COURT OF APPEALS

DECISION

DATED AND FILED

September 16, 2021

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. 2020AP1234 Cir. Ct. No. 2018CV209

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

NATHAN BIKOWSKI,

 PLAINTIFF-APPELLANT,

 V.

PRO SEAMLESS OF WISCONSIN INC.,

F/K/A PRO SEAMLESS,

 DEFENDANT-RESPONDENT.

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

TODD P. WOLF, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

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. 2020AP1234

2

¶1 PER CURIAM. Nathan Bikowski contracted with Pro Seamless of 

Wisconsin, Inc. to replace the roof and siding on his residence, and he was 

unsatisfied with Pro Seamless’s performance. Following completion of these

projects, Bikowski sued Pro Seamless for breach of contract and trade violation 

claims and Pro Seamless counterclaimed for unpaid contract amounts. Bikowski 

appeals the judgment entered by the circuit court following a bench trial. 

According to Bikowski, the court erred when it determined that he failed to meet 

his burden of proof on portions of his breach of contract claims, and when it 

denied relief for Pro Seamless’s alleged violations of various trade practices. We 

reject Bikowski’s arguments and affirm.

BACKGROUND

¶2 This is an appeal of a judgment following a three-day bench trial. 

The parties disputed many facts during the trial, but the following are undisputed

except as noted below.

¶3 Bikowski owns a home in Wisconsin Rapids. In September 2014, 

following a hailstorm, he entered into two written contracts with Pro Seamless. 

Both contracts contained a clause that required the work “to be completed in a 

workmanlike manner according to standard practices.”

¶4 One of the contracts was for the installation of a new roof over

Bikowski’s house and garage. This contract, which we refer to as the “Roofing 

Agreement,” called for the installation of an ice and water shield, a drip edge, and 
No. 2020AP1234

3

a continuous ridge vent, and also the replacement of the shingles, roof vents, and 

flashing. The final price of the Roofing Agreement was $9,150.00.1

¶5 The other contract, which we refer to as the “Siding Agreement,” 

called for the installation of vinyl siding, aluminum wrap around all windows and

doors, and new soffits and fascia.

2 The contract price of the Siding Agreement

was $11,955.00.

¶6 Pro Seamless completed the work on the Roofing Agreement in 

December 2014 and the work on the Siding Agreement the following spring. 

Bikowski’s fiancée raised issues with Pro Seamless about the quality of its work in 

March 2015. Pro Seamless submitted a final invoice for both projects on April 8, 

2015, and Bikowski’s fiancée advised Pro Seamless of additional issues. The 

parties engaged in the right to cure process found in WIS. STAT. § 895.07

(2019-20),

3 but that process did not result in a resolution of their disputes. 

Bikowski did not pay the final invoice.

 

1

 The Roofing Agreement originally included repair work on the chimney. Pro Seamless 

contends that, after determining that the chimney required more than just “repair work” and that 

Pro Seamless would be unable to do the work, it provided Bikowski with a $1,150 credit so he

could have someone else replace the chimney. After this adjustment and another smaller credit, 

the final price for the Roofing Agreement was reduced from $10,500 to $9,150.00.

On appeal, Bikowski alleges that the so-called chimney repair was a “throw in” designed 

to induce him to enter into the agreement. We address this allegation in a footnote below. For 

now, it suffices to say that it is undisputed that Pro Seamless did not perform any work on 

Bikowski’s chimney and did not bill him for any chimney work.

2

 The Siding Agreement also provided for the installation of river rock or vinyl stone in 

select areas, 36 feet of gutter, and one 15-foot downspout. It is undisputed that the rock or stone 

was not installed and that Bikowski was not charged for that item. Bikowski did not allege that 

this resulted in a breach of contract. He did challenge the adequacy of the gutter and downspout 

at trial, but he makes no argument about it on appeal, and we discuss it no further.

3

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP1234

4

¶7 Bikowski filed a complaint alleging that Pro Seamless breached both 

contracts and violated various trade practices.

4 Pro Seamless responded with a 

counterclaim for $9,274.31, which it claimed represented the unpaid balance due 

under the two contracts.

¶8 Following a bench trial and the submission of post-trial briefing, the 

circuit court determined that Pro Seamless breached some but not all of its 

contractual promises. It awarded damages based on its determination of whether 

the work in question could be repaired or had to be replaced. Specifically, the 

court found that some of the installation work contemplated by the Roofing 

Agreement was not done in a workmanlike manner, but that there was no 

“significant violation[]” of the Roofing Agreement and the minor issues could be 

easily repaired. As for the Siding Agreement, the court determined that Pro 

Seamless did not breach the portions of the Siding Agreement pertaining to the 

soffits, but that it had breached the portions of the Siding Agreement pertaining to

the aluminum wrap and the vinyl siding and that this work had to be replaced.

¶9 As for a remedy, the court determined that Bikowski was entitled to

damages for breach of the Siding Agreement in the amount of $7,050.00, which 

represented the cost to replace the siding and the aluminum wrap. The court 

subtracted that amount from the $9,274.31 that Bikowski still owed on the 

contracts. It ordered that the difference, $2,224.31, would be held in an attorney

trust account and used to pay for the minor repairs that were required under the 

 

4

 The complaint also included claims for slander of title and breach of WIS. STAT.

§ 895.07. The slander of title claim was dismissed during the trial. As for the § 895.07 claim, 

Bikowski does not challenge any aspect of the circuit court’s determinations regarding that claim 

on appeal.
No. 2020AP1234

5

Roofing Agreement, and that any portion of these funds that remained after the 

repairs were completed would belong to Pro Seamless.

¶10 As for the alleged trade practices violations, the circuit court 

determined that Pro Seamless had violated some provisions in the Wisconsin 

Statutes and the Wisconsin Administrative Code that regulate trade practices, but 

that Bikowski failed to prove that he was entitled to relief for any violation.

¶11 Bikowski appeals. We present additional background and address 

the parties’ disputes of fact as needed in our discussion below.

DISCUSSION

¶12 Our standard for reviewing a decision following a bench trial is well 

established. We apply a highly deferential standard to the circuit court’s findings 

of fact. Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d

264, 714 N.W.2d 530. The circuit court is the ultimate arbiter of witness 

credibility, and when more than one reasonable inference can be drawn from the 

credible evidence, the reviewing court must accept the inference drawn by the 

circuit court. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274 

N.W.2d 647 (1979). We will not set aside a fact found by the circuit court unless 

the record shows it to be clearly erroneous—meaning that, after accepting all 

credibility determinations made and reasonable inferences drawn by the fact 

finder, the great weight and clear preponderance of the evidence supports a 

contrary finding. Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d 

575 (Ct. App. 1983).

¶13 We review questions of law independently and without deference to 

the circuit court. Royster-Clark, Inc., 290 Wis. 2d 264, ¶13. Interpretation of 
No. 2020AP1234

6

statutes and administrative regulations are questions of law. Drivers, Salesmen, 

Warehousemen, Milk Processors, Cannery, Dairy Emps. & Helpers Loc. 

No. 695 v. LIRC, 154 Wis. 2d 75, 84, 452 N.W.2d 368 (1990) (statutes); 

Moonlight v. Boyce, 125 Wis. 2d 298, 303, 372 N.W.2d 479, 483 (Ct. App. 1985)

(administrative regulations).

I. Breach of Contract

¶14 We begin by addressing Bikowski’s arguments about the contracts. 

As stated, the circuit court found that Pro Seamless breached the Siding 

Agreement with regard to the aluminum wrap and siding, and Pro Seamless does 

not challenge this determination on appeal. As for the remainder of Bikowski’s 

contract claims, the court found that Pro Seamless had committed only minor 

breaches of the Roofing Agreement and no breach of the portion of the Siding 

Agreement that called for replacements of the soffits. The court granted Pro 

Seamless’s counterclaim in part on the same basis.

¶15 Bikowski argues that the circuit court erred by awarding only partial 

relief on his breach of contract claims, and by partially granting Pro Seamless’s 

counterclaim for the unpaid balance. He contends that the court should have 

applied the Uniform Dwelling Code when considering Pro Seamless’s contract 

performance, and that the facts demonstrate that Pro Seamless breached the 

Roofing Agreement in its entirety and the portion of the Siding Agreement that 

called for the installation of soffits. We address these arguments in turn, 

concluding that any error on the court’s part with regard to the Uniform Dwelling 

Code is inconsequential, and that the court properly found that Bikowski did not 

meet his burden of proof regarding the portions of the Roofing Agreement and

Siding Agreement for which the court did not find any breach.
No. 2020AP1234

7

A. The Uniform Dwelling Code

¶16 The Uniform Dwelling Code (UDC), found in WIS. ADMIN. CODE 

chs. SPS 320-325 (August 2021)5, is a statewide building code for one- and twofamily dwellings. Various municipalities, including Wisconsin Rapids, have 

adopted the UDC.

¶17 During trial, the parties disputed whether the UDC’s requirements

are applicable to the siding and roofing work that Pro Seamless performed on

Bikowski’s residence, which was originally constructed in 1953.

6

 The circuit 

court determined that the UDC’s requirements were inapplicable because 

Bikowski’s residence was constructed prior to the UDC’s effective date. 

Therefore, the court analyzed Bikowski’s breach of contract claims solely under 

the workmanlike manner and standard practices standard, without considering

whether Pro Seamless’s work was consistent with the UDC.

¶18 Bikowski contends that the circuit court erred, and that the UDC’s 

requirements apply to Pro Seamless’s work. He appears to be arguing that the

 

5

 All subsequent references to the Wisconsin Administrative Code are to the 

August 2021 register unless otherwise indicated.

6

 The dispute related to the scope provision of the Uniform Dwelling Code (UDC), 

which provides that the UDC applies to all one- and two-family dwellings built on or after the 

effective dates under § SPS 320.03. WIS. ADMIN. CODE § SPS 320.02(1)(a). The UDC’s 

effective dates were in 1978 and 1980, long after Bikowski’s residence was constructed. WIS.

ADMIN. CODE § SPS 320.03. However, § SPS 320.02(2)(d) also states that “[a]ny municipality 

may, by ordinance, adopt the provisions of chs. SPS 320 to 325 to apply to any additions or 

alterations to existing dwellings,” (emphasis added), and Wisconsin Rapids expressly adopted by 

reference SPS chs 320-325 “to all remodeling or alterations in existing one- and two-family 

dwellings,” Wisconsin Rapids Building Code Section 14.06(2) (emphasis added). The parties 

disputed whether the siding and roofing work should be considered an “alteration” covered by the 

UDC and the Wisconsin Rapids Building Code, or a “repair” that is not covered by the UDC and 

the Wisconsin Rapids Building Code. We do not resolve this dispute because, as discussed 

below, its resolution is not dispositive to any issue on appeal.
No. 2020AP1234

8

court’s failure to consider the UDC’s requirements made a difference in the 

outcome of this case. However, after carefully reviewing the record and 

Bikowski’s appellate briefing, we are not persuaded that the court would have 

reached any different conclusions even if it had considered the UDC’s 

requirements when evaluating Bikowski’s breach of contract claims.

¶19 Bikowski generally asserts that Pro Seamless’s work was not 

consistent with the UDC. However, he cites just one specific provision in the 

UDC, WIS. ADMIN. CODE § SPS 321.28(3)(a)3., that is even arguably pertinent to 

the issues he raises on appeal. This section specifically pertains to the Roofing 

Agreement, and it provides that “[s]hingles shall be installed in accordance with 

manufacturer’s recommendations.” WIS. ADMIN. CODE § SPS 321.28(3)(a)3.

¶20 The parties vigorously dispute whether Pro Seamless followed the 

manufacturer’s recommendations when installing the shingles. Bikowski argues 

that the manufacturer’s manual recommends “hand-sealing” shingles if installed in 

fall or winter, and that Pro Seamless did not follow this recommendation.7 

According to Bikowski, “the mere fact that [Pro Seamless] did not hand seal the 

shingles is a breach.” Pro Seamless tacitly acknowledges that it did not hand seal 

the shingles, but it counters that the manual does not actually require shingles to 

be hand sealed at the temperatures at which they were installed.

 

7

 More specifically, the manual provides: “All shingles, which contain a factory-applied 

self-sealing strip, must be subjected to sunlight for several days before full sealing will occur. 

Shingles installed in fall or winter may not seal until the following spring; consequently, the 

shingles should be hand-sealed.” It further provides: “Shingles which do not receive direct 

sunlight or which are not exposed to adequate surface temperatures may never seal.”
No. 2020AP1234

9

¶21 We need not wade into these evidentiary disputes to conclude that 

the application of WIS. ADMIN. CODE § SPS 321.28(3)(a)3. would not have altered 

any of the circuit court’s determinations with regard to the Roofing Agreement. 

This is because proof of damages is one element of a breach of contract claim,8

and Bikowski did not introduce any evidence that any shingles failed to seal 

despite the failure to hand seal them.9 After hearing the evidence, the circuit court 

found: “Nobody found any shingles that weren’t properly sealed. They tested a 

few of them. They appeared all to be sealed properly, so I don’t find that the 

plaintiffs have made their burden of proof ....” Bikowski does not make any 

developed argument that this finding is clearly erroneous.

¶22 For these reasons, we conclude the application of WIS. ADMIN.

CODE § SPS 321.28(3)(a)3. would not have changed the circuit court’s ultimate 

determination about the Roofing Agreement. And Bikowski does not identify any 

other UDC provision that the court should have considered that might have made a 

difference in its determinations about the Roofing Agreement or the portion of the 

Siding Agreement that called for the installation of soffits.10 Under these 

 

8

 See Brew City Redev. Grp., LLC v. The Ferchill Grp., 2006 WI App 39, ¶11, 289

Wis. 2d 795, 714 N.W.2d 582 (providing that the three elements of a breach of contract claim are 

(1) a contract between the plaintiff and the defendant; (2) a failure of the defendant to do what it 

undertook to do; and (3) damages).

9

 Bikowski presented the written report and testimony of an expert who inspected the 

roof the summer after the shingles were installed. In his written report, Bikowski’s expert 

acknowledged that “the vast majority of the shingles were sealed down.” The written report did 

not identify any shingle that was not sealed at the time the inspection occurred, and the expert did 

not testify that he found any shingles that were unsealed. Additionally, during his trial testimony, 

Bikowski’s expert acknowledged that there was no evidence of water infiltration through the roof.

10

 Bikowski’s expert also identified provisions of the UDC that pertain to the proper 

installation of a waterproof barrier under the siding. However, the circuit court found that Pro 

Seamless breached this portion of the Siding Agreement even without reference to these UDC 

provisions. Accordingly, consideration of the UDC would not have changed the court’s 

conclusions about the Siding Agreement.
No. 2020AP1234

10

circumstances, we need not decide whether the circuit court erred when it 

concluded that the UDC was inapplicable. Any potential error did not alter the 

outcome of the trial. See Milton v. Washburn Cnty., 2011 WI App 48, ¶8 n.5, 332 

Wis. 2d 319, 797 N.W.2d 924 (“[I]f a circuit court reaches the right result for the 

wrong reason, we will nevertheless affirm.”).

B. The Roofing Agreement

¶23 Bikowski argues that the circuit court erroneously determined that he

had not met his burden to prove that Pro Seamless breached the Roofing 

Agreement in its entirety. We have already addressed Bikowski’s arguments 

about the shingles, and we now address the remaining issues about the Roofing 

Agreement.

¶24 The circuit court made the following findings of fact. It found that 

the drip edge was separating from the roof in two distinct areas, and that the ridge 

vent was buckling and warped and needed to be reattached to the roof. The court 

determined that the drip edge and ridge vent had not been installed in a 

workmanlike manner, but that the problems could be repaired. It noted that both 

parties had taken an “all or nothing approach” to damages, and that neither party 

provided estimates of the cost for repairs. As the court explained, given the 

parties’ submissions, “the best way [it could] handle” damages under the Roofing 

Agreement was to order that the minor repairs would be paid from the $2,224.31

that was otherwise owed to Pro Seamless.

¶25 As we understand his appellate briefing, Bikowski does not appear 

to challenge the circuit court’s determination about the ridge vent. Apart from the 

shingles, which we have addressed, Bikowski’s argument about the Roofing 

Agreement is focused on the drip edge and the adequacy of the remedy imposed 
No. 2020AP1234

11

by the court. Bikowski appears to be arguing that the evidence showed that 

improper installation of the drip edge created the potential for water infiltration, 

that it could not be repaired, and that the entire roof must instead be replaced. He 

contends that Pro Seamless’s breach of the Roofing Agreement excuses

Bikowski’s obligation to pay for any of the roofing work.

¶26 Bikowski’s argument is not consistent with our standard of review. 

Whether Pro Seamless materially breached the Roofing Agreement in its entirety

is a question of fact. See Volvo Trucks N. Am. v. DOT, 2010 WI 15, ¶50 

nn.28-29, 323 Wis. 2d 294, 779 N.W.2d 423 (explaining that the determination 

whether a material breach has occurred is generally a question of fact for the 

circuit court); see also Shy v. Industrial Salvage Material Co., 264 Wis. 118, 125, 

58 N.W.2d 452 (1953) (explaining that the issue of whether a party’s breach 

excuses future performance by the non-breaching party presents a question of 

fact). As stated above, we defer to a circuit court’s decision on questions of fact 

unless clearly erroneous, and the circuit court is the ultimate arbiter of witness 

credibility. Cogswell, 87 Wis. 2d at 249-50.

¶27 Bikowski presents the opinion offered by his expert witness 

regarding the drip edge as if it were established fact, and he fails to address the 

expert testimony about proper installation techniques that was provided by a Pro 

Seamless employee. During the trial, that employee testified that, when installing 

a square drip edge on the roof of an existing building that has shifted and moved, 

it sometimes needs to be fastened with a nail to keep it straight, which is what 

occurred in this case. The employee acknowledges that the drip edge has lifted in 

a couple places, and he testified that to fix this problem, these places “should be 

resealed ... and tacked down.” The circuit court implicitly credited this opinion 

and discredited the opinion of Bikowski’s expert, who testified that the entire drip 
No. 2020AP1234

12

edge would need to be replaced. It is for the fact finder to sort between competing 

expert opinions, and that is precisely what the court did here. Adams Outdoor 

Advert., Ltd. v. City of Madison, 2006 WI 104, ¶27, 294 Wis. 2d 441, 717 N.W.2d 

803 (The “weight and credibility to be given to the opinions of expert witnesses is 

‘uniquely within the province of the fact finder.’” (quoted source omitted)). We 

discern no erroneous exercise of discretion.

¶28 Bikowski also argues that the remedy imposed by the circuit court 

for the roof repairs is inadequate. He contends that the court erred when it

“limited” the damages to the remaining balance due on the contract. We disagree. 

At trial, Bikowski took an all-or-nothing approach, maintaining that the entire roof 

needed to be replaced. As a result of this approach, he did not provide an estimate 

of the cost to repair. Under the circumstances, in which the court did not find that 

the roof needed to be replaced in its entirety and there was no evidence about the

cost to repair the minor issues identified by the court, it might have been within 

the court’s discretion to entirely deny recovery for Bikowski. See Thorp Sales 

Corp. v. Gyuro Grading Co., Inc., 107 Wis. 2d 141, 153, 319 N.W.2d 141 (Ct. 

App. 1982) (stating that a plaintiff in a breach of contract bears the burden of 

proving reasonably certain damages). Here, the court instead endeavored to craft a 

remedy that aimed to address the minor issues that the court found needed to be 

addressed. Bikowski does not provide any basis for us to disturb the court’s 

reasonable exercise of discretion.11 See Cords v. Anderson, 80 Wis. 2d 525, 552-

53, 259 N.W.2d 672 (1977) (“In reviewing damage awards granted in either a 

 

11

 Pro Seamless does not appeal the circuit court’s decision to set aside $2,224.31 in trust 

to be used for the repairs that the court found were needed on the roof.
No. 2020AP1234

13

bench or jury trial this court does not substitute its judgment for that of the fact 

finder, but rather determines whether the award is within reasonable limits.”)

C. The Siding Agreement

¶29 We now address Bikowski’s argument about the Siding Agreement. 

As stated above, the circuit court found that Pro Seamless breached the Siding 

Agreement with regard to the aluminum wrap and siding, but not with regard to 

the soffits.

¶30 By way of background, the original soffits were wooden, and the 

Siding Agreement called for the installation of aluminum soffits. The Siding 

Agreement did not state that the original wooden soffits would be removed, but

Bikowski’s fiancée testified that she asked Pro Seamless to remove them and Pro 

Seamless agreed. Bikowski asserts that Pro Seamless’s failure to remove the 

original soffits resulted in airflow being reduced by “fifty percent,” consistent with 

his trial testimony that he observed ice damming for the first time since the soffits 

were installed. However, these assertions were not supported by expert testimony. 

The only evidence of testing was done by Pro Seamless’s expert, who testified that 

he used a wire to verify that the vent in the old soffit had been widened and 

ultimately determined that the venting met industry standards and was more than 

adequate. For his part, Bikowski’s expert acknowledged that he had not done any

testing to substantiate Bikowski’s assertions about airflow and further testified: “I 

still to this day do not know whether there is enough sufficient flow at the eaves.”

¶31 It is apparent that the circuit court did not credit Bikowski’s 

fiancée’s testimony about an oral agreement, and it found “no indication in the 

[Siding Agreement] that the old soffits would be ... totally removed.” As for 
No. 2020AP1234

14

damages, the court further found that Bikowski’s assertion that the soffits provided 

poor ventilation was “pure speculation” that was not “supported by the evidence.”

¶32 Apart from asserting that the circuit court should have credited his 

evidence, Bikowski does not develop any argument explaining how the court 

erred. The Siding Agreement does not address the removal of the original soffits, 

and it was within the court’s discretion to credit or discredit testimony about an 

oral agreement. As for damages, the court could reasonably disregard Bikowski’s 

unsubstantiated assertions as speculation. The court’s determination that 

Bikowski failed to meet his burden of proof regarding the soffits is not clearly 

erroneous.

¶33 For all these reasons, we reject Bikowski’s arguments that the circuit 

court should have found that Pro Seamless materially breached the Roofing 

Agreement in its entirety and the portion of the Siding Agreement pertaining to the 

soffits.12

II. Trade Practices

¶34 We now turn to Bikowski’s argument about Pro Seamless’s trade 

practices. Bikowski contends that Pro Seamless violated a number of Wisconsin 

 

12

 We likewise reject Bikowski’s argument, which he barely develops, that the circuit 

court erred by granting Pro Seamless’s counterclaim to recover the balance due for services it 

performed under the contracts. If Bikowski is now arguing on appeal that he should have been 

excused from paying the amount due to Pro Seamless because the court found that portions of the 

two contracts had been breached, we reject the argument because it was not adequately raised in 

the circuit court. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 

2d 572, 786 N.W.2d 177 (explaining that issues not raised in the circuit court may be forfeited 

and supporting proposition that appellate courts generally do not address forfeited issues). 

Indeed, in his post-trial submissions to the circuit court, Bikowski expressly advocated for a 

component-by-component approach to damages for breach of contract.
No. 2020AP1234

15

statutes and code provisions that regulate the home improvement industry, 

including WIS. STAT. § 101.148(2), WIS. STAT. § 100.65(3), and various 

provisions in WIS. ADMIN. CODE ch. ATCP 110. We address Bikowski’s 

arguments about these statutes and regulations in turn, ultimately concluding that 

the court did not err when it declined to grant relief.

A. WIS. STAT. § 101.148(2)

¶35 Under WIS. STAT. § 101.148(2), a contractor is required to deliver a 

notice and a brochure concerning construction defects to a consumer before 

entering into a written contract for remodeling work on a dwelling. During the

trial, the parties disputed whether Pro Seamless had timely delivered the notice 

and brochure to Bikowski. The circuit court found that Pro Seamless violated 

WIS. STAT. § 101.148(2), but it did not order any damages or any other type of 

remedy.

¶36 Bikowski does not appear to assert that he suffered any harm as a 

result of Pro Seamless’s failure to deliver the notice and brochure. Although his 

appellate briefing is not entirely clear on this point, he may be arguing that he is 

entitled to a “remedial penalty” as a result of the violation. We disagree for two 

reasons.

¶37 First, Bikowski does not develop any argument that the circuit court 

has authority to impose a remedial penalty for a violation of WIS. STAT.

§ 101.148(2). The text of § 101.148 does not specifically provide any penalty for 

a person’s failure to deliver the notice and brochure. The enforcement mechanism 

for that statute is found in WIS. STAT. § 101.02(13)(a), which provides: “If any ... 

person violates this subchapter, or fails ... to perform any duty specified under this 

subchapter ... for which no penalty has been specifically provided,” that person 
No. 2020AP1234

16

“shall forfeit and pay into the state treasury a sum not less than $10 nor more than 

$100 for each such offense.”13 WIS. STAT. § 101.02(13)(a). Thus, the statute is 

explicit—any forfeiture should be paid to the state, not to a consumer in a private 

cause of action.

¶38 Second, we agree with Pro Seamless that Bikowski forfeited any 

entitlement to a remedial penalty for a violation of WIS. STAT. § 101.148(2). 

During the circuit court’s oral ruling, the court specifically determined that Pro

Seamless violated § 101.148(2), but it did not address whether Bikowski was 

entitled to a remedy for this violation. After the court was done issuing rulings, it 

specifically asked: “[I]s there anything that I am missing that I need to deal 

with ...?” Bikowski’s attorney responded in the negative, stating: “I think you’ve 

covered all of the claims.” He did not raise the issue of any entitlement to a 

remedial penalty for the violation of § 101.148(2). We normally do not consider 

issues that were not raised in the circuit court, and we do not see any reason to do 

so here. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 

Wis. 2d 572, 786 N.W.2d 177 (explaining the forfeiture rule).

B. WIS. STAT. § 100.65(3)

¶39 Under WIS. STAT. § 100.65(3)(a), residential contractors must 

furnish certain customers with statements relating to the customers’ potential 

expectations that proceeds from insurance claims will be used to pay for contract 

 

13

 The subchapter referred to in WIS. STAT. § 101.02(13)(a) is titled “REGULATION OF 

INDUSTRY: GENERAL PROVISIONS” and consists of WIS. STAT. §§ 101.01-101.599.
No. 2020AP1234

17

work.

14

 Additionally, § 100.65(3)(b) requires a residential contractor to provide a 

form “NOTICE OF CANCELLATION” that the customer can use to cancel the 

contract if the insurance carrier denies the claim. It appears to be undisputed that 

Pro Seamless did not provide Bikowski with the statement and form required by 

WIS. STAT. § 100.65(3) for either contract. The circuit court found that Pro 

Seamless knew that Bikowski intended to use insurance proceeds to pay for at 

least a portion of the work, and that Bikowski’s insurance company did in fact do 

so.

¶40 In its oral ruling, the circuit court indicated that it was not 

“concerned with any violations of [WIS. STAT.] § 100.65” because both parties 

were already aware of and dealing with Bikowski’s insurance company. In 

essence, the court took no action regarding Pro Seamless’s failure to comply with

§ 100.65(3) because Bikowski suffered no harm—his insurer was already 

involved, and it was evident to the parties that it would not be denying the claim.

¶41 Bikowski argues that the circuit court misinterpreted the language of 

WIS. STAT. § 100.65(3), which, Bikowski appears to suggest, mandates that the 

statement and form be provided regardless of whether the parties are already on 

notice that an insurer has approved payment of a claim. He points to § 100.65(9),

which provides: “Any person who violates this section shall forfeit not less than

$500 nor more than $1,000 for each violation.” Bikowski contends that the circuit 

court erred when it failed to award him at least $2,000 in forfeitures—$500 for the 

 

14

 Specifically, the statement required by WIS. STAT. § 100.65(3)(a) asks the customer to 

indicate whether “the work contemplated by this contract is related to a claim under a property 

insurance policy,” and informs the customer, “[y]ou may cancel this contract at any time before 

midnight on the third business day after you have received written notice from your insurer that 

the claim has been denied in whole or in part under the property insurance policy.”
No. 2020AP1234

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violation of § 100.65(3)(a) and $500 for the violation of § 100.65(3)(b) for each of 

two contracts—based on “the plain mandate” of § 100.65(9). Pro Seamless 

counters that it is not clear “who this forfeiture should be paid to,” and further, that 

Bikowski forfeited any entitlement to a forfeiture when his attorney failed to 

specifically raise the issue at the close of the circuit court’s oral ruling.

¶42 To the extent that the circuit court determined that Pro Seamless did 

not violate WIS. STAT. § 100.65 because Bikowski’s insurer was already involved, 

we would not agree with that analysis. Yet, when a circuit court “reaches the right 

result for the wrong reason, we will nevertheless affirm.” Milton, 332 Wis. 2d 

319, ¶8 n.5. Here, we conclude that the circuit court nevertheless reached the right 

result for two reasons.

¶43 First, Bikowski does not develop an argument that he would be 

entitled to collect the forfeiture provided for in WIS. STAT. § 100.65(9). That 

statute does not explicitly provide that the consumer may bring a private cause of 

action to collect such forfeitures. And, as we have seen, “forfeitures” for 

noncompliance with industry regulations are often paid to the state, not to 

consumers in a private cause of action. See supra ¶37.

¶44 Second, we agree with Pro Seamless that Bikowski forfeited any 

entitlement to these forfeitures by failing to raise the issue after the circuit court

made its oral ruling. As discussed above, the court ruled that there would be no 

recovery under WIS. STAT. § 100.65(3) because Bikowski did not suffer any harm. 

The court did not address Bikowski’s claim that he was entitled to forfeitures 

under § 100.65(9). Yet, when the court then asked whether it was missing 

anything that it needed to deal with, Bikowski’s attorney responded in the 

negative. Bikowski’s attorney did not take the opportunity to allow the court to 
No. 2020AP1234

19

correct any error it made based on what Bikowski characterizes as the “plain 

mandate” of § 100.65(9). We conclude that Bikowski forfeited this issue by 

failing to bring the issue to the attention of the circuit court. See Schill, 327 Wis. 

2d 572, ¶45 n.21 (one of the policies underlying the forfeiture rule is to give the 

circuit court notice of any error and a fair opportunity to address it).

C. WIS. ADMIN. CODE § ATCP 110

¶45 Throughout the trial, Bikowski argued that Pro Seamless violated a 

number of regulations adopted by the Wisconsin Department of Agriculture, Trade 

and Consumer Protection in WIS. ADMIN. CODE ch. ATCP 110. These regulations 

were adopted by the agency pursuant to WIS. STAT. § 100.20(2). See ch. ATCP 

110 (Note).

¶46 Bikowski argues that he is entitled to double damages and attorney

fees pursuant to WIS. STAT. § 100.20(5) and Stuart v. Weisflog’s Showroom 

Gallery, Inc., 2008 WI 22, ¶24, 308 Wis. 2d 103, 746 N.W.2d 762. Subsection 

100.20(5) provides: “Any person suffering pecuniary loss because of a violation 

by any other person of ... any order issued under this section may sue for damages 

therefor ... and shall recover twice the amount of such pecuniary loss, together 

with costs, including a reasonable attorney fee.” In Stuart, our supreme court 

explained that recovery is appropriate under this section when there is a “clear 

causal connection” between the pecuniary loss and the trade violation. Stuart, 308 

Wis. 2d 103, ¶24.

¶47 Here, the circuit court appeared to conclude that Bikowski had to 

prove some kind of deception or misrepresentation to prevail under WIS. STAT.

§ 100.25(5). In so doing, the court may have misinterpreted the language of the 

pertinent statutes and administrative regulations, which do not necessarily require 
No. 2020AP1234

20

deception or misrepresentation.15 Under the circumstances, Bikowski argues, the 

court erred by failing to engage in an analysis of whether there was a causal 

connection between the alleged violations of WIS. ADMIN. CODE ch. ATCP 110

that he pursued in the post-trial brief and any pecuniary damages he purportedly 

suffered. We disagree. In this case, despite its possible misinterpretation of the 

statutory and regulatory requirements, we conclude that the court did not commit 

reversible error. Bikowski failed to present any evidence or argument that would 

have shown a causal connection between a violation of ch. ATCP 110 and any 

pecuniary loss he purportedly suffered.

¶48 During the circuit court proceedings and again in his post-trial brief, 

Bikowski pointed to sparse and disputed evidence purporting to show that Pro 

Seamless violated various trade regulations found in WIS. ADMIN. CODE ch. ATCP 

110.16 However, with one exception discussed below, Bikowski did not attempt to 

 

15 The circuit court referenced WIS JI CIVIL 2720, which specifically addresses the 

provisions of WIS. ADMIN. CODE § ATCP 110.05, most of which involve some kind of deception 

or misrepresentation. However, Bikowski pursued violations of different sections of ATCP 

ch. 110, see infra note 16, and these sections do not appear to address deception and 

misrepresentations.

Separately, Bikowski asserts that he did in fact prove that Pro Seamless made misleading 

representations about performing work on his chimney. First, Bikowski did not develop this 

argument in the circuit court. Second, he does not cite any specific section of WIS. ADMIN. CODE 

ch. ATCP 110 on appeal that would entitle him to relief. Third, his argument also fails because, 

again, Bikowski does not show any causal connection between the alleged misrepresentation and 

any pecuniary loss. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (we need not 

consider arguments that are unsupported by adequate factual and legal citations or are otherwise 

undeveloped).

16

 Specifically, in his post-trial brief to the circuit court, Bikowski argued that he had 

proven that Pro Seamless violated the following provisions in WIS. ADMIN. CODE ch. ATCP 110: 

(1) § ATCP 110.04 by failing to timely provide copies of written warranties; (2) § ATCP 

110.05(2)(a) by failing to identify the agent who solicited the contract; (3) § ATCP 110.05(2)(b) 

by failing to adequately describe the roofing and siding works contemplated by the agreements; 

(4) § ATCP 110.05(2)(d) by failing to provide a start date and end date in the Siding Agreement; 

(5) § ATCP 110.05(2)(f) by failing to furnish statements of guarantees or warranties; 

(continued)
No. 2020AP1234

21

connect any alleged violation to any pecuniary loss. He merely asserted in 

conclusory fashion that he was entitled to double the contract amounts, which 

were “the amount[s] necessary to remedy the issues caused by [Pro Seamless’s] 

failure to comply with the [UDC], the manufacturer’s installation instructions, and 

their own practice and policy.” As such, the argument Bikowski advanced in the 

circuit court in favor of double damages appeared to be based on his allegations 

that Pro Seamless breached the Roofing Agreement and the Siding Agreement—

not on his allegation that Pro Seamless violated any provision in ch. ATCP 110.

¶49 Bikowski makes just one attempt to show a causal connection

between a violation of WISCONSIN ADMIN. CODE ch. ATCP 110 and a pecuniary 

loss. That sole attempt pertains to the shingles and fails for reasons we now 

explain.

¶50 WISCONSIN ADMIN. CODE § ATCP 110.027(1) provides that “[a]

seller must give the buyer timely notice of any impending delay in the home 

improvement contract performance if performance will be delayed beyond a 

deadline specified in the home improvement contract,” and further, that “no 

change in performance deadlines is effective unless the buyer agrees in writing to 

the change.” Here, the Roofing Agreement specified that the work would be 

completed in the “fall.” Bikowski contends that Pro Seamless delayed the shingle 

 

(6) § ATCP 110.05(4) by failing to furnish insurance protections within the agreement; 

(7) § ATCP 110.05(5) by failing to identify a person performing some of the contract work as an 

independent contractor; and (8) § ATCP 110.027 by failing to provide written notice regarding a 

delay in performance on the Roofing Agreement.

We note that the facts pertaining to these violations were vigorously disputed at trial, as 

were the interpretation and application of the pertinent regulations. The court did not make any 

specific findings of fact about whether Pro Seamless actually violated any of these regulations.
No. 2020AP1234

22

installation until mid-December without written notice or his agreement, and that

“[t]his led to various issues with the roof, i.e., the arcing shingles, all the shingles 

not sealing, [and] the separation of the ice and water protection.” The parties 

dispute whether there was actually any delay in the contract performance, and 

whether December is or is not considered part of “fall.”

¶51 We need not resolve these disputes because, even if we were to

agree that performance was delayed contrary to WIS. ADMIN. CODE § ATCP 

110.027(1), Bikowski’s assertion that the delay caused him to suffer a pecuniary 

loss is not supported by evidence in the record. As we have already explained, the 

circuit court reasonably found that the evidence presented at trial did not establish 

that the shingles were not sealed. Nor does Bikowski identify any portion of the 

record showing that any shingles were arcing or suggesting that any delay in 

shingle installation caused the ice and water protection to separate from the roof in 

two places. Indeed, Bikowski’s own expert specifically testified that the 

separation was caused by the method by which the drip edge was installed. 

Bikowski does not connect the issues with the drip edge to any violation of 

ch. ATCP 110.

¶52 In sum, we reject Bikowski’s argument that he is entitled to double 

damages under WIS. STAT. § 100.20(5).

17

 

17

 In his appellate brief, Bikowski also argues that the circuit court erred with respect to 

his post-appeal petition for waiver of fees and costs associated with the appeal. Although 

Bikowski’s petition is in the appellate record, there is no circuit court order in the record that 

addresses Bikowski’s petition. Bikowski did not separately appeal any such order. We question 

whether we have jurisdiction over any order that was entered following the judgment, and we will 

not address a ruling that is not reflected within the record. We instead assume that material 

missing from the record supports the circuit court’s decision. Fiumefreddo v. McLean, 174 

Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993).
No. 2020AP1234

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CONCLUSION

¶53 For the reasons stated above, we reject Bikowski’s arguments and 

affirm.

By the Court.—Judgment affirmed.

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

809.23(1)(b)5.