Three observations need to be made concerning the decision in this case. First, no reasonable person can dispute that the decision is fair, just, and equitable.
Second, the decision might be consistent with existing case law and the terms of the regulations. But third, the path the court took to reach its decision ignores both governing precedent and the plain language of the regulations.
As noted above, ATCP 110.05(2)(a) requires a written home improvement contract to set forth, "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."
Obviously, as the court observed, if the address of the seller and agent are the same, writing it down twice would be "redundant and unnecessary." Nevertheless, that is what the plain language of the regulation requires.
Every day, business people order goods and services using standard contracts that provide room for two addresses – where the goods are to be delivered, and where the bill should be sent. Frequently, they fill in the second blank with the word, "same." The regulation clearly requires such form.
At the very least, the regulation is ambiguous; however, no plausible construction of the English language permits the conclusion the court drew – that it unambiguously does not require the agents address to be listed separately or, at a minimum, by cross reference, such as "same."
The most questionable aspect of the courts opinion, however, is the absence of any relevant citation to the leading governing case on sec. 100.20(5), Baierl v. McTaggart, 2001 WI 107, 245 Wis.2d 632, 629 N.W.2d 277.
In Baierl, a residential lease provided, contrary to ATCP 134.08(3), that, in the event of legal action by the landlord to enforce the lease, the landlord would be entitled to reimbursement of attorneys fees from the tenants.
Without any legitimate justification, the tenants prematurely abandoned the apartment. Unable to re-rent the property, the landlord sought damages, but did not seek to enforce the unlawful attorneys fees provision. The circuit court held the lease unenforceable.
A court of appeals panel consisting of the same judges as in the case at bar – Charles B. Schudson, Patricia S. Curley, and Ted E. Wedemeyer Jr, but with Schudson dissenting – held the lease was enforceable, because the unlawful provision could be severed from the rest of the lease.
Looking at the equities of the situation – the tenants breached the lease, and the landlord made no attempt to enforce the illegal provision – the majority held in favor of the landlord.
The Supreme Court reversed, however. After examining, at great length, the purpose of sec. 100.20 and the applicable regulation, the inequity in bargaining power between tenants and landlords, and the administrative history of the regulation, the court concluded that it would frustrate the goal of the regulation – eliminating tenant intimidation – to allow severance of the unlawful provision and enforce the lease.
Justice Diane S. Sykes dissented, in an opinion joined by Justice David Prosser Jr, stating, "The majority opinion allows the tenants in this case to use the code not as a shield against an unfair trade practice by their landlord, but as a sword to escape legal responsibility for breaching their lease…"
The majority opinion did not dispute that the effect of its decision was to do exactly as Sykes dissent complained, nor could it seriously have tried. Nevertheless, the purposes of the regulation being of such importance, the majority accepted that injustice as a necessary evil toward achieving a greater good.
How, then, is this case different? The regulations at issue here serve very important goals, as well, as the court of appeals acknowledged.
The court stated the purpose of requiring start and completion dates – "to protect consumers from home improvement contractors who take the money and run, i.e., execute contracts … 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."
Requiring start and completion dates on contracts is indisputably a valuable means of serving this purpose.
The court noted the purpose of the name and address requirement, also, stating, "This provision is intended to protect consumers from sales representatives who solicit business on behalf of a company, but who are merely independent contractors unaffiliated with the seller and who cannot be reached or located through the seller or who solicit business door-to-door without providing a legitimate address."
Following the regulation verbatim – having the agent provide his name and address, as well as that of the business – is a valuable means of serving this purpose, as well.
Furthermore, in both Baierl and the case at bar, the party whom the regulation was meant to protect was using the regulation as a sword, rather than a shield. Yet, the court decided the case in an opposite manner than in Baierl, with no more than nominal citation to the case.
Nevertheless, there are plausible reasons why Baierl could be distinguished. In this case, the start and completion dates were indisputably omitted for the benefit of the buyers. But, there is no way that the landlord in Baierl could have argued that the illegal attorneys fees provision was inserted for the tenants benefit.
In addition, the regulation in Baierl indisputably served the purpose of the underlying statute – protection from unfair trade practices – while requiring both the agents and the business address to be listed, even if they are the same, is unnecessary to further the purpose of the statute.
Thus, the court could have held that, notwithstanding the regulations actual language, the purpose of the statute takes precedence, and the regulation will only be enforced to the extent necessary to serve that purpose.
Accordingly, the ultimate decision in this case is both just, and may be reconcilable with the decision in Baierl. However, without any principled attempt to distinguish Baierl, its utility as precedent is dubious.
– David Ziemer
Click here for Main Story.
David Ziemer can be reached by email.