Kelly Coleman v. Picture Perfect Cable, Inc.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 29, 2024
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 No. 2023AP448 Cir. Ct. No. 2021CV470

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KELLY COLEMAN,

PLAINTIFF-RESPONDENT,

V.

PICTURE PERFECT CABLE, INC.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Rock County:
DERRICK A. GRUBB, Judge. Reversed and cause remanded with directions.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

¶1 NASHOLD, J. Kelly Coleman contracted with Picture Perfect
Cable, Inc., doing business as Buckshot General Contracting (“Buckshot”), to
repair hail damage to her home. Coleman made a $12,000 down payment before
work began, and the parties do not dispute that during the course of the project
No. 2023AP448

Buckshot violated various provisions of WIS. ADMIN. CODE ch. ATCP 110, the
Home Improvement Practices Act.1 Following a bench trial, the circuit court
determined that Coleman’s $12,000 down payment is a pecuniary loss under WIS.
STAT. § 100.20(5), for which Coleman is entitled to double damages, costs, and
reasonable attorney fees.2 On appeal, Buckshot challenges this determination,
arguing that, because there was no causal connection between the down payment
and Buckshot’s violations, the down payment is not a pecuniary loss for which
Coleman may recover under § 100.20(5). We agree. Accordingly, we reverse the
court’s award of double damages, costs, and attorney’s fees to Coleman, and
remand for entry of a judgment consistent with this opinion.

BACKGROUND

¶2 The following facts are derived from the two-day bench trial and are
not disputed. As stated, Coleman contracted with Buckshot to repair hail damage
to her home.3 Included within the scope of the project was the replacement of the
roof, siding, gutters, and downspouts. The contract states that Buckshot would be
entitled to a total payment equal to the amount of insurance proceeds that Coleman
received from her insurer for her hail damage claim, which ultimately was

1
Unless otherwise noted, all references to WIS. ADMIN. CODE ch. ATCP 110 are to the
March 2023 version, which is the current version of that chapter. Although this case concerns
Buckshot’s violations of WIS. ADMIN. CODE from 2018-20, the relevant provisions of
ch. ATCP 110 have not changed since that time. For convenience, we refer to the current version
of that chapter.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
Approximately six months after entering the initial contract, the parties entered into a
revised contract that amended the scope of services that Buckshot was to provide. Those
amendments are not relevant to the issue raised on appeal, and we generally refer to both the
initial and revised contract as simply “the contract.”

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No. 2023AP448

$41,617.4 Before any work had begun, Coleman made the $12,000 down
payment.

¶3 On two different occasions, the siding was installed but then
removed because of manufacturing defects. After the siding was removed the
second time, the parties’ relationship deteriorated and Coleman sought to
terminate the contract. After Coleman did so, Buckshot sent her an invoice (“the
invoice”) and stated that it would file a lien against her home if she did not pay the
amount on the invoice. By the time Buckshot made this statement, the statutory
time period for Buckshot to file a lien against Coleman’s home had expired.

¶4 Coleman did not pay the amount shown on the invoice. She filed
this action alleging breach of contract and several violations of WIS. ADMIN. CODE
ch. ATCP 110. Coleman sought to recover damages for the alleged ch. ATCP 110
violations pursuant to WIS. STAT. § 100.20(5). See § 100.20(5) (“Any person
suffering pecuniary loss because of a violation by any other person of … any order
issued under this section … shall recover twice the amount of such pecuniary loss,
together with costs, including a reasonable attorney fee.”). Buckshot
counterclaimed, alleging that Coleman breached the contract and owed Buckshot
for the work done prior to the contract’s termination.5

4
The contract states, “Due to the unique nature of repairs related to insurance claims,
this contract does not include an explicit price because the final scope has not yet been agreed
upon with the insurer.… Buckshot agrees to bid the work using the primary insurance industry
database (Xactimate) based on the scope agreed upon with your insurer ….”
5
Buckshot moved to amend its answer to include the counterclaim for breach of
contract, as well as to include counterclaims for civil theft under WIS. STAT. § 895.446 and for
conversion. The circuit court granted Buckshot’s motion as to the breach of contract
counterclaim, but denied Buckshot’s motion as to the other counterclaims. Buckshot does not
challenge this ruling and we do not discuss it further.

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No. 2023AP448

¶5 After the trial, the circuit court determined that the total amount that
Coleman owed Buckshot for work done pursuant to the contract, not taking into
account the $12,000 down payment that she already paid, was $17,747.63. The
effect was a determination that Coleman, after making the $12,000 down payment,
still owed Buckshot $5,747.63. The court also determined, and Buckshot does not
dispute on appeal, that Buckshot violated three different provisions of WIS.
ADMIN. CODE ch. ATCP 110, in the following ways.

¶6 First, Buckshot violated WIS. ADMIN. CODE § ATCP 110.05(2)(d) by
failing to include the project’s start and end dates in the contract. See
§ ATCP 110.05(2)(d) (requiring that written home improvement contracts contain
“[t]he dates or time period on or within which the work is to begin and be
completed by the seller”).

¶7 Second, Buckshot violated WIS. ADMIN. CODE § ATCP 110.05(2)(f)
by failing to include in the contract warranties from the manufacturers of the
siding, roof shingles, gutters, or downspouts. See § ATCP 110.05(2)(f) (requiring
that written home improvement contracts contain “[a] statement of any guarantee
or warranty with respect to any products, materials, labor, or services made by the
seller or which are required to be furnished to the buyer under [WIS. ADMIN. CODE
§] ATCP 110.04(1)”); § ATCP 110.04(1) (“A seller shall give a buyer a copy of
every written warranty made with respect to labor, services, products, or materials
furnished in connection with a home improvement.”).6

6
As noted, approximately six months after entering the initial contract, the parties
entered into a revised contract. Neither version of the contract included the project’s start or end
dates, or the warranties for the siding, shingles, gutters, or downspouts.

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No. 2023AP448

¶8 Third, Buckshot violated, in two separate ways, WIS. ADMIN. CODE
§ ATCP 110.02(11), which prohibits persons in the business of making or selling
home improvements from “[m]ak[ing] any false, deceptive, or misleading
representation in order to induce any person to enter into a home improvement
contract, to obtain or keep any payment under a home improvement contract, or to
delay performance under a home improvement contract.” First, Buckshot violated
§ ATCP 110.02(11) by misrepresenting in the invoice what Coleman owed
Buckshot for the siding installation. Specifically, Buckshot did not correctly apply
a $7,275.06 credit that Buckshot received from the siding manufacturer for the
replacement of the defective siding, and Buckshot charged a $1,350 “warranty
work profit” for the third installation of the siding, even though Buckshot did not
perform the third installation before Coleman terminated the contract. Second,
Buckshot violated § ATCP 110.02(11) by stating that it would file a lien against
Coleman’s home if Coleman did not pay the amount that Buckshot misrepresented
was still owing on the invoice. As noted, when Buckshot made this statement, the
statutory six-month time period for filing a lien had expired because it had been
more than a year since Buckshot had performed any work under the contract. See
WIS. STAT. § 779.06(1) (requiring that liens be filed “within 6 months from the
date the lien claimant performed, furnished, or procured the last labor, services,
materials, plans, or specifications”). In stating it would file the lien, Buckshot
implicitly misrepresented that it could file a lien.

¶9 Because Buckshot violated WIS. ADMIN. CODE ch. ATCP 110,
pursuant to WIS. STAT. § 100.20(5), Coleman was entitled to twice the amount of
any pecuniary loss that was caused by any of Buckshot’s violations, plus costs and
reasonable attorney fees. Buckshot argued at trial that there was no evidence that
Coleman suffered any damages as a result of any of Buckshot’s alleged violations.

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No. 2023AP448

¶10 The circuit court rejected this argument. Instead, based on the
court’s interpretation of case law, which we discuss below, the court determined
that Coleman’s $12,000 down payment constituted a pecuniary loss under WIS.
STAT. § 100.20(5). The court doubled that amount, subtracted the $17,747.63 that
Coleman owed Buckshot for Buckshot’s breach of contract counterclaim, and then
added $14,389.50 in attorney fees, $146.68 in filing fees, and $379.45 in costs, for
a total award in Coleman’s favor of $21,168.00.7

¶11 After the circuit court explained its determination regarding
damages, Buckshot sought clarification regarding which WIS. ADMIN. CODE
ch. ATCP 110 violations caused Coleman’s pecuniary loss. The court declined to
specify, saying:

I think you’re trying to pin the Court down there. Is this
$12,000 dollars for one specific violation, another
violation? I don’t think the case law demands that I clarify
that. I find that there were those violations and that was
[Coleman’s] pecuniary loss based upon those violations,
one or all.

¶12 Buckshot appeals.

7
We observe that the circuit court, after doubling Coleman’s $12,000 down payment as
her pecuniary loss, then subtracted the total of what Coleman owed Buckshot under the
contract—$17,747.63—even though Coleman paid Buckshot $12,000 of that $17,747.63 total so
that only $5,747.63 remained outstanding. However, because we are remanding this case in light
of our conclusion that Coleman may not recover under WIS. STAT. § 100.20(5), and because the
circuit court will have to recalculate the proper award of damages consistent with this opinion, we
need not determine whether the court improperly calculated the amount that Coleman was to
recover under § 100.20(5).

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No. 2023AP448

DISCUSSION

¶13 The parties do not dispute that Buckshot violated WIS. ADMIN. CODE
ch. ATCP 110 in three different ways. Rather, the parties dispute whether
Coleman’s $12,000 down payment is a pecuniary loss caused by any or all of
Buckshot’s violations, for which Coleman may recover under WIS. STAT.
§ 100.20(5). This appeal thus requires us to interpret and apply § 100.20(5),
which presents a question of law that we review de novo. See Benkoski v. Flood,
2001 WI App 84, ¶24, 242 Wis. 2d 652, 626 N.W.2d 851. This appeal also
involves the interpretation of administrative rules, which we likewise review de
novo. Gorchals v. DHFS, 224 Wis. 2d 541, 545, 591 N.W.2d 615 (Ct. App.
1999).

¶14 The Wisconsin Department of Agriculture, Trade and Consumer
Protection (“DATCP”) adopted WIS. ADMIN. CODE ch. ATCP 110 pursuant to its
authority under WIS. STAT. § 100.20(2). Grand View Windows, Inc. v. Brandt,
2013 WI App 95, ¶24, 349 Wis. 2d 759, 837 N.W.2d 611. As noted, § 100.20(5)
states, “Any person suffering pecuniary loss because of a violation by any other
person of … any order issued under this section … shall recover twice the amount
of such pecuniary loss, together with costs, including a reasonable attorney fee.”
See also Rayner v. Reeves Custom Builders, Inc., 2004 WI App 231, ¶13, 277
Wis. 2d 535, 691 N.W.2d 705 (stating that ch. ATCP 110 was promulgated as a
general order pursuant to § 100.20); Kaskin v. John Lynch Chevrolet-Pontiac
Sales, Inc., 2009 WI App 65, ¶9, 318 Wis. 2d 802, 767 N.W.2d 394 (explaining
that § 100.20(5) “‘supplies the teeth’ to … DATCP orders” by “provid[ing] a
private remedy for consumers who fall victim to the unfair methods of competition
and trade practices prohibited by … general orders of [DATCP] promulgated
under § 100.20(2)” (quoting Benkoski, 242 Wis. 2d 652, ¶16)). “[A] party

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No. 2023AP448

asserting a pecuniary loss for the purposes of … § 100.20(5) must show that there
is a causal connection between a prohibited trade practice under WIS. STAT. ch.
ATCP Chapter 110 and the damage incurred.” Grand View, 349 Wis. 2d 759,
¶21.

¶15 Consistent with WIS. STAT. § 100.20(5)’s causation requirement, in
cases in which there was no evidence to support a determination that a homeowner
suffered a pecuniary loss because of a violation of WIS. ADMIN. CODE ch. ATCP
110, we have concluded that the consumer could not recover under § 100.20(5).
See, e.g., Grand View, 349 Wis. 2d 759, ¶¶18-33. Buckshot argues that this case
is analogous to Grand View. We agree.

¶16 In Grand View, a contractor entered into an agreement with a
homeowner to install new siding. Id., ¶2. After removing the old siding, the
contractor did not return to install the new siding for approximately a week and a
half. Id. The contractor sued the homeowner to recover the final payment for the
work, which the homeowner refused to make, and the homeowner counterclaimed,
alleging breach of contract and numerous violations of WIS. ADMIN. CODE ch.
ATCP 110. Id., ¶3. The jury found that the contractor violated § ATCP
110.02(7)(c) by failing to provide a timely notice of an impending delay in the
contract performance, and that the homeowner’s damages resulting from the
contractor’s violation were $250. Id., ¶8.

¶17 On appeal, the contractor argued that there was insufficient evidence
to support this finding. Id., ¶20. We agreed and explained that the evidence was
insufficient, not only to support a damages award in the specific amount of $250,
but also to support a finding that the homeowner had suffered any damages as a
result of the contractor’s violation. We “searched the record in vain to find any

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evidence that connects a specific item of damage to the WIS. ADMIN. CODE
§ ATCP 110 violation the jury found.” Id., ¶31. We further stated that “[n]either
[the homeowner], nor her witnesses, testified as to what she could have done had
[the contractor] informed her that there would be a delay in beginning or
completing the siding work,” and that “[t]he record simply does not support a
finding that not telling [the homeowner] about the delay caused damages in the
amount of $250 or any other sum.” Id., ¶32 (emphasis in original); see also id.,
¶35 (“Pecuniary damages stemming from [the contractor’s] failure to give notice
of a delay are not supported by any evidence. Because the record does not support
damages for a pecuniary loss, there are no damages to double pursuant to WIS.
STAT. § 100.20(5).”). Accordingly, we “reverse[d] the order confirming pecuniary
damages in the amount of $250 because there [was] no evidence establishing a
causal connection between the [violation] and any damages.” Id., ¶47.

¶18 Coleman argues that Grand View is distinguishable. Specifically,
she argues that in Grand View, there was no factual basis in the record for the
amount of $250 that the jury awarded for the WIS. ADMIN. CODE ch. ATCP 110
violation, whereas here, there is a factual basis for the circuit court’s determination
that Coleman suffered a $12,000 pecuniary loss, because that is the amount that
she paid Buckshot. To be sure, unlike the arbitrary award of $250 in Grand View,
here, there was evidence presented as to the amount of $12,000: it is the down
payment that Coleman paid Buckshot. However, as stated, in Grand View we
concluded not only that there was insufficient evidence to support a finding that
the violation resulted in damages in the specific amount of $250, but also that
there was insufficient evidence to support a finding that the violation resulted in
any damages. Pertinent here, we stated that there was “no evidence establishing a
causal connection between the [violation] and any damages.” Id., ¶47. As we

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No. 2023AP448

now explain, this case is analogous to Grand View because Coleman did not
argue, or present evidence to show, that there is a causal connection linking any of
Buckshot’s three violations to Coleman’s $12,000 down payment.

¶19 We begin by noting that Coleman fails to develop any argument on
appeal that there is a causal connection, much less does she explain what that
causal connection would be. Her argument is limited to the proposition, endorsed
by the circuit court here, that the $12,000 down payment is a pecuniary loss under
WIS. STAT. § 100.20(5) for which she can recover based on case law. It is not our
role to develop an argument for Coleman. See 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.”). Given
our conclusion, explained below, that Coleman’s argument premised on case law
is unavailing, Coleman provides us with no basis to conclude that the required
causal connection exists.

¶20 Further, our own review of the record shows that Coleman did not
present evidence showing a causal connection between any or all of Buckshot’s
violations and Coleman’s $12,000 down payment, or for that matter anything else
that could qualify as a pecuniary loss. At trial, Coleman testified to Buckshot’s
three violations. Coleman also testified about what she described as shortcomings
in the work that Buckshot performed.

¶21 In addition to Coleman’s own testimony, Coleman called Phillip
Farberg and James Belanger as witnesses. Farberg is a general contractor, and
Belanger is a construction consultant, home inspector, custom home builder, and
real estate agent. Farberg testified that the roof was not properly installed, that it
needed to be replaced, and that doing so would cost $13,580. Belanger testified

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No. 2023AP448

that Buckshot’s work was substandard in a number of ways, and he testified to
what would be necessary to bring the work up to industry standards. Neither
Coleman nor the witnesses she called testified as to how any of Buckshot’s
violations or any combination of them might have caused Coleman to suffer a
pecuniary loss.

¶22 First, Coleman failed to establish at trial that she suffered a
pecuniary loss because of Buckshot’s failure to include the project’s start and end
dates in the contract. See WIS. ADMIN. CODE § ATCP 110.05(2)(d); Snyder, 260
Wis. 2d 770, ¶16 (concluding that homeowners were not entitled to damages under
WIS. STAT. § 110.05(2)(d) because they “failed to allege any pecuniary loss due to
the failure to include start and completion dates”).

¶23 Similarly, Coleman failed to demonstrate that she suffered a
pecuniary loss because of Buckshot’s failure to include in the contract the
warranties from the manufacturers of the siding, roof shingles, gutters, or
downspouts. See WIS. ADMIN. CODE § ATCP 110.05(2)(f). For example, neither
Coleman, nor any of the witnesses, testified as to what she could have done, or
what damages might have been avoided, had Buckshot included the warranties in
the contract. See Grand View, 349 Wis. 2d 759, ¶32. Indeed, despite Buckshot’s
failure to provide the warranties, Coleman found the warranty for the roof shingles
herself, and Coleman was nonetheless able to have the siding replaced under
warranty after manufacturing defects were discovered.

¶24 Coleman also did not show that she suffered a pecuniary loss
because of Buckshot’s misrepresentations regarding the amount that Coleman
owed and Buckshot’s ability to file a lien on her home. See WIS. ADMIN. CODE
§ ATCP 110.02(11) (prohibiting persons in the business of making or selling

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home improvements from “[m]ak[ing] any false, deceptive, or misleading
representation in order to induce any person to enter into a home improvement
contract, to obtain or keep any payment under a home improvement contract, or to
delay performance under a home improvement contract”); see also Grand View,
349 Wis. 2d 759, ¶21 (“‘[T]he test ... for determining whether a representation
caused pecuniary loss is “[w]hether plaintiff would have acted in its absence.”’”
(quoting K & S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 2006 WI App
148, ¶41, 295 Wis. 2d 298, 720 N.W.2d 507, aff’d, 2007 WI 70, ¶41, 301 Wis. 2d
109, 732 N.W.2d 792) (alterations in original)).

¶25 Specifically, Coleman did not show that she made the $12,000 down
payment, or that Buckshot kept it, as a result of these misrepresentations.
Buckshot did not make these misrepresentations until after Coleman had made the
$12,000 down payment, which was the only payment that Coleman made to
Buckshot. Accordingly, Coleman has failed to show that she was induced to make
the $12,000 down payment, or any other payment, by Buckshot’s
misrepresentations. Nor does Coleman direct us to any basis in the record to
conclude that Buckshot’s misrepresentations allowed Buckshot to keep the
$12,000 down payment. For example, Coleman did not present evidence showing
that, were it not for Buckshot’s misrepresentations, Coleman could have sought
the return of the down payment. Such would likely be the case if Buckshot were
entitled to less than $12,000 for its work and if Buckshot made the
misrepresentations in order to keep all of the $12,000 down payment. However,
the circuit court determined that, given the work that Buckshot had performed,
Coleman owed Buckshot a total of $17,747.63 pursuant to the contract.
Buckshot’s misrepresentations thus cannot have caused Buckshot to keep all or

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No. 2023AP448

any part of Coleman’s $12,000 down payment, because Buckshot was entitled to
retain all $12,000 for the work that Buckshot had done.8

¶26 As summarized above, the circuit court did not explain how any or
all of Buckshot’s violations were causally linked to Coleman’s $12,000 down
payment. Instead, the court determined that the $12,000 down payment is a
pecuniary loss for “one or all” of the violations, for which Coleman can recover
under WIS. STAT. § 100.20(5), based on the court’s interpretation of case law—
namely, Moonlight v. Boyce, 125 Wis. 2d 298, 372 N.W.2d 479 (Ct. App. 1985);
Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 542 N.W.2d 148 (1996);
Benkoski v. Flood, 2001 WI App 84, 242 Wis. 2d 652, 626 N.W.2d 851; and Pliss
v. Peppertree Resort Villas, Inc., 2003 WI App 102, 264 Wis. 2d 735, 663
N.W.2d 851. Coleman generally relies on this case law on appeal. However, as
we now explain, this case law does not support Coleman’s position.

¶27 In Moonlight, a landlord violated WIS. ADMIN. CODE ch. ATCP 134
by failing to timely return a tenant’s security deposit and failing to provide an
itemized list of deductions. Moonlight, 125 Wis. 2d at 304. The tenant argued
that he suffered a pecuniary loss in the amount of his security deposit, and that he
was entitled to the remedies available under WIS. STAT. § 100.20(5). Id. at 302.
The circuit court determined that, because the landlord sustained damages on his
counterclaim in an amount exceeding the security deposit, the tenant did not suffer
a pecuniary loss. Id. at 303. We reversed, concluding that “once it is determined
that the landlord has violated the Wisconsin Administrative Code provisions for
the return of a tenant’s security deposit, the tenant suffers a pecuniary loss under

8
We discuss this issue further, infra, at ¶¶34-35.

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No. 2023AP448

[§ 100.20(5)] in the amount of the security deposit regardless of the amount of
damages the landlord may recover on a counterclaim.” Id. at 305-06 (emphasis in
original).

¶28 In Hughes, Chrysler violated an earlier version of Wisconsin’s
“lemon law” by selling a defective vehicle to a consumer and by failing to timely
replace or repurchase the vehicle within 30 days of the consumer’s statutory
demand. Hughes, 197 Wis. 2d at 977-78, 982; see also WIS. STAT. § 218.0171.9
The lemon law, like WIS. STAT. § 100.20(5), allowed for the recovery of twice the
amount of any pecuniary loss caused by a violation, Hughes, 197 Wis. 2d at 982.
Chrysler argued that the consumer’s pecuniary loss was limited to the consumer’s
out-of-pocket expenses, id. at 979, but our supreme court concluded that the
purchase price of the vehicle constituted the consumer’s pecuniary loss, id. at 979,
987.

¶29 In Benkoski, the operator of a mobile home park violated a
provision of the administrative code by placing an unreasonable restriction on the
sale of a mobile home, which “thwarted a potential sale” by the mobile home’s
owner. Benkoski, 242 Wis. 2d 652, ¶¶3, 4. The mobile home owner argued that
he was entitled to remedies under WIS. STAT. § 100.20(5), including double his
pecuniary losses caused by the violation, id., ¶28, which the parties did not dispute
consisted of what would have been the purchase price and the owner’s advertising
costs, id., ¶25. The park operator argued that the fair market value of the home,
which the owner still possessed, should have been subtracted before the owner’s

9
At the time that Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 542 N.W.2d 148
(1996), was decided, the lemon law statute was numbered WIS. STAT. § 218.015 (1993-94).

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pecuniary losses were doubled pursuant to § 100.20(5). Id., ¶26. We rejected that
argument, citing the reasoning in Hughes and Moonlight, and concluded that the
mobile home owner’s pecuniary losses were properly doubled before subtracting
the fair market value of the home. Benkoski, 242 Wis. 2d 652, ¶¶27-29.

¶30 Coleman argues that the $12,000 down payment here is analogous to
the pecuniary losses in these cases—the security deposit in Moonlight, the
purchase price of the car in Hughes, and what would have been the sale price of
the mobile home and the owner’s advertising costs in Benkoski. According to
Coleman, because Buckshot violated WIS. ADMIN. CODE ch. ATCP 110 and
retained the $12,000 down payment, those facts establish that the payment was a
pecuniary loss under WIS. STAT. § 100.20(5) for which she can recover double
damages. We disagree. In each of the cases discussed above, the pecuniary loss
resulted from a violation; in contrast, as we have explained, here, Coleman did not
present evidence of a causal connection linking any or all of Buckshot’s violations
to a pecuniary loss, nor does she develop an argument as to how such a causal
connection is established.

¶31 The circuit court also relied on Pliss. There, the purchasers of time-
shares sued the sellers, alleging, among other claims, that the sellers violated a
provision of WIS. ADMIN. CODE ch. ATCP 121 that prohibits using “referral
selling plans” to induce sales unless the compensation that is offered to a buyer or
lessee under the plan is provided before the sale. Pliss, 264 Wis. 2d 735, ¶¶2, 5-7,
12; see also id., ¶10 (quoting the definition of “referral selling plan” as “any
method of sale where the seller or lessor, as an inducement for a consumer sale,
offers compensation to a prospective buyer or lessee either for a) names of other
prospective buyers or lessees, or b) otherwise aiding the seller or lessor in making
consumer sales” (emphasis omitted)). Default judgment was entered against the

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sellers and the circuit court awarded double damages, costs, and attorney fees to
the buyers pursuant to WIS. STAT. § 100.20(5). Id., ¶6.

¶32 On appeal, the sellers argued that the complaint did not allege that
the buyers suffered a pecuniary loss as required by WIS. STAT. § 100.20(5). Id.,
¶20. We disagreed, explaining that, because “the prohibition is designed to protect
buyers from being induced into a consumer sale by a referral selling plan by
promising future payments that may never occur,” “the pecuniary loss is … the
money paid [by the consumer] for the product that the consumer was improperly
induced into buying due, in part or in whole, to the referral selling plan.” Id., ¶21.

¶33 We have summarized Moonlight, Hughes, and Pliss as stating the
following rule: “where a general order promulgated by DATCP under WIS. STAT.
§ 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.” Kaskin, 318 Wis. 2d 802, ¶24 (emphasis
added). Coleman argues that these cases establish that, because Buckshot violated
WIS. ADMIN. CODE ch. ATCP 110, Coleman’s $12,000 down payment to
Buckshot constitutes a pecuniary loss pursuant to § 100.20(5) in that it was
wrongfully retained by Buckshot. However, as Buckshot points out, unlike the
violations in Moonlight and Hughes—which resulted, respectively, from the
landlord’s failure to timely return the security deposit or an itemized list of
deductions, and from Chrysler’s failure to replace or repurchase the vehicle—the
provisions of ch. ATCP 110 that Buckshot violated do not prohibit the retention of
Coleman’s down payment. Nor, as in Pliss, was Buckshot’s receipt of the down
payment a result of Buckshot’s misrepresentations. Thus, Coleman fails to show
that she satisfied the rule stated in Kaskin.

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No. 2023AP448

¶34 Despite that failure, citing Moonlight specifically, Coleman argues
that the $12,000 down payment is a pecuniary loss under WIS. STAT. § 100.20(5)
because “[t]he damages to Coleman must … be calculated independently of any
damages Buckshot may recover on its counterclaims.” Coleman thus appears to
argue that the $12,000 down payment is a pecuniary loss even though the circuit
court found that Buckshot was entitled to $17,747.63 for work that Buckshot
performed under the contract. However, as stated, Moonlight is distinguishable in
that the security deposit there was wrongfully retained, notwithstanding the
landlord’s successful counterclaim for damages, because the landlord failed to
timely return the security deposit or provide an itemized list of withholdings, as
required by WIS. ADMIN. CODE ch. ATCP 134. Because there is no analogous
requirement here that Buckshot had to either return Coleman’s down payment or
provide an itemized list of charges, Moonlight is distinguishable.10

¶35 The significance of this distinction is apparent from our decision in
Pierce v. Norwick, 202 Wis. 2d 587, 550 N.W.2d 451 (Ct. App. 1996). There,
landlords withheld their tenants’ security deposit, and (unlike in Moonlight)
provided the tenants with an itemized list of deductions for unpaid rent and alleged

10
Further, as Buckshot points out, there are important differences between a down
payment for a home improvement project and a security deposit. Notably, there is normally no
expectation that a down payment will be returned to the payer. To be sure, under certain
circumstances, WIS. ADMIN. CODE § ATCP 110.07 requires the return of payments made
pursuant to home improvement contracts. For example, if a contractor “fails to provide the
materials or services by a deadline specified in the home improvement contract,” or if “[t]he
[consumer] believes that the [contractor] has failed to provide the materials or services in a timely
manner, and the home improvement contract specifies no deadline for the seller to provide the
materials or services,” then the consumer may cancel the contract and “[d]emand return of all
payments which the [contractor] has not yet expended on the home improvement.” Sec. ATCP
110.07(1)(a), (c), (2)(a), (b); see also § ATCP 110.07(4)(a) (requiring the return of payments
within 15 days). However, here, Coleman made no such demand, and even if she did, Coleman
has not argued, nor is it apparent to us, that Coleman would have been entitled to the return of
any portion of the down payment.

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No. 2023AP448

property damage. Pierce, 202 Wis. 2d at 591-92. However, the landlords violated
WIS. ADMIN. CODE ch. ATCP 134 by intentionally misrepresenting or falsifying
the landlords’ claims against the tenants’ security deposit. Id. The tenants filed a
lawsuit alleging that the landlords fraudulently withheld the security deposit. The
landlords then sued the tenants for the amount of the unpaid rent and the alleged
damages to the premises. Id. at 591. On appeal, the tenants argued that, under
Moonlight, the entire amount of their security deposit should be doubled before
the landlords’ damages were offset. Pierce, 202 Wis. 2d at 595. We disagreed
and concluded that “the method of damages calculation outlined in Moonlight
should be confined to those instances where a landlord retains a security deposit
and fails to provide an itemization of damages.” Pierce, 202 Wis. 2d at 595. In
contrast,

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

Id. at 596 (emphasis added). As a result, in Pierce the amount of the tenants’
security deposit—$1,000—was offset by the landlord’s damages award—$889—
and the difference of $111 was doubled pursuant to WIS. STAT. § 100.20(5). Id. at
592, 596. Thus, Pierce demonstrates that a violator’s counterclaims are not, as a
rule, irrelevant when determining whether a consumer may recover under WIS.
STAT. § 100.20(5). Moreover, Pierce also reinforces the rule stated in Kaskin that
a pecuniary loss in the form of an amount retained may entitle a plaintiff to
recover under § 100.20(5), but only when the defendant has violated a rule
prohibiting such retention.

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No. 2023AP448

¶36 In addition to the case law relied upon by the circuit court, Coleman
relies on two unpublished decisions, Henchey v. Wausau Landmark Corp.,
No. 2021AP1684, unpublished slip op. (WI App May 2, 2023), and Heiman v.
Roe, No. 2020AP2066, unpublished slip op. (WI App Oct. 25, 2022), for their
persuasive value. These opinions do not support Coleman’s position.

¶37 In Henchey, we concluded that a rental agreement was void and
unenforceable pursuant to WIS. ADMIN. CODE § ATCP 134.08(9) because the
agreement allowed the landlord “to terminate a tenancy if a tenant made use of the
premises for an unlawful purpose or permitted another to make use of the premises
for an unlawful purpose and a person who lawfully resided with the tenant was a
victim of that crime.” Henchey, No. 2021AP1684, ¶33. We further concluded
that the tenant’s pecuniary loss under WIS. STAT. § 100.20(5) consisted of all of
the rent that the tenant paid under the rental agreement. Id., ¶¶41-42. Coleman
argues that we did so even though the tenant’s rent payments were not caused by
the landlord’s violations. However, Coleman’s arguments miss the mark: in
Henchey, our determination as to the tenant’s pecuniary loss was based on the
landlord’s concession of the issue resulting from the landlord’s failure to provide a
developed response to the tenant’s argument on this point. Id.

¶38 In Heiman, a landlord violated WIS. ADMIN. CODE
§ ATCP 134.06(4)(a) by failing to return, and to properly itemize deductions from,
a security deposit. Heiman, No. 2020AP2066, ¶¶17-24. As in Moonlight, the
tenants owed the landlord for damages in excess of the security deposit amount,
Heiman, No. 2020AP2066, ¶¶11, 25, and the issue was whether the tenants were
“entitled to the calculation of their damages based upon [the landlord’s]
§ ATCP 134.06(4)(a) violation regardless of the amount the [circuit] court
determined that they owed to [the landlord],” Heiman, No. 2020AP2066, ¶25.

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No. 2023AP448

The tenants argued, consistent with Moonlight, that even though they owed the
landlord in excess of their security deposit, they were nonetheless entitled to
recover under WIS. STAT. § 100.20(5), including for double the amount of their
security deposit. Heiman, No. 2020AP2066, ¶26. In contrast, the landlord argued
that our decision in Pierce controlled. We concluded in Heiman that Moonlight
controlled because the landlord, like the landlord in Moonlight, “failed to provide
… a written statement accounting for the amounts withheld.” Heiman,
No. 2020AP2066, ¶30.

¶39 Coleman argues that Heiman “reiterate[s] the rule that a consumer’s
pecuniary loss must be reviewed independently from any amount awarded to the
opposing party.” We reject Coleman’s argument under Heiman for the same
reasons we reject Coleman’s argument under Moonlight: Coleman’s “rule” does
not account for our decision in Pierce, and Heiman is distinguishable for the same
reason that Moonlight is—here, there was no violation of an analogous
requirement that Buckshot either return the down payment or provide an
accounting of its claims.11

11
Coleman asserts that Buckshot threatened to file a lien after Coleman questioned the
amounts charged in the invoice, and that “[t]his is precisely the type of unfair and oppressive
conduct that [WIS. ADMIN. CODE ch. ATCP 110] was intended to prevent.” Coleman does not
develop this assertion into an argument supported by pertinent citations to the record and legal
authority, and we may reject it on that basis. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶180
n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address undeveloped arguments.”). In any
event, to the extent that Coleman intends to analogize Buckshot’s failure to provide Coleman
with more information regarding the amounts charged in the invoice to the failure of the landlords
in Moonlight and in Heiman to return the security deposits or provide itemized lists of
deductions, we reject the argument. In Moonlight and in Heiman, the landlords’ failures to
provide itemized deductions of their withholdings violated WIS. ADMIN. CODE ch. ATCP 134.
Moonlight v. Boyce, 125 Wis. 2d 298, 304, 372 N.W.2d 479 (Ct. App. 1985); Heiman v. Roe,
No. 2020AP2066, ¶¶17-24, unpublished slip op. (WI App Oct. 25, 2022). In contrast, as stated,
Buckshot was not obligated under ch. ATCP 110 to provide an analogous itemized accounting of
Coleman’s $12,000 down payment.

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No. 2023AP448

¶40 In sum, for a consumer to recover under WIS. STAT. § 100.20(5), the
consumer must have suffered a pecuniary loss that was caused by a violation of an
administrative rule promulgated under § 100.20. Here, Coleman did not present
any evidence showing a causal connection between Buckshot’s violations of WIS.
ADMIN. CODE ch. ATCP 110 and Buckshot’s receipt or retention of Coleman’s
$12,000 down payment (or any other pecuniary loss). Additionally, the case law
interpreting § 100.20(5) that Coleman and the circuit court relied on does not
support Coleman’s argument that the evidence here establishes a causal
connection such that Coleman may recover under § 100.20(5). Because Coleman
fails to show that her $12,000 down payment is a pecuniary loss that was caused
by Buckshot’s violations, Coleman cannot recover under § 100.20(5).12

12
Coleman argues that the conclusion we reach here would frustrate the purposes
underlying WIS. STAT. § 100.20(5) and WIS. ADMIN. CODE ch. ATCP 110. However, “‘[i]n
construing or interpreting a statute the court is not at liberty to disregard the plain, clear words of
the statute.’” Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681
N.W.2d 110 (quoting State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)); see also id.,
¶45 (“[S]tatutory interpretation ‘begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.’” (quoted source omitted)). Here, § 100.20(5)
unambiguously states that to recover under § 100.20(5), a consumer’s pecuniary loss must have
been caused by a violation of an order promulgated under § 100.20.

Coleman also argues that even if this court disagrees with the circuit court’s analysis, this
court “should nevertheless affirm the damages award because it is consistent with the pecuniary
loss Coleman suffered from Buckshot’s failure to provide a manufacturer’s warranty for the roof
repairs.” Specifically, Coleman argues that “[t]he record is clear” that the roof was not properly
installed; that the manufacturer of the shingles would thus not warranty the roof; that Coleman
was thus deprived of what she bargained for (namely, a roof that would be covered by warranty);
and that the record shows that it would cost $12,410 to replace the roof, “which is almost
identical to the circuit court’s calculation of damages.” However, the circuit court explicitly
found that “[t]here’s nothing in this record that says that the warranty from the manufacturer is
voided on the roof.” Coleman does not argue that we may disregard this finding, and we reject
Coleman’s argument for this reason. See Benkoski v. Flood, 2001 WI App 84, ¶9, 242 Wis. 2d
652, 626 N.W.2d 851 (we uphold a circuit court’s findings of fact unless they are clearly
erroneous).

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No. 2023AP448

CONCLUSION

¶41 For the reasons stated, we reverse the circuit court’s award under
WIS. STAT. § 100.20(5) of double damages, costs, and attorney’s fees to Coleman,
and we remand for entry of a judgment consistent with this opinion.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

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