|Hon. Patricia S. Curley|
A home improvement contractors noncompliance with the regulations in ATCP 110.05 does not necessarily give the buyer the option to cancel the contract, the Wisconsin Court of Appeals held on Feb. 11.
In October 2000, Richard J. & Carol J. Snyder entered into a home improvement contract with Badger-land Mobile Homes, Inc., for installation of a bathtub in their mobile home. They negotiated the contract with Badgerlands vice president, Timothy St. Peter. At the time they executed the agreement, the Snyders made a down payment of $2,200 on a total contract worth $2,323.20.
Before the agreement was signed, St. Peter informed the Snyders that they would have to leave their mobile home for one or two days while the bathtub was installed because, during installation, there would be no running water in the mobile home. Because the Snyders were unsure when they would be able to vacate the home, the contract failed to specify start and completion dates.
Before Badgerland could begin construction, the Snyders changed their minds, and sent Badgerland a letter, declaring the contract void and requesting return of the down payment. Badgerland refused to return the down payment, offering to install the bathtub, and the Snyders filed a complaint alleging unfair business practices, and demanding double damages and attorneys fees.
Badgerland moved for summary judgment, which Milwaukee County Circuit Court Judge Thomas P. Donegan granted. The Snyders appealed, but the court of appeals affirmed in a decision by Judge Patricia S. Curley.
The Statutes and Regs
The Snyders claimed the contract is void under sec. 100.20(5) and Wis. Admin. Code ATCP 110.05(2) and 110.07(1) for two reasons. First, they claimed it violated ATCP 110.05(2)(a), by failing to list the address of Timothy St. Peter, who negotiated the contract. Second, they claimed it violated ATCP 110.05(2)(d) and 110.07(1) by failing to specify start and completion dates for the improvements.
Section 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 in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorneys fee."
What the court held
Case: Richard J. & Carol J. Snyder v. Badgerland Mobile Homes, Inc., No. 02-0714.
Issue: Is a home improvement contract void if it fails to set forth the address of the contractor’s agent? Is a home improvement contract void if it fails to set forth start and completion dates for the project?
Holding: No. If the address of the contractor and its agent are the same, listing it twice would be unnecessary and redundant. No. Where the dates were omitted solely for the benefit of the buyer, the buyer cannot use that omission as a vehicle for evading responsibilities under the contract.
Counsel: George W. Love, Waukesha, for appellant; S.A. Schapiro, Milwaukee, for respondent.
ATCP 110.05(2) provides in relevant part that written contracts for home improvements shall set forth all material terms, including, "(a) The name and address of the seller, including the name and address of the sales representative or agent who solicited or negotiated the contract for the seller," and "(d) The dates or time period on or within which the work is to begin and be completed by the seller."
Finally, ATCP 110.07(1)(c) & (2)(a) provide that a buyer may cancel a contract if, "a buyer pays a seller for any home improvement materials or services before the seller provides those materials or services to the buyer," and "[t]he buyer believes that the seller has failed to provide the materials or services in a timely manner, and the home improvement contract specifies no deadline for the seller to provide the materials or services."
The court concluded, however, that, because the address for Badgerland and St. Peter were the same, ATCP 110.05(2)(a) was not violated, and because the start and completion dates were omitted for
the Snyders benefit, (2)(d) was not violated, either.
Lack of Address
The court first concluded that the contract was valid despite the absence of an address for St. Peter. The contract listed the address for Badgerland, and was signed by St. Peter. However, no separate address was provided for St. Peter.
Nevertheless, the court rejected the Snyders argument that the regulation was violated by that omission, or the lack of even a cross reference to Badgerlands address.
Instead, the court concluded, "the unambiguous language of sec. ATCP 110.05(2)(a) requires the listing of separate addresses for both the seller and the sales representative only where the address for the seller and the sales representative are different. However, where the sales representative is an agent of the seller and may be reached through the seller, the requirement to list a separate address for each would be redundant and unnecessary."
The court noted that the goal of the regulation is satisfied where the sales representative provides an address to the consumer where he or she can be reached. The court found, "Because the Snyders have failed to establish that St. Peter could not be reached at Badgerlands address, they have failed to establish a prerequisite to a violation of sec. ATCP 110.05(2)(a)."
Next, the court concluded that the contract was valid, despite the lack of start and completion dates. The court agreed with Badgerland that, because these dates were omitted at the request of and for the benefit of the Snyders, the omission did not void the contract.
The court further found that permitting recovery by the Snyders would not further the purpose of the regulation – "to protect consumers from home improvement contractors who take the money and run, i.e., execute contracts through face-to-face, telephone or mail solicitation away from the regular place of business of the seller, and then fail to show up to begin construction or fail to complete construction in a timely manner."
Distinguishing such a situation from that of the Snyders, the court found, "despite having full knowledge that they would have to vacate their mobile home when the construction was to take place, and despite the fact that the start and completion dates were omitted from the contract for the convenience of the Snyders to allow them flexibility in choosing when to vacate their home, they now wish to benefit from such an omission.
This is outside the scope of the protections afforded by Chapter ATCP 110. We cannot allow the Snyders to profit from the omission of a requirement that was eliminated for their benefit."
Accordingly, the court affirmed the grant of summary judgment in favor of Badgerland. The court concluded that the Snyders suit was not frivolous, however, because of the paucity of case law on the regulations in question. Thus, the court also affirmed the trial courts refusal to award attorneys fees to Badgerland.
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David Ziemer can be reached by email.