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    Determining 'Pecuniary Loss'

    Persons who violate DATCP orders regulating methods of business competition and trade practices, face stiff civil penalties under Wis. Stat. section 100.20(5), including twice the amount of any pecuniary loss. Determining what is a pecuniary loss is critical.

    Willis J. Zick

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 4, April 2012

    Leaking faucetWisconsin Statutes section 100.20(2)(a) authorizes the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) to issue general orders regulating methods of business competition and trade practices. The department has issued many such orders, which appear as separate chapters in the Wisconsin Administrative Code. The three chapters involved most frequently in the cases discussed here are: 1) chapter ATCP 110, Home Improvement Practices; 2) chapter ATCP 132, Motor Vehicle Repair; and 3) chapter ATCP 134, Residential Rental Practices.

    Wisconsin Statutes section 100.20(5) provides the civil penalty for a violation of an ATCP order, as follows:

    "Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue, for damages therefore ... and shall recover twice the amount of any such pecuniary loss, together with costs, including a reasonable attorney's fee."

    This article focuses on Wisconsin courts' interpretation of this section. The relevant decisions are discussed chronologically, followed by the author's conclusions as to the present state of the law and predictions as to future developments. As shown in this article, it is clear that results for plaintiffs are increasingly more favorable.

    RELEVANT DECISIONS

    Shands v. Castrovinci

    Fees on appeal; fees to nonprofit legal agencies

    In Shands v. Castrovinci,1 the circuit court found that the plaintiff tenant had suffered "pecuniary loss" under section 100.20(5) in the amount of the security deposit withheld by the defendant landlord in violation of section ATCP 134.06(2) and (4). The court awarded the plaintiff double the deposit plus attorney fees. The court of appeals affirmed the circuit court but denied the plaintiff's request for fees on appeal. The supreme court reversed, reasoning that a tenant's rights under section 100.20(5) would be emasculated by a refusal to award fees on appeal. It was assumed, without discussion, that the amount of the unrefunded deposit constituted pecuniary loss under section 100.20(5).

    The plaintiff was represented by Legal Action of Wisconsin (LAW), which provided free legal services. The court concluded that LAW was entitled to collect fees from the defendant in the same manner and at the same rate as a private attorney, because it played the same "private attorney general" role in enforcing the code as does a private attorney.

    Huff & Morse v. Riordan

    Auto repairs without written authorization

    In Huff & Morse v. Riordan,2 the plaintiff auto repair shop failed to furnish a written estimate and obtain a written authorization, both of which are required by chapter ATCP 132. The defendant customer admitted that he orally authorized the repairs. The court of appeals held that the repair contract was invalid because of the code violation but that the plaintiff could recover the "reasonable value of services under a quantum meruit claim." The court denied the customer's request for double damages under section 100.20(5), reasoning that because of the oral authorization "he has not suffered pecuniary loss because of a violation of an order."

    Paulik v. Coombs

    Landlord's damages exceed doubled unrefunded security deposit; landlord not estopped by withholding deposit; fees not awarded for defending landlord's claim

    In Paulik v. Coombs,3 the defendant landlord was awarded more on his counterclaim for waste and rent than the plaintiff tenants were awarded for double their security deposit, which the defendant withheld in violation of section ATCP 134.06(2) and (4). The circuit court denied attorney fees to the plaintiff, reasoning that the defendant was the "prevailing party."

    The court of appeals reversed, concluding that the policy considerations underlying fee awards apply with equal force even if the landlord's recovery exceeds the tenant's doubled deposit. The court also rejected the tenant's argument that a landlord who violates the code by failing to return a deposit should be estopped from asserting any claim against the tenant. Finally, the court of appeals held that the circuit court should determine "a reasonable fee incurred by the Pauliks in bringing their claim for double damages ... fees ... should not include those incurred in defending against Coombs' counterclaim ...."

    Moonlight v. Boyce

    Tenant can recover even if landlord's damages exceed security deposit

    In Moonlight v. Boyce,4 the circuit court found that the defendant landlord had proved damages in excess of the security deposit wrongly withheld from the plaintiff tenant. On appeal, the defendant argued that the plaintiff therefore had suffered no pecuniary loss. The court of appeals rejected this argument, pointing out that in Paulik, the landlord had conceded that a tenant suffers "pecuniary loss" in the amount of the unreturned deposit regardless of the landlord's damages.

    "In this case, therefore, we address for the first time the threshold question of whether a tenant has suffered a pecuniary loss when the ... damages awarded to the landlord ... exceed the amount of the security deposit."

    The court concluded that "[t]he

    determination as to whether a tenant has suffered a pecuniary loss under Section 100.20 ... must be made prior to and independent from any consideration of the landlord's counterclaim."

    Pierce v. Norwick

    Landlord falsified deductions in letter purporting to justify nonreturn of deposit, in violation of Wis. Stat. section 134.06(4)(b)

    In Pierce v. Norwick,5 the defendant landlord did not return the plaintiff tenant's $1,000 security deposit but did send the letter required by chapter ATCP 134, enumerating deductions exceeding the $1,000. The plaintiffs sued for a violation of section ATCP 134.06(4)(b), which prohibits intentional falsification of deductions. The jury found that the defendant had sustained damages of $889. The circuit court found a pecuniary loss to the plaintiffs of $111 (the $1,000 deposit minus the $889 damages) and awarded double the $111, plus fees.

    The plaintiffs appealed, claiming that their pecuniary loss was the full $1,000 deposit. The court of appeals affirmed the circuit court's conclusion that the pecuniary loss for falsification was the $1,000 deposit minus the actual damages found by the jury. This seems inconsistent with Moonlight.

    For purposes of comparison, note that in Paulik and Moonlight the landlord neither returned the deposit nor sent the required letter justifying withholding.

    Benkoski v. Flood

    Mobile-home-park owner violation of sections ATCP 125.06 and 125.09; calculation of damages; fees awarded for defending owner's counterclaim because intertwined with plaintiff's claim

    In Benkoski v. Flood,6 the court of appeals had previously found that the defendant, the mobile-home-park owner, had violated sections ATCP 125.06 and 125.09 by requiring the plaintiff, the owner of various homes in the park, to remove from the park any homes sold by the plaintiff. The court had remanded the matter to the circuit court for a determination of the plaintiff's damages under Wis. Stat. section 100.20(5).

    On the second appeal, the court of appeals affirmed the circuit court in all respects. First, it found that the ordinary civil burden of proof applied in determining Wis. Stat. section 100.20(5) damages, because it "best advances the remedial purposes of the Statute."

    The court of appeals affirmed the circuit court's finding that the mobile home in question had a market value of $3,000 if removed from the park but that the plaintiff could have sold it for $6,500 if the potential buyers were allowed to stay in the park. It also affirmed the circuit court's doubling of the $6,500 before deducting the $3,000. The court stated, "we agree with the trial court's method of calculating damages because it furthers the statutory objectives behind Section 100.20(5)."

    Finally, the court of appeals affirmed the award of all the plaintiff's fees, including those incurred in defending the defendant's counterclaim, stating "(defendant's) counterclaim was premised on (plaintiff's) failure to remove the mobile home units. This was also the very crux of (plaintiff's) claims.... As such, these competing claims were inextricably caught up with each other."

    Baierl v. McTaggart

    Lease making tenant liable for owner's fees in violation of section ATCP 134.08(3); not severable and so not enforceable; quantum meruit

    In Baierl vs. McTaggart,7 the plaintiff landlord and defendant tenants entered into a residential lease that violated section ATCP 134.08(3) by containing a provision requiring the tenant to pay fees incurred by the landlord in enforcing the lease. On summary judgment, the circuit court found the lease unenforceable, relieved the defendants of liability for the balance of the lease, and awarded the defendants double their security deposit, reduced by unpaid rent during the period of their occupancy, together with reasonable fees.

    The court of appeals found the offending provision to be severable and reversed the circuit court. The supreme court reversed the court of appeals. The supreme court concluded that the intent underlying a regulation is determinative on the issue of severability. It examined the intent of the department in enacting section ATCP 134.08(3) and concluded as follows:

    "[Section ATCP 134.08(3)] was intended not only to prevent the extraction of … fees … from tenants..., but also to prevent the chilling effect that [such] ... a clause ... has on a tenant's assertion of legal rights. The Department relied on ... the fact that ... tenants who read such a clause in a ... lease will forego pursuing their rights ... out of fear that they will be forced to bear the landlord's litigation expenses."

    "[A] landlord who includes a provision specifically prohibited by ... § ATCP 134.08(3) ... may not enforce ... that lease. ... [A]llowing the enforcement of such a lease would not only fail to advance the intent of that regulation, but would undermine its objectives completely."

    The supreme court affirmed the circuit court, which had deducted unpaid rent before doubling the security deposit. This calculation is inconsistent with Moonlight, discussed earlier.

    Determining Reasonable Attorney Fees Under Wis. Stat. Section 814.045  

    2011 Wisconsin Act 92, effective Dec. 8, 2011, enacted Wis. Stat. section 814.045, which relates to factors for determining the reasonableness of attorney fees.

    Section 814.045(2)(a) provides as follows:

    "In any action in which compensatory 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."

    Section 814.045(1) enumerates several factors courts may use when determining the reasonableness of requested attorney fees.

    Section 814.045(1) and (2)(a) will apply to determination of the reasonableness of attorney fees awarded under Wis. Stat. section 100.20(5). (The section has no other effect on any of the decisions discussed or the summaries or conclusions reached in this article.)

    Newspaper reports indicate that one of the significant factors underlying enactment of 2011 Wisconsin Act 92 was the substantial fee awarded to the plaintiff in Kaskin v. John Lynch Chevrolet-Pontiac Sales, discussed in detail in this article.

    Justice Crooks, joined by Justice Wilcox, concurred, pointing out that the circuit court had allowed the landlord to recover the rent for the period of occupancy under quantum meruit. "Quantum meruit was properly applied here, and it is worth reiterating that the majority's decision today does not bar such recovery."

    Justice Sykes, joined by Justice Prosser, dissented, concluding that the offending clause should be severed and the balance of the lease enforced.

    Dawson v. Goldammer

    Tenant can enforce lease similar to Baierl v. McTaggart lease, even though landlord cannot

    In Dawson v. Goldammer,8 the defendant tenant sought to enforce against the plaintiff landlord a residential lease identical to that in Baierl. The landlord contended that the Baierl court had held such a lease to be void and unenforceable by either party. The court of appeals held that the tenant could enforce the lease:

    "[Section ATCP 134.08(3) is] 'clearly designed to protect the tenant from a provision landlords often insert solely for the purpose of discouraging tenants from enforcing their legal rights.'... 'To refuse to allow a tenant ... to enforce the lease would stand the rationale of the Baierl decision on its head by punishing the class the regulation is designed to benefit...'."

    The court also concluded that "a tenant who seeks to ... enforce the lease has waived his or her rights pursuant to Baierl in the event of a breach on the part of the tenant."

    Pliss v. Peppertree Resort Villas Inc.

    Violation of section ATCP 121.03 and 121.02 in sale of time share

    Pliss v. Peppertree Resort Villas Inc.9 involved the interpretation of chapter ATCP 121, Referral Selling Plans. Sections ATCP 121.01(3) and 121.02 prohibit sales in which the seller offers compensation to the buyer for furnishing prospective buyers to the seller, unless the compensation is paid before the sale. The defendant seller violated these sections in the contract used in the sale of a time share to the plaintiff buyers. The defendant argued that the plaintiffs had not suffered pecuniary loss because they did not contend that the defendant had failed to compensate them for prospective buyers whom they had furnished.

    The court of appeals rejected this argument and ordered judgment for double the purchase price, plus fees:

    "The purpose of the prohibition ... is not 'to protect referring buyers from losing out on referral payments.' Rather, the prohibition is designed to protect buyers from being induced into a consumer sale ... by promising future payments that may never occur. Therefore, the pecuniary loss is not any lost referral compensation, but rather, the money paid for the product that the consumer was improperly induced into buying due, in part or in whole, to the referral selling plan."

    Rayner v. Reeves Custom Builders Inc.

    Owner of corporation may be personally liable for violation of chapter ATCP 110 when personally involved in the violation

    In Rayner v. Reeves Custom Builders Inc.,10 the plaintiff homeowners sued both the corporate defendant and the owner of the corporation for various violations of chapter ATCP 110, Home Improvement Practices, during the remodeling of their house. The court of appeals concluded that the code imposes personal liability in appropriate cases.

    "This case involves an issue of first impression, namely, whether consumer protection regulations pierce the corporate veil and allow for personal liability against individual wrongdoers. We hold that they do if it is shown that the individual ... is responsible for devising the unfair method of selling home improvements."

    Stuart v. Weisflog's Showroom Gallery Inc.

    Violation of section ATCP 110.02(11); apportionment of damages; economic loss doctrine; personal liability

    In Stuart v. Weisflog's Showroom Gallery Inc.,11 the plaintiff owners entered into a contract with the defendant contractor to remodel their residence. The plaintiffs sued for common law negligence in design and construction and for violation of section ATCP 110.02(11) (part of the Home Improvement Practices Act (HIPA)), which prohibits a contractor from making a misrepresentation to "induce any person to enter into a home improvement contract." At trial, the jury set the plaintiffs' damages at $96,000 and apportioned 75 percent to negligence and 25 percent to the HIPA violation. The circuit court entered judgment accordingly.

    The supreme court held that the entire $96,000 damage figure should be doubled.

    "[T]he entire pecuniary loss was suffered because of the petitioners' HIPA violations, namely the initial misrepresentations, upon which the [plaintiffs] relied in entering into both contracts. A clear causal connection exists between the ... entire pecuniary loss and the HIPA violations."

    The supreme court also held that the circuit court erred in ordering apportionment of damages in determining pecuniary loss under Wis. Stat. section 100.20(5):

    "To obtain apportionment in lawsuits that contain HIPA claims ... [a party] ... must meet the burden of showing that the damages can be separated.... [W]here there is no clear way to apportion[,] ... doubling the entire pecuniary loss serves public policy concerns by encouraging victims to become 'private attorney generals' and by providing larger disincentives to unscrupulous contractors."

    The court also held that the economic loss doctrine did not apply to the HIPA claim. The court further held that the jury could find the owner of the corporate defendant personally liable for the HIPA violation. "We hold that a corporate employee may be personally liable for acts he or she takes on behalf of the corporate entity ... that violate the HIPA."

    The circuit court had awarded attorney fees to the plaintiffs under Wis. Stat. section 100.20(5) on the basis of the contingent-fee contract with their attorney. The supreme court reversed and remanded for a computation of fees on an hourly basis under the lodestar methodology.

    Justice Roggensack, joined by Justice Prosser and Justice Ziegler, concurred in part and dissented in part. The justices concluded that the evidence did not support the jury finding of a violation of section ATCP 110.02(11) and that, even if it did, the damages should be apportioned per the jury verdict so that the pecuniary loss would be only 25 percent of the $96,000 damages.

    Kaskin v. John Lynch Chevrolet-Pontiac Sales Inc.

    Vehicle repair with neither oral nor written authorization in violation of section ATCP 132.02; sums received or retained in violation of an ATCP order constitute pecuniary loss

    In Huff & Morse v. Riordan (discussed earlier), the vehicle owner conceded that he had given oral authorization for the repairs. In Kaskin v. John Lynch Chevrolet-Pontiac Sales Inc.,12 the plaintiff had brought a newly purchased truck to the defendant's shop for repair. The plaintiff claimed he had authorized repair only if the repair was covered by warranty. The defendant claimed the plaintiff had authorized the repair whether or not it was under warranty. The defendant refused to release the truck without payment and so the plaintiff paid under protest. The circuit court concluded that the plaintiff had suffered no pecuniary loss even if the repairs were not authorized, and so the court did not resolve the issue of authorization.

    The court of appeals reversed and remanded for a resolution of the authorization issue. The court began by pointing out that section ATCP 132.02 prohibits any motor vehicle repair "that has not been authorized by the customer." The court discussed the defendant's argument that "the language of § 100.20 (5) plainly requires the injured party to prove that the shop caused the need for the repairs, or that the repairs were somehow unnecessary or billed at an excessive rate."

    The court replied as follows:

    "We have no quarrel with the assertion that a violation of the code must 'cause' a pecuniary loss to the consumer. ... The quarrel instead is: how is 'pecuniary loss' measured? ... There is also no case in Wisconsin that has analyzed this issue.... [I]t is apparent to us that the pecuniary loss is precisely the amount the consumer paid for unauthorized repairs."

    The court continued:

    "And since the chapter prohibits unauthorized repairs, it follows that unauthorized repairs make the consumer 'suffer.' Therefore, using the common understanding of the term 'because of,' we think that the 'monetary' or 'pecuniary loss' is clearly the amount suffered to be paid as a result of the violation of the code. There is nothing, either in the statute or the code, which says that the consumer must prove something different."

    The court placed heavy reliance on Moonlight and Pliss:

    "We take away from Moonlight ... and Pliss 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. ... [T]his rule supports our construction of the statute and the code – that when a motor vehicle repair shop receives money ... for repairs that the customer did not authorize, ... the customer's pecuniary loss is the entire amount of the unauthorized charges that the customer paid.

    "Limiting pecuniary loss to the amount by which the repair shop caused the need for the repairs, or charged … for unnecessary or ... 'phantom' repairs that never occurred, would emasculate the law to such an extent that consumers would essentially be back to the status quo before the legislature enacted § 100.20(5). Instead of encouraging consumers to enforce their rights and deterring prohibited conduct through liberal private remedies, the law would leave many consumers with minimal damage awards."  

    The court concluded, "We hold that a repair shop ... [that] has taken money from a consumer after violating the law [] causes pecuniary loss. This is so because the consumer has been prevented from exercising a statutory right – the right of informed consent."

    ANALYSIS OF DECISIONS

    Presumption of "Pecuniary Loss"

    In Kaskin, the court of appeals summarized the cases and concluded that when an ATCP order "prohibits the retention or receipt of the customer's money, the consumer suffers a pecuniary loss under [section] 100.20(5) in the amount that was wrongfully retained or received."

    In Moonlight, the tenant was held to have sustained pecuniary loss in the amount of the deposit withheld. In Pliss, the buyer was found to have sustained pecuniary loss equal to the full amount paid for the time share purchase that was induced by a violation of an ATCP order. In Kaskin, the pecuniary loss was determined to be the full amount paid for unauthorized repairs. These decisions all dispense with the necessity of proving that actual damage resulted from the violation. They invoke a conclusive presumption that pecuniary loss is suffered in the amount wrongfully received or retained by the defendant as the result of a violation. This presumption is based on the policy grounds of vigorously enforcing ATCP orders.

    Deductions from Pecuniary Loss

    The Moonlight court held that the pecuniary loss is the full amount of the withheld security deposit, even in cases in which the landlord's proven damages exceed the amount of the deposit.

    In Pierce, the landlord withheld the $1,000 deposit but sent the required letter listing deductions justifying the nonreturn. The tenant sued for falsification of deductions. The jury awarded damages of $889, and the court found the pecuniary loss to be the $111 difference rather than the entire $1,000. In Moonlight, the landlord had neither returned the deposit nor sent the justifying letter as required. In Pierce, the landlord had sent the required letter, and so the only violation was the falsification. The court concluded the pecuniary loss was the deposit reduced by the deductions found by the jury to be legitimate. The court chose not to double the entire deposit before deduction of the defendant's damages, to vigorously enforce the code, as it had done in Moonlight. This seems inconsistent.

    In Benkoski, the landlord neither wrongfully received nor wrongfully retained funds. Therefore, the conclusive presumption discussed in the previous section would not apply. The ATCP violation consisted of the imposition by the mobile-home-park owner of an unreasonable condition on removal by the plaintiff of sold mobile homes from the park. It was proved that the home in question could have been sold for $6,500 if the buyers could remain in the park and that the home had a value of only $3,000 if it had to be removed. The actual damage would be the $3,500 difference. However, the supreme court concluded that the pecuniary loss to be doubled under Wis. Stat. section 100.20(5) was the full $6,500, with the $3,000 deducted after the doubling, because this "method of calculating damages ... furthers the statutory objectives behind Section 100.20(5)."

    Here, the court was willing to invoke a conclusive presumption that the entire $6,500 lost sale price was the pecuniary loss even in the face of clear evidence that a calculation of the actual damages would require deduction of the remaining $3,500 value of the home. This extends the presumption beyond Kaskin, which had limited it to situations in which the defendant had either received or retained funds in violation of an ATCP order.

    Fees

    Shands holds that an agency that provides free legal services can collect fees the same as a private attorney, to be computed under the lodestar methodology. It also holds that fees can be collected on appeal the same as at trial.

    Stuart holds that an attorney operating under a contingent-fee contract is entitled to collect on an hourly basis, computed under the lodestar methodology.

    Paulik holds that fees can be collected only for time spent in proving the code violation and not for time spent in defending against the landlord's counterclaim. In Benkoski, however, because the defendant's purported counterclaim was "inextricably caught up" with the plaintiff's proof of a code violation, the plaintiff was entitled to collect all his fees. Under Paulik, fees incurred in the trial of a defendant's quantum meruit claim, like the one brought in Baierl, will not be recoverable by the plaintiff.

    Personal Liability

    The Rayner court clearly held that section 100.20(5) provides for personal liability when the individual is the party responsible for the violation. This holding was affirmed in Stuart, which surprisingly contains no reference to the landmark Rayner decision.

    Unenforceability

    Baierl holds that a residential lease that violates chapter ATCP 134 by including a provision making the tenant liable for reimbursing the landlord's fees for enforcement is unenforceable. In Baierl, the pecuniary loss was held to be double the amount of the security deposit reduced by unpaid rent. This result was contrary to Moonlight, which would have doubled the deposit before deducting the rent. The Baierl court could have reached a much harsher result, by holding that all rent payments made under an unenforceable lease constitute pecuniary loss because, under Kaskin, they were "wrongfully received" by the landlord. The landlord would then be relegated to proving the reasonable value of the occupancy under quantum meruit. The pecuniary loss would be doubled before deduction of the landlord's recovery under quantum meruit. Fortunately for the landlord, the tenant's counsel had not argued for this result, and so it is not known how far the court might have been willing to go, based on policy considerations of full enforcement of the code.

    Section ATCP 110.05 requires the contractor to provide, in various circumstances, a written contract for home improvement work and also enumerates various provisions that must be contained therein. It seems likely that a court might find, based on Baierl, that a violation of these requirements defeats the underlying intent of the regulations so substantially as to render an oral contract unenforceable. This would relegate the contractor to collecting only the reasonable value of services rendered, under quantum meruit.

    Apportionment of Damages

    In Stuart, the court discussed apportioning damages between those caused by an ATCP order violation and those resulting from other causes, in determining pecuniary loss. Space does not permit a discussion of the highly fact-based issue of apportionment.

    Uniform Jury Instructions

    Although not discussed in any of the decisions discussed above, proper instruction of the jury is important in such cases. Section 2720 of the Wisconsin Uniform Jury Instructions contains proposed jury verdict questions and jury instructions for trials involving violations of chapter ATCP 110. It can be adapted for use in connection with a violation of any other ATCP chapter provision.

    Wisconsin Jury Instruction 2720 contains proposed verdict questions for a case involving two claimed violations. Each violation is the subject of two questions: 1) Did the defendant violate the order? 2) If so, did the plaintiff suffer a "monetary loss" as a result? It contains a single damages question, which asks the jury to set a collective damages figure for all violations found by the jury. It would be preferable to ask the jury to set a separate damages figure for each violation found. This would make it possible for the court to enter a valid judgment even if it concludes that one of the jury's answers is not supported by the evidence or is contrary to the law.

    Jury Instruction 2720 is designed for use when there are factual issues as to violation, causation of loss, and amount of damages. In a situation in which one of the decisions discussed in this article has established a conclusive presumption of pecuniary loss and the amount thereof, counsel for the plaintiff will have to convince the court that no question should be submitted to the jury.

    Jury Instruction 2720 contains a proposed instruction on damages, as follows:

    "The measure of damages for violations of the Home Improvement Act is the amount which will compensate the plaintiff for the loss suffered because of the violation. A party who is injured should, as far as it is possible to do by monetary award, be placed in the position in which he or she would have been had the violation not occurred. The fundamental basis for an award of damages for a violation is just compensation for losses necessarily flowing from the violation."

    Willis J. ZickWillis J. Zick, U.W. 1956, is a former Milwaukee County circuit court judge. Since his retirement in 1995, he has become a full-time mediator and arbitrator dedicated to resolving civil and family disputes. Reach him at (414) 963-0142.

    Conclusion

    This article discusses a consistent series of decisions construing against the violator both ATCP orders and Wis. Stat. section 100.20(5), based on policy grounds of rigorous enforcement. The courts will likely continue this trend. In the process, additional conclusive presumptions will probably be established and, possibly, legal fictions will be created, to overcome the difficulty of proving the actual damages required to establish pecuniary loss under section 100.20(5). It is conceivable that the next evolutionary step may be a decision that a plaintiff who has proved a violation but has been unable to prove resulting pecuniary loss may be held entitled to collect fees incurred in proving the violation, judicially eliminating the statutory language of section 100.20(5) that makes pecuniary loss a condition precedent to an award of fees.

    Endnotes

    1 Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W. 2d 506 (1983).

    Huff & Morse Inc. v. Riordan, 118 Wis. 2d 1, 345 N.W. 2d 504 (Ct. App. 1983).

    Paulik v. Coombs, 120 Wis. 2d 431, 355 N.W. 2d 357 (Ct. App. 1984).

    Moonlight v. Boyce, 125 Wis. 2d 298, 372 N.W. 2d 479 (Ct. App. 1985).

    5 Pierce v. Norwick, 202 Wis. 2d 587, 550 N.W. 2d 451 (Ct. App. 1996).

    6 Benkoski v. Flood, 2001 WI App 84, 242 Wis. 2d 652, 626 N.W. 2d 851.

    Baierl v. McTaggart, 2001 WI 107, 245 Wis. 2d 632, 629 N.W. 2d 277.

    8 Dawson v. Goldhammer, 2003 WI App 3, 259 Wis. 2d 664, 657 N.W. 2d 432.

    Pliss v. Peppertree Resort Villas Inc., 2003 WI App 102, 264 Wis. 2d 735, 663 N.W. 2d 851.

    10 Rayner v. Reeves Custom Builders Inc., 2004 WI App 231, 277 Wis. 2d 535, 691 N.W. 2d 705.

    11 Stuart v. Weisflog's Showroom Gallery Inc., 2008 WI 22, 308 Wis. 2d 103, 746 N.W. 2d 762.

    12 Kaskin v. John Lynch Chevrolet Pontiac Sales Inc., 2009 WI App 64, 318 Wis. 2d 802, 767 N.W. 2d 394. 




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