COURT OF APPEALS

DECISION

DATED AND FILED

February 1, 2023

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. 2022AP925 Cir. Ct. No. 2021SC3016

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

M.R. COMMERCE BUILDING, LLC,

 PLAINTIFF-RESPONDENT,

 V.

TLM DEVELOPMENT LLC,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Racine County: 

JON E. FREDRICKSON, Judge. Affirmed and cause remanded. 

¶1 NEUBAUER, J.1 TLM Development LLC appeals from an order 

evicting it from a commercial building in Mount Pleasant, Wisconsin. TLM 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP925

2

entered into leases for space in the building with M.R. Commerce Building, LLC 

in early 2021. TLM also signed an offer to purchase the building, but the parties’ 

efforts to close the sale eventually broke down. M.R. Commerce subsequently 

commenced this action seeking to evict TLM for nonpayment of rent and collect 

damages. TLM raised several defenses, including that the parties had orally 

modified the leases to excuse its rent obligation while the sale was pending and 

that the eviction was unlawfully retaliatory. Following a one-day bench trial, the 

trial court rejected TLM’s defenses and entered writs of restitution to evict TLM. 

This court affirms and remands for further proceedings with respect to M.R. 

Commerce’s claimed damages.

BACKGROUND

I. The Leases and Offer to Purchase

¶2 The following background is taken from the testimony and exhibits 

received at trial. TLM, owned by Tammy Lynn Myers, and M.R. Commerce, 

owned by Medhat A. Rizk, entered into several agreements related to a 

commercial building owned by M.R. Commerce.2 First, the parties signed three 

leases under which TLM was to rent various suites in the building. Two of the 

leases stated that they were executed on January 21, 2021, and the five-year lease 

term of each would begin on February 1, 2021. The third lease, which also 

provided for a five-year term, stated that it was executed on February 24, 2021, 

and would begin on March 1, 2021. 

 

2

 Myers and Rizk were the only witnesses to testify at trial.
No. 2022AP925

3

¶3 The parties made handwritten additions to certain provisions in the 

leases. Underneath Section 3 in one of the leases beginning February 1, which 

specified a monthly rent of $4,600, the parties added the following handwritten 

text: “$2,500/mo for 1st 90 days.” A similar handwritten addition appears 

underneath Section 3 of the other lease beginning February 1, which specifies a 

monthly rent of $2,016: “$1,000/mo for 1st 90 days.” The lease beginning

March 1, which specifies a monthly rent of $1,900, contained the following 

handwritten text below the rent provision: “accept as Paid for 90 days.” Along 

with these handwritten terms, the parties added handwritten language to each lease 

waiving the payment of a security deposit for ninety days. 

¶4 The parties also signed an offer to purchase, dated January 23, 2021, 

under which TLM would buy the building subject to several contingencies, 

including TLM obtaining financing for the purchase within sixty days. Per the 

terms of the offer, closing was to occur within forty-five days “after satisfaction or 

waiver of the last outstanding contingency.” 

¶5 Myers and Rizk provided inconsistent accounts regarding how these 

agreements came about. Myers testified that she was in need of space for her 

business and initially discussed buying the building with Rizk. After agreeing on 

a price, Myers and Rizk drew up the offer to purchase, Rizk prepared the leases, 

and the two signed all four documents at the same time. Regarding the need for 

the leases, Myers explained that Rizk wanted to review the offer to purchase and 

“then at that time he told me he wanted me to sign leases. I said I don’t need to 

sign leases; I’m buying the building. He said well I want leases signed. And he 

said it doesn’t matter, you’re buying the building anyway. And I said okay.” 

Myers testified that she and Rizk signed all of the documents on January 23, 2021, 

the same day Myers wrote two checks, one for the earnest money for the potential 
No. 2022AP925

4

sale of the building and the second for $10,500.00, which she described as part of 

“our agreement that I would give him $10,500 and that would cover [rent] through 

closing.” 

¶6 Rizk, in contrast, testified that the “selling [of] the office building 

was separate from the leases.” According to him, Myers signed the leases on 

January 21, returned with the offer to purchase two days later, and their 

discussions concerning the leases and the sale were not related. 

II. Additional Documents Concerning the Sale 

¶7 In the months that followed, the parties signed additional documents 

related to the proposed sale. On February 17, 2021, Rizk signed a document in 

which he agreed to provide partial financing for the transaction. According to 

Rizk, this document came about after a small business loan Myers had pursued fell 

through and a second potential source of financing demanded that she put up 

twenty-five percent of the purchase price. 

¶8 On April 26, 2021, Myers and Rizk signed an amendment to the 

offer which extended the closing date to June 14, 2021. Rizk testified that he and 

Myers discussed TLM’s rent in May and that Myers questioned why she needed to 

pay rent given that she was in the process of purchasing the building. Rizk 

testified that he told her that paying rent “has nothing to do with buying the 

building. I have to pay taxes, I have to pay insurance, I have to pay maintenance. 

There’s a lot of expenses for the building.” He testified that he continued to 

demand payment of rent over the summer, but not in writing. 

¶9 Myers denied that Rizk made any demands for rent and testified that 

between April 26 and June 14, her discussions with him about rent “were that our 
No. 2022AP925

5

original agreement would stand. The rent I already paid would be enough.” She 

explained that “financing [and] everything was in place” for the purchase but they 

extended the closing date because “we were waiting on the appraisal.” 

¶10 On June 3, 2021, Rizk signed a second seller financing document on 

behalf of M.R. Commerce in which he agreed to hold a second mortgage on the 

property, guaranteed by Myers, in the amount of $387,500 (twenty-five percent of 

the purchase price). By its terms, this agreement “supersede[d] any previous 

agreement.” Though he claimed that TLM was behind on its rent when he signed 

the document, Rizk signed it hoping it would enable Myers to secure financing to 

close the sale. 

¶11 Three weeks later, on June 24, Myers and Rizk signed a second 

amendment to the offer to purchase, which further extended the closing date to 

July 2. Myers testified that Rizk made no demands for payment of rent between 

the prior extended closing date, June 14, and the new closing date, July 2. 

III. Unsuccessful Efforts to Close the Sale

¶12 The parties did not close the sale by July 2 and offered different 

explanations at trial. Rizk testified that Myers asked him to agree to a third 

extension of the closing date, but he refused because she had not been able to 

secure financing. Myers, in contrast, testified that Rizk refused to sign the 

extension, but “said he would get it to me later,” and then never did despite several 

attempts on her part to obtain it. 

¶13 Notwithstanding his refusal to sign another extension, Rizk testified 

that Myers called him on July 6 and informed him that the closing would occur the 

next day and that she had obtained financing at a “very, very high [interest] rate” 
No. 2022AP925

6

that Rizk did not believe she would be able to repay. By that time, he had decided 

that he would not provide financing to facilitate the sale. 

¶14 Myers disagreed with much of Rizk’s account. She testified that she 

obtained a letter conditionally confirming financing for the purchase on April 2, 

which she gave to Rizk that same day. The letter identified a loan amount of 

$1,085,000.00 (about seventy percent of the purchase price less the earnest 

money) and an interest rate of 8.99%.3 She testified that Rizk was happy to 

receive it and expressed an interest in closing “soon.” But she also acknowledged 

that Rizk told her “he was nervous about whether [she] could make the payments 

or not” because of the interest rate and that he advised her to “seek other 

financing.” 

¶15 According to Myers, the closing did not occur in June because Rizk 

did not provide necessary documents to the title company. In support, Myers 

introduced into evidence an email from the title company handling the closing 

dated June 22, 2021, requesting documents from M.R. Commerce. Myers also 

testified that she learned that Rizk “wasn’t responding to his emails and his phone 

calls” during this time. She acknowledged that Rizk “got his last piece of 

documentation into the closing company on July 1st,” but because that did not 

give the title company enough time to close on July 2, the closing was moved to 

July 7. Myers went to the title company’s office on July 7 with the funds 

necessary to close but Rizk did not show up. In the following weeks, at Rizk’s 

suggestion, Myers sought other sources of secondary financing but was unable to 

 

3

 This appears to be the “very, very high rate” Rizk referred to in his testimony. 
No. 2022AP925

7

secure it. Myers testified that Rizk “told [her] that it was his fault that it didn’t 

close. And that he had no intention of charging me rent.” 

¶16 In a letter dated October 8, 2021, Rizk informed TLM that it had 

until the end of that month “to bring the financing to close.” The letter also 

itemized the outstanding rent owed under each of the three leases, which totaled 

$54,800.00, which Rizk expected to be paid immediately. The parties did not 

close the sale, which is currently the subject of another lawsuit pending in the 

circuit court. Myers v. Rizk, Racine County Circuit Court Case No. 2022CV246.

¶17 Rizk later prepared and delivered to Myers a notice to vacate the 

premises, which he signed and dated October 16, 2021. When TLM did not 

vacate or pay the allegedly overdue rent, M.R. Commerce commenced this 

eviction action. 

IV. The Trial Court’s Decision

¶18 Following trial, the trial court issued a written decision in favor of 

M.R. Commerce. After discussing the rental terms in the leases, the court found 

that TLM had not paid rent since the first ninety days. The court rejected TLM’s 

contention that the parties orally modified the leases to relieve TLM of the 

obligation to pay rent. On this point, the court found Rizk’s testimony credible 

and Myers’ testimony not credible. 

¶19 The trial court also rejected TLM’s retaliatory eviction defense. 

Myers testified at trial that Rizk “began getting a little more and more overly 

friendly early in our relationship” and, in late June or early July, told Myers he 

would evict TLM if she did not have sex with him. Rizk denied making any 

sexual advances towards Myers and testified that she made advances towards him 
No. 2022AP925

8

in order to get him to sign the third closing extension. The court rejected TLM’s 

defense for two reasons. First, it found Myers’ assertion that Rizk had asked her 

for sex not credible. Second, the court stated that Wisconsin does not recognize a 

retaliatory eviction defense in the commercial setting.4 As a result, the court 

entered writs of restitution for the return of the leased premises to M.R. Commerce 

and stayed proceedings with respect to M.R. Commerce’s damages because they 

“potentially intertwine with the damages” in the parties’ other lawsuit.5 TLM 

appeals.

DISCUSSION

¶20 TLM contends that the trial court erred in finding that Myers and 

Rizk did not orally modify the leases to relieve TLM of its obligation to pay rent 

(other than the $10,500.00 paid for the first ninety days) through closing. TLM 

argues that the court’s finding rests on its erroneous determination that Rizk’s 

testimony on this point was more credible than that of Myers. In support, TLM 

marshals a handful of instances in which Rizk’s testimony purportedly conflicted 

with documentary evidence or Myers’ testimony and describes him as “an 

unreliable, and therefore incredible, witness.” 

¶21 These snippets fall far short of the showing necessary to reverse the 

trial court’s credibility finding. “When the trial court acts as the finder of fact, it is 

the ultimate arbiter of the credibility of the witnesses and of the weight to be given 

 

4 The trial court also rejected TLM’s argument that the notice to vacate was defective 

under WIS. STAT. § 704.17. TLM does not raise this as a ground for reversal on appeal.

5

 Proceedings in the other lawsuit between the parties pertaining to the purchase of the 

building are not at issue in this appeal.
No. 2022AP925

9

to each witness’s testimony.” Lessor v. Wangelin, 221 Wis. 2d 659, 665, 586 

N.W.2d 1 (Ct. App. 1998). This rule rests on the trial court’s “superior 

opportunity ... to observe the demeanor of [the] witnesses and to gauge the 

persuasiveness of their testimony.” Johnson v. Merta, 95 Wis. 2d 141, 152, 289 

N.W.2d 813 (1980) (citation omitted). In contrast, this court can only review “the 

cold, hard type of a printed record,” Ianni v. Grain Dealers Mut. Ins. Co., 42 

Wis. 2d 354, 361, 166 N.W.2d 148 (1969), which seldom furnishes a sufficient 

basis to evaluate credibility:

[An appellate court’s] consideration is limited to the written 

word and rarely can credibility be judged by words alone.

More often, credibility, or lack thereof, is revealed by a 

close examination of the witness’s demeanor. The cold 

record does not reflect the witness’s demeanor and all its 

facets; the circuit court has the advantage of observing 

them.

State v. McCallum, 208 Wis. 2d 463, 479-80, 561 N.W.2d 707 (1997). 

Accordingly, this court may not reweigh the credibility of the witnesses and must 

accept the trial court’s determination unless it is “‘inherently or patently 

incredible,’ or ‘in conflict with the uniform course of nature or with fully 

established or conceded facts.’” Nicholas C.L. v. Julie R.L., 2006 WI App 119, 

¶23, 293 Wis. 2d 819, 719 N.W.2d 508 (quoting Chapman v. State, 69 Wis. 2d 

581, 583, 230 N.W.2d 824 (1975)).

¶22 TLM does not acknowledge this standard, and the purported 

inconsistencies in Rizk’s testimony it highlights are not enough to meet it. The 

evidence that pertained most directly to the existence of an oral modification was 

the conflicting testimony of Myers and Rizk. The trial court could have found, 

based on the testimony TLM cites in attempting to discredit Rizk, that Myers’ 

testimony on this point was more credible. But that is not enough to carry the day 
No. 2022AP925

10

for TLM. The existence of an oral agreement was not a “fully established or 

conceded fact[],” and the trial court’s determination that Rizk was more credible is 

not “inherently or patently incredible.” See Chapman, 69 Wis. 2d at 583. To the 

contrary, it is entirely reasonable to believe that Rizk did not agree to indefinitely 

relieve TLM of its substantial monthly rental obligations as the closing process 

dragged on for months. The conflicting accounts given by Myers and Rizk require 

this court to defer to the trial court’s credibility determination and leave 

undisturbed that court’s finding that the parties did not agree to modify the leases. 

¶23 TLM’s other argument concerns the issue of retaliatory eviction. 

Our supreme court recognized retaliation as a defense to eviction in Dickhut v. 

Norton, 45 Wis. 2d 389, 173 N.W.2d 297 (1970). There, it held that a tenant 

could raise as a defense in an eviction proceeding that the landlord sought to evict 

the tenant in retaliation for the tenant having reported the landlord for violating the 

housing code. Id. at 399. Six years later, the court emphasized the limited scope 

of the defense it recognized in Dickhut: “Although retaliation is recognized as a 

defense to eviction in this state, the judicial adoption of the rule has been limited 

by policy to evictions from residential housing solely because of complaints of 

housing code violations.” Rossow Oil Co. v. Heiman, 72 Wis. 2d 696, 707-08, 

242 N.W.2d 176 (1976).

¶24 Several years later, the Wisconsin legislature enacted WIS. STAT.

§ 704.45, which prohibits landlords from evicting residential tenants for exercising 

certain rights. See 1981 Wis. Laws, ch. 286, § 7. Though the statute enlarged the 

grounds upon which a retaliatory eviction defense can be asserted, it expressly 

applies only to “a landlord in a residential tenancy.” Sec. 704.45(1). As TLM 

acknowledges, neither the legislature nor any published Wisconsin decision since 

the statute’s enactment has extended the defense to commercial tenancies. 
No. 2022AP925

11

¶25 TLM grounds its argument for expansion of the defense in a 

California case, Custom Parking, Inc. v. Superior Court, 187 Cal. Rptr. 674 (Cal. 

Ct. App. 1982), in which the court held that a commercial tenant could raise a 

retaliatory eviction defense based on the allegation that a landlord sought to evict a 

commercial tenant whose employees refused to give perjured testimony in a 

lawsuit involving the landlord and other tenants. This court cannot ignore the 

clear and express limitation on the defense recognized by the Wisconsin 

legislature and our supreme court. Absent an argument that is grounded in 

Wisconsin law, this court declines TLM’s invitation to extend the defense to 

commercial tenants.6 

¶26 For these reasons, this court affirms the trial court’s order and 

remands this case for further proceedings with respect to M.R. Commerce’s 

claimed damages.

By the Court.—Order affirmed and cause remanded. 

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

RULE 809.23(1)(b)4.

 

6

 This decision makes it unnecessary for this court to address TLM’s challenge to the 

trial court’s finding that Myers’ testimony concerning the alleged retaliatory motive was not 

credible. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one 

issue is dispositive of an appeal, this court need not reach other issues).