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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                        This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                              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.
                                                                                                                                                               Cir. Ct. No.   2007SC4113
Appeal No.                                                                             2009AP1011
STATE OF WISCONSIN                                                                                                                                             IN COURT OF APPEALS
                                                                                                                                                               DISTRICT III
TERRI BOELTER,
PLAINTIFF-APPELLANT,
V.
KEN TSCHANTZ,
DEFENDANT-RESPONDENT.
APPEAL  from a judgment and  an order  of  the circuit court for
Outagamie County:    HAROLD V. FROEHLICH, Judge.    Reversed and cause
remanded with directions; costs awarded.
Before Hoover, P.J., Peterson and Brunner, JJ.
¶1                                                                                     HOOVER, P.J.    Terri  Boelter  appeals  a  judgment,  and  an  order
denying her motion for reconsideration, entered after a trial de novo on claims
against her landlord.   Boelter seeks double damages, costs, attorney fees, punitive




No.   2009AP1011
damages, and rent abatement due to claimed improper withholdings from her
security deposit and a failure to remedy unsafe conditions.   We agree, in part, with
Boelter’s  arguments  and  remand  for  further  fact-finding,  the  calculation  and
awarding of costs, attorney fees, and rent abatement, and consideration of punitive
damages.
BACKGROUND
¶2                                                                                       Pursuant to a written lease, Boelter and her children resided in a
duplex rental owned by Ken Tschantz.   The lease term was from July 1, 2006 to
June 30, 2007.   Boelter completed a condition report at the commencement of her
tenancy.   She checked the box indicating the dishwasher did not work and hand
wrote:                                                                                   “no - slow drain + top melting.”   The dishwasher was part of a single unit,
three-part appliance, consisting of a dishwasher with an electric stovetop sitting
atop it, with an oven positioned above the stovetop.   The condition of this unit
forms the basis of Boelter’s unsafe conditions claim.
¶3                                                                                       Boelter also noted pre-existing damage to a vinyl accordion door in
the basement, indicating it was  “cracked in spots on the seal.”   Boelter claims
Tschantz improperly withheld sixty dollars from her security deposit to replace the
door after she moved out.   Boelter also challenges the amount of an eighty-five-
dollar repair charge withheld for fixing her plugged toilet, arguing it was improper
for Tschantz to bill her at the rate a professional plumber would have charged.
¶4                                                                                       Additionally,  Tschantz  withheld                                              $323.84  from  Boelter’s  security
deposit to cover the balance of her quarterly water bill that was due on August 4,
2007.   The water bill was in Boelter’s name and she made her payments directly to
the city water utility.   After Tschantz failed to apply the withheld funds to pay the
water bill by the due date, Boelter paid the utility directly on August 7.   Tschantz
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No.   2009AP1011
then sent a refund check to Boelter on August 29, with an attached Post-it Note
stating, “Oh, too bad - no double damages for you.”
¶5                                                                                                Boelter had not yet cashed the refund check when the case was tried
to  a  court  commissioner  on  December  12,  2007.    At  that  hearing,  Tschantz
testified the check was still good.    Boelter subsequently attempted to cash the
check,  but  a  stop  payment  order  had  been  requested  on  December                          11,  and
Tschantz  had  finalized  the  request  by  appearing  at  his  bank  and  signing  a
completed form on December 13.1   After receiving his copies of affidavits and a
motion for further damages, attorney fees, and punitive damages from Boelter,
Tschantz  provided  Boelter  a  new  check  in  the  amount  of  $383.84.2    Shortly
thereafter, Tschantz requested a circuit court trial.   At the September 2008 trial,
Tschantz asserted he accidentally placed the stop payment request.   The circuit
court denied Boelter any damages beyond the  $383.84 check.    The court also
disallowed   costs   and   attorney   fees,   indicating   the   claimed   fees   were
disproportionate to the original damages claimed.   Following the court’s denial of
a motion for reconsideration, Boelter appeals.
DISCUSSION
¶6                                                                                                Boelter  first  argues  Tschantz’s                                                    $323.84  withholding  from  the
                                                                                                  security deposit, failure to pay the water bill, delay in sending the refund check,
1  The stop payment request form indicates that requests placed by phone are binding for
fourteen days unless the account owner signs the order within the fourteen-day period.
2  The new check was for sixty dollars more than the original check.   We note, however,
the court commissioner had granted Boelter a judgment against Tschantz for a total of $1,802.84
in damages, court costs, and attorney fees.
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No.   2009AP1011
and stop payment request violated WIS.  ADMIN.  CODE  § ATCP  134.06(3)(a)4.
(Nov. 2006), which provides:
A landlord may withhold from a tenant’s security deposit
only for the following:
4.   Payment which the tenant owes for direct utility service
provided by a government-owned utility, to the extent that
the landlord becomes liable for the tenant’s nonpayment.
The  interpretation  and  application  of  a  statute  or  code  provision  presents  a
question of law that we decide independently of the circuit court.    Armour v.
Klecker, 169 Wis. 2d 692, 697, 486 N.W.2d 563 (Ct. App. 1992).
¶7                                                                                           The parties agree that if Boelter failed to pay her water bill that was
due in early August, Tschantz would become liable in November pursuant to WIS.
STAT.  § 66.0809(3),  because  the  unpaid  amount  would  become  a  tax  lien  on
Tschantz’s property.   They dispute, however, whether WIS. ADMIN. CODE § ATCP
134.06(3)                                                                                    (a)4. allowed Tschantz to withhold the amount of the water bill from the
security deposit in July.   Tschantz stresses he was required to return the security
deposit within twenty-one days after Boelter surrendered the premises and Boelter
had been late making prior water utility payments.3    He also asserts the lease
required Boelter to pay any utilities within fifteen days of moving out.   The signed
lease agreement in the record, however, contains no such provision.
¶8                                                                                           We need not determine which party’s interpretation of WIS. ADMIN.
CODE  § ATCP  134.06(3)(a)4.  is  correct.     Regardless  of  whether  the  initial
3  Boelter had made a water payment the previous quarter, but the circuit court found that
“a portion” of her final bill was comprised of a past due amount.
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No.   2009AP1011
withholding  was  permissible,  Tschantz’s  subsequent  actions  constituted  an
improper withholding.   It was unreasonable for Tschantz to withhold the funds but
not then pay the utility bill prior to the due date.   A landlord cannot indefinitely
retain a deposit—merely as a deposit—after a tenant vacates.   Tschantz then failed
to promptly refund Boelter’s deposit after she paid the utility bill directly to stop
late fees from accruing on her account.   Instead, he mailed it three weeks later
with a taunting note.    Finally, Tschantz placed a stop payment request on the
refund check.    Whether intentional or not, this constituted a further improper
withholding.    See Armour,  169 Wis. 2d at  699-701  (§ ATCP  134.06(3)(a) is a
strict liability provision).   These actions violated § ATCP 134.06(3)(a) and Boelter
is therefore entitled to costs and attorney fees, and double damages on the $323.84
withholding and returned check charge from Boelter’s bank.
¶9                                                                                       We next address Boelter’s argument that it was per se unreasonable
for Tschantz to charge eighty-five dollars to remove and replace a toilet that was
plugged with a Bugs Bunny bath toy.   The charge was comprised of a forty dollar
service call fee plus forty-five minutes’ labor at the rate of sixty dollars per hour.
Tschantz justified the charges as “less than or equal to the average charge an area
plumber would bill.”   We agree that a landlord may not charge what a professional
laborer would charge for their services.
¶10    WISCONSIN  STAT.  § 704.07(3)  requires  tenants  who  damage  the
premises to “reimburse the landlord for the reasonable cost thereof; cost to the
landlord  is  presumed  reasonable  unless  proved  otherwise  by  the  tenant.”
Importantly, the statute allows reimbursement only for actual costs incurred.   A
professional plumber would be paying overhead and making a profit in addition to
covering actual costs.    While  the statute presumes costs are reasonable, once
Boelter challenged the charge, Tschantz did not identify any actual costs to him.
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No.   2009AP1011
Further, we note Tschantz paid his son’s company fifteen dollars per hour for
general handyman repairs to the rental unit.     Because on appeal Boelter concedes
that to be a reasonable rate, and agrees to such payment, we conclude Tschantz
was entitled to withhold twelve dollars for his forty-five minutes of labor clearing
the toilet.   Boelter is entitled to double damages on the remaining seventy-three
dollars, plus costs and attorney fees, for the improper withholding of the excessive
plumbing charge from the security deposit.
¶11    Boelter further argues Tschantz improperly withheld sixty dollars
from her security deposit for replacing a vinyl accordion door.   She asserts the
charge  was  improper  because  she  noted  existing  damage  to  the  door  on  the
condition report.    WISCONSIN  ADMIN.  CODE  § ATCP  134.06(3)(c) precludes a
landlord from withholding for normal wear and tear or other losses for which the
tenant cannot reasonably be held responsible.
¶12    We reject part of this claim because Boelter exaggerates the charges.
The sixty dollar fee was for four hours’ labor by Tschantz’s son’s company at
fifteen dollars per hour.    The son’s testimony and invoice indicate there were
several other repairs performed during that time, with one hour apportioned to the
accordion  door.    Thus,  only  fifteen  dollars  was  deducted  for  replacing  the
accordion door.
¶13    At trial, Tschantz’s son testified the door was “ripped a little bit ...
there was vinyl on it and it was separating.”   However, his son did not know how
or when the door was damaged or how old it was.   Tschantz’s son’s testimony is
consistent with Boelter’s notation that the vinyl was “cracked in spots” when she
moved in.   There is simply no evidence of damage beyond the existing damage or
normal wear and tear.
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No.   2009AP1011
¶14    The  circuit  court  did  not  address  whether  the  damage  was  pre-
existing or the result of ordinary wear and tear.   The court only concluded “[t]hat
the charge of $60.00 to repair the accordion door was reasonable.”   In Boelter’s
motion for reconsideration, she noted the court made no finding as to the cause or
timing of the damage, but the court again did not address the issue in its order
denying the motion.    Because Tschantz presented no evidence Boelter caused
further damage to the door, she is entitled to costs, attorney fees, and double
damages on fifteen dollars.
¶15    We next address Boelter’s claim for rent abatement based on the
condition of the combined dishwasher/stovetop/oven unit.   Paul Popke, a partner
at Economy Appliance Service who had worked on the appliance, testified, “The
heat from the cook top got so hot that it melted the plastic [inside the dishwasher]
and the weight of the plastic just hung itself down and fell into the inside.”   Popke
indicated the plastic had bubbled down four to six inches and the top rack of the
dishwasher was unusable.
¶16    Popke and his business partner, Judith Greiczek, both believed there
was a danger the dishwasher plastic could burst open and harm someone if the
electric cook top was in use.   Greiczek testified that while at the apartment on
September  5,  2006,  she  and  Popke  advised  Boelter  not to  use  the  stove  and
dishwasher at the same time.    Greiczek testified she noted the warning to the
tenants on the invoice and also called Tschantz and spoke to him prior to mailing
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No.   2009AP1011
the invoice to inform him of the warnings provided.4   Greiczek testified she and
Popke eventually decided to stop providing service to Tschantz because of
his refusal to believe that his appliances were  [not] still
repairable and we, because of liability reasons, refused to
do any more work over there because of the fact that the
wiring   being very brittle, the dishwasher was a danger, ...
especially if the cook top was being used which sat right on
top of the dishwasher.
Greiczek  further  explained  they could not  find any replacement  parts for  the
appliance because they could not find a model number and the manufacturer had
stopped producing them about twenty years ago.
¶17    Additionally, the Appleton Housing Authority sent Tschantz a notice
dated May 17, 2007, informing him Boelter’s apartment had four conditions that
violated the housing quality standards.   The letter noted:                                 “Stove and oven will
need to be replaced, it does not work properly and has been deemed too dangerous
to use by a professional appliance company.   Please see attached statement from
Economy Appliance.”   The letter stated Tschantz needed to remedy the violations
within  thirty days  to  prevent the  suspension of  payments from the  Section  8
Housing Choice Voucher Program.
¶18    Tschantz  responded  by  sending  an  angry  letter  to  Greiczek
complaining about violating his customer confidentiality.   He further complained
it  was  the                                                                                “second  time  you  did  me  a  dis-service.    The  first  time  was  the
refrigerator issue on the 819 side (the black lady and your concern for the kids).”5
4  The other unit in Tschantz’s duplex had the same type of appliance, with similar
damage.
5  Tschantz indicated he was upset because he had lost a claim in court based on what was
noted on the neighbor lady’s repair invoice.
8




No.   2009AP1011
Tschantz did not replace Boelter’s dishwasher/stovetop/oven in response to the
housing authority’s letter.   Rather, he explained at trial that he decided to delay
replacement because he was not renewing Boelter’s lease, which would expire just
a couple weeks beyond the thirty-day deadline.   The circuit court denied any rent
abatement, concluding “the premises were in reasonable working order.”
¶19    Rent  abatement  is  a  remedy  made  available  by  WIS.  STAT.
§ 704.07(4), which provides:
[I]f there is a substantial violation of sub.  (2) materially
affecting the health or safety of the tenant, ... [i]f the tenant
remains in possession, rent abates to the extent the tenant is
deprived  of  the  full  normal  use  of  the  premises.    This
section does not authorize rent to be withheld in full, if the
tenant remains in possession.
As material here, § 704.07(2)(a)4. states a landlord has a duty to “repair or replace
any  plumbing,  electrical  wiring,  machinery,  or  equipment  furnished  with  the
premises and no longer in reasonable working condition.”
¶20    We cannot agree that the dishwasher/stovetop/oven appliance was in
reasonable  working  condition.    The  stovetop  and  oven  both  functioned  and
Tschantz had them repaired when they broke.   The dishwasher partially worked—
the top drawer was unusable.   Nonetheless, Boelter was advised the unit presented
a safety hazard and she should not use the electric stovetop if the dishwasher was
running.   An appliance that cannot be used as intended without creating a risk of
fire  or  electrocution  is not in reasonable  working condition.    Further,  such  a
condition constitutes a “substantial violation ... materially affecting the health or
safety of the tenant.”   WIS. STAT. § 704.07(4).   Boelter was effectively deprived of
the use of the dishwasher and stovetop furnished with her rental unit.   With every
use she was forced to play a game of Russian roulette, not knowing whether the
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No.   2009AP1011
dishwasher  water  would  breach  (or  had  already  breached)  into  the  electrical
components of the stovetop.  Boelter is therefore entitled to rent abatement.
¶21    Tschantz argues any abatement should apply only to the final two
weeks of the tenancy, after the expiration of the thirty-day remedy period from the
housing department.   Boelter, on the other hand, contends abatement should run
the entire length of the lease, because she informed Tschantz that the dishwasher
was  melted  by  noting  it  on  the  check-in  form.    We  conclude  abatement  is
appropriate going back to at least shortly after Tschantz received the notice from
the  housing  authority.6    At  that  point,  Tschantz  was  on  notice  both  that  the
appliance  was  damaged  and  that  it  posed  a  substantial  safety  hazard.    See
Raymaker v. American Family Mut. Ins. Co., 2006 WI App 117, ¶¶17-18, 293
Wis. 2d 392, 718 N.W.2d 154.
¶22    Abatement may be appropriate commencing early September 2006,
when Greiczek and Popke reported their safety concerns to Tschantz.   However,
Tschantz’s testimony suggests he was not sure whether the safety concerns related
to Boelter’s appliance or just her neighbor’s.   The circuit court will need to resolve
this  potential  factual  discrepancy.    Further,  while  Boelter  reported  that  the
dishwasher was melted at the outset of her tenancy, it is not clear whether the
dishwasher’s condition worsened after that point, or whether Tschantz should have
known that it presented a substantial safety hazard from the beginning.   These
factual questions must also be left to the circuit court.   Thus, on remand, the court
will need to determine when abatement should begin and in what amount the rent
6  Tschantz should have immediately replaced the dangerous appliance upon notice, but
he can reasonably be expected to have needed a short time period to accomplish the replacement.
10




No.   2009AP1011
will be abated.   The rent should abate proportionally to the extent the loss of use of
the  dishwasher  and  stovetop  deprived  Boelter  of  her  full  normal  use  of  the
premises.   See WIS. STAT. § 704.07(4); see also Raymaker, 293 Wis. 2d 392, ¶30
(abatement does not apply only when the premises are “unfit to reside in”).
¶23    We next address Boelter’s punitive damages claim and conclude the
circuit court applied an improper legal standard in denying it.   Tschantz concedes
the circuit court applied the wrong legal standard.                                       “The plaintiff may receive
punitive  damages  if  evidence  is  submitted  showing  that  the  defendant  acted
maliciously toward the plaintiff or in an intentional disregard of the rights of the
plaintiff.”   WIS. STAT. § 895.043(3).   If the fact finder concludes punitive damages
are available and decides to award them, it then determines the amount of punitive
damages by considering factors such as the grievousness of the defendant’s acts,
the degree of malice involved, the potential damage which might have been done
by such acts as well as the actual damage, and the defendant’s ability to pay.
Gianoli v. Pfleiderer, 209 Wis. 2d 509, 528, 563 N.W.2d 562 (Ct. App. 1997);
WISCONSIN JI—CIVIL 1707.1 (2009).
¶24    The  circuit  court  did  not  address  whether  Tschantz’s  conduct—
refunding the water bill funds with the taunting Post-it Note, and then requesting
the stop payment and testifying the check was still good—was either malicious or
an intentional disregard of Boelter’s rights.   Rather, the court concluded “[t]hat
this is not a case w[h]ere the landlord’s actions were so grievousness  [sic] to
support punitive damages nor of such a degree of  malice to support punitive
damages.”   By applying two of the factors for determining the amount of damages
to determine whether punitive damages could be awarded, the circuit court applied
an  improper  legal  standard.    On  remand  the  court  shall  reconsider  Boelter’s
punitive damages claim under the correct standard.
11




No.   2009AP1011
¶25    We further conclude that Tschantz’s testimony regarding the facts
underlying the punitive damages claim was patently false and any implicit finding
to the contrary is clearly erroneous.   See WIS. STAT. § 805.17(2).   In her motion
for reconsideration, Boelter noted the court did not address whether Tschantz’s
conduct was malicious or intentional.   The court did not directly respond to this
issue in its order denying the motion, but indicated generally:                       “The Court must
weigh the evidence and judge the credibility of the witnesses.   This Court having
done so denies plaintiff’s motion ….”
¶26    Tschantz claims the stop payment request was placed accidentally.
At trial, he explained he used to do occasional financial work for an unnamed
person running an unnamed flooring business.   Tschantz testified the person had
moved away but contacted Tschantz and asked him to cancel a check for him.
Tschantz agreed, as long as the person called the bank in advance.    Tschantz
surmised that when he was at the bank and conducting personal business as well,
the teller took his membership card without him noticing and then mistakenly
applied the stop payment to Boelter’s check, which was in a similar amount to the
check his unnamed acquaintance wanted cancelled.   Tschantz further testified he
later learned the unnamed person did not have an account at Tschantz’s bank, and,
additionally, no longer needed the check to be cancelled anyway.   When asked
why he did not respond to discovery requests pertaining to the stop payment
request, Tschantz testified he was subsequently unable to locate or contact the
unnamed acquaintance.
¶27    A bank representative testified to the obvious at trial:    the teller
could  not  have  known  the  check  information  to  cancel  unless  the  customer
provided it.   To begin with, according to Tschantz’s story, it would have been the
unnamed person who called the bank and provided the check information.   Even
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No.   2009AP1011
assuming the unnamed person somehow placed a stop payment on Boelter’s check
on Tschantz’s account because the check numbers were coincidentally the same,7
when Tschantz came to the bank, he would then have had to provide the check
information that is written on the stop payment form he signed.   In addition to the
check number, that document shows Terri Boelter as the payee and identifies the
exact payment amount.   Because Boelter had not yet cashed the check, it was
impossible  for  the  bank  to  already  have  that  information.    Thus,  Tschantz’s
elaborate story is incredible and we reject it as a matter of law.   See Hallin v.
Hallin, 228 Wis. 2d 250, 258-59, 596 N.W.2d 818 (Ct. App. 1999).   Therefore,
when reconsidering whether to award punitive damages, the circuit court must
consider that Tschantz intentionally stopped payment on the check and then lied
that it was still good.
¶28    As we noted at the outset, the circuit court denied attorney fees
because it concluded the requested amount was too far out of proportion to the
actual damages claimed.    That is an inappropriate legal standard.    WISCONSIN
STAT. § 100.20(5) provides that the tenant “shall recover twice the amount of such
pecuniary  loss,  together  with  costs,  including  a  reasonable  attorney’s  fee.”
(Emphasis  added.)    Thus,  an  attorney  fee  award  is  mandatory  on  successful
claims.   Shands v. Castrovinci, 115 Wis. 2d 352, 357, 340 N.W.2d 506 (1983).
The costs and attorney fees in a residential landlord-tenant case will frequently far
exceed  the  actual  damages  claimed.    That  is  precisely why their  recovery is
allowed.   The awards encourage tenants and their attorneys to prosecute claims
that might otherwise not be financially feasible.   Id.   In this regard, the tenants and
7  Tschantz’s check to Boelter had a four-digit number:   6961.
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No.   2009AP1011
their attorneys act as private attorneys general on behalf of the State.   Id. at 358.
This policy serves a  deterrent effect and is  necessary because  landlords  hold
unequal bargaining power and the State has inadequate resources to prosecute all
violators.   Id.; Armour, 169 Wis. 2d at 701.
¶29    On  remand,  the  circuit  court  shall  award  Boelter  her  costs  and
reasonable  attorney  fees8  incurred  on  all  successful  claims,  except  for  rent
abatement and punitive damages,9 including those costs and fees incurred on the
motion  for  reconsideration.    The  court  shall  also  award  Boelter’s  reasonable
attorney fees incurred on appeal, see Shands, 115 Wis. 2d at 359, with the same
two exceptions.    Further, Boelter shall recover her appellate costs under WIS.
STAT. RULE 809.25(1)(b).
By the Court.—Judgment and order reversed and cause remanded
with directions; costs awarded.
Recommended for publication in the official reports.
8  Reasonable attorney fees shall be awarded according to the lodestar method.   Kolupar
v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶22, 275 Wis. 2d 1, 683 N.W.2d 58.   This method
requires the circuit court to first determine a reasonable fee by multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly rate.   Id., ¶28.   The court may then
adjust this number, the lodestar, up or down by considering other relevant factors.  Id., ¶29.
9  Double damages, costs, and attorney fees are not available on rent abatement claims
because they arise under WIS.  STAT.  § 704.07 rather than WIS. ADMIN.  CODE ATCP ch. 134
(Nov. 2006).   See Raymaker v. American Family Mut. Ins. Co., 2006 WI App 117, ¶28, 293
Wis. 2d  392,  718 N.W.2d  154.    Further, double damages, costs and attorney fees are not
allowable on the punitive damages claim because, if awarded, punitive damages do not constitute
an actual “pecuniary loss” under WIS. STAT. § 100.20(5).
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No.   2009AP1011

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