“…societies that don’t solve the ‘trust’ problem, that don’t discourage rampant parasitism, have tended to lose out to societies that do.”

Robert Wright, “Non-Zero”

Here are some questions that come
Upon a careful reading of Chapter ATCP 1100
“Home Improvement Practices”

(l) Does “may recover” twice the amount of the loss because of a violation of this chapter mean “must recover” twice the amount of a loss?

(2) If the restoration artisan or restoration contract makes repeated efforts to “make whole” the buyer because of any losses from less than perfect conformity to the letters of this law, and the buyer’s attorney turns a deaf ear to any efforts at compromise, negotation, and bargaining to address any human imperfections in the conduct of the transaction, and the jury awards the plaintiff 1 percent of the damages sought, what standards of law will dictate what percentage of legal fees should be paid the plaintiff?

For example, if the plaintiff seeks around $50,000 in damages from a $10,000 roof, along with $50,000 in legal fees, and the jury dismisses the vast amount of claims made by the plaintiff, but finds $500 worth of “damages” from “misprepresentations,” should not the jury be allowed to assess what percentage of the legal fees are appropriate, so as to constitute “reasonable attorney fees,” according to the facts and context of the case at hand?

Why should this “temptation” to “predatory” or “aggrendizing” legal practice not be tempered by the knowledge that a jury will determine not just whether the chapter was violated by the imperfections of the seller but also whether the violation was of sufficient subtance or consequence as to warrant legal fees 100 times the value of the damages.

(3) Can attorney fees that are vastly disproportionate to the damage done the buyer by virtue of the imperfect business practice of the restoration contractor, his supplier of materials, his supplier of labor be a fair interpretation of the concept “may recover” for violations of this chapter?

(4) What legal safeguards exist to guarantee balance, fairness, and proportionality when judging “reasonable attorney’s fees?”

(5) Are there any jury of peer review procedures to protect defendant from arbitrary judicial discretion regarding the awarding of attorneys fees?

(6) The prohibited trade practices considered bait selling are in need of texturing, granulation, and contextualizing. The seller is forbidden to

  • “Substitute products or materials for those specified in the home improvement contract” or

  • “Fail to have available a quantity of the advertised product sufficient to meet reasonably anticiapted demands.”

  • Misrepresent that certain products or materials are unavailable…”

Here are some concrete experiences, some stories from the restoration world, that inspire this urgent call for fine tuning the law and for requiring the jury be made to understand that in assigning some proportion of damages for imperfections, mistakes, or unavoidable challenges, they could be dooming the restoration contractor to attorney fees vastly disproportionate to the merits of the plaintiff’s case.

(a) Nail Change Inescapable

Roof torn off, big storm on the way, the contract langauge called for l 3/4″ nails but the suppliers in the area only had l l/2″ available. The industry practice allows either l 3/4″ or l l/2″ for the guarantees to obtain. The buyer cannot be reached to approve of the change. Or, the foreman assumes that the shorter nails the supplier delivered are adequate for the job at hand. The rains arrive. The foreman makes a judgement call to protect the home and explain the facts when back in touch with the buyer. The buyer approves the change but later on, in a dispute over the price of an “add on,” is encouraged by an attorney to sue for an entire new roof, with the promise of double damages for the buyer and legal fees anywhere from $20,000 to $50,000 for the aggrendizing attorney.

(7) Supplier Delivers the ‘Lightest’ 30 lb. Felt of Five Brands and Agent Mistakingly Asserts #15 Felt
Was Delivered

In this instance the contractor employee and the foreman receive felt marked #30 and install it. There is an invoice and record of the #30 felt. An agent for the supplier later on mistates the facts and “rotely” writes to client that #15 felt was used. Despite the fact that the number of the felt has absolutely no bearing on the functioning and guarantees of the roof product, the buyer’s attorney acts as if it is an issue meriting a totally new roof at the cost of $27,000, with double damages bringing the price for defendent up to $54,000 for this non-issue, with another $50,000 of legal fees thrown in for good measure.

What is to protect restoration artisans from attorneys, greedy for prey, who will work against common sense arbitration and mediation due to the jackpot of double damages and attorneys fees.

(8) Misrepresent Products as Unavailable

() Contract Language to Fine Tune ATCP 110 Rules

Are restoration contractors allowed to enter into contracts which require the homeowners to agree to binding arbitration process in case of disagreements?

Binding Mediation and Arbitration Process

In our 30 years and 5,000 projects we have been blessed with experiences that find us and our clients very happy to have had a meeting of the minds and partnered to create restoration products and services with beauty and durability. In the rare instance where there are disagreements and misunderstandings we insist upon a binding arbitration process, with the help of neutral Wisconsin professional associations to help us select a binding arbitrator and binding arbitration process.

There have been rare occasions when our clients have for a variety of reasons not paid us for our services, despite our good faith efforts and performance of our obligations under the contract between us. Under such circumstances, we’‘’
expect our clients to pay for reasonable legal and collections costs we incur. We and others who furnish labor or materials for this project may have lien rights on the land and buildngs if not paid.

Late payment charges of l.5% per month for past due balances, annual charge of 18%, and, if client does not pay as agreed. Guarantees are null and void if client does not pay according to agreement.

Ice Dam Problems

There have been a couple of winters since our founding in 1975 when so much snow and huge ice dams overloaded the systemís capacity on a handful of our 5,000 projects. In such circumstances we removed the ice dams at cost and encouraged the owners to consider electric cables. We would only advise that if your roof turned out to be among that minority that required cables.

Last edited by g.   Page last modified on February 19, 2006

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