Taylor, 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).
Nos. 2023AP124
2023AP1333

¶1 PER CURIAM. Ralph Streuly purchased a vehicle that was
financed by Landmark Credit Union (“Landmark”). These appeals arise out of a
replevin action filed by Landmark against Streuly after Streuly defaulted on the
loan agreement for the vehicle, which was assigned to Landmark and secured by
the vehicle.1 Streuly counterclaimed, alleging violations under the Wisconsin
Consumer Act, specifically, unconscionability under WIS. STAT. § 425.107 and
illegal debt collection practices under WIS. STAT. § 427.104.2 Streuly’s
unconscionability claim against Landmark was dismissed on Landmark’s motion
for summary judgment, but Streuly’s claim that Landmark engaged in illegal debt
collection practices survived summary judgment and was scheduled for trial.

¶2 Prior to trial, the circuit court granted Landmark’s motion in limine
to prohibit Streuly from presenting evidence at trial regarding the attempts of
Repossessors, Inc. (“Repossessors”) to repossess, as Landmark’s alleged agent,
the vehicle securing the loan. The jury subsequently found that Landmark
engaged in illegal debt collection practices in violation of WIS. STAT.
§ 427.104(1)(g), and awarded Streuly $1,500 in damages. After the trial, the court
entered a deficiency judgment in favor of Landmark for the amount that Streuly
owed related to the purchase of the vehicle. The court also awarded Streuly
attorney fees and offset the deficiency judgment in favor of Landmark against the
total judgment awarded to Streuly.

1
These appeals were consolidated for briefing and disposition by an order dated
August 2, 2023. See WIS. STAT. RULE 809.10(3) (2021-22). All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.
2
See WIS. STAT. § 421.101 (“Chapters 421 to 427 shall be known and may be cited as
the Wisconsin consumer act.”).

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¶3 On appeal, Streuly challenges the circuit court’s decision on
summary judgment to dismiss his WIS. STAT. § 425.107 unconscionability claim,
the court’s decision to prohibit Streuly from presenting evidence regarding the
actions of Repossessors, the amount of attorney fees that the court awarded
following the trial, and the court’s decision to offset the judgment entered in favor
of Landmark against the judgment entered in favor of Streuly. For the reasons
stated below, we affirm.

BACKGROUND

¶4 The following facts are derived from the summary judgment
materials and the evidence presented at trial and are undisputed unless otherwise
noted.

¶5 Streuly purchased a 2011 Ford Ranger from Janesville Autos, LLC,
(“the dealership”) in August 2016. The purchase price of the Ranger was $12,806.
Streuly traded in a vehicle and also purchased a service package and GAP
insurance,3 resulting in the total amount financed being $20,704.16. The purchase
was financed through Landmark, and the dealership assigned the loan and security
interest to Landmark.

¶6 Streuly purchased the Ranger, which was two-wheel drive, even
though he had gone to the dealership intending to purchase a full-size truck with
four-wheel drive. At the dealership, Streuly learned that he was not eligible to

3
GAP insurance, or “guaranteed-asset-protection insurance,” is “automobile insurance
that protects the insured against the difference between what an asset (such as an automobile) is
worth and what the insured owes on it,” and “applies when an asset is stolen and never recovered
or is declared a total loss from an accident.” Insurance, BLACK’S LAW DICTIONARY (12th ed.
2024).

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purchase a full-size, four-wheel-drive truck given his income and credit rating.
The dealership told Streuly that if Streuly bought the Ranger and came back in a
year, the dealership would “give [Streuly] a deal” on a full-size, four-wheel-drive
truck. Streuly returned the next year hoping to buy a full-size, four-wheel-drive
truck, but instead purchased a Kia Forte. A separate action, relevant for reasons
discussed below, arose out of that transaction.

¶7 Streuly stopped making payments on the Ranger in August 2018
after he lost his job, and Landmark contracted with Repossessors to repossess the
Ranger.4 A Repossessors agent drove by Streuly’s house numerous times to see if
the Ranger was there. On one occasion, the agent stopped and spoke with Streuly
because the agent observed an older Ford Ranger in Streuly’s driveway that was
different from the Ranger that secured Streuly’s loan and that Repossessors was
attempting to repossess, but that had the same license plates.5 After a short
conversation with Streuly, the agent left without repossessing the Ranger.

¶8 Landmark also called Streuly in an attempt to collect payments or
repossess the Ranger. Landmark’s agents spoke with Streuly over the phone on
four occasions and left voicemails on several others. Landmark called Streuly
even after Streuly informed Landmark that he had an attorney and that Landmark
should speak with his attorney.

4
On appeal, Streuly states that he “began missing payments just a few months after the
purchase, in December 2016.” However, as Landmark points out, Streuly’s citation to the record
in support of this assertion shows only that Streuly made a late payment in 2016, and Streuly’s
deposition testimony, Landmark’s records, and other evidence in the record otherwise show that
Streuly stopped making payments on the Ranger in August 2018.
5
Streuly had taken the license plates off the Ranger that Landmark was attempting to
repossess—which Streuly had parked in his closed garage, where it could not be seen—and put
those plates on an older Ford Ranger that Streuly owned, which was visible in his driveway.

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¶9 Eventually, Landmark initiated a replevin action against Streuly.
Streuly counterclaimed, alleging that the transaction was unconscionable under
WIS. STAT. § 425.107 and thus unenforceable.6 Streuly also alleged that
Repossessors had engaged in conduct for which Landmark, as Repossessors’
agent, was indirectly liable. Specifically, Streuly alleged that Repossessors
engaged in illegal debt collection practices, in violation of WIS. STAT.
§ 427.104(1)(g) and (h), by engaging in conduct and communication that could
reasonably be expected to threaten or harass Streuly. Additionally, Streuly alleged
that Repossessors violated § 427.104(1)(j) when it threatened to enforce a
nonexistent right by continuing to attempt to repossess the Ranger after there was
a breach of the peace.7

¶10 Landmark responded to Streuly’s counterclaims by amending its
complaint to add Repossessors as defendants. Landmark alleged that its contract

6
WISCONSIN STAT. § 425.107(1) states:

With respect to a consumer credit transaction, if the court as a
matter of law finds that any aspect of the transaction, any
conduct directed against the customer by a party to the
transaction, or any result of the transaction is unconscionable,
the court shall … either refuse to enforce the transaction against
the customer, or so limit the application of any unconscionable
aspect or conduct to avoid any unconscionable result.
7
Under WIS. STAT. § 427.104(1)(g), (h) and (j), respectively, a debt collector may not
“[c]ommunicate with the customer … with such frequency or at such unusual hours or in such a
manner as can reasonably be expected to threaten or harass the customer”; “[e]ngage in other
conduct which can reasonably be expected to threaten or harass the customer”; or “[c]laim, or
attempt or threaten to enforce a right with knowledge or reason to know that the right does not
exist.”

Although Streuly’s counterclaim did not state the specific statutory provisions that he was
alleging Repossessors violated as Landmark’s agent, based on the language used in Streuly’s
counterclaim and on the parties’ subsequent summary judgment filings, it is clear that Streuly’s
counterclaims were brought under WIS. STAT. § 427.104(g), (h), and (j).

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with Repossessors stated that Repossessors would repossess the vehicle lawfully
and that if the allegations in Streuly’s complaint were proven, Repossessors had
breached the contract.

¶11 After Landmark added Repossessors as defendants, Streuly amended
his answer to include cross-claims against Repossessors. Specifically, Streuly
made the same allegations regarding the conduct of Repossessors as in his initial
complaint, but additionally alleged that Repossessors was directly liable for this
conduct under WIS. STAT. § 427.104(1)(g), (h), and (j).

¶12 Repossessors moved to dismiss Streuly’s cross-claims against it,
arguing, among other things, that the claims were time-barred under WIS. STAT.
§ 425.307(1)’s statute of limitations for actions brought pursuant to WIS. STAT.
chs. 421 to 427.8 The circuit court agreed and granted Repossessors’ motion to
dismiss.

¶13 Repossessors then moved for summary judgment as to Landmark’s
claim against it for breach of contract, arguing that the undisputed facts showed
that Repossessors did not breach the peace or engage in illegal debt collection
practices when attempting to repossess the Ranger, and that Repossessors thus did
not breach its contract with Landmark. The circuit court granted Repossessors’
motion and dismissed Landmark’s claims against Repossessors.

8
WISCONSIN STAT. § 425.307(1) provides, “Any action brought by a customer to
enforce rights pursuant to [WIS. STAT.] chs. 421 to 427 shall be commenced within one year after
the date of the last violation of chs. 421 to 427, 2 years after consummation of the agreement or
one year after last payment, whichever is later ….” Repossessors argued that Streuly’s cross-
claims against it were time-barred because they were brought more than one year after the alleged
violation of WIS. STAT. § 427.104.

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¶14 Landmark moved for summary judgment as to Streuly’s
unconscionability and illegal debt collection claims. The circuit court granted
Landmark’s motion as to the unconscionability claim and dismissed that claim.
However, the court denied Landmark’s motion for summary judgment on
Streuly’s illegal debt collection claims. The court ruled that a genuine issue of
material fact existed as to whether the phone calls that Landmark made to Streuly
constituted illegal debt collection practices.

¶15 Before the trial on Streuly’s remaining claim regarding Landmark’s
debt collection practices, Landmark filed a motion in limine to prohibit Streuly
from presenting evidence or arguments regarding the actions of Repossessors’
agents. The circuit court granted Landmark’s motion.

¶16 Following a two-day trial, the jury found that Landmark engaged in
illegal debt collection practices in violation of WIS. STAT. § 427.104(1)(g), that
Landmark’s violation caused Streuly emotional distress, and that $1,500 would
reasonably compensate Streuly for his emotional distress.

¶17 After the trial, Streuly moved for a partial new trial on damages
based on the circuit court’s exclusion of evidence regarding Repossessors’ actions.
The court denied that motion.

¶18 Streuly also moved the circuit court for an award of attorney fees.
Although Streuly sought approximately $80,000 in attorney fees, the court
awarded him $19,200 in attorney fees.

¶19 In total, Streuly was awarded $22,504.20, which consisted of the
$1,500 in compensatory damages awarded by the jury as well as his costs and
reasonable attorney fees. Landmark was awarded a deficiency judgment of

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$9,790.84 after the Ranger was repossessed and sold at auction. The circuit court
ordered that Landmark’s deficiency judgment be offset against the judgment
awarded to Streuly, thereby reducing Streuly’s award to $12,713.36.

¶20 Streuly appeals. Additional facts are provided as necessary in the
discussion that follows.

DISCUSSION

¶21 On appeal, Streuly argues that the circuit court erred when it:
(1) dismissed his unconscionability claim on summary judgment, (2) ruled that
Streuly could not present evidence at trial of Repossessors’ contact with Streuly,
(3) calculated Streuly’s award of attorney fees, and (4) offset Landmark’s
deficiency judgment against the judgment in favor of Streuly, thereby reducing
Streuly’s award of attorney fees. We address, and reject, each of these arguments
in turn.

I. Landmark is entitled to summary judgment on Streuly’s
unconscionability claim.

¶22 As stated, the circuit court granted summary judgment in favor of
Landmark and dismissed Streuly’s unconscionability claim. Streuly first argues
that the court erred when it did so because the doctrine of issue preclusion required
that Streuly’s unconscionability claim go to trial. Alternatively, Streuly argues
that the facts in the record were sufficient to require a trial on this claim.

A. Issue preclusion does not require that Streuly’s
unconscionability claim go to trial.

¶23 As previously noted, after buying the Ranger, Streuly returned to the
dealership a year later and purchased a Kia Forte. In a separate action arising from
that transaction, Streuly brought counterclaims against the dealership, including a

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claim that the dealership engaged in unconscionable practices. The dealership
moved to dismiss Streuly’s counterclaims on summary judgment and, in
responding to the dealership’s motion, Streuly argued, as pertinent here, that a jury
could conclude from the undisputed facts that the dealership engaged in
unconscionable practices under WIS. STAT. § 425.107.9 The circuit court granted
the dealership’s motion with respect to all of Streuly’s counterclaims, with the
exception of Streuly’s unconscionability counterclaim, and Streuly and the
dealership subsequently settled the case. Streuly characterizes the court’s ruling
on his unconscionability claim in that action as a ruling that the claim “deserved a
jury trial,” and he argues that the doctrine of issue preclusion requires that his
unconscionability claim against Landmark in this action survive summary
judgment. Landmark counters that issue preclusion does not apply in this context
because the court’s decision in the prior litigation on the dealership’s motion was
not a final judgment on the merits.10 We agree with Landmark.

¶24 “[I]ssue preclusion refers to the effect of a judgment in foreclosing
relitigation in a subsequent action of an issue of law or fact that has been actually
litigated and decided in a prior action.” Ellifson v. West Bend Mut. Ins. Co.,

9
It is not clear from the parties’ briefs or the record whether the dealership’s motion on
Streuly’s counterclaims was a motion to dismiss for failure to state a claim upon which relief
could be granted, a motion for judgment on the pleadings, or a motion for summary judgment. In
any event, for purposes of this appeal, we will assume, as Streuly argues, that the court’s decision
in the earlier litigation was a decision on summary judgment, because our conclusion is the same
whether it was a decision on a motion to dismiss for failure to state a claim upon which relief
could be granted, a motion for judgment on the pleadings, or a motion for summary judgment.
10
Landmark also argues that issue preclusion does not apply for several other reasons.
We need not address these arguments because we reject Streuly’s argument on the basis that the
circuit court’s decision on the dealership’s motion in the earlier litigation was not a final
judgment and therefore issue preclusion does not apply. See Barrows v. American Fam. Ins.
Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need not
address every issue raised by the parties when one issue is dispositive.”).

9
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2008 WI App 86, ¶12, 312 Wis. 2d 664, 754 N.W.2d 197 (emphasis added). The
first step in determining whether issue preclusion applies is thus to “determine
whether the issue or fact was actually litigated and determined in the prior
proceeding by a valid judgment in a previous action and whether the determination
was essential to the judgment.” Id. (emphasis added). Consistent with this, in
Ellifson, when an insurer sought to invoke the doctrine of issue preclusion based
on a denial of summary judgment in a previous case between the parties, we
rejected the insurer’s argument because we concluded that the denial of summary
judgment in the earlier case “was a nonfinal order and not a final judgment on the
merits.” Id., ¶¶16, 17. We explained, “While a grant of summary judgment is a
conclusive and final judgment, a denial of a motion for summary judgment is an
interlocutory, nonfinal order insufficient to bind a defendant in subsequent
actions.” Id., ¶17 (citation omitted).

¶25 Here, for the same reason, Streuly cannot invoke issue preclusion to
defend against Landmark’s summary judgment motion in this case by relying on
the court’s decision in his earlier case denying the dealership’s motion to dismiss
Streuly’s unconscionability counterclaim. A denial of a motion for summary
judgment is not a final judgment.11 Id.; see also WIS. STAT. § 808.03(1) (“A final
judgment or final order is a judgment, order or disposition that disposes of the
entire matter in litigation as to one or more of the parties ….”). Because the
earlier decision on the dealership’s motion to dismiss Streuly’s unconscionability

11
As noted, we are assuming for purposes of our analysis that the dealership’s motion in
the prior action was for summary judgment on Streuly’s unconscionability counterclaim. If the
motion was instead a motion to dismiss for failure to state a claim upon which relief can be
granted, or a motion for judgment on the pleadings, we would reach the same conclusion, because
a denial of either such motion would likewise not be a final judgment. See WIS. STAT.
§ 808.03(1).

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counterclaim in that action was not a final judgment, it is insufficient to bind
Landmark in this action, and issue preclusion does not apply.12

B. Landmark is entitled to summary judgment on Streuly’s
unconscionability claim.

¶26 Streuly argues that even if the doctrine of issue preclusion does not
compel a trial on his unconscionability claim, Landmark is not entitled to
summary judgment on Streuly’s unconscionability claim, and that this claim
should have been submitted to the jury.

¶27 Summary judgment is proper when the summary judgment materials
“show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). “We
review de novo the grant of summary judgment, employing the same methodology
as the circuit court.” Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324
Wis. 2d 180, 781 N.W.2d 503.

12
Streuly argues that although a final judgment is required for claim preclusion to apply,
it is not required for issue preclusion to apply, and that to require a final judgment for issue
preclusion “would simply be reiterating part of the test for claim preclusion.” Streuly is
mistaken. A final judgment is required for both claim and issue preclusion. Ellifson v. West
Bend Mut. Ins. Co., 2008 WI App 86, ¶¶11-12, 16-17, 312 Wis. 2d 664, 754 N.W.2d 197.

Additionally, Streuly asserts that “[t]he issue of whether the [dealership’s] conduct was
sufficient to go to a jury was actually litigated in the prior case, and should be binding here.”
However, even if we assume that Streuly has correctly characterized the relevant issue and that
the relevant issue was actually litigated for purposes of determining whether issue preclusion
applies, issue preclusion only applies if an issue “‘is actually litigated and determined by a valid
and final judgment.’” Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis. 2d 381, 396, 497
N.W.2d 756 (Ct. App. 1993) (emphasis added) (quoting RESTATEMENT (SECOND) OF
JUDGMENTS § 27 (AM. LAW INST.1982)). Because we conclude, consistent with Ellifson, that the
circuit court’s earlier ruling does not bind Landmark because that decision was not a final
judgment, we need not separately address whether the relevant issue was actually litigated. See
Barrows, 352 Wis. 2d 436, ¶9.

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¶28 The party moving for summary judgment “has the burden of
establishing the absence of a factual dispute and entitlement to judgment as a
matter of law.” Park Bancorporation, Inc. v. Sletteland, 182 Wis. 2d 131, 141,
513 N.W.2d 609 (Ct. App. 1994). To defeat summary judgment, “[a] party
opposing a summary judgment motion must set forth ‘specific facts,’ evidentiary
in nature and admissible in form, showing that a genuine issue exists for trial.”
Helland v. Kurtis A. Froedtert Mem’l Lutheran Hosp., 229 Wis. 2d 751, 756,
601 N.W.2d 318 (Ct. App. 1999). We “draw all reasonable inferences from the
evidence in favor of the non-moving party.” Manor Enters., Inc. v. Vivid, Inc.,
228 Wis. 2d 382, 389, 596 N.W.2d 828 (Ct. App. 1999).

¶29 Unconscionability “involves determinations of fact and law.”
Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶25, 290 Wis. 2d 514,
714 N.W.2d 155. Whether the undisputed facts render a contract or conduct
unconscionable is an issue of law that we review independently. See id.

¶30 The unconscionability statute, WIS. STAT. § 425.107(1), provides:

With respect to a consumer credit transaction, if the court
as a matter of law finds that any aspect of the transaction,
any conduct directed against the customer by a party to the
transaction, or any result of the transaction is
unconscionable, the court shall … either refuse to enforce
the transaction against the customer, or so limit the
application of any unconscionable aspect or conduct to
avoid any unconscionable result.

The burden of proof is on the party claiming unconscionability. Wisconsin Auto,
290 Wis. 2d 514, ¶30.

¶31 Landmark argues that it is entitled to summary judgment because the
undisputed evidence does not support a finding of unconscionability as a matter of
law. We agree.

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¶32 We begin by addressing the parties’ dispute regarding what is
required to show unconscionability under WIS. STAT. § 425.107, which is relevant
to our determination of whether Landmark is entitled to summary judgment on
Streuly’s unconscionability claim. The parties dispute whether, under § 425.107,
Streuly must show both procedural and substantive unconscionability. Landmark
argues that Streuly must show both, relying on Wisconsin Auto.13 There, a
borrower opposed a lender’s motion to compel arbitration on the basis that the
arbitration provision in the loan agreement between the borrower and lender was
“not valid or enforceable under common and statutory law.” Id., ¶23; see also id.,
¶22 (stating that the borrower, in a counterclaim, asserted “that the loan agreement
was unconscionable under … § 425.107”). In concluding that the arbitration
provision was unconscionable, our supreme court stated, “For a contract or a
contract provision to be declared invalid as unconscionable, the contract or
contract provision must be determined to be both procedurally and substantively
unconscionable.” Id., ¶¶2, 29. Streuly argues that the analysis in Wisconsin Auto
pertains to a common law claim of unconscionability, and that an analysis of
unconscionability under § 425.107 does not similarly require that both substantive
and procedural unconscionability be established. Therefore, Streuly relies on the
text of § 425.107(3), which lists factors that the court may consider in determining
unconscionability. Streuly argues that § 425.107(3) lists factors beyond those
considered under the common law analysis that he argues was used in Wisconsin

13
In addition to Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, 290 Wis. 2d
514, 714 N.W.2d 155, Landmark also improperly cites as “persuasive” authority unpublished per
curiam opinions. We remind counsel that it is improper to cite per curiam opinions in briefs to
this court. See WIS. STAT. § 809.23(3)(a) and (b) (providing that a per curiam opinion “may not
be cited in any court of this state as precedent or authority, except to support a claim of claim
preclusion, issue preclusion, or the law of the case”).

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Auto, and he argues that one of the factors that the court may consider is
“[d]efinitions of unconscionability in … rulings and decisions of … judicial
bodies.” Sec. 425.107(3)(i).

¶33 We are unpersuaded by Streuly’s argument that procedural and
substantive unconscionability need not be shown to establish unconscionability
under WIS. STAT. § 425.107. In particular, we are unpersuaded by Streuly’s
argument that Wisconsin Auto does not control. As stated, Landmark argues that
Wisconsin Auto controls, relying on language in the opinion showing that the
arbitration provision at issue was challenged on both statutory and common law
grounds. Streuly does not meaningfully respond to this argument, and we thus
conclude that, consistent with the analysis used in Wisconsin Auto, for an
unconscionability claim under § 425.107, both procedural and substantive
unconscionability must be shown.14

¶34 Under the analysis for unconscionability articulated in Wisconsin
Auto, we conclude that the undisputed facts do not establish substantive
unconscionability related to Streuly’s purchase of the Ranger. “Substantive
unconscionability addresses the fairness and reasonableness of the contract
provision subject to challenge.” Id., ¶35. “The analysis of substantive
unconscionability requires looking at the contract terms and determining whether
the terms are ‘commercially reasonable,’ that is, whether the terms lie outside the
limits of what is reasonable or acceptable.” Id., ¶36 (footnote omitted). Streuly

14
Streuly’s response to Landmark’s argument is contained in a single paragraph. In that
paragraph, Streuly asserts that Landmark’s citation in support of its argument is to a part of the
opinion discussing the facts of the case and that WIS. STAT. § 425.107 was “not directly
discussed, but only referenced in footnotes.”

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argues that the monthly payment on the Ranger was more than ten percent of his
gross monthly income and that more than 1/6th of the purchase price was for GAP
insurance and a protection plan. Streuly also argues that although Landmark
would have financed the purchase at a rate of 6.15 percent, the dealership marked
up the rate to 8.15 percent in order to profit from the financing of the Ranger.15
However, Streuly does not argue, nor was there any evidence on summary
judgment, that these terms are not commercially reasonable, and in the absence of
any such argument or evidence, we conclude that they are not “outside the limits
of what is reasonable or acceptable.” Id., ¶36. Because Streuly has not shown
substantive unconscionability, we need not address whether Streuly has shown
procedural unconscionability. See id., ¶29; see also Turner v. Taylor, 2003 WI
App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (when a decision on one issue
is dispositive, we need not reach other issues raised).

¶35 However, even if we assume that procedural and substantive
unconscionability are not required, we would nonetheless conclude that summary
judgment was proper because, using the factors outlined in WIS. STAT.
§ 425.107(3), the undisputed facts on summary judgment do not establish that any
aspect of the transaction, any of Landmark’s conduct, or the result of the
transaction is unconscionable.

15
Streuly argues that the actions of the dealership are relevant to Streuly’s
unconscionability claim against Landmark because WIS. STAT. § 425.107(1) provides relief if
“any aspect of the transaction, any conduct directed against the customer by a party to the
transaction, or any result of the transaction is unconscionable.” We will assume for purposes of
our analysis that the dealership’s actions are relevant because even when these actions are
considered, the undisputed facts do not establish unconscionability.

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¶36 WISCONSIN STAT. § 425.107(3) states that “the court may consider,
among other things, the following as pertinent to the issue of unconscionability”:

(a) That the practice unfairly takes advantage of the
lack of knowledge, ability, experience or capacity of
customers;

(b) That those engaging in the practice know of the
inability of customers to receive benefits properly
anticipated from the goods or services involved;

(c) That there exists a gross disparity between the
price of goods or services and their value as measured by
the price at which similar goods or services are readily
obtainable by other customers, or by other tests of true
value;

(d) That the practice may enable merchants to take
advantage of the inability of customers reasonably to
protect their interests by reason of physical or mental
infirmities, illiteracy or inability to understand the language
of the agreement, ignorance or lack of education or similar
factors;

(e) That the terms of the transaction require
customers to waive legal rights;

(f) That the terms of the transaction require
customers to unreasonably jeopardize money or property
beyond the money or property immediately at issue in the
transaction;

(g) That the natural effect of the practice would
reasonably cause or aid in causing customers to
misunderstand the true nature of the transaction or their
rights and duties thereunder;

(h) That the writing purporting to evidence the
obligation of the customer in the transaction contains terms
or provisions or authorizes practices prohibited by law; and

(i) Definitions of unconscionability in statutes,
regulations, rulings and decisions of legislative,
administrative or judicial bodies.

Of these factors, Streuly invokes those listed in paragraphs (a), (d), (g), and (i).

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Nos. 2023AP124
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¶37 Starting with Streuly’s arguments under the factor listed in
paragraph (i)—“[d]efinitions of unconscionability in … rulings and decisions of
… judicial bodies”—Streuly attempts to analogize the facts here to those in
Wisconsin Auto. We reject Streuly’s arguments under this factor because, as
stated, the undisputed facts do not show any substantive unconscionability, which
the Wisconsin Auto court stated was required to show unconscionability.
Wisconsin Auto, 290 Wis. 2d 514, ¶30.

¶38 Turning to Streuly’s arguments under the remaining factors in
paragraphs (a), (d), and (g), Streuly argues that he “believed that he needed GAP
insurance,” and that “[a] jury could find [the dealership’s] discussion of GAP
insurance at the time of the sale reasonably caused Streuly to misunderstand the
nature of ‘GAP’ insurance, namely, whether it was required.” As support for this
argument, Streuly cites his deposition testimony. Streuly did testify that he was
“pretty sure” that he needed GAP insurance. But Streuly then also testified that he
was not sure why he believed that he needed to have GAP insurance. And Streuly
does not otherwise cite any evidence in the summary judgment record that would
support a finding that he believed that he needed to purchase GAP insurance
because of what the dealership told him. As a result, no reasonable jury could
find, based on Streuly’s testimony, that the dealership falsely represented to
Streuly that GAP insurance was necessary. See WIS. STAT. § 802.08(2) (stating
that summary judgment is proper when “there is no genuine issue as to any
material fact”); Central Corp. v. Research Prods. Corp., 2004 WI 76, ¶19, 272
Wis. 2d 561, 681 N.W.2d 178 (“An issue of fact is genuine if a reasonable jury
could find for the nonmoving party.”).

¶39 Streuly also argues that his inability to make payments on the
Ranger shortly after purchasing it demonstrates that the transaction was unfair.

17
Nos. 2023AP124
2023AP1333

However, even if we assume that an inability to make payments shortly after the
purchase could demonstrate unfairness, Streuly’s argument is unsupported by the
summary judgment materials. As noted, with the exception of one late payment in
the first few months following the purchase, the summary judgment materials,
including Streuly’s own deposition testimony, show that Streuly was able to make
payments on the Ranger for approximately two years, and that he stopped making
payments only after he lost his job.

¶40 Additionally, Streuly identifies evidence in the summary judgment
materials showing that the salesperson who sold Streuly the Ranger was employed
by an independent contractor rather than by the dealership, and that the
salesperson worked at the dealership “for a temporary period of time.” Streuly
argues that this evidence “allows an inference [that] the salesperson misled Streuly
because he could not be punished by [the dealership] and likely would not be there
in a year when Streuly returned.” However, the fact that the salesperson who sold
the Ranger to Streuly worked at the dealership temporarily does not make it
reasonable to infer that the salesperson misled Streuly; such an inference would be
speculative rather than reasonable. See State ex rel. N.A.C. v. W.T.D., 144
Wis. 2d 621, 636, 424 N.W.2d 707 (1988) (explaining that a reasonable inference
“cannot be based on speculation or conjecture”); see also Manor Enterprises,
Inc., 228 Wis. 2d at 389 (stating that whether a particular factual inference may be
drawn and whether it is reasonable are questions of law).

¶41 Further, Streuly states generally that he dropped out of school before
finishing the 9th grade, that he believes that he has cognitive disabilities, and that
he “agreed [that] it was a ‘possibility’ his level of education and disability
interfered with his ability to purchase the Ford Ranger.” However, as Landmark
points out and as the circuit court noted, there is no evidence in the record to

18
Nos. 2023AP124
2023AP1333

support Streuly’s claim that he has a diminished intellectual capacity,16 and
Streuly testified that there was no reason that the dealership would have been
aware that he had a limited education or any kind of learning disability. Streuly
testified that he did not ask for any additional explanation of the contract terms
and that he understood what his monthly payments would be and how long he
would have to those make payments. Streuly also testified that he understood
what GAP insurance was and what the service program he purchased was, and that
he declined other options presented. Moreover, Streuly has extensive experience
purchasing vehicles, having purchased more than 20 cars in his lifetime. Two of
those vehicles were ones that Streuly purchased from the same dealership prior to
purchasing the Ranger.

¶42 Streuly also identifies deposition testimony in which he stated that
the dealership did not explain that the loan for the vehicle that Streuly traded in
was “rolled in” to the purchase price of the Ranger. However, Streuly testified
that he knew that he owed more on the trade-in vehicle than the trade-in allowance
that he was receiving for the vehicle, and that he understood that the dealership
would have to pay off the balance.

¶43 Reviewing these facts from the summary judgment materials
independently—and doing so, to the extent that they are disputed, in the light most
favorably to Streuly—we conclude that they do not show that any aspect of the

16
For example, although Streuly alleged in his counterclaim that he had “a reading
comprehension of below 5th grade level” and that he was unable to pass a fifth grade reading
comprehension test, Streuly testified at a deposition that this was based on his attorney’s
assessment and that he had not taken a reading comprehension test. Streuly also alleged that he
was “unable to spell simple words from a 5th grade spelling test,” and that he was “unable to pass
a 5th grade level civics test,” but he clarified in his deposition testimony that he was not given
any spelling or civics tests.

19
Nos. 2023AP124
2023AP1333

transaction or the conduct of Landmark or the dealership was unconscionable.
These facts do not show that Landmark or the dealership unfairly took advantage
of a lack, on Streuly’s part, “of knowledge, ability, experience or capacity.” WIS.
STAT. § 425.107(3)(a). These facts do not show that either Landmark’s or the
dealership’s practices enabled them to take advantage of Streuly’s inability to
reasonably protect his interests “by reason of physical or mental infirmities,
illiteracy or inability to understand the language of the agreement, ignorance or
lack of education.” Sec. 425.107(3)(d). Nor do the facts show that any of
Landmark’s or the dealership’s practices caused Streuly “to misunderstand the true
nature of the transaction or [his] rights and duties thereunder.” Sec. 425.107(3)(g).
Therefore, even if we assume that Streuly was not required to show both
procedural and substantive unconscionability, we nonetheless reject Streuly’s
arguments under § 425.107’s factors.

II. Streuly is not entitled to a new trial on damages based on the
circuit court’s exclusion of evidence related to Repossessors’
contact with Streuly.

¶44 After the circuit court’s summary judgment rulings and before the
trial on Streuly’s illegal debt collection claim, Streuly filed a witness list, in which
he stated that he intended to call a Repossessors employee to testify about his
contacts with Streuly. In response, Landmark filed a motion in limine. Relevant
here, Landmark argued that Streuly should be prohibited from presenting evidence
or arguments regarding Repossessors’ actions. Landmark argued that “the limited
scope of [the] trial” was “Landmark’s own conduct in making telephone calls to
Streuly,” and that “[a]ny evidence regarding the actions of third-parties or actions
by Landmark beyond the scope of the phone calls at issue is irrelevant and
therefore inadmissible.” In response, Streuly argued that his claim “was that the

20
Nos. 2023AP124
2023AP1333

total level of contacts was harassing”; that on summary judgment, he “presented
evidence of … email, mail, telephone, and in-person contacts”; and that
Repossessors’ contacts with him as Landmark’s agent were “relevant and … part
of the continuum of harassment.” The court agreed with Landmark and granted
Landmark’s motion in limine.

¶45 The circuit court did so based on its earlier decision to grant
summary judgment in favor of Repossessors and dismiss Repossessors from the
case. As noted, after Streuly’s direct claims against Repossessors were dismissed
as time-barred, Repossessors moved for summary judgment dismissing
Landmark’s claim against it for breach of contract. Repossessors argued that the
undisputed facts showed that Repossessors, in its contact with Streuly on
December 19, 2018, did not breach the peace or engage in illegal debt collection
practices under WIS. STAT. § 427.104(1)(h) by engaging in conduct that could
reasonably be expected to threaten or harass. Landmark joined in Repossessors’
argument, and argued that the undisputed facts showed that neither Repossessors
nor Landmark acted unlawfully in attempting to repossess the Ranger, and that
Streuly’s claim for illegal collection practices should be dismissed.17 Streuly
opposed Repossessors’ motion for summary judgment and argued (among other
things) that “Landmark’s repeated phone calls and repossession attempts could be
found by a jury to violate [§] 427.104(1)(g).”

¶46 The circuit court granted Repossessors’ motion for summary
judgment and dismissed Landmark’s claims against Repossessors. The court

17
Landmark also argued that if the circuit court did not dismiss Streuly’s illegal
collections practices claim against Landmark, then Landmark’s breach of contract claim against
Repossessors should survive summary judgment.

21
Nos. 2023AP124
2023AP1333

reasoned that Landmark did not oppose Repossessors’ motion for summary
judgment and that the undisputed facts showed that Repossessors had not acted
unlawfully in attempting to repossess the Ranger.

¶47 On Landmark’s summary judgment motion, the circuit court
determined that summary judgment was not proper as to Streuly’s claim that
Landmark had engaged in illegal debt collection practices. Specifically, the court
stated that a genuine issue of material fact remained regarding whether
Landmark’s own collection practices were unlawful:

Whether or not the phone calls by Landmark were
excessive enough to create a violation of illegal collection
practices in the [c]ourt’s mind still creates a question of fact
for sure. While I may not think it’s very relevant -- that’s
what happens when you miss your payments; you’re going
to get collection calls -- it’s not my decision to make here.
Whether the amount of calls were excessive does in the
[c]ourt’s mind create a question of fact for the jury.

So to be clear, this does not include any conduct
from Repossessors, Inc. This would be as to Landmark’s
sole actions here as it relates to the alleged harassment as it
relates to Mr. Streuly.

¶48 Consistent with its ruling on summary judgment, when deciding
Landmark’s motion in limine, the circuit court agreed with Landmark’s argument
that “the limited scope of [the] trial” was “Landmark’s own conduct in making
telephone calls to Streuly,” and the court granted Landmark’s motion in limine to
exclude evidence of contacts between Streuly and Repossessors’ agents.

¶49 After the trial, Streuly moved for a partial new trial on damages,
arguing that the jury would have awarded more in damages if evidence had been
presented regarding Repossessors’ contact with Streuly. In denying that motion,
the circuit court stated:

22
Nos. 2023AP124
2023AP1333

I dismissed the claim against Repossessors Inc. and
indicated they could not be attributed to Landmark. The
motions in limine … that were decided went along those
same rulings. The [c]ourt believes it was consistent in
those rulings and, as such, made the appropriate findings.

I believe that the jury made the appropriate finding
based on the records presented, and I do not believe a new
trial is justified on the damages issue based on the jury’s
previous decision. In addition, a new jury would have to be
empaneled, and I don’t believe it’s appropriate, pursuant to
the statutes, to have separate juries hear both the
determination of an injury and the appropriate damages.
For these reasons, the request for a new trial solely on
damages made by Mr. Streuly is denied.

¶50 On appeal, Streuly argues that the circuit court erroneously exercised
its discretion when it granted Landmark’s motion in limine regarding
Repossessors’ contacts, as Landmark’s agent, with Streuly, and Streuly argues that
he is entitled to a new trial on damages at which he can present evidence of
Repossessors’ contacts. In response, Landmark argues that even if the court did
erroneously exercise its discretion, Streuly is not entitled to a new trial because he
has not shown that the court’s evidentiary ruling affected his substantial rights.18
We agree, and reject Streuly’s arguments on that basis.

¶51 “An erroneous exercise of discretion in admitting or excluding
evidence does not necessarily lead to a new trial.” Martindale v. Ripp, 2001 WI
113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698. Instead, “[t]he appellate court must
conduct a harmless error analysis to determine whether the error ‘affected the

18
Landmark also argues, under the doctrine of issue preclusion, that the circuit court did
not erroneously exercise its discretion when it excluded evidence regarding Repossessors’ actions
because the court had earlier ruled as a matter of law on summary judgment that Repossessors did
not violate the Wisconsin Consumer Act. Because we conclude that Streuly has not shown that
the court’s ruling affected his substantial rights, we need not address this argument. See Barrows,
352 Wis. 2d 436, ¶9.

23
Nos. 2023AP124
2023AP1333

substantial rights of the party.’ If the error did not affect the substantial rights of
the party, the error is considered harmless.” Id.; see also WIS. STAT. § 805.18(1)
(“The court shall, in every stage of an action, disregard any error or defect in the
pleadings or proceedings which shall not affect the substantial rights of the
adverse party.”).

¶52 “The standard for harmless error is whether there is a ‘reasonable
possibility’ that the error contributed to the outcome of the action or proceeding at
issue. A ‘reasonable possibility’ of a different outcome is a possibility sufficient
to undermine confidence in the outcome.” Martindale, 246 Wis. 2d 67, ¶71
(quoted source omitted).

¶53 Streuly does not, in his brief-in-chief, argue that his substantial
rights were affected. The only discussion related to this topic is in the “Statement
of Issues,” in which Streuly asserts, without support, that such evidence “would
have supported an additional award of damages by the jury.” Landmark points out
Streuly’s failure to argue that his substantial rights were affected in its response
brief, and argues that because Streuly’s substantial rights were not affected, he is
not entitled to a new trial even if the circuit court did erroneously exercise its
discretion. We are unpersuaded by Streuly’s argument in reply.

¶54 Streuly argues that “[i]t is reasonable to infer that a jury which
awarded $1,500 in damages for 4 phone calls would award additional damages for
twenty-two in-person harassing contacts.” We reject this argument because the
record does not support Streuly’s assertion that Repossessors’ agents had twenty-
two in-person contacts with Streuly that could have been considered by the jury
were it not for the circuit court’s evidentiary ruling. Streuly first asserts that
Repossessors’ agents had multiple “in-person contacts” with Streuly in his brief-

24
Nos. 2023AP124
2023AP1333

in-chief, and in response, Landmark argues that there was in fact only one.
Streuly does not address this in his reply brief or correct his earlier assertions. In
arguing that there were multiple in-person contacts between Streuly and
Repossessors’ agents, Streuly cites a log of Repossessors’ actions regarding the
attempted repossession of the Ranger. Although this log indicates that
Repossessors’ agents “checked [Streuly’s] address” on multiple occasions,
Landmark directs us to an affidavit of the Repossessors’ agent assigned to the case
in which the agent avers that “checking the address” entailed driving by Streuly’s
house to see if the Ranger was there. In the affidavit, which was submitted after
Streuly argued before the circuit court that the agent “continued to go to Streuly’s
house” and that there were a total of 22 “repossession contacts,” the agent clarified
that the agent had only spoken with Streuly regarding the Ranger at his home on
one occasion, and that he had otherwise only driven by Streuly’s home to see if the
Ranger was there. Thus, although Streuly asserts that Repossessors’ agents had
more than twenty “in-person contacts” with Streuly regarding the Ranger, the logs
of Repossessors’ activities regarding Repossessors’ attempts to repossess the
Ranger do not support this argument, Streuly does not otherwise provide factual
support for his assertion regarding the number of in-person contacts, and Streuly’s
assertion is belied by the affidavit from Repossessors’ agent.19

19
We note that Streuly does not argue that the instances in which a Repossessors agent
drove by Streuly’s house to see if the Ranger was there could constitute conduct which could
reasonably be expected to threaten or harass Streuly in violation of WIS. STAT. § 427.104(1)(h),
nor do we discern any support for such an argument in the record. Instead, Streuly’s argument is
that Repossessors’ contacts with Streuly as Landmark’s agent were harassing because they came
after Streuly asked Landmark to only contact him through his lawyer. These instances in which
Repossessors’ agents drove by Streuly’s house are thus irrelevant because they are not “contacts.”

25
Nos. 2023AP124
2023AP1333

¶55 Relying on the evidence in the record, Landmark argues, and Streuly
does not refute in his reply brief, that there was only one in-person contact
between Streuly and Repossessors’ agent concerning the Ranger. Landmark
points out that on summary judgment, the circuit court ruled as a matter of law
based on the summary judgment materials that Repossessors’ conduct did not
constitute an illegal debt collection practice under WIS. STAT. § 427.104(g) or (h),
which prohibit communication or conduct which can “reasonably be expected to
threaten or harass.” The court stated, “As to the allegations by Streuly, the vehicle
was never taken. Streuly[,] by his deposition[,] didn’t object.… [T]he actual
vehicle in question here was hidden in the garage. Streuly was not denied access
to contact his attorney. It was agreed that [contact with the attorney] did happen.”

¶56 Because Streuly’s arguments are premised on his unsupported
assertion regarding the number of in-person contacts from Repossessors,20 Streuly
does not develop an argument that the exclusion of evidence regarding this single
in-person contact between Streuly and Repossessors affected his substantial rights.
Nor does he cite any legal authority that would support such a conclusion.
Therefore, even if we assume without deciding that the circuit court erroneously
exercised its discretion in excluding evidence of Repossessors’ in-person contact
with Streuly, the exclusion of this evidence did not affect Streuly’s substantial
rights such that he would be entitled to a new trial. See Clean Wis., Inc. v. PSC,

20
For example, Streuly, based on his unsupported assertion regarding the number of in-
person contacts with Repossessors’ agents, argues that “[t]here is a reasonable possibility that a
jury would have awarded more damages if presented with evidence that the in-person contacts
were nearly six times the telephone calls.”

26
Nos. 2023AP124
2023AP1333

2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (we need not address
undeveloped arguments).21

III. The circuit court did not erroneously exercise its discretion in
its award of attorney fees.

¶57 After the trial, Streuly filed a motion for an award of attorney fees
pursuant to WIS. STAT. § 425.308(1), which provides:

If the customer prevails in an action arising from a
consumer transaction, the customer shall recover the
aggregate amount of costs and expenses determined by the
court to have been reasonably incurred on the customer’s
behalf in connection with the prosecution or defense of
such action, together with a reasonable amount for attorney
fees.

When Streuly first filed his motion, he requested a total of $71,001.25 in attorney
fees.22 Landmark objected to Streuly’s motion for attorney fees and argued that
Streuly could not recover fees for work done on his unsuccessful claims, that the
fees Streuly sought were excessive given the nature of the case, and that the circuit
court must presume that Streuly’s attorney fees were limited to $4,500 (three times
the $1,500 awarded to Streuly as compensatory damages) pursuant to WIS. STAT.
§ 814.045(2)(a). See § 814.045(2)(a) (“In any action in which compensatory

21
Streuly also appears to argue that the circuit court erred in dismissing on summary
judgment Streuly’s claims against Landmark that were based on Repossessors’ conduct as
Landmark’s agent. We reject this argument for the same reason we reject Streuly’s argument that
the court erred when it excluded evidence regarding Repossessors’ actions as Landmark’s agent:
even if we assume that the court erred by dismissing Streuly’s claims against Landmark based on
Repossessors’ actions, Streuly has not shown that his substantial rights were affected by any
error. See Glendenning’s Limestone & Ready-Mix Co. v. Reimer, 2006 WI App 161, ¶14, 295
Wis. 2d 556, 721 N.W.2d 704 (concluding that reversal of summary judgment was not proper
when the nonmoving party did not show that its substantial rights had been affected).
22
After replying to Landmark’s brief opposing the amount requested, Streuly requested
an additional $7,027.50 in attorney fees, for a total of $78,028.75.

27
Nos. 2023AP124
2023AP1333

damages are awarded, the court shall presume that reasonable attorney fees do not
exceed 3 times the amount of the compensatory damages awarded but this
presumption may be overcome if the court determines, after considering the
factors set forth in sub. (1), that a greater amount is reasonable.”).

¶58 The circuit court concluded that WIS. STAT. § 814.045(2)(a)’s
presumptive cap applied. However, the court also determined, after considering
the factors listed in § 814.045(1), that an award of attorney fees beyond the
presumptive cap was reasonable:

[Streuly’s counsel] asks for in excess of $85,000.
There’s no great magic way for the [c]ourt to come up with
a number. As I have indicated here, I think this was a
unique case; novel issues that were brought here; certainly
some issues that had to be taken care of before [counsel]
could get to the jury.

So pursuant to the statute here, I’m going to go
above the presumptive cap. Now, the question is as to
where. Again, I believe a reasonable hourly rate in
Janesville would be roughly $400 an hour. We had two full
days of trial, as such, so 16 hours at 400 is $6,400 just for
there.

Obviously, there’s some prep time involved and
things of that nature and get through some of the other
things. And the [c]ourt believes a reasonable amount of
attorney’s fees in this matter would be $19,200. With a
cost of [$]1,804, I come up with a total judgment for
attorney fees and costs of $21,004.20.

¶59 The circuit court thus determined that 48 hours was a reasonable
amount of time to spend on the case and that $400 was a reasonable hourly rate.
On appeal, Streuly argues that the court erred when it awarded him $19,200 in
attorney fees.

¶60 We first address the proper standard of review. Streuly argues that
we should independently review the circuit court’s award of attorney fees. In

28
Nos. 2023AP124
2023AP1333

support of this argument, Streuly cites First Wisconsin Nat’l Bank v. Nicolaou,
113 Wis. 2d 524, 335 N.W.2d 390 (1983). There, our supreme court stated:

Although an attorney fee award is mandatory, [WIS.
STAT. § 425.308] leaves the amount to the trial court’s
discretion. We have recognized that the trial court has the
expertise and the opportunity to fully consider the matter of
attorney fees. For this reason, its findings and award may
be given some weight on review. However, this court need
not defer to the trial court’s determination. As part of its
inherent supervisory power over the practice of law, this
court may independently review the reasonableness of an
attorney fee award.

Id. at 537 (citations omitted). Streuly also cites Radlein v. Industrial Fire &
Casualty Insurance Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984). The Radlein
court quoted Nicolaou as stating that a court may independently review the
reasonableness of an attorney fee award, but the Radlein court notably did not
review the award of attorney fees in that case because the award was not
challenged on appeal. Id. at 631.

¶61 In contrast, Landmark argues that we should review the circuit
court’s award of attorney fees for an erroneous exercise of discretion, citing
Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 349 N.W.2d 661 (1984). In
Standard Theatres, our supreme court, after quoting Nicolaou, stated, “We
believe that the trial court is in an advantageous position to make a determination
as to the reasonableness of a firm’s rates.” Id. at 747. The Standard Theatres
court reasoned that the circuit court “‘has observed the quality of the services
rendered and has access to the file in the case to see all of the work which has
gone into the action from its inception,’” and that the circuit court “‘has the
expertise to evaluate the reasonableness of the fees with regard to the services
rendered.’” Id. (quoting Tesch v. Tesch, 63 Wis. 2d 320, 335, 217 N.W.2d 647
(1974)). The court then concluded “that the proper standard upon review of

29
Nos. 2023AP124
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attorney fees is that the [circuit] court’s determination of the value of these fees
will be sustained unless there is an abuse of discretion.” Id.23

¶62 We agree with Landmark. Standard Theatres was decided after
both Nicolaou and Radlein, and in Standard Theatres our supreme court, after
considering the relevant language from Nicolaou, expressly stated that the proper
standard of review for an award of attorney fees is for an erroneous exercise of
discretion. Consistent with this, cases decided since Standard Theatres use this
standard of review. See, e.g., Borreson v. Yunto, 2006 WI App 63, ¶6, 292
Wis. 2d 231, 713 N.W.2d 656. Streuly does not identify any cases decided after
Standard Theatres that rely on Nicolaou to say that our review is de novo. We
thus conclude that the proper standard of review for the circuit court’s award of
attorney fees is for an erroneous exercise of discretion.

¶63 “A circuit court erroneously exercises its discretion when it fails to
examine the relevant facts, applies the wrong legal standard, or does not employ a
demonstrated rational process to reach a reasonable conclusion.” Id. Because
Streuly relies on the wrong standard of review, he does not argue that the circuit
court erroneously exercised its discretion. Specifically, Streuly argues that the
court should have awarded attorney fees in the amount that Streuly requested
based on the time and labor required, the novelty and difficulty of the questions
involved, the customary charges of the bar for similar services, the amount at issue
and the benefits received by Streuly, the contingency of compensation, and the
fact that Streuly had been represented by counsel for many years. Streuly also

23
Since 1992, Wisconsin cases have “use[d] the phrase ‘erroneous exercise of
discretion’ in place of the phrase ‘abuse of discretion,’” but the phrases have equivalent meaning.
Seifert v. Balink, 2017 WI 2, ¶93 n.50, 372 Wis. 2d 525, 888 N.W.2d 816.

30
Nos. 2023AP124
2023AP1333

argues that he should be awarded attorney fees in the amount requested even
though not all of his claims succeeded. However, Streuly does not argue that the
court erroneously exercised its discretion by failing to examine the relevant facts,
applying the wrong legal standard, or failing to employ a demonstrated rational
process when it awarded Streuly $19,200 in attorney fees. Moreover, Streuly does
not do so even in response to Landmark’s arguments under the proper standard
review. In the absence of a developed argument from Streuly under the
appropriate standard of review, we affirm the court’s award of attorney fees. See
Clean Wis., 282 Wis. 2d 250, ¶180 n.40 (we need not address undeveloped
arguments); Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI
App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e will not abandon our
neutrality to develop arguments.”)

IV. The circuit court did not erroneously exercise its discretion
when it offset Landmark’s deficiency judgment against the
judgment in favor of Streuly.

¶64 After the trial, Streuly filed a proposed judgment which stated that
“[t]he amounts awarded to Plaintiff and to Defendant shall not be offset against
each other.” Landmark objected to this language, arguing that the amount
awarded to Landmark should be offset against the amount awarded to Streuly.
Streuly was awarded $22,504.20, which consisted of the $1,500 in compensatory
damages awarded by the jury as well as his costs and reasonable attorney fees;
Landmark was awarded a deficiency judgment of $9,790.84. The circuit court
ordered that Landmark’s deficiency judgment be offset against the judgment in
favor of Streuly.

¶65 On appeal, Streuly argues that the circuit court should not have
offset Landmark’s deficiency judgment against the amount awarded to Streuly for

31
Nos. 2023AP124
2023AP1333

attorney fees. Whether to allow one judgment to be offset against another is
within the circuit court’s discretion. Black v. Whitewater Com. & Sav. Bank, 188
Wis. 24, 205 N.W. 404, 406 (1925).

¶66 In arguing that offset was not proper, Streuly relies on Betz v.
Diamond Jim’s Auto Sales, 2014 WI 66, ¶35, 355 Wis. 2d 301, 849 N.W.2d 292.
In Betz, a consumer hired an attorney to represent the consumer in connection with
a dispute regarding a vehicle that the consumer had purchased. Id., ¶¶7-8. The
consumer sued the seller under WIS. STAT. §§ 100.18 and 218.016 and, relevant
here, sought to recover attorney fees pursuant to § 100.18(11)(b)2. and
§ 218.0163(2). Id., ¶9. After settlement offers were exchanged between the
consumer’s attorney and counsel for the seller, the consumer and the seller met
without counsel and settled the case. Id., ¶¶10-12. The settlement agreement did
not provide for attorney fees, and the consumer’s attorney moved the circuit court
to compel the seller to pay statutory attorney fees. Id., ¶¶12, 14. The court denied
the attorney’s motion and dismissed the case, and the attorney appealed. Id.,
¶¶18-19. Our supreme court concluded that the attorney could not seek statutory
attorney fees from the seller because the attorney fees belonged to the consumer,
not the attorney, and because the fee agreement between the consumer and the
attorney did not validly assign the consumer’s right to recover statutory attorney
fees to the attorney. Id., ¶52.

¶67 The Betz court acknowledged that “both the purpose of fee-shifting
statutes and the public interest they promote” were undermined by the settlement
there. Id., ¶30. However, relying on Zeisler v. Neese, 24 F.3d 1000 (7th Cir.
1994), the Betz court explained that attorneys like the one in Betz “could protect
their legitimate interest in receiving payment”

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2023AP1333

“by entering into a written contract with [the] client in
which the client assigns his statutory right to attorney’s fees
to the lawyer. Then the lawyer can enforce the right
without the participation of his client …. If the client
makes a settlement with the defendant, waiving attorney’s
fees, and the defendant has no notice of the assignment—
no notice, that is, that the entitlement to attorney’s fees is
not the plaintiff’s to waive—the lawyer can go against [the]
client for breach of contract. If the defendant does have
notice of the assignment, the lawyer can go directly against
the defendant.”

Betz, 355 Wis. 2d 301, ¶34 (quoting Zeisler, 24 F.3d at 1002). The Betz court
“adopt[ed] the standard, as posed in Zeisler, as an appropriate framework to
decide” the issue presented. Id., ¶36.

¶68 Streuly does not dispute that attorney fees awarded pursuant to WIS.
STAT. § 425.308(1) generally belong to the client, not the attorney. See
§ 425.308(1) (“If the customer prevails in an action arising from a consumer
transaction, the customer shall recover the aggregate amount of costs and
expenses determined by the court to have been reasonably incurred on the
customer’s behalf in connection with the prosecution or defense of such action,
together with a reasonable amount for attorney fees.” (emphasis added)); see also
Betz, 355 Wis. 2d 301, ¶30 (similarly interpreting analogous language from WIS.
STAT. § 100.18(11)). Instead, Streuly relies on the fee agreement between Streuly
and his counsel, LawtonCates, S.C., which states, “[Streuly] assigns to
[LawtonCates] all rights to fees and costs.” Streuly argues that, because of this
assignment, the circuit court should not have offset the deficiency judgment
awarded to Landmark against the attorney fees awarded to Streuly. According to
Streuly, Betz stands for the proposition that “when a client assigns the rights to
payment to his lawyer, the lawyer has the right to payment from either the client or
the defendant.”

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Nos. 2023AP124
2023AP1333

¶69 We disagree with Streuly’s reading of Betz. As an initial matter, we
observe that Betz addressed the effect of such an assignment in a particular
context—specifically, when a client settles a case without obtaining statutory
attorney fees. In any event, however, Streuly’s argument overlooks that the Betz
court stated that an attorney may only recover statutory attorney fees from the
defendant “so long as the defendant had notice of the assignment” prior to the
settlement. Betz, 355 Wis. 2d 301, ¶35. Otherwise, when the defendant has no
notice of the assignment, the attorney’s recourse is to recover attorney fees from
the client. Id., ¶¶34, 35. Here, Landmark argues, and Streuly does not dispute,
that Landmark received no notice of the assignment until Streuly submitted the fee
agreement with his response to Landmark’s motion to offset, which was after
Landmark had been awarded a deficiency judgment. Streuly does not argue in
response that, under Betz, Landmark had notice of the fee assignment such that
LawtonCates had a right to payment from Landmark, and we therefore reject as
undeveloped Streuly’s argument that LawtonCates was entitled to recover attorney
fees from Landmark. See Clean Wis., 282 Wis. 2d 250, ¶180 n.40 (we need not
address undeveloped arguments).

¶70 Streuly also argues that Betz “recognize[s] that once a client assigns
his statutory right to recover fees, the client can no longer deal with those fees as if
he is the owner,” and that “the fees, once assigned, become the attorney’s
property, not the client’s.” Streuly’s argument appears to be that because Streuly
assigned his right to recover attorney fees to LawtonCates, any attorney fees that
were awarded belonged to LawtonCates, and offset was improper because it
effectively reduced the fee award that LawtonCates would receive by applying
some of that award toward Landmark’s deficiency judgment against Streuly. In
other words, the offset effectively applies LawtonCates’ fee award to Streuly’s

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Nos. 2023AP124
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debt. We reject this argument. As stated, the Betz court concluded that once a
client has assigned the right to attorney fees to the client’s attorney, if the client
then settles the case without consulting the client’s attorney, the attorney may seek
to recover attorney fees either from the client, or, if the defendant had notice of the
assignment, from the defendant. Betz, 355 Wis. 2d 301, ¶34. This is not the same
as concluding, as Streuly argues, that the fees belong to the attorney from the
moment of assignment.

¶71 Streuly provides no persuasive, developed argument under Betz (or
any other authority) as to how the circuit court in this case erroneously exercised
its discretion when it offset Landmark’s deficiency judgment against the judgment
in favor of Streuly. Moreover, Landmark, in its respondent’s brief, argues that
Streuly’s assignment of attorney fees to LawtonCates does not shield Streuly’s
award of attorney fees from offset pursuant to WIS. STAT. § 409.404(1), which
states that the rights of an assignee are subject to “[a]ll terms of the agreement
between the account debtor and assignor and any defense or claim in recoupment
arising from the transaction that gave rise to the contract,” as well as “[a]ny other
defense or claim of the account debtor against the assignor which accrues before
the account debtor receives a notification of the assignment authenticated by the
assignor or the assignee.” Relying on this language, Landmark argues that the
judgment entered in favor of Landmark that established a total debt of $16,028 and
Landmark’s right to sell the Ranger and obtain a deficiency judgment was entered
both before any judgment was entered in favor of Streuly and before Landmark
had any notice of Streuly’s assignment of attorney fees. As a result, pursuant to
§ 409.404, Landmark argues that Streuly’s assignment does not protect the award
of attorney fees from offset because LawtonCates’ claim is subject to “any defense
or claim” that Landmark had against Streuly, which includes the judgment entered

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Nos. 2023AP124
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in favor of Landmark and Landmark’s claim of offset based on that judgment.
Streuly does not respond to this argument, and therefore concedes the issue. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (failure by appellant to respond in reply brief to an argument made in
respondent’s brief may be taken as a concession).

¶72 Because Streuly has not developed a persuasive argument as to how
the circuit court erroneously exercised its discretion when it offset Landmark’s
deficiency judgment against the judgment in favor of Streuly, and because Streuly
concedes Landmark’s argument discussed above, we affirm the circuit court’s
decision regarding offset. See Industrial Risk Insurers, 318 Wis. 2d 148, ¶25
(“[W]e will not abandon our neutrality to develop arguments.”).

CONCLUSION

¶73 For the reasons stated, we affirm.

By the Court.—Judgment and order affirmed.

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

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