COURT OF APPEALS

DECISION

DATED AND FILED

September 28, 2023

Samuel A. Christensen

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. 2022AP2120 Cir. Ct. No. 2022SC2323

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

CARL WILSON AND GINA LEWIS-WILSON,

 PLAINTIFFS-APPELLANTS,

 V.

LEONARD REED AND LENIDA PROPERTIES INC.,

 DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Dane County: 

FRANK D. REMINGTON, Judge. Affirmed. 

¶1 TAYLOR, J.1 This appeal arises from a residential tenancy dispute. 

Tenants Carl Wilson and Gina Lewis-Wilson (collectively, the “Wilsons”) moved 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP2120

2

out of an apartment they leased for over four years from Lenida Properties, Inc.

and Leonard Reed.

2

 The issues raised in this appeal are the timely return of the 

Wilsons’ security deposit and whether they owed an additional month’s rent. 

¶2 The circuit court ruled in favor of Reed on both issues and entered 

judgment against the Wilsons in the amount of $784.28.3 The Wilsons appeal. 

For the reasons explained below, I affirm.

BACKGROUND

¶3 In 2017, the Wilsons entered into a one-year written lease with 

Lenida Properties for the rental of an apartment in Fitchburg (“the apartment”).

The Wilsons paid $875 per month in rent and provided $875 as a security deposit.4

The Wilsons continued to reside in the apartment after their one-year written lease

expired, after which, the parties agree, their tenancy became an unwritten, monthto-month, periodic tenancy5 under the same rental terms. The Wilsons continued 

to pay $875 per month in rent.

 

2

 The record appears to show that Lenida Properties, Inc., is the landlord and Reed is that 

entity’s owner. The parties have proceeded throughout this case, however, as though Reed is the 

landlord, with claims made against him in his individual capacity. Following the parties’ lead, I 

refer to Reed as the landlord, without making any determination as to whether Reed was properly 

made a party in this case. 

3

 This amount includes one month of back rent, as well as various damages, including 

those based on the condition of the apartment when the Wilsons vacated. Because the Wilsons do 

not appeal the circuit court’s damages determination, I do not address that issue.

4

 Conflicting testimony was introduced as to whether the $875 monthly rent payment 

reflected an “early pay discount”; however, it is undisputed that the Wilsons regularly paid this 

monthly amount.

5

 WISCONSIN STAT. § 704.01(2) states “‘[p]eriodic tenant’ means a tenant who holds 

possession without a valid lease and pays rent on a periodic basis. It includes a tenant from dayto-day, week-to-week, month-to-month, year-to-year or other recurring interval of time, the 

period being determined by the intent of the parties under the circumstances, with the interval 

(continued)
No. 2022AP2120

3

¶4 In January 2022, Reed distributed a letter to all of his tenants (the 

“rent letter”) informing them that rent would be raised by $50 per month, 

“beginning on April 1st 2022.” The rent letter asked tenants to indicate, by 

checking one of two boxes, whether the tenant accepted the rent increase and 

needed to review and sign the new lease, or whether the tenant did “not accept the 

new rental amount and will be sending proper notification.”

¶5 Though Gina Lewis-Wilson testified that the Wilsons never received 

the rent letter and therefore never completed it, at some point they became aware 

of the rent increase, which they determined they did not want to pay due to 

unresolved maintenance issues in their apartment. The Wilsons testified that on 

March 30, 2022, they met with Reed and unequivocally told Reed that they 

intended to move out. Reed denied that the Wilsons communicated this intent. At 

trial, the Wilsons played an audio recording that they represented was a portion of 

this conversation, which was only partially transcribed in the record because of 

poor audio quality.

6 The conversation concerns whether the Wilsons would sign a 

new lease. Reed states that he would return another day to review the lease with 

them and that the “ball’s in your court” as to their decision about staying in the 

apartment.

 

between rent-paying dates normally evidencing that intent.” Because the Wilsons’ periodic 

tenancy was on a month-to-month basis, I refer to it as a month-to-month tenancy.

6

 This recording is not part of the appellate record. Although the Wilsons filed a motion 

asking the circuit court to supplement the appellate record with a flash drive containing the audio 

recording and the court granted the Wilsons’ motion, the flash drive the Wilsons provided to 

supplement the appellate record contained an audio recording of a different conversation. I will 

therefore rely on the trial transcript’s reproduction of this conversation.
No. 2022AP2120

4

¶6 On April 30, 2022, one month after this conversation, the Wilsons 

removed all of their belongings and vacated the apartment. Reed testified that he 

learned of their departure that day from another tenant. The Wilsons did not pay 

the May 2022 rent.

¶7 Reed mailed the Wilsons’ security deposit, less deductions for 

repairs and cleaning, on May 17, 2022. The post office returned the mailing to 

Reed due to an insufficient address, namely that it was missing the Wilsons’

apartment number. On May 31, 2022, Reed resent the security deposit to the 

Wilsons’ complete address.

¶8 On June 7, 2022, the Wilsons filed this action, seeking double 

damages for the late return of their “full security deposit” pursuant to WIS. ADMIN.

CODE § ATCP 134.06 and WIS. STAT. § 100.20(5).7 A hearing was set before a

court commissioner. Because of alleged computer difficulties, Reed failed to 

appear at the hearing, which was held via videoconference, and the Wilsons 

obtained a default judgment. Reed moved to reopen the judgment, and this motion 

was granted. Reed requested and received a de novo hearing before the circuit 

court, where Reed pursued a counterclaim alleging that the Wilsons owed back 

rent for May 2022. The court agreed that the Wilsons’ tenancy continued through 

May 31, 2022, determining that because the Wilsons had not given legally 

sufficient notice to terminate their tenancy as of May 1, Reed was entitled to 

 

7

 See Armour v. Klecker, 169 Wis. 2d 692, 698, 486 N.W.2d 563 (Ct. App. 1992) (“[I]f 

a court determines that a landlord has violated [WIS. ADMIN. CODE ATCP § 134.06], it is required 

under the plain unambiguous language of [WIS. STAT. §] 100.20(5) ... to award double damages 

and attorney fees.”).
No. 2022AP2120

5

collect back rent for the month of May 2022. The court also rejected the Wilsons’ 

argument that Reed failed to timely return their security deposit.

¶9 I reference additional facts as needed below.

DISCUSSION

¶10 The Wilsons argue that the circuit court erred by determining:

(1) that their tenancy terminated on May 31, 2022, rather than on their move-out 

date of April 30, 2022, and that they therefore owed an additional month’s rent;

and (2) that Reed did not violate WIS. ADMIN. CODE § ATCP 134.06(2)’s 

provisions governing the timely return of a tenant’s security deposit.

¶11 The Wilsons do not specify the standard of review. Their primary 

argument appears to be based on an interpretation of WIS. STAT. § 799.209(1),

8

which governs the procedure in small claims actions applicable in the current case. 

Statutory interpretation is a question of law which I review de novo. State v. 

Gramza, 2020 WI App 81, ¶15, 395 Wis. 2d 215, 952 N.W.2d 836. To the extent 

that the Wilsons challenge the circuit court’s findings of fact, I uphold a court’s 

factual findings unless clearly erroneous, with “due regard” given to the court’s 

determination of witness credibility. WIS. STAT. § 805.17(2); Phelps v. 

Physicians Ins. Co. of Wisconsin, Inc., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 

N.W.2d 615.

 

8

 WISCONSIN STAT. § 799.209(1) provides that “[t]he court or circuit court commissioner 

shall conduct the proceeding informally, allowing each party to present arguments and proofs and 

to examine witnesses to the extent reasonably required for full and true disclosure of the facts.”
No. 2022AP2120

6

I. Tenancy Termination Date

¶12 The Wilsons challenge the circuit court’s determination that their

tenancy terminated on May 31, 2022. They argue that they properly vacated the 

premises when their month-to-month tenancy concluded on April 30, 2022, and

they should not be liable for the May 2022 rent as ordered by the court.

¶13 The parties agree that the Wilsons had a month-to-month tenancy,

and they also agree that the termination notice provisions of WIS. STAT. § 704.19 

apply to that tenancy. Generally, termination of a month-to-month tenancy by 

notice under § 704.19 is effective only at the “end of a rental period,” and with at 

least twenty-eight days’ written notice. Sec. 704.19(2)(b), (3). Section 704.19 sets 

forth other formal notice requirements that must typically be met for either a 

landlord or a tenant to terminate a month-to-month tenancy, including a 

requirement that such notice be in writing.9 There are exceptions, however, to the 

in-writing requirement when “[t]ermination has been effected by a surrender of the 

premises” or when the parties “agreed expressly” to another termination method. 

Sec. 704.19(2)1.-2.

¶14 At trial, the Wilsons testified that on March 30, 2022, they orally 

informed Reed that they were moving out. Reed testified that the Wilsons never 

told him they were vacating the premises, that it was a “surprise” to him, and that 

he never received written notice. The circuit court considered whether the tenancy 

was terminated under the exception in WIS. STAT. § 704.19(2)1., which requires 

that the parties “have agreed expressly upon another method of termination and 

 

9

 See WIS. STAT. § 704.19(4) (requiring notice to be “in writing, formal or informal”).
No. 2022AP2120

7

the parties’ agreement is established by clear and convincing proof.” The court 

considered the parties’ testimony and determined that the Wilsons had not met 

their burden to show an express agreement existed between the parties to terminate 

the tenancy at the end of April. Accordingly, the court determined that the 

Wilsons “didn’t give notice and the first notice of [their] departure would have 

been on the day [they] moved out,” which extended their obligation to pay rent 

through May 31, 2022.

10

A. Interpretation of WIS. STAT. § 799.209(1)

¶15 The Wilsons argue that the circuit court erred in determining that 

their tenancy continued through May 31, 2022, because it failed to consider “all 

evidence in the record on this point” and “to examine witnesses to the extent 

reasonably required for full and true disclosure of the facts” as required by WIS.

STAT. § 799.209(1). Section 799.209(1) provides that the court “shall conduct the 

proceeding informally, allowing each party to present arguments and proofs and to 

examine witnesses to the extent reasonably required for full and true disclosure of 

the facts.” Specifically, the Wilsons argue that the court violated § 799.209(1) by 

failing to consider and conduct an inquiry into the rent letter, which they allege 

constituted a legal termination notice pursuant to WIS. STAT. §704.19(2)(a), (3) 

 

10

 The circuit court’s ruling appears to be based on WIS. STAT. § 704.19(6), which 

provides that if a periodic tenant vacates without proper notice and fails to pay rent, “such 

tenancy is terminated as of the first date on which it would have terminated had the landlord been 

given proper notice on the day the landlord learns of the removal.” Reed testified that he learned 

the Wilsons had moved out on April 30, 2022. The tenancy could not terminate on that date 

because at least 28 days’ notice must be given and termination must occur at the end of a rental 

period. See WIS. STAT. § 704.19(2)(b) and (3). The court presumably found that the Wilsons’ 

tenancy therefore terminated at the end of the next monthly rental period, or on May 31, 2022.
No. 2022AP2120

8

and (4).

11 They contend that because the April 1, 2022 month-to-month 

termination date specified in the rent letter fell at the beginning of the rental period 

rather than at the end, as required by § 704.19(5), the terms of this statute kick in 

to terminate their tenancy as of April 30, 2022, the last day of the rental period and 

the day they vacated.12 In the alternative, the Wilsons contend that the court 

should have considered the rent letter together with the parties’ March 30, 2022 

conversation to find that the parties reached an express agreement terminating the 

tenancy as of April 30, 2022.

¶16 The Wilsons, however, did not present either of these arguments 

regarding the rent letter before the circuit court. “Arguments raised for the first 

time on appeal are generally deemed forfeited.” Tatera v. FMC Corp., 328 Wis. 

2d 320, ¶19 n.16, 786 N.W.2d 810 (2010). The Wilsons attempt to evade the 

forfeiture rule by arguing that the court had an affirmative obligation under WIS.

STAT. § 799.209(1) to “inquire” into the rent letter and develop an argument about 

its legal effect on their behalf.

¶17 The Wilsons cite no authority supporting their argument that WIS.

STAT. § 799.209(1) requires the circuit court to conduct this sort of independent

 

11

 Pursuant to WIS. STAT. § 704.19(2)(a), “a periodic tenancy or a tenancy at will can be 

terminated by either the landlord or the tenant only by giving to the other party written notice 

complying with this section.” Section 704.19(3) provides that “[a]t least 28 days’ notice must be 

given.” Section 704.19(4) proves that [n]otice must be in writing, formal or informal, and 

substantially inform the other party to the landlord-tenant relation of the intent to terminate the 

tenancy and the date of termination.”

12 WISCONSIN STAT. § 704.19(5) states “[i]f a notice provides that a periodic tenancy is 

to terminate on the first day of a succeeding rental period rather than the last day of a rental 

period, and the notice was given in sufficient time to terminate the tenancy at the end of the rental 

period, the notice is valid ... but not effective until the first date which could have been properly 

specified in such notice subsequent to the date specified in the notice.”
No. 2022AP2120

9

factual “inquiry,” and the language of that statute itself contradicts such an 

interpretation. Rather, § 799.209(1) provides that the court shall allow “each 

party” to present arguments and evidence “as reasonably required” under the 

circumstances. It is the parties who develop their own arguments and establish the

factual record in a small claims proceeding, like other civil proceedings.

¶18 Further, the circuit court did consider the rent letter, which was 

admitted as an exhibit at trial, and conducted an inquiry about it. More 

specifically, the court made this inquiry in the context of evaluating and rejecting

an argument by Reed that the Wilsons owed the increased rent of $925 for April 

and May. The court reasoned as follows: 

But you gave them the choice, if they pay the rent and then 

give a 28-day notice, then they don’t have to pay [the 

increased rate of rent]. I’m just going off of the language, 

even though it says this form is not a lease and has no legal 

binding [effect], only when you review and sign the new 

lease will the new rate go into effect on the date specified. 

Well, it can’t go into the rate on the date specified because 

he never presented them with a new lease.

¶19 The circuit court determined that the rent letter did not result in the 

Wilsons being responsible for the increase in rent for April and May 2022. Thus, 

the court did, in fact, make an “inquiry” into the rent letter. Nothing in WIS. STAT.

§ 799.209(1) creates an obligation for circuit courts to consider and develop any

potential legal arguments not presented by the parties.13 Such a requirement could 

grind circuit courts to a halt in small claims proceedings and remove them from 

the arena of independence into the role of an advocate. See State v. Garner, 54 

 

13

 Although the Wilsons proceeded pro se at the de novo hearing, “pro se litigants are 

bound to the same procedural law as attorneys.” Townsend v. Massey, 2011 WI App 160, ¶27 & 

n.5, 338 Wis. 2d 114, 808 N.W.2d 155. The Wilsons have not explained why this general rule 

should not apply here.
No. 2022AP2120

10

Wis. 2d 100, 104, 194 N.W.2d 649 (1972) (a judge “should not take an active role 

in trying the case” or act as an “advocate” for any party).

¶20 Thus, the circuit court had no legal obligation under WIS. STAT.

§ 799.209(1) to conduct an independent “inquiry” into all potential legal effects of 

the rent letter absent an argument from the parties. Because the Wilsons’ 

arguments about the legal effect of the rent letter appear to depend on this faulty 

premise, I accordingly reject those arguments.

¶21 Additionally, I conclude that the Wilsons forfeited their arguments 

about the legal effects of the rent letter by failing to raise them in the circuit court.

B. Express Agreement Under WIS. STAT. § 704.19(2)(a)1.

¶22 In the alternative, the Wilsons argue that regardless of whether the 

rent letter was itself a legally effective termination notice, the circuit court should 

nevertheless have realized that this letter “interacted with the March 30 ‘ball’s in 

your court’ meeting” to show that the parties reached an “express agreement” to 

terminate the tenancy under WIS. STAT. § 704.19(2)(a)1. The Wilsons argue that 

the court’s finding that no such “express agreement” was reached was erroneous.

Although I reject the Wilsons’ argument about the legal impact of the rent letter 

for the reasons stated above, I nevertheless consider the merits of the Wilsons’ 

argument that the parties reached an express agreement to terminate the tenancy.

¶23 A party seeking to show that a tenancy was orally terminated has the 

burden to come forward with “clear and convincing evidence” that the parties 

“have agreed expressly upon another method of termination.” WIS. STAT.
No. 2022AP2120

11

§ 704.19(2)(a)1. I assume without deciding that whether the parties entered into 

an agreement under § 704.19(2)(a)1. is a question of fact.14 A circuit court’s 

factual findings will not be set aside unless “clearly erroneous.” WIS. STAT.

§ 805.17(2). “[A] finding of fact is clearly erroneous when ‘it is against the great 

weight and clear preponderance of the evidence.’” Phelps, 319 Wis. 2d 1, ¶39

(quoted source omitted).

¶24 The Wilsons fail to explain how the evidence of the purported oral 

agreement was “clear and convincing,” and how the circuit court’s finding was

“clearly erroneous” or contrary to the “great weight and clear preponderance of the 

evidence.” I therefore reject the Wilsons’ arguments because they are 

insufficiently developed and neglect to cite any relevant legal authority. See State 

v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (the court of 

appeals need not consider undeveloped arguments or arguments unsupported by 

legal authority).

¶23 But the Wilsons’ argument also fails on its own terms. Their overall 

point appears to be that the rent letter, taken in conjunction with evidence 

presented about the parties’ “ball’s in your court” conversation on March 30,

2022, constitutes an express termination agreement satisfying WIS. STAT.

 

14 Reed argues that this determination should be evaluated as a question of fact, citing 

case law for the proposition that whether the parties intend to enter into an oral contract is a 

question of fact. National Steel Serv. Ctr., Inc. v. Wollin Silos & Equip., Inc., 92 Wis. 2d 133, 

138, 284 N.W.2d 606 (1979). The Wilsons make no reply to this argument by Reed, and I deem 

their failure to respond to be a concession. See United Co-op. v. Frontier FS Co-op., 2007 WI 

App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (lack of a reply to respondent’s arguments may 

be taken as a concession).
No. 2022AP2120

12

§ 704.19(2)(a)1.15 In support of this argument, the Wilsons testified that they told 

Reed in the March 30, 2022 conversation that they would be moving out at the end 

of the following month (although Reed disputes this and testified that their leaving

was a “surprise”). The Wilsons argue that Reed’s statement during this 

conversation—that the “ball’s in your court” as to termination—is evidence of 

Reed’s agreement to termination on April 30, 2022, without written notice.

¶24 The Wilsons fail, however, to adequately explain how this statement 

is evidence of Reed’s express agreement to anything—it appears merely to be an 

acknowledgement that the Wilsons have the right to terminate the tenancy and that 

it was their decision. Although the Wilsons contend that the rent letter supports 

their argument, the rent letter itself actually asks tenants who do not accept the 

rent increase to “send[] proper notification,” which appears to be a reference to a 

legally sufficient written termination notice. Thus, the rent letter appears to 

support the conclusion that Reed would not have accepted oral notice. And in 

further support of this point, Reed testified at the hearing that he would not have 

permitted the Wilsons to orally terminate their tenancy.

¶25 The circuit court had trouble hearing the audio recording of a portion 

of the parties’ March 30, 2022 conversation introduced and played at the hearing, 

but it found that Reed’s “ball’s in your court” comment, coupled with the Wilsons’

oral notice of their intent to move, did not constitute clear and convincing proof of 

an express agreement between the parties or another, nonwritten method of 

 

15

 The Wilsons also argue that Reed’s failure to commence an eviction action against 

them at the beginning of March 2022 was evidence that the parties later reached an express 

agreement on another method of termination. This argument is underdeveloped, unpersuasive,

and was not presented to the circuit court. For these reasons, I reject it.
No. 2022AP2120

13

termination in satisfaction of WIS. STAT. § 704.19(2)(a)1. The Wilsons have not 

shown that this finding is clearly erroneous.

¶26 For the above reasons, I reject the Wilsons’ arguments and affirm 

the circuit court’s ruling that the Wilsons’ tenancy extended until May 31, 2022,

and Reed was therefore entitled to back rent for May.

II. Security Deposit

¶27 The Wilsons also challenge the circuit court’s determination that 

Reed failed to timely return their security deposit of $875. Their arguments on 

this issue fail because they rely on the premise (which I have already rejected) that 

their tenancy terminated on April 30, 2022.

¶28 WISCONSIN ADMIN. CODE § ATCP 134.06(2) governs the amount of 

time a residential landlord has to return a tenant’s security deposit after 

termination of the tenancy. Under that provision, a landlord has twenty-one days 

to “deliver or mail” a tenant’s security deposit, and this period begins to run on 

different dates depending on the circumstances. Sec. ATCP 134.06(2). If the 

tenant “vacates the premises or is evicted before termination date of the rental 

agreement,” the twenty-one-day period begins to run on “the date on which the 

tenant’s rental agreement terminates,” unless the landlord re-rents the premises 

before that date. Sec. ATCP 134.06(2)(b).

¶29 After the Wilsons moved out on April 30, 2022, Reed and Carl 

Wilson had a phone conversation a few days later in which Carl provided the 

Wilsons’ new address. Carl testified that he provided the apartment number, while 

Reed testified that he did not.
No. 2022AP2120

14

¶30 On May 17, 2022, Reed mailed the Wilsons’ security deposit (minus 

certain deductions for cleaning and repairs) to the Wilsons’ new address, absent an 

apartment number. Later that same day, Reed received a text from Carl providing

the Wilsons’ new address, including the apartment number. On May 31, after 

receiving the security deposit back as undeliverable for insufficient address, Reed 

resent the security deposit, this time including the apartment number.

¶31 Before the circuit court, the proceedings pertaining to the alleged 

WIS. ADMIN. CODE § ATCP 134.06(2) violation focused on credibility disputes 

regarding whether Carl did in fact give Reed the Wilsons’ apartment number over 

the phone prior to May 17 as he alleged. The court ultimately determined that 

Reed was more credible on this point.

¶32 The Wilsons make numerous arguments to the effect that the circuit 

court erroneously “relieved [Reed] of the requirement to comply” with WIS.

ADMIN. CODE § ATCP 134.06. All of these arguments, however, depend on the 

premise that the Wilsons’ tenancy terminated on April 30, 2022, and that Reed 

was therefore required under § ATCP 134.06(2)(a) to deliver or mail the Wilsons 

their security deposit by May 21, 2022. For the reasons explained above, I reject

the Wilsons’ arguments on that issue and determine that the court did not err in 

ruling that the Wilsons’ tenancy terminated a month later, on May 31, 2022.

Accordingly, Reed had until twenty-one days after that date (until June 21) to 

deliver or mail the security deposit. See § ATCP 134.06(2)(b). There is no 

dispute that Reed properly mailed the security deposit to the Wilsons on May 31, 

2022, well before that deadline.
No. 2022AP2120

15

¶33 Because I reject the Wilsons’ arguments on the tenancy termination 

date, I therefore reject the Wilsons’ arguments that Reed violated WIS. ADMIN.

CODE § ATCP 134.06 and affirm the circuit court’s determination.

CONCLUSION

¶34 For the reasons explained above, I reject the Wilsons’ arguments and 

affirm the circuit court’s judgment of $784.28 in favor of Reed and Lenida 

Properties.

By the Court.—Judgment affirmed.

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

RULE 809.23(1)(b)5.