COURT OF APPEALS

DECISION

DATED AND FILED

October 14, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP2258 Cir. Ct. No. 2018CV174

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

WIND POINT RESTORATION, INC. D/B/A SERVPRO OF SOUTHEAST 

MILWAUKEE COUNTY,

 PLAINTIFF-RESPONDENT,

 V.

ANNE WEIKEL,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Kenosha County: CHAD G. KERKMAN, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP2258

2

¶1 PER CURIAM. Anne Weikel appeals from a judgment dismissing

her WIS. STAT. ch. 423 (2017-18)1counterclaim and awarding damages to Wind 

Point Restoration, Inc. d/b/a Servpro of Southeast Milwaukee County. Weikel 

also appeals from an order denying her motion for reconsideration. We affirm.

¶2 We take from the pleadings the following essential and undisputed 

facts. After experiencing water damage in her basement, Weikel called a Servpro 

franchisee, A&M Restoration LLC d/b/a Servpro of South Kenosha (hereafter 

Servpro), to inquire about its water mitigation and restoration services (the 

services). Because it could not take on the work, Servpro passed Weikel’s 

information to Wind Point Restoration, Inc. d/b/a Servpro of Southeast Milwaukee 

County (hereafter Wind Point), another Servpro franchisee. Wind Point then 

called Weikel to respond to her inquiry regarding services.

2

 On July 21, 2017, 

Wind Point visited Weikel’s home, solicited her to provide services, and 

performed the services. 

¶3 Wind Point sued Weikel to collect its unpaid invoice for the services 

performed. Weikel counterclaimed and asserted a WIS. STAT. ch. 423 right to 

cancel what she claimed was a consumer approval transaction (the counterclaim).

3

 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 

2

 As discovery progressed, the exact identity of the entity Weikel contacted for services 

on July 17 or 18, 2017 (the date varies in the record) evolved. We elect to describe the entities in 

a way that provides the greatest clarity: Weikel called Servpro and Wind Point called her back.

3

 Weikel also alleged WIS. STAT. § 100.20 unfair trade practices, breach of warranty and 

other claims. None of these claims is pursued on appeal.
No. 2018AP2258

3

¶4 Wind Point moved to dismiss Weikel’s counterclaim because she did 

not state a consumer approval transaction claim upon which relief could be 

granted. Wind Point argued that because Weikel called Servpro to inquire 

regarding services, she initiated the ensuing transaction with Wind Point. 

Therefore, the transaction was not a WIS. STAT. § 423.201(1)(a) consumer 

approval transaction with an associated WIS. STAT. § 423.202(1) right to cancel. 

¶5 Weikel opposed the motion to dismiss. Weikel conceded that she 

called Servpro to inquire about its services. However, when Wind Point called her 

back, Wind Point initiated a solicitation by telephone followed by a solicitation in 

her home, all of which created a consumer approval transaction that Weikel could 

cancel. 

¶6 After a hearing on the motion to dismiss, the circuit court found that 

it was undisputed that Weikel initiated the transaction when she called Servpro to 

inquire about services, i.e., Weikel’s call “put everything in motion” in relation to 

the transaction with Wind Point. Because Wind Point did not initiate the 

transaction within the meaning of WIS. STAT. § 423.201(1)(a), the WIS.

STAT. § 423.202(1) right to cancel did not apply. The circuit court dismissed 

Weikel’s WIS. STAT. ch. 423 counterclaim. 

¶7 Weikel sought reconsideration of the circuit court’s decision 

dismissing her counterclaim. Weikel reiterated that her first contact with Wind 

Point was the call she received from Wind Point’s representative inquiring 

whether she wanted to engage their services. 

¶8 After a hearing, the circuit court denied Weikel’s motion for 

reconsideration, again finding that Weikel initiated the transaction by calling 

Servpro. As the circuit court aptly described it, Weikel “got the ball rolling” when 
No. 2018AP2258

4

she called Servpro seeking services, even if Wind Point called her back. 

Ultimately, the circuit court entered a judgment for Wind Point. Weikel appeals.

¶9 On appeal, Weikel argues that because Wind Point contacted her 

about services, she and Wind Point had a consumer approval transaction with a 

right to cancel. We disagree.

¶10 We review the circuit court’s dismissal of Weikel’s counterclaim for 

failure to state a claim as a question of law. Kaloti Enters., Inc. v. Kellogg Sales 

Co., 2005 WI 111, ¶10, 283 Wis. 2d 555, 699 N.W.2d 205. Such a motion tests 

the legal sufficiency of the complaint and should be granted only if there are no 

conditions under which the plaintiff can recover. Id., ¶11.

¶11 A “consumer approval transaction” is a transaction “initiated by 

face-to-face solicitation away from a regular place of business of the merchant or 

by mail or telephone solicitation directed to the particular customer.” WIS. STAT.

§ 423.201(1)(a). Under WIS. STAT. § 423.202(1), “a customer has the right to 

cancel a consumer approval transaction until midnight of the 3rd business day 

after the merchant has given the notice” required by the statute. 

¶12 Applying WIS. STAT. § 423.201(1)(a) to the facts of this case 

presents a question of law that we decide independently of the circuit court. 

Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 560, 514 N.W.2d 399 

(1994) (whether a particular statute applies to undisputed facts is a question of law 

that we review independently). The language of § 423.201(1)(a) is plain, and we 

need look no further to understand it. State ex rel. Kalal v. Circuit Court for 

Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (statutory 

interpretation begins with the statute’s plain language and the “language is given 

its common, ordinary, and accepted meaning”). 
No. 2018AP2258

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¶13 All of Weikel’s circuit court pleadings make clear that she called 

Servpro for services, and Wind Point returned her call and ultimately provided the 

services. The circuit court’s finding that Weikel’s call to Servpro “put everything 

in motion” and “got the ball rolling” is supported by the record and is not clearly 

erroneous. See Mentzel v. City of Oshkosh, 146 Wis. 2d 804, 808, 432 N.W.2d 

609 (Ct. App. 1988). Because Weikel initiated the transaction, the transaction was 

not a consumer approval transaction under WIS. STAT. § 423.201(1)(a).4 

Therefore, the circuit court did not err in dismissing Weikel’s WIS. STAT. ch. 423 

claim and did not misuse its discretion when it denied her reconsideration motion

on the same facts. Borreson v. Yunto, 2006 WI App 63, ¶6, 292 Wis. 2d 231, 713 

N.W.2d 656 (a circuit court’s decision on a motion for reconsideration is reviewed 

for a misuse of discretion).

¶14 Weikel next argues that the transaction qualifies for consumer 

protection under WIS. ADMIN. CODE § ATCP 127.01(22) (2020) because Wind 

Point called her and/or the transaction was initiated during a meeting at her home. 

We disagree. The language of § ATCP 127.01(22) excludes from the definition of 

“solicitation” “[a] telephone, mail, or electronic communication initiated by the 

consumer.” Sec. ATCP 127.01(22)(b). The circuit court found that Weikel 

initiated the communication regarding services when she called Servpro. 

Sec. ATCP 127.01(22) does not apply.

 

4

 A consumer approval transaction must meet two criteria: WIS. STAT. § 423.201(1)(a)

(addressing how such a transaction is initiated) and § 423.201(1)(b) (transaction involves cash or 

credit). Because the Wind Point transaction did not satisfy § 423.201(1)(a), we need not consider 

Weikel’s arguments relating to § 423.201(1)(b). 
No. 2018AP2258

6

¶15 Weikel’s reliance on Reusch v. Roob, 2000 WI App 76, 234 Wis. 2d 

270, 610 N.W.2d 168, is misplaced. In that case, the court concluded that the 

consumers’ relationship with the vendor was neither a consumer approval 

transaction under WIS. STAT. ch. 423 nor a solicitation under WIS. ADMIN. CODE 

§ ATCP 127.01. Reusch, 234 Wis. 2d 270, ¶2. Reusch is neither useful nor

persuasive.

¶16 The facts alleged in the counterclaim cannot under any conditions 

allow recovery to Weikel, as they cannot establish that the Wind Point transaction 

was subject to either the WIS. STAT. § 423.202(1) right to cancel or WIS. ADMIN.

CODE § ATCP 127.01(22). The circuit court did not err in dismissing her 

counterclaim or denying reconsideration.5

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.

 

5

 Other than the arguments addressed in this opinion, Weikel does not challenge any 

other aspect of the judgment and order entered against her.