jmGsl@aol.com, Josh Fraundorf <Josh.Fraundorf@gmail.com>, BobCapen@sbcglobal.net, email@example.com, K-Ramirez@sbcglobal.net
False & Misleading Statements, ATCP 110, and Rubber Roof Guarantees
FEb. 21, 2006
I would appreciate an e-mail that states what kind of manufacturer’s guarantee we can offer our clients for residential decks.
I would like to see what clauses Community’s conctracts have regarding rubber roof guarantees.
I would like to see if our clauses match with Quality’s statements regarding the products they carry.
It is of profound importance that we get these guarantees 100% correct. To be sloppy around this issue is to invite law suits that threaten the mother ship.
Here is the link to the Agriculture, Trade, and Consumer Protection Law regulating “Home Improvement Practices” in the State of Wisconsin.
The law spells deaith to certain small companies who don’t have the resources Community has to defend themselves against an attorney using the law to destroy a company.
The law means profound disadvantage to companies with clients who wish to use the law to force the contractor to offer all kinds of concessions around punch lists or problems not in contract the client does not feel like paying.
The language is extremely vague and subject to manipulation by predatory attorney. I would appreciate some on-line conversations with all of you about ways to protect ourselves from the law’s worst unfair features and ways to refine the law so the playing field is less biased against us in case of disagreements.
Here’s the link to the complete law.
Below the link are some portions of the law where I have highlighted items most relevant to our contractual practice.
ATCP 110 - ANNOT.
Note: This chapter is adopted under authority of s. 100.20 (2), Stats., and
is administered by the Wisconsin department of agriculture, trade and consumer
protection. Violations of this chapter may be prosecuted under s. 100.20 (6), 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys fees.
One b. The tenant or lessee of residential or noncommercial property to which the home improvement contract pertains if the tenant or lessee is or will be obligated to make a payment under the home improvement contract.
Two. “Home improvement” means the remodeling, altering, repairing, painting, or modernizing of residential or non-commercial property, or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement or repair of driveways, sidewalks, swimming pools, terraces, patios, landscaping, fences, porches, garages, basements and basement waterproofing, fire protection devices, heating and air conditioning equipment, water softeners, heaters and purifiers, wall-to-wall carpeting or attached or inlaid floor coverings, and other changes, repairs or improvements made in or on, attached to or forming a part of the residential or non-commercial property, but does not include the
construction of a new residence. The term extends to the conversion of existing commercial structures into residential or non-commercial property.
ATCP 110.02 Prohibited trade practices. No seller shall engage in the
following unfair methods of competition or unfair trade practices:
One. MODEL HOME REPRESENTATIONS. Misrepresent or falsely state to a prospective buyer that the buyer’s residential or non-commercial property is to serve as a “model” or “advertising job”, or use any other prospective buyer lure to mislead the buyer into believing that a price reduction or other compensation will be received by reason of such representations.
Two. PRODUCTION AND MATERIAL REPRESENTATIONS. Misrepresent directly or by
implication that products or materials to be used in the home improvement:
Two a. Need no periodic repainting, finishing, maintenance or other service.
Two b. Are of a specific or well-known brand name, or are produced by a specific
manufacturer or exclusively distributed by the seller.
Two c. Are of a specific size, weight, grade or quality, or possess any
other distinguishing characteristics or features.
Two d. Perform certain functions or substitute for, or are equal in performance to, other products or materials.
Two e. Meet or exceed municipal, state, federal, or other applicable standards or requirements.
Two f. Are approved or recommended by any governmental agency, person, form or organization, or that they are the users of such products or materials.
Two g. Are of sufficient size, capacity, character or nature to do the job expected
Two h. Are or will be custom-built or specially designed for the needs of the buyer.
Two i. May be serviced or repaired within the buyer’s immediate trade area, or
be maintained with replacement and repair parts which are readily available.
Feb. 24, 2006
Dear Rachel, Peter, Bill, and Jon,
On behalf of the thousands of hard toiling
And modest restoration artisans
Doing their best to restore our historic homes
And make an honest days pay
For an honest days work,
For hearing the complex
Yet very simple story
Of Community and the
Hearing the story,
With an open mind,
And a readiness to advance
Simple justice, common sense, and
Protection of the accused by
A jury of peers.
If a small company of 30 years’
Solid service in a very dangerous,
Highly competitive and “low status” industry,
Can be destroyed over a non-issue
By the unintended consequences of a law,
Ostensibly designed to
“Protect the vulnerable,” and
Address “inherent imbalances of power,”
Something must change.
The law must be refined, in light of
The absurd imbalance between
The issues of this case,
And the fees awarded the plaintiff’s attorney.
I welcome whatever help you can offer,
Directed toward creating a level playing field
For accusers and accused, and
Fine tuning a law, that now encourages
Law suits that could result in damages 10 times the
Cost of the object in question,
Discourages the likelihood of attorneys as thoughtful mediators, and
Encourages attorneys to seek excuses
I am prepared to spend a lot of time and energy
Around this issue, given that a loss
Would condemn me and an entire class of artisans
To tolerate unfair treatment from the
Most narcissistic of clients
Because the law as it now stands
Makes us give a vastly inflated pound of flesh
For inevitable “deviations from perfection”
In the “transaction” and “producton” aspects
Of our work.
The law can be misused such that honest mistakes
And inevitable misunderstandings in a
Highly subjective realm, i.e. restoration work,
Are translated by predatory attorneys
Into opportunities for outrageous claims and posturing
That juries should be given a chance to weigh
From the rich facts of each case,
Which facts most profoundly include
Outrageous legal fees.
The juries should be afforded the full picture
Of what the stakes are,
What the consequences of their decisions are,
What weight to give to contending parties
Around the concept “prevailing party.”
They should be able to have a role
In deciding relative blame and
I welcome your participation
In this important issue,
That goes far beyond
$26,000 in legal fees today.
It is possible that I am missing something
That minds more seasoned in the law can provide,
Something that would make me feel less violated
Due to the juries being withheld the full facts of the case.
The jury ruled that we had “substantially” fulfilled our
The jury gave the plaintiffs a modest sum
For deviations from perfection we never denied,
And the judge gave the attorney
More than twice the cost of the roof in question.
I will be contacting Bob Capen and Lauren Kaiser
Of Quality Wholesale, our primary suppliers,
And every other major area wholesaler in the industry,
Plus the top 10 or 20 companies,
Plus trade associations and
To seek their support
In the defense of our industry,
And defense of our company,
From predatory lawyers
Like we have endured
Around this case
For the past 2 years.