COURT OF APPEALS

DECISION

DATED AND FILED

November 22, 2022

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. 2021AP763 Cir. Ct. No. 2020SC2142

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

HOME MARKET INVESTMENTS, LLC,

 PLAINTIFF-RESPONDENT,

 V.

CAROL J. BARTH,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Outagamie

County: VINCENT R. BISKUPIC, Judge. Affirmed in part; reversed in part, and 

cause remanded with directions.

¶1 STARK, P.J.1 Carol Barth appeals a small claims judgment for

$791.33 entered against her based upon her liability to Home Market Investments, 

 

1

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

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP763

2

LLC, (HMI) under a Co-Signor Rental Guaranty Agreement (the Guaranty). 

Barth guaranteed payment for all obligations incurred by her daughter, 

Tanya Rachfal, under a residential lease with HMI (the Lease). The amount of the

Barth judgment was calculated based upon the amount of a judgment previously 

entered against Rachfal. Barth argues that the judgment against her improperly 

includes costs and expenses incurred after the Lease terminated and items for 

which Rachfal was not obligated to pay under the Lease. 

¶2 We conclude that the Guaranty applies to costs and expenses that 

Rachfal incurred during an extension of the Lease, and we affirm the circuit 

court’s decision on that issue. We further conclude, however, that the court erred 

by including in the Barth judgment the statutory filing fee and court costs from the 

Rachfal judgment. Rachfal was not obligated to pay those amounts under the 

terms of the Lease; therefore, Barth is not obligated to pay them. We therefore, 

reverse and remand for the court to subtract the costs and fees included in the 

Rachfal judgment from the judgment in this case.

BACKGROUND 

¶3 On October 8, 2016, Rachfal signed the Lease with HMI for a 

six-month term from “October 8, 2016 [to] March 31, 2017.” The Lease provided 

that it was “for the stated term and [would] expire without further notice.” The 

Lease also provided that “[i]f tenancy is to continue beyond the stated term, parties 

should make arrangements in writing in advance of [the L]ease expiration.” The 

Lease further stated that the “[t]enant agrees to pay all utility costs,” which 

included charges for electricity, heat, gas, air conditioning, hot water, other water,

and sewer. 
No. 2021AP763

3

¶4 In addition to the Lease, Rachfal signed an addendum titled “Rules 

and Regulations,” by which she agreed to keep the premises clean. Rachfal also 

signed another addendum titled “Nonstandard Rental Provisions,” pursuant to

which she agreed to permit HMI to deduct from her security deposit “[a]ll charges 

for cleaning the premises beyond normal wear and tear.” 

¶5 Barth lived next door to the unit Rachfal rented from HMI, and on 

the same day that Rachfal signed the Lease, Barth signed the Guaranty. The 

Guaranty stated: “You as Guarantor signing this Rental Agreement Guaranty, 

guarantee all obligations of the resident under the Rental Agreement ... which 

commences on 10/8/16 and ends on 3/31/17.” The Guaranty further stated that 

“[a]ll remedies against the resident apply to the Guarantor as well” and that the

“Guarantor understands that, in the event [the] resident extends the current 

[L]ease, this Guaranty will apply to the [L]ease extension.” In bold letters, the 

Guaranty also stated that “[a]ll residents and Guarantors are jointly and severally 

liable for the financial obligations of the Rental Agreement.” 

¶6 After the original term of the Lease expired in March 2017, Rachfal 

remained in possession of the residence. At a bench trial, Amy DeCoster, a 

co-owner of HMI, testified that HMI and Rachfal extended the Lease on a 

month-to-month basis after the original term expired, and that HMI had accepted 

Rachfal’s subsequent rental payments. This arrangement was confirmed by 

evidence introduced at trial of a September 2017 text message exchange, in which

Rachfal confirmed her extended tenancy and asked to again renew the Lease. 

DeCoster, in the same text exchange, notified Rachfal that HMI would not agree 

to again renew the Lease but it would permit Rachfal to stay on the premises for “a 

few more days or a week.” Rachfal vacated the unit in October 2017. DeCoster 

testified that after Rachfal vacated the unit, HMI discovered an outstanding utility 
No. 2021AP763

4

charge. In addition, DeCoster testified that she and her husband spent six hours 

cleaning Rachfal’s unit after Rachfal left. 

¶7 HMI initially sued Rachfal in small claims court, and the circuit 

court awarded HMI a judgment in the amount of $569.83. The judgment included 

$263.33 owed by Rachfal for unpaid utilities, $210 in cleaning costs, a $94.50

statutory filing fee, and a $2.00 service fee. 

¶8 Rachfal failed to pay this judgment, and HMI then brought a small 

claims action against Barth, seeking $1,498.83 due to Barth’s guarantee of “the 

obligation of Tanya C. Rachfal, under a Lease with Plaintiff.” At the bench trial 

held in January 2021, HMI voluntarily dismissed its request for statutory 

attorney’s fees, thereby reducing the amount demanded to $569.83—the amount 

of the judgment previously entered against Rachfal, plus an additional $5.00 in 

fees that HMI incurred for docketing the Rachfal judgment. 

¶9 Barth testified at trial that she signed the Guaranty. Barth further 

testified she was unaware that Rachfal would be staying in the unit longer than six 

months, and that nothing was mentioned to Barth about an extension of the Lease. 

¶10 At the conclusion of the bench trial, the circuit court requested 

additional briefing from the parties. Barth argued that the Guaranty was not 

applicable because Rachfal became a periodic tenant when she stayed past the 

expiration of the Lease. Citing WIS. STAT. § 704.01(2), Barth explained that, by 

definition, a periodic tenant is one who holds possession of a unit without a valid 

lease. Because the utility and cleaning expenses at issue were incurred during the 

periodic tenancy, Barth contended that there was no valid lease for her to 

guarantee; she was therefore not liable for the amounts in question. Barth also 

argued that the court costs and expenses included in the Rachfal judgment were 
No. 2021AP763

5

not incurred under the Lease, and, consequently, she had not guaranteed their 

payment.

¶11 The circuit court later issued a written decision rejecting Barth’s 

arguments and finding the Guaranty enforceable for the period after March 2017. 

The court entered an order for Barth to pay HMI $791.33. This judgment was

comprised of the $569.83 owed on the Rachfal judgment plus $5.00 in docketing 

fees, $100.00 in attorney’s fees, $2.00 in service fees, $94.50 in filing fees, and

$20.00 in other costs. Barth now appeals. 

DISCUSSION

¶12 Barth renews her claims that the circuit court erred by concluding

the Guaranty required her to be liable for expenses incurred by Rachfal after the 

Lease term expired, and for items that the Lease did not require Rachfal to pay. A 

“lease is a written contract and our analysis is controlled entirely by 

well-established canons of contract interpretation.” Tufail v. Midwest Hosp., 

LLC, 2013 WI 62, ¶24, 348 Wis. 2d 631, 833 N.W.2d 586. “A guaranty is a 

contract.” DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. P’ship, 

2004 WI 92, ¶44, 273 Wis. 2d 577, 682 N.W.2d 839. “Interpretation of a contract 

is a question of law which this court reviews de novo.” Deminsky v. Arlington 

Plastics Mach., 2003 WI 15, ¶15, 259 Wis. 2d 587, 657 N.W.2d 411. “The 

primary goal in contract interpretation is to give effect to the parties’ intentions.” 

Seitzinger v. Community Health Network, 2004 WI 28, ¶22, 270 Wis. 2d 1, 676 

N.W.2d 426. 

¶13 After a bench trial, “[w]e uphold a circuit court’s findings of fact 

unless they are clearly erroneous” and “due regard shall be given to the 

opportunity of the [circuit] court to judge the credibility of the witnesses.”
No. 2021AP763

6

Country Visions Coop. v. Archer-Daniels-Midland Co., 2021 WI 35, ¶19, 396 

Wis. 2d 470, 958 N.W.2d 511; 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 v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 

Wis. 2d 1, 768 N.W.2d 615 (citation omitted). Under this standard, regardless of

whether the evidence could “permit a contrary finding, findings of fact will be 

affirmed on appeal as long as the evidence would permit a reasonable person to 

make the same finding.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, 

¶12, 290 Wis. 2d 264, 714 N.W.2d 530. “[W]e search the record not for evidence 

opposing the circuit court’s decision, but for evidence supporting it.” Id.

¶14 Barth first argues that the utility and cleaning expenses included in 

the Rachfal judgment were incurred after the Lease expired in March 2017 and 

that she guaranteed payment only for expenses that Rachfal incurred during the 

Lease term. Although Barth acknowledges that she guaranteed payment for 

expenses incurred during an extension of the Lease, she argues that the Lease 

required any extension to be in writing. Therefore, Barth asserts that she is not 

liable for the expenses included in the Rachfal judgment because HMI did not 

agree to extend the Lease in writing. Barth is incorrect. 

¶15 The Lease states that “[i]f tenancy is to continue beyond the stated 

term, parties should make arrangements in writing in advance of lease expiration.” 

(Emphasis added.) This language does not require any extension of the Lease to 

be in writing; it merely provides that any extension should be in writing. Thus, 

regardless of whether Rachfal incurred the utility and cleaning expenses during the 

time when the Lease was orally extended, Barth guaranteed payment for those 

expenses.
No. 2021AP763

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¶16 Barth next argues the Guaranty’s clause extending her liability in the 

event of the Lease extension does not apply because the Lease was not extended. 

Barth asserts that, pursuant to WIS. STAT. § 704.25(2)(b), Rachfal became a 

periodic tenant after March 2017. WISCONSIN STAT. § 704.01(2) defines a 

“[p]eriodic tenant” as “a tenant who holds possession without a valid lease and 

pays rent on a periodic basis.” Barth argues that because Rachfal was not subject 

to a valid Lease after March 2017 and she incurred the expenses at issue during a 

periodic tenancy, the extension provision in the Guaranty does not apply.

¶17 Barth’s argument, however, ignores DeCoster’s testimony stating 

that Rachfal and HMI agreed to extend the Lease on a month-to-month basis after 

March 2017. This agreement was confirmed by Rachfal’s text message from 

September 2017, asking HMI to again renew her Lease. If the Lease had expired 

in March 2017, there would be nothing to renew in September 2017. While the 

circuit court did not specifically find that the Lease was extended, we can infer 

that the court made that finding as it found Barth liable for the utility and cleaning 

expenses under the Guaranty. The record supports the court’s decision.

¶18 Finally, Barth argues that the circuit court erred by including in the 

judgment against her court costs and fees awarded as part of the Rachfal judgment. 

Barth does not identify the specific amounts in the judgment that she contests, but 

she states that “[f]iling fees and court costs are not mentioned in the rental 

agreement and are not obligations under the rental agreement.” We therefore 

assume that the amounts Barth means to challenge are the $94.50 statutory filing 

fee and the $2.00 service fee included in the Rachfal judgment, as well as the 

$5.00 fee for docketing that judgment. 
No. 2021AP763

8

¶19 We agree that Barth is not obligated to pay these fees. Barth’s 

Guaranty states: “All ... Guarantors are jointly and severally liable for the 

financial obligations of the Rental Agreement.” (Emphasis added.) While HMI 

correctly argues that these costs were incurred because Rachfal defaulted under 

the terms of the Lease, there is no provision in the Lease requiring Rachfal to pay

court costs or fees incurred in a lawsuit between HMI and Rachfal. The fees and 

costs at issue were awarded to HMI as part of its judgment against Rachfal 

pursuant to statute. The $94.50 filing fee is comprised of three separate statutory 

fees combined. See WIS. STAT. §§ 814.62(3), 814.85(1)(c), 814.86(1). The $2.00 

fee is required pursuant to § 814.62(4) for service of the judgment by mail on the

defendant. Lastly, WIS. STAT. § 814.61(5)(am)2. requires a $5.00 fee for 

docketing the judgment. None of these fees and costs were incurred under the 

Lease, and therefore Barth has no obligation under the Guaranty to pay them. 

¶20 The circuit court concluded that claim preclusion barred Barth from 

arguing that she was not liable for the filing fees and statutory costs of the Rachfal 

judgment. “Whether claim preclusion applies to a particular factual scenario is a 

question of law subject to de novo review.” Kenyon v. Kenyon, 2004 WI 147, 

¶11, 277 Wis. 2d 47, 690 N.W.2d 251. Claim preclusion “provides that a final 

judgment on the merits in one action bars parties from relitigating any claim that 

arises out of the same relevant facts, transactions, or occurrences.” Kruckenberg 

v. Harvey, 2005 WI 43, ¶19, 279 Wis. 2d 520, 694 N.W.2d 879. If “claim

preclusion is applied, a final judgment on the merits will ordinarily bar all matters 

‘which were litigated or which might have been litigated in the former 

proceedings.’” Id. (citation omitted). For claim preclusion to apply in a case three 

elements must be present: “(1) an identity between the parties or their privies in 

the prior and present suits; (2) an identity between the causes of action in the two 
No. 2021AP763

9

suits; and, (3) a final judgment on the merits in a court of competent jurisdiction.” 

Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723

(1995).

¶21 Here, even if privity between Barth and Rachfal is assumed, we 

conclude there is no identity between the causes of action in HMI’s lawsuits

against Barth and Rachfal, respectively. The circuit court stated that “both the 

prior suit against Rachfal and Barth’s objections address ... the obligations of the 

resident.” The issue in this case, however, is whether Barth can be held liable for 

those obligations as a guarantor under the Guaranty and the Lease. That issue was 

not litigated in HMI’s lawsuit against Rachfal. And as we discussed above, Barth 

is not liable under the Guaranty for costs and fees incurred by HMI in obtaining 

the prior judgment against Rachfal.

¶22 We therefore conclude that the circuit court properly ordered that 

Barth is obligated to pay the $473.33 awarded in the Rachfal judgment for utility 

costs and cleaning fees as well as the $100.00 attorney’s fee, $94.50 filing fee, 

$2.00 service fee and $20.00 in other costs included in the original Barth 

judgment. We further conclude, however, that the court erred by requiring Barth 

to pay the $2.00 service fee and $94.50 filing fee included in the Rachfal 

judgment, and the $5.00 fee to docket that judgment. We therefore affirm in part, 

reverse in part and remand to the circuit court to modify the judgment to remove 

the $2.00 service fee and the $94.50 filing fee included in the Rachfal judgment, 

as well as the $5.00 fee for docketing that judgment.
No. 2021AP763

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By the Court.—Judgment affirmed in part; reversed in part, and 

cause remanded with directions. 

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

RULE 809.23(1)(b)4.