Stuart v. Weisflog's Showroom Gallery, Inc.

Farquhar-Stuart, Robert Stuart and Lin Plaintiffs-Appellants-Cross-Respondents,

v. Weisflog's Showroom Gallery, Inc., Weisflog, and Ronald R. Defendants- Respondents-Cross-Appellants-Petitioners,† Family

American Mutual Co., Insurance Defendant-Respondent-Petitioner.

Supreme Court No. argument September 2005AP886. Oral Decided March

2008 WI 22 (Also 762.) reported in 746 N.W.2d † Motion for reconsideration filed. defendant-respondent-petitioner

For the there were by Pytlik, Stoeck, briefs Paul J. Michelle M. and Hills Legal Group, Ltd., Waukesha. defendants-respondents-cross-appellants-

For the petitioners by Joya Ratzel, there were briefs James C. J. Santarelli, Associates, LLC, and Ratzel and Brookfield, argument by and oral James C. Ratzel. plaintiffs-appellants-cross-respondents For the there by Carrig, was a brief James J. Jelenchick, Matthew R. Pyzyk, Carrig Niebler, LLP, and & Klaver Menomonee Ryan Falls; M. Benson and Siren; Benson Law Office, Roy Wagner Roper and E. SC, and von Briesen & argument by Roy Wagner. Milwaukee, and oral E. by

An amicus curiae brief was filed Lori M. Lubin- sky, Axley Procter, Robert C. Sinderbrand, Carl A. Brynelson, LLP, Madison, on behalf of the Wisconsin argument by Association, Builders and oral Lori M. Lubinsky. by

An amicus curiae brief Kim, was filed Alan G. B. Abigail Jr., Potts, Kent, S.C., C.S. and Anderson & Madison, on behalf of Madison, NARI of Inc.

An amicus curiae Greene, brief was filed John S. attorney general, Rohlich, assistant Nelle R. assistant attorney general, attorney gen- Hollen, and J.B. Van eral.

¶ 1. N. PATRICK CROOKS, J. This is a review of a published appeals,1 affirming decision of the court of part, reversing part, remanding directions, with Inc., Weisflog's Stuart v. Gallery, Showroom App 2006 WI 2dWis. 721 N.W.2d 127. County, for Waukesha the Circuit Court an order of Haughney.2 Judge Patrick C. Gallery, Weisflog's Petitioners, Showroom 2. individually, (WSGI), (Weisflog) Weisflog Ronald

Inc. Company, Family Mutual Insurance and American Weisflog's insurer, review of the court seek WSGI's and part appeals' in and reversed decision that affirmed of judgment part in of the court's favor in respondents, the circuit Farquhar-Stuart Lin Stuart and Robert Stuarts). (collectively, This case involves the inter- the Improvement application pretation Home (HIPA), Admin. is contained Wis. Act which Practices 2004)3 (ATCP 110), (Oct., § and Wis. ATCP 110 Code (2003-04)4. 100.20(5) § Stat. 1) upon principal review: There are six issues respon- negligence the HIPA claims of the

Whether 2) by limitations? Whether a statute of dents are barred doubling provides of HIPA, for the the which (Wis. any Stat. order" of a violation... "because 100.20(5)) § pursuant HIPA, authorizes issued damage doubling even if a HIPA an entire award wrongdoing that additional is combined with violation 3) given question? Whether, the loss in contributes to presented present case, circuit in the the evidence asking apportion error court committed HIPA claims and their the Stuarts' between 4) negligence economic loss doc- claims? Whether the (ELD) applies or HIPA violation claims to bar the trine 2 Weisflog's v. Stuart case, companion case this Inc., Gallery, 753 N.W.2d 2d_, 2008 WI 86, _ Wis. Showroom (Stuart II),was July on released Administrative references to the Wisconsin All further otherwise noted. 2004 version unless are to the October Code are to the Statutes All further references to Wisconsin otherwise noted. version unless 2003-04 5) negligence respondents? claims of the Whether a may corporate employee personally be held liable for corporate entity acts, he or she takes on behalf of the 6) employs him her, that violate the HIPA? and Whether the circuit court erred in its determination of appropriate attorney fee award? appeals.

¶ 4. affirmWe the decision of the court of doing so, In we hold as follows on each six principal First, issues. we hold that the HIPA Stuarts' by claims and their claims are not barred governed statute of limitations because their claims are discovery six-year rule and the statute of limita- 893.93(l)(b). § tions set forth in Second, Wis. Stat. we 100.20(5) are satisfied that Wis. Stat. authorizes the doubling damage award, of an entire if even a HIPA wrongdoing violation is combined with additional that question. contributes to the loss in Third, based on the present evidence in the record and on the facts of the by asking case, we hold that the circuit court erred apportion damages between the Stuarts' HIPA negligence claims and their Fourth, claims. we are inapplicable satisfied that the ELD to the Stuarts' claims, and, therefore, Fifth, does not bar their claims. corporate employee may person- we hold that a be held ally acts, liable for he or she takes on behalf of the entity corporate employs him her, that violate Lastly, the HIPA. we hold that the circuit court erred appropriate attorney its determination of an fee award.

H ¶ 5. The Stuarts hired to WSGI remodel and to put an Brookfield, addition onto their home in Wiscon- Weisflog president building sin. is the WSGI, a home remodeling company. and In the Stuarts met with Weisflog project. to discuss their The Stuarts claim that Weisflogpromised that, an architectural fee of them design provide them with a and final $1,000, he would drawings remodeling the addition. Robert for the and for Weisflog promised him trial testified at Stuart service[s]." "independent addition, In architectural Weis- building flog Brookfield codes stated that he understood comply regulations, them. and that he would with and "Remodeling signed a Architectural Con- The Stuarts (Architectural Contract) encompassing agree- this tract" Weisflog son, Robert, nor his who was ment.5 Neither project manager, licensed architect. Further- was a retained for the more, architects were no outside misrepresentation project. that the Stu- This claimed services, when the receive "Architectural" arts would provided, is one of services of an architect were In HIPA claims. for the Stuarts' bases drawings, receiving May 1996, the Stuarts after remodeling for the entered into a second contract (Remodel- of their home addition for the construction Contract), payment ing called for a total which $278,000. misrepresentation support In of the Stuarts' Weisflog had testified at trial that

claims, Robert Stuart Weisflog products promised would the Stuarts that high quality, project that he was use on their were building codes understood the local familiar with and provide regulations, architec- and that "he could and doing included the Stuarts, the which tural service" for design However, in contrast "architectural work."6 question, jury the found that special In verdict answer to in false, misleading representations deceptive, or made WSGI remodeling to enter into the to induce the Stuarts order payment under said contract. contract or for architectural assertion, these Contrary to the concurrence/dissent's on Weisflog misrepresentations made that statements show Weisflog's representations, highlighted the Stuarts at trial the poor quality of the services and products they received, had and emphasized also Ronald and Robert at Weisflog's admissions trial about their lack of famil- iarity with local and building regulations. codes For trial, at Ronald example, Weisflog admitted he was not familiar with certain relevant portions City Brookfield's building Furthermore, code.7 Robert Weis- flog testified he was even not aware that Brookfield had a building code. 7. Under Robert Weisflog's direction, WSGI re-

modeled the home and addition, built in- which cluded a room In containing hot tub. Robert behalf of WSGI about existing qualifications, his then knowl- abilities, edge, just and performance, about future regard in Remodeling to the Concurrence/Dissent, Contract. 67-76. ¶¶ example, For his assertion that he understood Brookfield codes regulations very and exactly well was present misrepre- such a given sentation later his admissions at trial the contrary. He comply could not building of, with he codes that was not aware present misrepresentation. this was a Accordingly, record reflects Weisflog that present misrep- WSGI made regard resentations to both the Architectural Contract and Remodeling Indeed, jury Contract. "yes" answered when remodeling asked whether agents contractor or its made false, deceptive, misleading or representations that the remod- eling work comply would with the building jury codes. further found that this was a cause of to the Stuarts. 7 good A example was Ronald Weisflog's admission at trial that he was unaware of the local building properly code for exhausting dryer The improperly-exhausted dryer vents. vent engineer/home was linked inspector Stuarts' to the later growth mold and lint accumulation the Stuarts' attic. We note, again, found remodeling contractor agents or false, its made deceptive, misleading representa tions that the remodeling comply work would building with the codes. stepped through the tub

Stuart floor of hot room. up carpet room, lifted in that he discov- When he through. had rotted Stuarts ered that the floor The engineer/home inspector then hired an many who found building serious construction defects and other code violations. April approximately years In two after problems approximately and

the Stuarts discovered years commenced, after construction the Stuarts 'seven of their filed this lawsuit. In the various versions initially alleged negligence complaint, the Stuarts design contract, construction, breach of by misrepresen- HIPA of the claimed violations virtue Weisflog. just However, tations made WSGI and began, trial the Stuarts dismissed their before the breach of contract claims. presented testimony trial, 9. At the Stuarts plans

of an architect who stated that WSGI's were respects, including multiple their noncon- deficient in building applicable The Stuarts formance with codes. engineer/home report their in- also introduced the many spector con- that discussed deficiencies report The concluded that some of these struction. deficiencies stemmed from the nonconformance plans the actual construction. and some resulted from report had to also concluded that the hot tub room The rebuilt, was an assessment be demolished and which expert at trial forced to concede. that WSGI's was faulty project repair was estimated total cost to $96,000. be about

II begin standards with a discussion of our 10. We Determining appropriate statutes of of review. apply and to the the HIPA violations limitations to negligence claims are questions and statutory admin istrative regulation construction that are subject to our LIRC, de novo review. DaimlerChrysler v. 15, 2007 WI 10, 1, 299 Wis. 2d 727 ¶ N.W.2d 311. 11. When whether determining

¶ Wis. Stat. 100.20(5) § authorizes the of an entire doubling damage award, even if a HIPA violation is combined with addi tional wrongdoing that contributes to the loss in ques tion, we apply same standard of review as we do for other issues of statutory construction. We must give effect to statutory enactments determining statute's meaning, especially through its language, which we presume expresses the intent of the legislature. State ex rel. Kalal v. Circuit Court Dane County, 2004 WI 58, 44, 271 633, Wis. 2d 681 ¶ N.W.2d 110. We favor a construction that will fulfill the intent of a statute or a regulation, over a construction that defeats its manifest Castrovinci, Shands v. object. 352, 115 Wis. 2d 356, 340 (1983). N.W.2d However, 506 for questions of statutory construction, such one, as this our review is de novo. Removal, DOR v. River City Inc., 27, 2007 WI Refuse 26, 561, 299 Wis. 2d 729 ¶ N.W.2d 396. Administrative rules or are regulations to be construed the same manner as are statutes. Baierl v. McTaggart, 2001 WI 107, 632, 245 Wis. 2d 629 N.W.2d 277. We utilize an identical standard of review in determining whether a corporate employee be held may personally liable for the acts, he or she takes on behalf of the corporate entity him or employs her, that HIPA, violate the since that issue also involves the interpretation statutes and administrative regulations. In determining whether the circuit court

erred by asking the apportion damages between negligence claims, start and we with the HIPA special requirement must cover all mate- that a verdict of ultimate fact. Wis. Stat. 805.12. How- rial issues special verdict remains within ever, the content of court will court, the circuit and this the discretion of special long so submitted, verdict not interfere with by appropriate of fact are covered as all material issues questions, Controls, 2d v. ITT 90 Wis. Meurer Gen. (1979), long so as the form 445-46, 280 N.W.2d applies correctly adequately covers the law Vogel Grant-Lafayette Coop., v. Elec. the case. (1996). 416, 422, Wis. 2d 548 N.W.2d apply ELD satisfied that the cannot 13. We are including statutory claims, HIPA, those under to bar public policy herein. issues that we discuss because of applies reviewing the ELD to bar the whether When respondents, negligence will claims of the we determine predominantly question are whether contracts apply products, and then must or for services Linden Cascade ELD the relevant set of facts. v. to Co., 113, ¶¶ 22, 606, 8, 283 Wis. 2d 699 Stone 2005 WI Elec., also Co. N. Am. v. Cease N.W.2d 189. See Ins. of Inc., ¶¶ 361, 139, 14, 15, 276 Wis. 2d 688 2004 WI questions are N.W.2d462. Both of these determinations subject independent our that remain to review. of law ¶¶ 14, Am., 361, N. 276 2d Ins. Co. Wis.

¶ erred in its deter- 14. Whether circuit court attorney award to fee mination on the amount of subject standard of review. is a different Stuarts erroneously exercised its dis- the circuit court Unless attorney typically cretion, of an fee award the amount given court, that of the circuit left to the discretion familiarity locality's billing greater with the court's opportunity to witness norms and its firsthand 115 quality attorney's representation. Kolupar v. Cadillac, Inc., ¶ Wilde Pontiac 2004 WI 112, 22, (Kolupar I); Kolupar 1, Wis. 2d 683 N.W.2d58 see also v. Cadillac, Inc., Wilde Pontiac 98, 15, 2007 WI 77); (Kolupar Wis. 2d N.W.2d Anderson v. Co., MSI Ins. 2005 WI 62, 19, 281 2dWis. Preferred may However, 697 N.W.2d 73. we examine the explanation circuit court's to determine whether the employed logical court rationale that was based on the appropriate legal principles and on the facts in the record. Id.

III. STATUTE OF LIMITATIONS Weisflog argue review, 15. On and WSGI the Stuarts' HIPA claims and their claims six-year were barred statute of limitations set applicable forth in 893.43, Wis. Stat. which is premise actions, contract under the that the Stuarts' actually claims were claims based on the breach of both Weisñog contracts. merely and WSGI claim that the HIPA penalty provisions adds the breach contract that, result, claims and as a the contract statute apply limitations should to the HIPA On review, claims. argue the Stuarts their claims, HIPA in addition to design negligent their claims for and construction, are independent claims similar to tort claims, which are governed by discovery the rule. adopted discovery

¶ 16. This court first the rule in Robins, Inc., v. 550, Hansen A.H. 113 559, Wis. 2d 335 (1983). Hansen, N.W.2d578 In we stated that it would "manifestly unjust be for the of statute limitations to begin reasonably run before a claimant could become injury." practical aware of the Id. noted a We that "as matter a claim cannot be enforced until the claimant injury accompanying right discovers the and the of

116 discovery rule, there could be Id. action." Without a claims would be time barred before instances where be, discovered, which would was, or even could harm injured party impossible to seek redress. for an make it punish this victims were noted, would who Id. As we many wrong delay and would benefit blameless barring by held such meritorious claims. Id. We doers injustice barring claims before meritorious "that the outweighs injury the threat the claimant knows result, Id. As a we or fraudulent claims." stale discovery applied to "all tort rule concluded that by already governed legisla actions other than those Finally, tively discovery at we rule." Id. 560. created "[s]uch accrue on the date the held that tort claims shall diligence injury discovered[,] or with reasonable Id. discovered, occurs first." We should be whichever discovery claim rule to hold that a extended the later injury discov until the cause of was did not accrue Milwaukee, 312, 2d v. Wis. ered. Doe Archdiocese of (1997). 335, N.W.2d94 that none of the Stuarts' We are satisfied by a of limitations. The are barred statute

claims are claims and claims Stuarts' HIPA governed their discovery hold that rule. We type the HIPA was harm Stuarts' was of prevent, Stuarts were within the class intended to protect, persons that the HIPA was enacted clearly legislative expressed that the liability, intent there awas imposition provide of civil for the HIPA a basis provisions accordingly, of HIPA that, violations liability imposition of civil for the constitute basis any separate apart of contract claims. breach from App ¶¶ generally 2, Derricks, v. 2000 WI See Taft result, As a we 12, Wis. 2d 613 N.W.2d discovery apply Id. to the Stuarts' claims. rule 893.93(1)(b) § ¶ 18. We hold that Wis. Stat. is the applicable given allegations statute of limitations misrepresentation upon fraud and which the Stuarts' including claims, both their HIPA and claims, are based. The relevant statute reads: "An ground action for relief on the of fraud. The cause case[s] action in such deemed to have accrued discovery, by aggrieved party, until the of the facts 893.93(l)(b). constituting § the fraud." Wis. Stat. Applying discovery ¶ 19. rule and Wis. Stat. 893.93(l)(b), § are that, we satisfied law, as a matter of timely Discovery by the Stuarts filed their claims. Stuarts of the facts could have occurred no earlier than through when Robert Stuart's foot went the floor of the hot tub fall room the of 2001. The Stuarts filed their April years claims on 2003, which was less than two discovery filing after the of the facts in 2001. The date six-year was well within the statute of limitations 893.93(l)(b). by prescribed Accordingly, none of the Stuarts' claims are barred the statute of limitations. IV DAMAGES petitioners argue 20. The that double only should be assessed on the amount of the jury apportioned that violations, to HIPA and not to portion pecuniary negligent of the loss attributed to design. argue construction contrast, In the Stuarts pecuniary their entire loss should be doubled preserve because that result would the remedial nature important protections encompassed consumer the HIPA. present case, facts of we hold 21. Given the the applied require petition- to the the HIPA should be pay damages pecu- entire on the Stuarts'

ers to double though alleged niary other, the Stuarts non- loss, even the HIPA, the HIPA is silent on whether claims. While damages doubling applies entire amount of the to the of by pecuniary the contractor loss when other conduct loss, the statutes must be remedial contributes remedy liberally the construed to advance legislature Flood, Benkoski v. intended to be afforded. App 2d 851. 84, 242 626 N.W.2d 2001 WI Wis. Benkoski, a in which the court of In case damages, question appeals double of addressed (Benkoski) home owner should court held that mobile price damages in of twice the sales receive the amount advertising expenses home, twice the of mobile attorney fee incurred, an award when Benkoski and park's Admin. Codes home owner violated Wis. mobile §§ 125.09, 710.15, ATCP 125.06 and and Wis. Stat. adding on the sale of the an unreasonable restriction ¶¶ Benkoski, 2d 1-3. mobile home. Wis. park's added a condition to home owner had mobile park lot lease that future Benkoski's mobile home purchaser the mobile home from would have to remove park Benkoski sold the the end of the lease when at appeals held that the Id. The court of mobile home. appropriate remedy it because of double was 1) injured by encourage unfair those who were would: regulations practices that violated administrative trade 2) "pri- bring encourage individuals to become suit; enforcing rights, attorney generals" their own vate rights operating aggregate to enforce effect with 3) public; impermissible conduct that deter by subjecting regulations viola- administrative violated damages, attorney tors to double an award, fee and 4) augment Department costs; the Wisconsin regulations. Justice's enforcement of administrative Id., agree

¶ 23. We with the statement of the court of appeals in the matter before us that "double attorney dispel help parties fees reluctance injured by practices bring unfair trade forward their help causes action and deter similar and future aggregate malfeasance, contractor with the effect of working public good." Weisflog's to the Stuart v. Show- Gallery, App Inc., ¶ room 109, 2006 WI 48, 293 Wis. 2d (citation omitted). 668, 721 N.W.2d127 In cases, such the pecuniary entire loss should be doubled for HIPA viola- damages remedy tions. Double are an available for HIPA given language violations, clear the of Wis. Stat. 100.20(5) § recovery allows the of "twice the amount 100.20(5). pecuniary § of such loss ...." Wis. Stat. present ¶ 24. Furthermore, in the the case, Stu- pecuniary arts' entire was loss suffered because of the petitioners' namely misrep- violations, HIPA the initial upon entering resentations, which the Stuarts relied in into contracts. A both clear causal connection exists pecuniary between the Stuarts' entire loss certainly HIPA That violations. connection is within statutory language person that a suffer must a "pecuniary a loss because of violation...." Wis. Stat. 100.20(5).

§ present require- case meets HIPA making misrepresentation ment a seller a "to induce any person improvement to enter into home con- 110.02(11). . . ." tract . Wis. Admin. Code ATCP Peti- misrepresentations tioners made their out "oftheir own design.. Rayner volition and . ." v. Reeves Custom App Builders, Inc., 15, Wis. 2d WI doubling Accordingly, 545, 691 N.W.2d 705. pecuniary appropriate in the loss is entire Stuarts' Upon given present re- facts in this record. case damages double the mand, circuit court should upon pecuniary loss the entire for the reasons based stated herein.

V.APPORTIONMENT objection peti- and at 25. Over Stuarts' question request, the court submitted a tioners' circuit jury asking apportion jury the- Stuarts' to the by damages caused WSGI's between those design negligent and those and construction misrepresentations action- that were caused WSGI's parties disagreed Specifically,the under the HIPA. able special 16B of the verdict Question the inclusion of over jury. Question 16B as follows: to the read submitted "Taking damages, percent what as a total amount 16A[8] you placed percentage of the amount answer Negli- you Misrepresentation_% do attribute to: gence 100%." Total construction_% liable under both 26. The found WSGI negligence After determin- the HIPA claims. claims and jury appor- ing damages $95,000, to the the Stuarts' be damages negligence percent to the the tioned 75 of damages percent to the HIPA claims and misrepresentation claims. postverdict motion in the The filed a Stuarts arguing Question 16B the inclusion of court that

circuit that motion. circuit court denied erroneous. The was any, fairly Question money, of if will 16A sum read: "What damages compensate Lin Stuart for reasonably Robert and defendant(s)?" jury of The resulting negligence the the from $95,000.00. figure of question this with answered appeals, again Befóte the court the Stuarts once argued submitting that the circuit court erred the apportionment question jury doing to the because so public policy frustrated the behind the The HIPA. court appeals agreed and, therefore, reversed the circuit argument court. The Stuarts continue to make that to this court. by having

¶ 28. Wehold that the circuit court erred jury apportion damages the between special claims and HIPA claims. The circuit court's particularly verdict, Question 16B, was not consistent unscrupu- with the law. The HIPA was intended to curb lous business tactics that cause financial to distress both persons engaged legitimate to consumers and in busi- generally Benkoski, nesses. See 242 Wis. 2d place ¶ 29. There is no remedial this framework apportionment damages for the when, here, as petitioners' misrepre- Stuarts' flowed from the Certainly, misrepresentations sentations. were in- causing strumental Stuarts enter into the contracts. apportionment

¶ 30. To obtain in lawsuits that party may claims, HIPA that, contain we hold before a request apportionment, it must meet the burden of showing separated.9 peti- that the can be present tioners failed to do so in the case. In such cases present way one, as the where no there is clear 9 The argues enough had concurrence/dissent separate information negligent construction that oc specifications curred as a result of the erroneous in the Weisflog-created plans negligent from construction occurred as a result of the following plans. builders not Concurrence/Dissent, 98. Our review of the record does not

122 pecuniary apportion loss Stuarts' between the pecu- damages, doubling HIPA the entire and by encouraging niary public policy concerns loss serves by generals" "private attorney and to victims become unscrupulous providing larger disincentives to contrac- tors. why apportion- are reasons 31. There additional present appropriate was in the case. There

ment not jury enough presented to at trial for not evidence apportionment, as demon- make a determination on Furthermore, did record. the circuit court strated jury apportionment issue.10 not instruct on jury Accordingly, did have we are satisfied that the enough law, instruction, or as a matter of information apportion damages negligent the Stuarts' to between design HIPA claims and their claims. construction party requesting here, that if, are satisfied as We providing apportionment its of fails meet burden apportion- at trial to necessitate sufficient evidence apportionment.11 ment, that there should be no jury that had support assertion concurrence/dissent's distinctions. enough information draw such 10 read judge reflects the circuit court The record Question 16B, Question including jury. to the The record also jury instructions to the judge only read standard reflects negligence, damages, and causa negligence, on contractors' Question gave jury on only explanation judge The to the tion. stated, question damage it and then specifically was that was a you damage questions no matter how 'You must answer the The previous questions in the verdicts. any of the answered by you, way be damages, any, if found should no amount your by any previous affected answers influenced be by reading judge then continued questions the verdict." The damages, damages, proof ATCP jury instructions standard on claims, misrepresentation. misrepresentation, negligent reasoning as misconstrues our concurrence/dissent VI. ECONOMIC LOSS DOCTRINE petitioners argue ¶ On review, 32. the that the by peti- Stuarts' claims ELD, were barred the and the urge apply "predominant tioners this court the purpose test," Linden, set forth Linden. 283 Wis. 2d ¶¶ 8, 22. want Petitioners this court to hold that primarily the transactions here for the were sale of goods used in construction and not for In services. argue apply the contrast, Stuarts that the ELD does not to bar their claims. inapplicable We ELD 33. hold that the to the apply claims, and, therefore,

Stuarts' the ELD does not apply to bar those claims. If were to ELD we to bar ignoring public claims, the HIPA we would be policies that are the for the basis HIPA. areWe satisfied apply statutory that ing claims, the ELD cannot includ- public policies.12 under HIPA, those because such applies Whether not the ELD to the Stuarts' non- analyzed HIPA claims would be and deter- using predominant purpose analyz- mined test. In ing light predominant purpose those claims in of the test, hold contract, we that the architectural which was services,13 one for was the core from transaction which remodeling the contract for the and for addition Rather, requiring prove damages. a defendant we are placing proving the burden of the evidence is of sufficient detail to allow for apportionment requests on a appor- defendant who an Concurrence/Dissent, tionment ATCP action. statutory The ELD does not bar claims. Given the inability present in the apportion damages case to between the statutory claims, common law of the none Stuarts' be claims should barred the ELD. arguing Remodeling In predomi Contract was nantly goods a contract (products), the concurrence/dissent services, also as That second contract involved flowed. products. that the core contract was well as some Given given services, and that both involved one for contracts were services, are satisfied that transactions we apply primarily and that the ELD does not for services present appropriate application in predominant purpose case. us to

test leads that result. In our Co. America v. Insurance North "bright decision, line Electric we enunciated a Cease "inapplicable ELD claims for the rule" that the is to provision negligent Am., Ins. 276 of services." Co. of N. Accordingly, ELD is we that the Wis. 2d hold applicable the were to Stuarts' claims because there not involving contracts, services, and because the two both significant applying the the first one, HIPA, was most provision the architectural services one for of so-called by Weisflog Linden, and eco WSGI.14As we noted purpose those for of the ELD "are nomic arising the product perform the does as ex

because not including product pected, damage or mon to the itself etary by product." Wis. 2d Linden, losses caused the 283 (citation omitted). Here, the Stuarts' negli- the the HIPA violations and from resulted from claiming is by the contract form over substance elevates "drawings," being a for the service opposed as contract one for communicating designs those creating of architectural and Concurrence/Dissent, designs. helpful controlling, find and illustrative we While separate two Minnesota court used when faced with approach a contracts, which was of which for services and one of one was Prods., Mach., Inc., 17 Ligna Inc. v. goods. for See Minn. Forest (D. 1998). apply court Minn. That refused to Supp. F. 2d 892 of "two with the existence predominant purpose test when faced design contracts," of for the and distinct one which was separate for of sawmill one was the sale sawmill and of which at 904. equipment. Id.

gent practices design petition- and construction supplies ers, not from failure of construction and products.15 Accordingly, reason, for this additional we inapplicable ELD hold that the is to the Stuarts' claims. previously, apply ¶ 35. As noted the ELD to the public policies underpin- HIPA claims would defeat the ning provides. the HIPA and the remedies it Public policy require protection concerns consumer statutes regulations pari and administrative be read materia goals providing consumers, achieve the as well as report engineer/home inspector, of the Stuarts' Tho Feiza, trial, presented mas replete which Stuarts at with design architectural and examples services provided of how were the cause Weisflog rotting WSGI and wood in the room, opposed hot products. tub as to deficient expert following The Stuarts' noted the deficiencies in the design hot rotting plans tub room's that led to the wood: details; the hot appropriate specifications tub room lacked plans to specify required pressure failed treated wood to decay termites; discourage there was no ventilation in the room; space unheated crawl below the hot tub the sole exhaust fan in the hot tub room had no visible discharge exterior termination; proper drainage specified; surface was not there grade was prevent not slab on construction to problems moisture with the wood framed there flooring; gutters were no on the hot foundation; tub room away to drain water from its the lack of a system; drain tile strip use of a wood retaining instead of retaining metal strip room, on the roof of the hot tub in to specifications, contradiction the manufacturer's which caused roof; up water on space to build the lack of crawl access panels, codes; as required building Brookfield and the lack of venting. sufficient roof herein, very

For the reasons discussed this case is different presented than the circumstances 1325 North us the case Ltd., Buren, Van LLC v. WI 94, 410, Group, T-3 293 Wis. 2d where N.W.2d the mixed contract predominantly was product, rather than for services. engaged legitimate persons businesses, with neces- sary protections appropriate v. remedies. Jackson (Ct. App. DeWitt, 877, 887, 224 Wis. 2d 592 N.W.2d 1999). involving

¶ 36. In a case another unfair trade appeals statute, apply court of held that the ELD our did not representa to bar a claim under the "Fraudulent statute, tions" Wis. Stat. Kailin Arm 100.18. See v. strong, App 70, 2002 WI 252 Wis. 2d 643 N.W.2d applying noted, 132. As the Kailin court the ELD to protection HIPA claims would eliminate the consumer legislature that the state intended. Id. gives Furthermore, HIPA no indication legislature merely remedy

that the intended to add a misrepresentation common-law breach of contract or Accordingly, ELD claims. we hold that does not claims, HIPA extend to nor does it cover claims such as the ones here that are the result of misrepresentations under the HIPA.

VIL LIABILITY PERSONAL parties disagreed special 38. The over ver- jury dict that would be submitted to the on the issue of Weisflog's personal liability. Ronald The circuit court request questions denied Stuarts' to include on the Weisflog special should be held verdict as whether personally petitioners The that such liable. asserted questions argu- be on their should not included based personal liability ment that should not result when an acting only corporate in his or her business individual capacity. appeals held that the circuit court erroneously special

court refused to submit to the questions Weisflog held verdict on whether should be personally respondents' damages.16 liable for the As a appeals result, the court of remanded that issue to circuit court with instructions to hold a new trial on Weisflog personally whether should be held liable. person, ¶ 40. The HIPA envisions that a such as Weisflog, may personally given plain be liable its lan- " guage person engaged which reads: 'Seller' means a making selling improvements the business of or home corporations, partnerships, and includes associations any organization entity, and other form of business representatives, agents employees." and their officers, 110(5) added). §ATCP (emphasis Wis. Admin. Code 100.20(5) "Any person Furthermore, Wis. Stat. states: suffering pecuniary by any loss because aof violation person any may other order issued under this section sue for therefore . .. and shall recover twice the pecuniary together amount loss, of such with costs, added.) including attorney's (Emphasis a reasonable fee." corporate employee may 41. We hold that a be personally acts, liable for he or she takes on behalf of corporate entity employs her, him or Accordingly, may violate the HIPA. such violations personal liability alleged create for individuals who are responsible prohibited, dealings to be for unfair practices.17 merely being However, we note that an agent, employee, representative, officer, shareholder, or enough impose liability director will not be individual 16Contrary to the assertion that "the concurrence/dissent's question Stuarts asked for no that would have assigned personal (Concurrence/ liability Weisflog to Ronald misrepresentation" Dissent, 113), exactly Stuarts made request such a in the Proposed Verdict, Plaintiffs' Special requests through 17 Despite argument petitioners, previous our (ADA) jurisprudence in Americans cases, with Disabilities Act proof person in a in the absence of on a such class personally responsible prohibited, he she was for or dealings practices. or unfair today Furthermore, in line our decision is jurisprudence prior in related areas of the law.

with our general agent, stated, "The rule is that the as As we have acting[,] respon principal he is is well as for whom agent." for the tortious acts of the Hanmer v. sible (1979) (cita DILHR, 90, 97, 2d 284 N.W.2d587 92 Wis. omitted).18 decision, it clear tion In another we made principle applies misrepre that this also to the tort of Blacketer, v. sentation. Oxmans' Erwin Meat Co. (1979) (holding 683, 692-93, 2d 273 N.W.2d285 a Wis. corporate personally liable for mis nonresident officer commit[ted] "personally representations the officer corporation participate[d] in" on behalf of the while Wisconsin). present in circuit court with 43. We remand the case to the trial on whether Ronald

instructions to hold new Weisflog personally the Stuarts' should be held liable for damages. Services, Inc., 7, v. Health Care

such as Alberte Anew 2000 WI distinguishable given 2d 232 Wis. N.W.2d 100.20(5) clearly provide for indi Stat. and ATCP 110 Wis. wrongdoers, are liability corporate employees for who vidual liability. contemplate ADA not such individual whereas the does 18 Hanmer, have volun In two business owners were held to employment unemployment tarily terminated their own they decided the business should compensation purposes when DILHR, 90, 95, 284 bankruptcy. Hanmer v. 92 Wis. 2d file for (1979). enjoy did not noted that the co-owners N.W.2d 587 We entity they jointly owned for legal apart status from the business stated, now, Id. In so nor has purpose. holding, we "It is this been, escapes individual law in this state that such an it ever acting capacity in the of a liability merely because he was corporate director." Id. at

VIII. ATTORNEY FEES ¶ 44. On verdict, motions after the the circuit attorney court $15,675 awarded fees the amount of sepa- the Stuarts. The circuit court declined to hold a hearing attorney rate on determination of an fee figure Instead, the award. circuit court reached that after it doubled the dollar value associated with the 25 percent that the attributed to the ATCP violations, which made the ATCP 110 dam- ages doing $23,750 $47,500. so, rise from After attorney circuit court then reached its decision that the by applying fee $15,675 award should be a 33 1/3 percent contingency damage fee to amount of $47,500.

¶ 45. The Stuarts contend that the circuit court using methodology correctly erred applying this instead of methodology.

the lodestar The Stuarts had sought approximately attorney $200,000 in In fees. Kolupar adopted methodology I, this court the lodestar determining attorney for reasonable fees under fee shifting specifically statutes and directed "the circuit logic explaining courts to follow its when how a fee Kolupar, award has been determined." See 275 Wis. 2d "[ujnder ¶1, 30. In Anderson, noted we this analysis, multiply the circuit court must first the reason- expended by able hours a reasonable rate.... may adjustments using circuit court 20:1.5(a) then make the SCR (cita- Anderson, factors." 281 Wis. 2d omitted); Kolupar II, tions see also 303 Wis. 2d ¶ 15. apportionment

¶ above, As noted of dam- ages negligence between the Stuarts' claims and their upon HIPA claims, which the amount of attorney based, fee award determination was was erroneous. Furthermore, we are satisfied that the use of percentage contingency fee instead of the lodestar methodology by anwas erroneous exercise of discretion given present the circuit court the facts of the case. ¶ 47. We remand this matter to the circuit court for a determination of what constitutes a reasonable attorney utilizing fee award in this case the lodestar methodology.

IX princi- holdWe as follows on six each of the pal issues that were we asked to answer in this decision. First, we hold that the Stuarts' HIPA claims and their claims are not barred statute limita- governed by discovery tions because their claims are six-year rule and the statute of limitations set forth in 893.93(l)(b). Wis. Stat. Second, we are satisfied that 100.20(5) doubling Wis. Stat. authorizes the of an damage award, entire if even a HIPA is violation wrongdoing combined with additional that contributes question. Third, to the loss in based on the in evidence present the case, record and on the facts of the we hold by asking that court circuit erred apportion damages between the Stuarts' HIPA claims Fourth, and their claims. we are satisfied inapplicable that the ELD claims, and, to the Stuarts' therefore, Fifth, does not bar their claims. we hold that may corporate employee personally be held liable for entity corporate acts, he or takes behalf she on employs Lastly, her, him or that violate the HIPA. we hold that the circuit in court erred its determination appropriate attorney of an fee award. appeals is af-

¶ the court of The decision of 49. court to the circuit the cause is remanded firmed, proceedings with our decision. consistent for

By the cir- and remanded to the Court.—Affirmed cuit court. {concur-

¶ ABRAHAMSON, C.J. SHIRLEY S. 50. except ring). join majority opinion Part VI relat- I ing loss doctrine. to the economic opinion agree majority

¶ that the I 51. with statutory apply to bar doctrine "cannot economic loss join including I do under HIPA."1 claims, those question majority opinion addressing the whether in for loss bars the Stuarts' claims the economic doctrine negligent design negligent discus- or construction. This present holding necessary case. in the sion is not majority opinion agree ¶ in not I with 52. responding to the that addresses concurrence/dissent plaintiffs case on whether the and decides instant misrep- proved the defendants made an actionable Improvement purposes of the Home resentation (HIPA).2 This raised Act issue was not Practices majority opinion properly leaves the issue briefed.3 The untouched. majority join forth, I For the reasons set 53. except separately

opinion issues I write on the Part VI. misrepre- doctrine and actionable of the economic loss sentation. {con- ROGGENSACK, J. PATIENCE DRAKE dissenting part).

curring part, before lawsuit op., Majority See concurrence/dissent, 66-81. ¶¶ opinion correctly majority states issues before court at 3.¶ design

the court arises from the and construction of an addition to the home of Robert and Lin Stuart (the Stuarts). Farquhar-Stuart types Two of claims (1) jury: were tried to a Admin- violation Wisconsin 110.02(11) (Oct. 2004)1 (a provi- istrative Code ATCP HIPA) Improvement sion of the Home Practices Act (2) misrepresentation negli- based on common law gence design in the and construction of the addition. prevailed types The Stuarts on both of claims and the allocated between those claims. part poten- ¶ 55. Before us as this review are a application tial of the statute of which limitations, Weisflog's Gallery, defendants, Inc. Showroom Weisflog, Ronald raised and; as an affirmative defense2 appeals attorney the court of that decision fees by by awarded the circuit court were determined an process recomputed. incorrect and must be majority opinion ¶ 56. The concludes by HIPA claim and claims are not barred the statute of limitations and the circuit court appropriate attorney erred in an its determination of majority opinion, part, fees I concur award.3 to the in because I conclude that the statute of limitations does type not bar either I if I claim. also conclude that were possible given to assume that a HIPA were violation jury's findings regard represented, factual to what was I would conclude that the HIPA Stuarts’ claim would not be barred economic loss doctrine and that the analysis determining the circuit court used

1All further references to the Wisconsin Administrative version, Code are to the October unless otherwise noted. 2 Neither the circuit court the court of con appeals nor cluded that the affirmative was defense meritorious. 3 Majority op., ¶ prece attorney the of fees is inconsistent with

amount by Kolupar Cadillac, Pontiac v. Wilde dent established ¶¶ Inc., 23-30, 1, 275 Wis. 2d 683 N.W.2d 2004 WI deter remand, circuit court should However, on the 58. Remodeling Contract is the Architectural mine whether improvement in Ad as defined Wis. "home contract" 110.01(4)4 § the lode Code ATCP because under min. attorney determining that fees we star method for Kolupar, type of claim which a in on endorsed litigant prevails con court's is a factor for circuit Id., sideration. part, in con- dissent, because I further I majority opinion, contrary the follow-

clude, to the holdings ing this court's conclusions five should be applied facts found is to those that were when by law (1) jury: representations the defendants' they design drawings and an addition would construct building codes to the Stuarts' home consistent with existing pre- representations then or not of a are existing accordingly they cannot form the basis fact and misrepresentation;5 on for a HIPA violation based (2) given possible assuming that a HIPA were violation regard jury's findings represented, to what was party argued No in this review has that either the Remod are eling Remodeling Architectural Contract or the Contract contracts," majority opinion and I improvement "home so the However, they improvement have assumed that both are. "home § ATCP specific contract" definition in Wis. Admin. Code has 110.01(4). "buyer" It contracts a "seller" and a covers between de improvement" A "home improvements." construct "home 110.01(2) remodeling, altering, repairing, § as fined in "the ATCP modernizing prop or or of residential non-commercial painting, erty, making thereto ...." additions 5 However, below, they may form basis for a explain as I claim. breach contract

nothing Code, Admin. Wis. ch. ATCP nor in Wis. 100.20(5) Stat. on which this HIPA claim is based, doubling jury's authorizes negligent award

construction, as well those as (3) assuming violation; awarded for the HIPA that a possible given jury's findings HIPA violation were the in regard represented, to what was the circuit court did by permitting jury err the allocate to negligence the HIPA claim between and the claim pled types claims, because Stuarts both of tried both requested types special questions of claims and verdict (4) types claims; on both of the economic loss doctrine negligent bars the claims are based on (5) design addition; and construction and Special drafting circuit court did not err in Verdict Weisflog placed Spe- Question which Ronald on the solely regard cial Verdict to whether he was a principal Remodeling in the Contract because that is only personally context in he been which could have Accordingly, liable under the evidence adduced at trial. appeals I would reverse the decision court and remand case to the circuit court vacate the award to attorney fees and dismiss lawsuit.

I. BACKGROUND6 enlarge ¶ 58. The Stuarts wanted to their home. they plans by end, To this had an drawn unnamed they However, builder the addition when wanted. price in, the bids came the addition of their was out range. Subsequently, Weisflog the Stuarts heard of the they company, Weisflog, and in met with Ronald Weisflog's Gallery, Inc., the President of Showroom "Background" The facts in the are either those found undisputed. Special they are Verdict They gave Ronald their ideas for an addition. discuss agreed begin Weisflog he work a check for $500 drawings implement ideas. their on Following meetings with Ronald We- several isflog, into a written contract the Stuarts entered "Remodeling This entitled, Architectural Contract." "remodeling required pay the Stuarts to contract days approval $1,000 after their fee"of ten architectural drawings The Remod- finalized for the addition. of the eling provided as follows: Architectural Contract also remodeling fee that this architectural We understand costs of the applied will be toward the construction remodeling project, sign after we a contract with Gallery, Inc., cor- Weisflog's accepting this Showroom project. of our future poration as the remodelers signed Remodeling 60. Both of the Stuarts Weisflogsigned it as Architectural Contract and Ronald Weisflog's Gallery, Inc. The "President" of Showroom paid $1,500 in fees under Stuarts understood that Remodeling Contract entitled them to Architectural they ownership plans and once were finalized of any they to do could take them to builder for bids the actual construction. April 21, 1996, the Stuarts entered into 61. On "Remodeling contract, Contract," entitled

a second square to their home.7 2,000 construct the foot addition Remodeling in the amount of Contract was types of materials that $278,076.96. It listed various addition to the in the construction of the would be used page, On the last home, Stuarts' room room. Remodeling $74,113 as "allowances" Contract showed home, and doubled the size of the Stuart's The addition swimming pool in-ground with sur also created an outdoor rounding deck. types products, carpet

for cabinets, various such as appliances, price vary wherein the contract could if expensive products the Stuarts selected more or less provided Weisflog,8 than the allowances. Robert signed any designa- son, contract, Ronald's without signing Weisflog's tion that he was on behalf of Show- Gallery, room Inc. alleging

¶ 62. The Stuarts commenced this action negligence design in the and construction of their home They addition and breach of contract. later amended allege complaint they damaged were because of HIPA violations under Admin. Wis. Code ATCP 110.02(11) alleged misrepresentations. based on Before trial, the Stuarts dismissed their breach of contract proceeded alleged claims and on the HIPA violations design and claims of common law in the construction of the addition.

¶ 63. The was the fact finder for the Stuarts' Special Therefore, claims. Verdict answers are criti- application cal to a correct of the relevant law.

II. DISCUSSION A. Standard of Review

¶ 64. Resolution of four of the five issues that I proceed questions will address9 this court as before provide independent review, law wherein we an but benefiting analyses previous from the court deci- Cole, ¶59, sions. State v. WT Wis. 2d representation 663 N.W.2d700. Whether a is sufficient 8 Weisflog Robert has never been a defendant the Stuarts' lawsuit.

9 I do address the of I standard review issues that do opinion. not discuss this

137 misrepresentation legally is a a actionable to form Corp., Snap-On question Tools 175 Loula v. of law. 1993). (Ct. App. 50, 54, 498 N.W.2d 866 Wis. 2d questions application interpretation are of statutes Alexander, 842, 2d Minuteman, 147 Wis. law, Inc. v. of (1989), interpretation as are the 853, 773 434 N.W.2d Snyder application rules, v. Bad of administrative App ¶ gerland Inc., 49, 10, 260 Homes, 2003 WI Mobile the economic loss 770, N.W.2d887. Whether Wis. 2d type applies particular or to of claim either to a doctrine question particular presents See a law. fact set Kellogg Co., 111, Enters., 2005 WI Inc. v. Sales Kaloti v. Arm ¶ 555, 205; Kailin 10, 283 Wis. 2d N.W.2d strong, App ¶ 676, 643 70, 43, 252 Wis. 2d 2002 WI N.W.2d 132. special verdict is However, the form of a of the circuit court. Meurer to the discretion

committed Controls, 2d 280 N.W.2d v. ITT Gen. 90 Wis. (1979). Accordingly, Special I review the Verdict erroneously exer the circuit court determine whether relating questions to the in the cised its discretion apportionment Lyons, damages. Ford Motor Co. v. 1987). (Ct. App. 397, 465, 405 N.W.2d354 137 Wis. 2d Misrepresentation B. HIPA claims are based on 66. All of the Stuarts'

alleged misrepresentations. Therefore, an understand- legal principles ing that underlie an actionable my misrepresentation is essential to discussion claim of their HIPA claims. principles 1. General every representation that turns out to Not misrepresentation. legally For actionable

be untrue is misrepresentation, example, a claim of to maintain allege prove that the defendants Stuarts must representation made a of a fact that was untrue at the representation Consol. Pa- time when was made. pers, Dorr-Oliver, Inc., 589, 594, 153 Wis. 2d Inc. v. (Ct. 1989) (concluding App. that Dorr- N.W.2d 456 representation Oliver's the clarifier it will con- specific operating requirements meet the of struct will Papers misrepre- Consolidated was not actionable as though sentation, the clarifier that was built did even comply Papers' specific operating with Consolidated requirements). Representations promises that are of misrepresen- performance are not actionable as future perfor- person promising future tations, unless the carrying promise had no intention of out that at mance the time he made it. Id. exaggerations addition, In or statements of

opinion claiming product that a seller makes that his quality the best or that the of his work is the finest are they legally "puffery"; therefore, mere are insuffi- misrepresentation. support cient a claim for Harley-Davidson, Inc., 32, 41, Tietsworth v. 2004 WI (concluding 2d 270 Wis. 677 N.W.2d Harley-Davidson's motorcycle advertising as its TC-88 legally "masterpiece" "premium quality" and of were support misrepresentation). insufficient a claim of As reasonably explained, exaggerations "[T]he have we degree quality expected of his be of a seller as to the falsity pre- product, the truth or of which cannot be cisely misrepresenta- determined," not actionable are Appliance & tions under the law. State v. Am. TV Madison, Inc., 292, 301-02, 2d 430 N.W.2d709 Wis. (1988) representation (concluding that American TV's washing "finest" that its machines were the "best" or the representations Stat. were insufficient to violate Wis. law). otherwise, 100.18, as a matter of Stated com- puffery legally mercial is not within the ambit of misrepresentation opinion actionable because it is the speaker capable being and "not substantiated Tietsworth, or refuted." 44; 270 Wis. 2d see also (1983) (con- Sterling Drug, Inc., In re 102 F.T.C. 395 cluding Bayer's representation produced that that it aspirin" puffery). "the world's best was lawful jury's findings 2. The jury

¶ 69. The found for the Stuarts on two mis- representation claims, one for each of the two contracts parties. jury to which the Stuarts First, were found that in order to induce the Stuarts to enter into the Remodeling any keep Architectural Contract or to payment Remodeling under the Contract, Architectural Weisflog's Gallery, representa- Showroom Inc. made a deceptive misleading.10 jury tion that was false or The identify specific representation did not that was jury Second, made. found that in order to induce the Remodeling Stuarts to enter into the Contract, Weisflog's Gallery, only repre- Showroom Inc. made one sentation: that construction of the addition "will com- ply building majority with the Therefore, codes."11 opinion's examination HIPA claims, of the which rest on misrepresentation findings jury, should rest Special The jury provided: Verdict submitted to the Weisflog Gallery, Inc., false,

1. any deceptive, Did Showroom make misleading representations Plaintiffs, or in order to induce the remodeling Robert & Lin Stuart to enter into a architecture contract, any keep payment or to obtain or under the remodel- ing architecture contract? ANSWER: Yes. Special jury provided: Verdict submitted to the remodeling agents false, decep- 13. Did the contractor or its make misleading representations remodeling tive or that work will representation solely the addition "will on the building comply that is codes" because what with jury found. argue that the us, do not Before the Stuarts "remodeling jury have asked whether should been deceptive any false, made additional contractor" assuring misleading representations than those other comply the build- will with that the future construction ing HIPA Therefore, their sole finished. codes when Remodeling regard is that the Contract claim in "remodeling be con- said the addition will contractor" building compliance codes. with the structed Weisflog's Show- Third, the found repre- Weisflog Gallery, did not Inc. and Ronald room negative they architects.12 This were licensed sent that rejection finding the Stuarts' of one basis for was a contrary ATCP that, Admin. Code HIPA claim Wis. they 110.02(4)(d), represented had were the defendants they do not. The Stuarts architects when were licensed building the Plaintiffs comply codesin order to induce with the remodeling contract? and Lin Stuart to enter Robert Yes. ANSWER: following ques provided Form Special The Verdict regard: and answers this

tions they misrepresent Gallery, Weisflog Inc. Did Showroom 4. licensed architects? were No. ANSWER: Question 4, question: "yes", this you then answer

If answered rely misrepresentation? the Stuarts on the 5. Did ANSWER: N/A. question: Question "yes", this you then answer

If answered No. damages misrepresentation to the Stuarts? a cause of 6. Was such ANSWER: N/A. finding argue Special

not contest this Verdict improperly Question 4No. was framed. position Fourth, 72. because it was the Stuarts' remodeling

at trial that the contract was with Ronald Weisflog personal, corporate, capacity, Special in his Questions Verdict Nos. 9 and 10 addressed this issue.13 Question No. 9 asked "Who did the Stuarts have a remodeling Weisflog [an] contract with? Ronald as Weisflog [with] Gallery, individual, or Showroom Inc.?" jury question, "Weisflog The answered that Showroom Gallery, Inc." jury Fifth, Question No. 16 asked the to find

the total the Stuarts suffered and then to apportion misrepresen- between the HIPA negligent tation claim and the common law claim for jury construction.14 The found that the total amount of damages resulting from the of the defen- Special Verdict submitted to provided: remodeling Who did the Stuarts have contract with? Weisflog

A. Ronald as individual?

OR Weisflog Gallery, B. Showroom Inc. Weisflog Gallery,

ANSWTER: Showroom Inc. you only, question If selected 9A then answer No. 10. party Weisflog general 10. Did a other than Ronald act as contrac- responsibility tor performance or assume for the of the remod- eling contract? ANSWER: N/A.

14 Special jury provided: Verdict submitted to the Regardless you any previous ques- of how have answered of the tions, you questions. must answer these that of the $95,000. It also found 25% dants was misrepresentation due to and were Stuarts' negligence in construction of the were due to 75% any damages jury assign did not addition. The design. in present pre-existing Lack of facts 3. jury representations All to enter into

found were made to induce the Stuarts promises future contracts were each of two disputed performance.15 Weisflog never that he Ronald drawings represented for the that he would create comply" building codes addition that "will with Gallery, Weisflog's Inc. the addition Showroom comply" with the to construct also "will contracted building codes. majority analysis opinion's However, the (1) respects:

gets three it does not off track at least reasonably money, any, fairly and sum of if will 16A. What resulting compensate and Lin Stuart for Robert defendant(s)? negbgence from the $95,000.00. ANSWER: damages, Taking percent amount of what as a total

16B. you you placed do percentage in answer 16A of the amount attribute to:

Misrepresentation 25% Negligence 75% in construction 100%

Total Gallery, Inc. Weisflog Showroom If had found that they licensed archi Weisflog represented had were Ronald of a fact then tects, representation that would have been allegation. However, prevail did not on that the Stuarts existence. acknowledge promises performance that of future are misrepresentations, not actionable as Consolidated Pa (2) pers, acknowledge 594; 2d at Wis. it does not representations quality product the about of a or a by misrepresen service the seller are not actionable as (3) Tietsworth, tations, ¶ 41; 270 Wis. 2d it acknowledge only not does the facts that can opinion jury underlie its are those that the found in the Special Verdict, i.e., we are not free to add facts incon by jury support sistent with those found in order to position. Fleischman, Wurtz v. 100, 108, 97 Wis. 2d (1980). by jury 293 N.W.2d 155 The facts found only representations accomplished show of acts to be the future. majority opinion repeatedly supports 76. The opinion jury

its example, with facts that the did not find. For majority opinion says, Weisflog "Ronald promised products had the Stuarts that the he would project high quality, use on their were that he was building familiar with and understood the local codes regulations, provide and that 'he could architec- doing tural Stuarts, service' for the which included "16 design jury 'architectural However, work.' did Weisflog represented not find that Ronald that he "was building familiar" with the codes when he was not. 16Majority op., 6. Note 5 to 6 elaborates that Ronald Weisflog's "assertion that he understood Brookfield codes and regulations very exactly present well was such misrepresen given tation his later admissions contrary." at trial to the However, jury finding made no that Ronald Weisflog repre sented that "he understood Brookfield regulations codes and very well" when he did not. We are finders of fact in an appellate therefore, review and we are supplement not free to jury support facts found our conclusions. See v. Wurtz Fleischman, (1980). 100, 108, 97 Wis. 2d 293 N.W.2d 155 remodeling represented "that found he Instead, the building Special comply Ver- codes." with the will work added). jury's (emphasis find- Question No. dict ing performance, represen- promise anot of future is representation the was fact in existence when tation of a misrep- the basis for a Therefore, it cannot form made. Papers, 2d at 594. Consol. 153 Wis. resentation claim. jury finding the ¶ no that addition, In the made 77. products quality represented their the of defendants representation so, as a services; nor should it have done misrepresentation. quality not actionable as of regard, Tietsworth, 2d 41. In this 270 Wis. puffery majority mis- for an actionable mistakes mere Weisflog example, representation. relates, "Ronald it For products promised he use that the would had the Stuarts high quality project However, ."17 ... on their were finding Furthermore, as of fact. we made no such recently explained Tietsworth, where another statu- exag- misrepresentation tory made, "the was claim reasonably expected gerations seller as to to be of a falsity product, degree quality the truth or of his precisely are not action- determined" cannot be which (quoting misrepresentations. TV, Am. Id. able as 301-02). Wis. 2d at ignores majority opinion finally, And Gallery, Weisflog's finding

jury's specific that Showroom they represent Weisflog did not Inc. and Ronald Special are Verdict No. We licensed architects. were Special ignore the Verdict. or to not free to add to relevance could have Majority op., 6. This contention only Remodeling Architectural Contract because only misleading false, deceptive or jury found was representation the representation Remodeling Contract was the regard to the comply" "will with construction of the addition building codes.

Accordingly, misrepresentation no claim under HIPA proved by was the Stuarts. No are due for misrepresentation attorney HIPA under and no fees proved should be awarded based on a HIPA violation.18 ¶ 79. The case before us is a However, civil action. particularly majority opinion's I am concerned with the broadening legally repre the definition of a actionable promises performance sentation to include of future because violations of Wis. Admin. Code ch. ATCP 110 may prosecuted be crimes, as under Wis. Stat. 100.26(3). § Stepniewski, State v. Wis. 2d (1982) (concluding 262-63, 314 N.W.2d98 that a criminal 100.26(3) prosecution § under for violations of ch. ATCP conduct). require proof 110 does not of intentional "representation" ¶ 80. The definition of that the 110.02(11) apply court chooses to to ATCP in the case apply at bar will be the same definition that will when 110.02(11) § prosecuted violations of ATCP are crimi- nally. subsequent Therefore, to the court's decision plumber case, this a who tells a homeowner that he will properly general install a so, toilet but does not do or a comply contractor who tells a homeowner that he will building remodeling with the code of a residence but then a subcontractor does not adhere to the rel- subject prosecution codes, evant could be to criminal 100.26(3) § failing keep promises under for to those of performance. future

18However, that, it should not be assumed because representation defendants' design and construction of comply addition will the building with codes is not an misrepresentation, actionable the defendants are relieved of legal duty their to promise they fulfill the made. Failure keep promise a performance future is actionable as a breach of Contractors, Partners, LLC, contract. Eli Envtl. Inc. v. 435 119, 6, App 712, WI 2dWis. 731 N.W.2d ¶ 354. damages compensate Breach of contract 81. workmanship shoddy been a have for the homeowner remedy past. However, because the in the sufficient majority perfor-

opinion promises of future defines prom- representations those when mance as actionable change change. fulfilled, the will That are place law ises not possible criminal burden of an unwarranted will prosecution building It have far- trades. will on the throughout impacts reaching Wisconsin, which the ma- fully appreciate. jority opinion appears 100.20(5) § Stat. C. Wisconsin 1. Double majority opinion that both The concludes misrepresen- the Stuarts sustained negligent damages they due to sustained

tation and the provisions be under construction should doubled 100.20(5).19 majority opinion The reaches Stat. Wis. it finds that "clear causal this conclusion because pecuniary the Stuarts' entire connection exists between HIPA violations."20 loss and the majority opinion's is errone- conclusion jury ais First, causation ous for at least two reasons: question, Corp. Machin- K & S Tool & Die v. Perfection ery ¶¶ 38-39, 2d Sales, Inc., 301 Wis. 2007 WI finding no made 792, and 732 N.W.2d pecuni- entire between the Stuarts' causal connection ary the Stuarts Instead, HIPA and the violations. loss special requested,21 submitted, court and the circuit 19 op., 4. Majority ¶ 20 op., Majority ¶ 21 by the Stuarts Special questions Verdict submitted The in Exhibit 107B. are contained

147 questions damages verdict negligence22 where causation for due to misrep- for

and causation to due separately by jury. resentation23 were found opinion majority jury's findings conflates the causation bring in umbrella, order to both claims under HIPA contrary specific findings jury. that is but to the jury's Second, whether the award for the negligence Stuarts' claim of common law in construc- any legal theory tion could under conceivable be com- jury's misrepresentation bined with for award and depends interpretation then doubled on the of Wis. 100.20(5). § Stat. This sois because the sole Stuarts' right attorney to double and an award of fees 100.20(5). § majority opinion arises under engages However, the attempt meaning in no to determine the 100.20(5). § interpret 85. We statute to determine its

meaning, assuming meaning legislature expressed legislature is intended words chose. County, Kalal v. Circuit Court Dane 2004 WI Statutory ¶¶ 43-44, 271 Wis. 2d 681 N.W.2d 110. language given ordinary, accepted its common, meaning when the terms used are not technical require special meaning. Id., 45. If the are words plain unambiguous, apply meaning. we Id., this 100.20(5) provides: ¶ 46. Wisconsin Stat.

Any person pecuniary suffering loss because of a by any other person any violation order issued under Special Question See (relating negli Verdict 8Nos. to Contract) (relat gence Remodeling in the Architectural and 12 Contract). ing Remodeling in the Special Question (relating See Verdict misrep Nos. Contract) Remodeling resentation Architectural and 15 Contract). (relating misrepresentation in the Remodeling any may therefor in court this section sue. jurisdiction and shall recover twice the competent pecuniary amount of such loss. 100.20(5) requires unambiguously in that order

Section attorney fees, a claimant obtain double "pecuniary she loss" must that he or suffered show a violation of an "order issued" under "because of' § 100.20. § ¶ Admin. Code ATCP 110.02 has 86. Wisconsin creating interpreted "order" that was "is as an been Rayner § Stat. 100.20. v. Reeves Cus sued" under Wis. App Inc., 2d Builders, 13, 277 Wis. tom 2004 WI (concluding ATCP 535, 691 that ch. 110 was N.W.2d705 100.20(2), § gen promulgated pursuant and allows practices). forbidding unfair trade Accord eral orders 110.02(11), § ingly, is which the basis of ATCP scope claim, an within the HIPA "order" Stuarts' 100.20(5). may § Therefore, the obtain twice Stuarts pecuniary they suffered, if that the amount of loss24 representation that the loss "because of' was § of ATCP defendants made in violation found the 110.02(11). (concluding Snyder, 260 Wis. 2d "pecuniary party must establish that his that because a an ATCP violation was suffered "because of' loss" damages and reasonable to be entitled to double order attorney no dam fees, an ATCP violation causes fees). attorney ages precludes an award incurred 87. Resolution of whether Stuarts representation pecuniary made loss "because of' a 110.02(11) § re- ATCP Admin. Code violation of Wis. 110.02(11). § interpretation quires of ATCP We an interpret ATCP rule such as an administrative finding us, jury's do not contest Before defendants pecuniary loss. suffer a Stuarts 110.02(11) give regula- "to intent effect Snyder, (quoting tion." 260 Wis. 2d Jackson v. (Ct. App. DeWitt, 877, 887, 2dWis. 592 N.W.2d262 1999)). statutory interpretation, begin As with we with meaning regulation. plain language of the Id. If the regulation clearly unambiguously forth sets meaning, apply meaning pre- its we to the facts sented the case at hand. Id. Section ATCP 110.02 provides part: in relevant engage following seller

No shall unfair methods competition of or practices: unfair trade (11) MISREPRESENTATIONS; any GENERAL. Make false, deceptive misleading representation in order to any person induce into improvement enter a home contract. requires unambiguously prove

This rule Stuarts deceptive that the a "false, defendants made or mislead- ing representation" to induce them to enter into a improvement "home contract." nothing ¶ 88. There is in Wis. Admin. Code 110.02(11) § ATCP that refers to in the design improvement. or in the construction of a home expert However, the witness, Stuarts' Architect Keith opined remodeling Schultz, that the had contractor not specifications followed construction that were re- quired by drawings. drawings sup- These failures follow the

port damages negligent the award of for construction. They independent any representations are that the complying found that the defendants made about building Accordingly, they with the codes. do not come parameters § within the of Wis. Admin. Code ATCP 110.02(11), component Stat. the "order" Wis. which 100.20(5). damages § are entitled to double The Stuarts damages only if of' a violation those occurred "because misrepresentations, an Events than "order." other negligent construction, that to the i.e., caused 100.20(5). § compensable under Paulik Stuarts are not (Ct. Coombs, n.5, 431, 439 2d N.W.2d357 v. 120 Wis. 1984) attorney (concluding App. no fees be could 100.20(5) defending § against awarded under counterclaims). otherwise, Coombs' successful Stated negligent construction did result of' an "order" issued under 100.20. "because damages arising negligent from construction stand on footing. Accordingly, analytical I conclude that different lumping damages majority opinion in all the the errs doubling statutory together no them. There is support rule for such a conclusion. administrative majority opinion ¶ on v. 90. The relies Benkoski App Flood, 652, 84, Wis. 2d N.W.2d WI damages together, lump 851, for to all the its decision damages, regardless then double cause of the of the provides support for However, no the awards. Benkoski question entirely majority's conclusion. An different the presented here. Benko- than is decided in Benkoski was calculation of the mathematical ski focused on pecuniary loss, not on whether amount pecuniary an order violation. occurred because loss of question presented Benkoski, was 91. In price a of a of mobile home should lost sale whether subtracting of market value fair be doubled before subtracting the fair market home, or after the mobile price arrive home, at of the mobile order "pecuniary Stat. loss" under Wis. amount of the 100.20(5). § Benkoski, 26. The court 652, 2d 242 Wis. appeals Lemon Law on our rationale under the of relied legislature

cases, we where concluded that the intended purchase price to include the in the calculation of the pecuniary damages. (citing ¶¶ amount of Id., 27-28 Hughes Chrysler Corp., v. Motors 2d 973, 197 Wis. (1996)). 542 N.W.2d 148 proposition

¶ 92. Benkoski does stand for the 100.20(5) any damages § that a shown Wis. Stat. regardless damages, claimant, of the cause of the can be lumped together with those incurred because of a 100.20(5) § then violation and doubled. To as conclude majority opinion every has, turns instance shoddy workmanship misrepresentation into HIPA claim. Accordingly,

¶ 93. were I to assume a HIPA possible jury's given findings violation were regard represented, was what I would conclude that 100.20(5) § the Stuarts are entitled under Wis. Stat. only $23,750,25 double $95,000 not the award, entire only misrepresentation damages because it is were sustained of' "because violation an "order 100.20(5). Snyder, issued" under 260 Wis. 2d ¶ 19; Paulik, at 120 Wis. 2d 439 n.5. Apportionment Special Question Verdict 16 No. addressed

damages. jury Part 16A asked the to determine the part Stuarts' total apportion and 16B asked the to damages "Misrepresentation" between "Negligence jury and in construction." The answered damages that $95,000 was the Stuarts' total and of that "Misrepresentation" amount, was 25% due to and 75% "Negligence majority was due to in construction." The 25 jury damages $95,000 The found total of and that 25% ($23,750) of damages by misrepresentation. those caused was

152 damages opinion have that should not concludes types apportioned different of between the two been prevailed upon.26 tried claims that the Stuarts and in ¶ court has broad discretion 95. The circuit jury fashioning special verdict form and instructions accompany Meurer, v. 445; 2d at Maci it. 90 Wis. Co., 2d 314 710, 719, & Cas. 105 Wis. Farm Fire State 1981). (Ct. discretionary App. A is the act N.W.2d process product the facts devel of rational wherein applies oped trial are considered with the law that at them. types mis- tried of claims: 96. The Stuarts two claims) (the

representation HIPA to induce contracts design construction of in the and and damages All under Stat. recoverable Wis. addition. 100.20(5) § of' resulted "because a violation must have 100.20(5). Snyder, § in an "order" referenced Paulik, 2d at n.5. The 19; 120 Wis. 2dWis. underlying claim is Wis. Admin. the Stuarts' "order" 110.02(11). requested sepa- § ATCP The Stuarts Code misrepresentation questions for causation rate apportioned negligence, caused according by its claim view of evidence. each findings jury's was that 25% of the Stuarts' by misrepresentation was caused and 75% caused negligent with the evidence construction are consistent this at The circuit court considered adduced trial. 100.20(5) requirements it when and the evidence damages question apportionment at the arrived Special Accordingly, I were to assume Verdict. findings jury's possible given the a HIPA violation were represented, regard I would conclude was what 26Majority op., by

that there was no erroneous exercise of discretion fashioning Special the circuit court in Verdict. apportionment ¶ Furthermore, 97. the issue of damages closely is related to the issue of double dam- ages. regard, majority opinion In this continues to rely policy Benkoski; on on the it to further; wants and on its determination that the defendants had the bur- "showing" damages den of that the for different claims separated.27 special However, could be verdict prove negligent shows that the defendants did damages damages construction caused different from by misrepresentation. majority opinion caused The place observes, "There is no in this remedial framework apportionment for the when, as here, the petitioners' misrep- Stuarts' flowed from the majority resentations."28 The incorrect; that is not jury requested separate what the found. The Stuarts questions misrepresentation on and on separate questions relating type on causation to each They they requested. claim.29 received what majority opinion 98. also asserts "[t]here enough presented was not evidence at trial for apportionment, make a determination on as majority opinion demonstrated the record."30 The points why never out the record is insufficient support ignores the verdict. Its assertion the uncontro- testimony expert, verted of the Stuarts' own Architect remodeling Schultz, Keith who testified to the drawings contractor's failure to follow the and to his 27Majority op., ¶¶ 28-30.

28Majority op., 107B, See notes 35 and 36 above Exhibit the Stuarts' requested Special Verdict.

30Majority op., shoddy workmanship, as build as well observations testimony jury it ing and heard this code violations. damages, Special apportion the as the was able to any if there is verdict shows. We sustain Verdict Montgomery support it. v. Giese credible evidence 408, 585 Ward, Inc., 392, 111 2d 331 N.W.2d Wis. (1983); 461, 471, 2d 271 N.W.2d v. 85 Wis. Wolf, Stewart (1978) negli (concluding apportionment of that an 79 any gence evi if there is credible must be sustained it). support Here, reviewed the draw Schultz dence to compared ings them with for the addition and pointed out numerous He then actual construction. remodeling did not contractor instances where drawings.31 it evidence was credible and This follow jury's supports the verdict. Loss Doctrine

D. Economic principles 1. General is a common law economic loss doctrine 99. The recognize con- created the courts doctrine warranty are suited than the law of better tract law and purely loss between two economic tort law to deal with contracting parties. Kaloti, 555, 2d 28. We 283 Wis. resulting "damages loss" as have defined "economic product inadequate inferior is value because the from general purposes it for which not work for the and does 31 drawings required double 2x10 Schultz testified that joists 2x12 only single floor joists in hot tub room and floor in the hot tub used; flooring carpeting under the been had inch groove OSB over a tongue inch room was to be 1/2 3/4 tongue sub-floor, only inch OSB that was but a 3/4 omitted; entirely was inch sub-floor groove was used and 1/2 code, by the but insulation required vented as the attic had been the attic vents. applied so as to block had been 155 (quotingDaanen Id., was manufactured and sold." 29 Cedarapids, Janssen, & Inc., Inc. v. 395, 216 Wis. 2d (1998)). 400-01, 573 N.W.2d 842 Economic product include components to the itself and to other integrated system. Tile, an Wausau Inc. County Corp., 235, v. Concrete 226 249-50, Wis. 2d (1999). applied N.W.2d445 We have it construc estate, tion of residential real Linden v. Cascade Stone Co.,Inc., 113, 606, 2005 WI Wis. 2d 189, 699 N.W.2d remodeling contracts, and to Buren, 1325 North Van Group, Ltd., LLC v. T-3 WI 293 Wis. 2d 822. However, N.W.2d services, contracts for where product merely incidental, do not fall within the scope of the economic loss doctrine. Ins. Co. Am. v. of N. Elec., Inc., ¶ 139, Cease 36, 361, WI 276 Wis. 2d including mixed, 688 N.W.2d 462. When a contract is product, both and services the creation of a we must predominant purpose determine the of the contract may before we conclude whether the economic loss applies. ¶ Linden, 606, doctrine 283 Wis. 2d 22. Negligence 2. claims

¶ In 100. order to determine whether the eco applies preclude nomic loss doctrine common law negligence contracting parties claims for between product provided, where both a and services are one predominant purpose must determine whether the of provide product provide the contract is to a toor Buren, ¶ services. 1325 N. 410, Van 2d 24; Wis. employ ¶¶ Linden, 606, 283 Wis. 2d 18-22. We total ity predomi of the circumstances test to the determine purpose nant of a Linden, contract. Wis. 2d 606, totality ¶ 22. The of circumstances both includes sub jective objective and factors. Id. factors include, Those primary objective to, but are not limited the the con- tracting achieve, the parties into the contract entered requirements business contract, the nature of the the party doing contract, and under work of the Buren, LLC, 1325 N. Van materials used. value ¶ 42. 2d 293 Wis. sepa- entered into two Here, the Stuarts 101. negligence they claims; tried two contracts;

rate regard negli- findings separate jury in factual made jury gence is, the answered contract. That under each (1) negligence regard questions separate to: with Remodeling performing Architectural Contract32 (2) Remodeling performing negligence Con- tract.33 Remodeling Contract Architectural

a. The the economic In to evaluate whether order any the Stuart's effect on doctrine has loss Remodeling Contract Architectural on the claim based Weisflog's Showroom found under which the begin designed negligently I Gallery, addition, Inc. purpose predominant determining by whether prod- Remodeling was for Architectural Contract totality the circum- services, under uct or for presented 2d Linden, 283 Wis. this case. stances primary explained his that Robert Stuart Weisflog's contracting Gal- objective Showroom with in Remodeling lery, Contract Architectural Inc. under 32 Weisflog Question 7 asked whether No. Special Verdict design of the in its negligent Inc. was Gallery, Showroom addition. Stuarts' re Question 11 asked whether No. Special Verdict to the con "negligent respect with was modeling contractor Stuarts' addition." struction drawings

was to obtain sufficient for the construction of hoped the addition he and his wife to build. He said that contracting drawings using for the was not tied to Weisflog's Gallery, Showroom Inc. as the builder for the explained any addition. He that he could use builder of choosing his to do the actual construction. The Remod- eling Architectural Contract's terms34 are consistent testimony. with his testimony Weisflog's 104. There was no Gallery, creating

Showroom Inc. was in the business of drawings remodeling projects general. in Rather, it appears drawings that the it created were for those who hoped Weisflog's Gallery, Ronald would hire Showroom remodeling nothing Inc. to do the work. There is also explains many spent the record that how hours were on drawings or what materials were used in their preparation, paper aside from the obvious on which they printed. product pro- were However, there awas drawings duced, the for the addition the Stuarts built.35 price dependent Its $1,500 was a fixed was on design the number of it hours took to create a satisfied the Stuarts. Remodeling

¶ 105. The Architectural Contract is general much different from the contract for the con- struction of a residence that was reviewed Linden. against The tort claims at issue in Linden were made produced components subcontractors who in an inte- grated system. Therefore, we examined the effect that general the Lindens' contract with the contractor had on the Linden, subcontractors. Wis. 2d We concluded that the work of the subcontractors, who provided coating roofing a stucco for the house had

34See Exhibit 1. 35See Exhibit 3. independent they no value to the Lindens because purchase completed house, contracted to a its components. ¶ Id., Therefore, 29. we examined general the whether contract to construct the house predominant purpose provision had as its product the aof provision the Id., of a service. 22. drawings Here, made under the Re- modeling component Architectural Contract are not a integrated system of an as the house's roof was drawings separate price Rather, Linden. had a and opportunity independent an for use the Stuarts. As explained, drawings Robert Stuart when the com- were plete, any he was free to choose builder to do Accordingly, predomi- I construction. conclude that the purpose Remodeling nant Architectural Contract produce product, drawings a was to for the addition. However, awarded no for negligent design; damages only "Negli- it awarded gence jury's in construction." The verdict is reasonable testimony because there was no whatsoever that as- signed any design. value to All of the damages testimony demolishing related to the cost of a portion correcting rebuilding the addition, it and other construction errors in areas of the addition that were not demolished. Remodeling

b. The Contract Remodeling indisputably ¶ 108. The Contract in- (1) product, addition, volved: the creation of a and (2) services, Therefore, I construction labor. review totality of the circumstances to determine the predominant purpose First, addi- of this contract. many tion constructed included facets: a new hot tub expanded expanded new, room; kitchen; new, master entry change; powder suite; a bedroom room garage mudroom, an add-on to the awith bath and family in-ground swimming pool room; and an outdoor surrounding Accordingly, product and deck. a was cre- primary objective entering Second, ated. the in Stuarts' Remodeling nearly into the Contract was double the significantly upgrade size of their home and its ameni- "remodeling Weisflog's Third, contractor," ties. the Gallery, creating Inc., in the Showroom was business of products: properties. Fourth, remodeled residential $278,076.96. the addition's cost to the Stuarts was This necessary cost included materials and the labor square 2,000 create a foot addition. The cost of all the fully identified, materials is not but the allowances for pool, carpet, tub, such items as cabinets, hot window coverings, countertops appliances $74,113.36 Fi- nally, Remodeling the Contract stated that the "Con- upon Any changes tract amount is based bid sheet." in specifications upon the bid that raised or lowered the charged cost of the addition would be or credited to the parties bargained price Therefore, Stuarts. for the specifications, of the addition on based not on the complete hours of labor it took to the addition. Under totality presented, circumstances the Stuarts contracted for much more than services with materials being merely incidental, as was case in Cease Remodeling predomi- Electric. The Contract had as its purpose product, nant creation of the Stuarts' squarely home addition. It falls within the economic proscription may loss doctrine's that the Stuarts complete maintain tort claims for the failure to construction a workmanlike manner. Their claims Linden, sound contract. 283 Wis. 2d 36See Exhibit 4. analysis Remodeling

¶ 109. The Contract analysis for the Stuarts' home should follow the we employed applied There, in 1325 North Van Burén. we totality remodeling of circumstances test to the of a parties bargained warehouse concluded that the produce product: 42 residential condominiums and adjacent parking garages. Burén, 1325 N. Van My Wis. 2d conclusion here is consistent Burén, with North Linden, Van LLC and with but majority opinion's is not. majority opinion's analysis gets ¶ 110. The off track because it conflates the two contracts and asserts Remodeling the Contract, Architectural under drawings the created, which for the addition were is transaction, "the core from which the contract for the remodeling majority and for the addition flowed."37The opinion simply never defines a "coretransaction." It also analysis, Remodeling assumes, without that the Archi- tectural Contract is a contract for services.38The ma- jority opinion Remodeling then labels the Architectural Contract as the "core"contract and concludes that since Remodeling contract, it is a services the Contract's primary purpose provide is also to services.39 These permit majority opinion side-step conclusions the to the analysis economic loss doctrine without an ity of the total- presented by of the circumstances the claims in this totality analysis required A case. of the circumstances predominant purpose before the of a contract can be provides product determined when a contract both a Burén, ¶ 29; and services. 1325 N. Van 2dWis. ¶ Linden, 2d 22. Wis.

37Majority op., 33. 38Id.

39Id. majority opinion it also errs because The apply the

ignores law that facts and the both testimony undisputed question presented. First, the drawings could and is that he owned Stuart Robert any to construct he chose builder them have taken drawings Query, took if the Stuarts the addition. negligently con- that builder another builder purpose predominant addition, would structed for services? the addition be construct contract to negligence of the for the be liable the defendants Would carelessly the addition? constructed builder who question is "no." each answer to presents questions this case Second, the totality the circum- require to undertake the court analysis purpose predominant to determine stances majority my Remodeling view, the In Contract. of the opinion if it followed result to a different would come clearly precedent in 1325 North set out so the court's Accordingly, in conformance in Linden. Burén and Van purpose predominant precedent with Remodeling Stuarts' Contract, I that the conclude by negligent the eco- is barred construction claim for $71,25040 and the doctrine nomic loss must be vacated. that claim awarded Liability Personal E. jury determine whether asked to The was Weisflog Remodeling or Ronald Contract was with Gallery, Weisflog's Inc., in order to Showroom

with personal Weisflog had liabil- Ronald determine whether ity It determined defects. construction for

40 $95,000 and that 75% damages of jury found total by negligent construc caused ($71,250) were of those tion of the addition.

162 Weisflog's Gallery, party Showroom Inc. was the with whom the Stuarts contracted to do the construction of majority opinion the addition.41 The concludes that the submitting question circuit court erred in not a in regard Weisflog's personal liability to Ronald for the Stuarts' HIPA However, claims.42 the Stuarts asked for question personal assigned liability no that would have Weisflog misrepresentation. to Ronald What requested Stuarts was:

Taking percent as a total of negligence amount Plaintiffs, which caused to the Robert and Lin Stuart, percentage what such total you do to: attribute

(i) Weisflog Gallery, Showroom Inc._% (ii) Weisflog Ronald _%

100%43 majority opinion

¶ 114. The also orders a new trial. On remand, the circuit court must consider misrepresentation whether the HIPA claim which on jury in decided favor of the on Stuarts based legally representation promise actionable on performance question future because this has never representation been addressed. A of a fact then pre-existing required existence or of a fact is for action- misrepresentation. Papers, able Consol. 2d 153 Wis. at my properly view, 594. In when law on this issue is analyzed, supports verdict no HIPA claim. Accordingly, regard there be can no new trial to a misrepresentation promises claim of based on of future performance. Question Special See Verdict No. 9. 42Majority op., 107B, See Exhibit question 20.

III. CONCLUSION part in I I dissent because conclusion, In majority opinion, contrary conclude, that the to the following holdings should be this court's conclu- five applied is those the sions when the law facts found (1) they jury: representations the defendants' drawings design an addition to would and construct building codes are Stuarts' home consistent with existing representations pre-existing a of then accordingly they form the for fact and cannot basis (2) misrepresentation; HIPA on assum- violation based given jury's ing possible that HIPA violation were nothing findings represented, regard in in what was Stat. Code, ch. ATCP nor in Wis. Wis. Admin. 100.20(5) based, HIPA claim autho- on which this jury's damages negligent doubling rizes award of as for the construction, as well those awarded (3) assuming violation; HIPA that a HIPA violation findings possible given jury’s regard in to what were represented, by per- did was the circuit court not err mitting HIPA to allocate between pled claim and the claim because the Stuarts types types claims, claims and both tried both types requested Special questions on Verdict both (4) negli- claims; the economic loss doctrine bars gence negligent design claims are based on (5) addition; the circuit court construction drafting Special Question 9, did not err in which Verdict solely Weisflog Special placed in Ronald on the Verdict regard Remodeling principal he was a whether only he Contract because that is the context which personally could have been liable under the evidence adduced trial. at Accordingly,

¶ 116. I would reverse the decision of appeals the court of and remand the case to the circuit court attorney to vacate the award of fees. I am authorized to state that Justices DAVID T. PROSSER and ANNETTE KINGSLAND join opinion. ZIEGLER this

Case Details

Case Name: Stuart v. Weisflog's Showroom Gallery, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Mar 28, 2008

Citation: 746 N.W.2d 762

Docket Number: 2005AP886

Court Abbreviation: Wis.