Jacob Ong v. JVM Kenosha Apartments, LLC

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT II
September 30, 2026
To:
Hon. Frank M. Gagliardi
Circuit Court Judge
Electronic Notice
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
Electronic Notice
Renee E. Mura
Electronic Notice
Jacob Ong
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2024AP1708 Jacob Ong v. JVM Kenosha Apartments, LLC (L.C. #2024CV29)
Before Lazar, P.J., Gundrum, and Grogan, JJ.
Summary disposition orders 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).
Jacob Ong appeals a circuit court order dismissing his claims on summary judgment in
favor of JVM Kenosha Apartments, LLC (“JVM”). Based upon our review of the briefs and
Record, we conclude at conference that this case is appropriate for summary disposition. See
WIS. STAT. RULE 809.21 (2023-24).1 For the following reasons, we reverse and remand the
cause for further proceedings.
1 All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2024AP1708
2
Ong was a tenant in a Kenosha townhouse complex owned and managed by JVM. The
lease—dated September 16, 2023, and signed by Ong and JVM—included a no-smoking
addendum stating, “Smoking anywhere inside buildings of the apartment community is strictly
prohibited.” (Formatting altered.) It also stated, “smoking is only permitted at least 25 feet from
the buildings in the apartment community, including administrative office buildings.” It further
provided, “Violation of the no-smoking provisions is a material and substantial default or
violation of the Lease Contract.”
Shortly after moving in, Ong and his wife, who was pregnant and soon gave birth, were
allegedly exposed to secondhand smoke infiltration from a neighboring townhouse and other
areas near Ong’s townhouse. Ong stopped using his master bedroom, which was above the
neighbor’s garage—where the neighbor often smoked—in an effort to minimize their exposure
to secondhand smoke. Between October and December, 2023, Ong notified JVM of the
secondhand smoke several times and provided video and photographic evidence. Ong contends
that JVM did not meaningfully enforce its no-smoking lease provision. JVM asserts that it
discussed the smoking issue with Ong’s neighbor, and that it offered to move Ong to a different
location in the community as well as the option to terminate his lease early, neither of which Ong
accepted.
Ong filed suit against JVM, seeking an injunction, rent abatement, and damages for
negligence. He alleged that JVM’s failure to act in accordance with the lease agreement denied
him and his family their right to quiet enjoyment of their premises. JVM moved for summary
judgment. After a June 2024 hearing, the circuit court found that there were insufficient facts to
support a claim for breach of contract, negligence, or a claim for quiet enjoyment, and it
dismissed Ong’s lawsuit.

No. 2024AP1708
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On appeal, Ong argues that the circuit court erred in dismissing his claims on summary
judgment, for breach of the covenant of quiet enjoyment and negligence, and that genuine issues
of material fact preclude summary judgment.
We review a grant of summary judgment de novo, applying the same methodology as the
circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).
Summary judgment is appropriate only when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). “A factual
issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We view the facts and all
reasonable inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at
255. “[T]he plaintiff, to survive the defendant’s motion, need only present evidence from which
a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that
requires a trial.” Id. at 257.
We conclude that when viewing the evidence in a light most favorable to Ong, there are
genuine issues of material fact from which a jury might return a verdict in his favor. In
Wisconsin, “there is an implied covenant for quiet enjoyment in every lease for a term of less
than three years.” Hannan v. Harper, 189 Wis. 588, 595, 208 N.W. 255 (1926). “Any act on
the part of the landlord which so interferes with the tenant’s possession of the leased premises as
to unfit them for the purposes for which they were leased, and render them uninhabitable for
such purposes, and compel the abandonment thereof, constitutes an eviction.” Id. (citation
omitted).

No. 2024AP1708
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Here, there is a genuine issue of material fact as to whether the secondhand smoke
substantially interfered with Ong’s use and enjoyment of the leased premises. Ong presented
evidence that smoke repeatedly infiltrated his townhouse and that he could not use his master
bedroom because of the smoke. Ong also notified JVM of the problem several times and
provided photographic and video evidence. Whether the alleged smoke infiltration was
sufficiently substantial to constitute a breach of the covenant of quiet enjoyment is a factual
question that cannot be resolved on summary judgment.
Ong’s negligence claim likewise presents a factual issue for trial. Ong repeatedly
notified JVM of the secondhand smoke and sought JVM’s assistance in addressing the problem.
Whether JVM exercised ordinary care in responding to Ong’s complaints presents a factual
question for trial. See State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 517, 383 N.W.2d 916
(Ct. App. 1986) (“Summary judgment does not lend itself well to negligence questions. Whether
a person exercised ordinary care usually is not determinable by summary judgment.” (internal
citation omitted)).
Accordingly, because genuine issues of material fact remain as to Ong’s claims for
breach of the covenant of quiet enjoyment and negligence, we conclude that summary judgment
was inappropriate. We reverse the order and remand the cause to the circuit court.
IT IS ORDERED that the order of the circuit court is summarily reversed and cause
remanded for further proceedings pursuant to WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals