Dear Rachel,

So at court Friday Roy Wagner let the judge know that I was, per this law, subject to possible criminal prosecution, under the Bentkowski(sp?) case, sect. 2001, sect 35. He also said that our arguing that we “prevailed,” given the jury said we have “substantially performed our contractual obligations” and only awarded them $500 for a violation that would open to floodgates to attorney fees, was wrong because of the “inextricably intertwined” nature of the issues, also citing the Bentkowski case. He said our “desperation” over fees shows the law is working to give the people protection and “encourage settlements” and “avoid litigation.”

Were it not for the double damages and attorney fees dangled before shark lawyers like Wagner, we would have found it possible to mediate differences with client. Wagner was totally disinterested in participating in the mediation session we had, because he would forgo chance at $52,000 of legal fees over an $11,000 roof and violations of ATCP law which are trivial to basic contractual performance. When I read the law I see vague terms that will doom me to perpetual obsequience in the face of aggrendizing, free riding clients. I feel like a sharecropper in Jim Crow south in the face of this law and lawyers like Wagner. I plan on devoting a substantial part of my personal and commonwealth practice to this issue. This law without fine tuning will make it impossible for restorationists to create institutions from their life-long efforts. It will destroy many worthy small contractors businesses and careers in the “above ground economy.” It will further the tendency for “black market” home improvements, by people without liability or workers comp insurance, who also won’t be paying taxes. Why should someone like me even try to play by the rules when the rules are so stacked againt my efforts to be a legitimate business.

Here is the law in question.

CHAPTER ATCP 110
HOME IMPROVEMENT PRACTICES

http://folio.legis.state.wi.us/cgi-bin/om_isapi.dll?clientID=223023&infobase=code.nfo&jump=ch.%20ATCP%20110

At Friday’s hearing with Judge M. Joseph Donald, there was talk of a case(Hensly, sp?) that implied fees to the “prevailing party.”

Peter argued that we were the prevailing party because, with respect to the issue of attorneys fees(which is all we are arguing about now),

Plaintiff Only Due Legal Fees for $500 Issue Over “Misprepresentation”

  • the plaintiff’s only won the jury’s support for $500 for “misrepresentation”(this “misrepresentation” was either rooted in (l) the old time use of the term “30 lb. felt” when “Number 30″ is now more accurate, or perhaps the fact that the #30 felt we used turned out to be the lightest of the 5 brands of #30 felt we weighed). In the old days a piece of wood called a “l” x 8″ was really one inch by eight inches, a 2″ x 4″ was really two inches by four inches, and 30 pound felt was really 30 pounds per 100 sq. ft. People in the trades still say 2 by 4 and 30 pound, even though they are strictly speaking wrong. Under the ATCP law this “verbal looseness” may be construed as “misrepresentation” or “false statements.” I should also add that the agent for our supplier wrote a report where he stated we used “15 lb.” or perhaps “no. 15″ felt, when his mind was on “rote” rather than the specifics of this case. As he testified in court, the vast number of specs he writes up (way over 90 percent) have the shingle stated followed by “15 lb.” or “#15″ felt.

This mistake is what got this whole terrible drama underway. For standard roofs of the kind in question, the “weight” of the felts has nothing to do with the performance of the product. Owens Corning’s expert wrote me that guarantees are not affected at all. By a curious and surreal trick of fate, my supplier’s agent’s mistake was made to the mother of the homeowner who happened to have a slate roof, where the weight of the felts does make a difference, insofar as slate roofs(tile roofs even more) are “loose” to the elements, allowing wind driven rains to blow behind the slates. The roofing felts in these roofs are waterproofing factors, so the heavier felt makes a difference.

It is also possible that “misrepresentation” occured when Karl Ramirez, our contractor, told the people that we could not obtain “blue valleys.” In terms of the everyday consciousness of 99.999 per cent of this Wisconsin’s roofing contractors, that is a correct statement. In my 40 years in roofing I have never seen a blue valley. I would have said the same thing. But it turns out that, strictly speaking, we could have found some blue metal somewhere, and bent it custom.

So these two non-issues, in terms of the reason the judge said the law was written, e.g. so contractors would “deal with people in good faith” and “don’t try to do things to, in essence, rip people off,” are what could have led to our paying $52,000 in legal fees, as the plaintiff’s lawyer, Roy Wagner aimed for, or, the $26,000 in legal fees that the judge awarded!

  • regarding jury finding of “substitution of product” they ruled this occured but without any damages due(this substitution was probably a judgment call by our foreman to not cut into a lannon stone wall because the old reglet in the masonry used to tuck counter flashing metal into wall was in good shape. There expert agreed that this was a proper judgement call but strictly speaking it was not what the contract called for, i.e. said we would cut into the wall. This and other issues in this case brings to mind the “young clerk” rules where subordinates’ are less perfect than the owner and sometimes common sense says their mistakes should be understood to be rooted in their having lots yet to learn about the intricacies of their industry).

  • jury’s finding of “negligence” ($3,700) falls outside of the scope of ATCP and requirement of legal fees to plaintiffs. “Negligence” involves workmanship issues which were “deviations from perfection” we never denied and offered to handle on the “punch list.” We were denied this opportunity and the $3,700 is based upon a spectacularly inflated price for punch list offered by plaintiff’s “paid experts.”

Community Prevailed in Basic Issue: Substantial Performance

  • Jury awarded us roughly $3,400 due us, agreeing with us that we had substantially performed on our contract.

Thank you for whatever help you can provide on your own. I would appreciate any help you can offer regarding the discovery of legal scholars who are interested in justice for restoration artisans like myself and my associates. The lack of “voice” from the artisinal class over the centuries is reflected in this law. I aim to give “voice.”

More to come,

Love,

Dad

Feb. 20th
Svens

Dear Rachel and Peter,

It is my great honor and relief
To introduce you on-line,
Although I did introduce you both
At Rachel’s Schwartz’ talk.

Rachel, Peter’s phone numbers are
414 333 7359©
414 291 9155(w)

Peter, Rachel’s phones are
(973) 642–8957(w)
917 304 2351©

I would imagine that not since the Guilds
Have the artisan classes had “voice.”

Perhaps your efforts on our behalf
Will make history for an emerging “new class,”
i.e. educated artisans like myself, Josh, Karl,
and hundreds more like us coming down the pike.
We must be protected from arbitrary courts and laws
That have unintended consequences
Rewarding the shadow side of morally questionable attorneys.

God bless,

Olde

Last edited by g.   Page last modified on February 20, 2006

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