COURT OF
APPEALS DECISION DATED AND
RELEASED March
27, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1341
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
Julie A. Jakubowski and Donald McLean,
Plaintiffs-Respondents-Cross Appellants,
v.
Rock Valley Builders,
Defendant-Appellant-Cross Respondent.
APPEAL
from a judgment of the circuit court for Rock County: MARK J. FARNUM, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before
Dykman, P.J., Vergeront and Roggensack, JJ.
VERGERONT,
J. Rock Valley Builders, Inc. (RVB)
appeals from a judgment of the trial court that it breached its contract with
Julie and Donald McLean[1]
to construct an addition to their home.
RVB contends on appeal that the trial court erred in its interpretation
of the written contract, and even if it did not, the McLeans agreed to a
modification of that contract, which RVB substantially performed.[2] The McLeans cross-appeal, contending that
the trial court erroneously concluded that there was no violation of Chapter
ATCP 110 of the Wisconsin Administrative
Code, which governs home improvement contracts. The McLeans contend they are entitled to
double damages and attorney fees for the violations.
We
conclude that the trial court correctly interpreted the written contract but
that there was a binding modification regarding the second story of the
addition such that RVB did not breach its obligations with respect to the
second story. We also conclude that RVB
violated certain requirements under Chapter ATCP 110 of the Wisconsin Administrative Code. We remand to the trial court for further
proceedings regarding the damages due RVB under the contract, and the damages
and attorney fees, if any, due the McLeans for the code violations.
BACKGROUND
The McLeans hired RVB to
construct a two-story addition to the back of their home. After discussions and proposals between the
McLeans and Ronald Maple of RVB, the parties signed a contract providing in
pertinent part:
RE: Addition to existing house.
1.Footings
& foundation for 20 x 20 ft addition & 4 x 8 ft area added.
2.Build
sub floor & 2 x 4 walls upper and lower.
3.Sheathing
on exterior walls only.
4.Build
for fireplace.
5.Frame
roof to match existing.
6.Re
roof existing back to valley with globe 3 tab super seal.
7.All labor included.
The contract did not contain a start or completion
date. The contract price for materials
and labor was $14,275. The McLeans
signed the contract between August 20, 1994 and August 24, 1994, and paid
RVB $7,275 at that time. RVB did not
give the McLeans a copy of the written contract when it was signed. They received a copy after the work
started. RVB prepared drawings prior to
the signing of the contract, which showed a first story of 20 feet by 20 feet
and a second story of 16 feet by 20 feet.
However, these drawings were not attached to the copy of the contract
provided the McLeans, and the McLeans did not see the drawings until after they
fired RVB.
Work
started sometime in the first part of September. In October, during construction of the second story, Donald
McLean saw that the ridge (peak of the roof) was centered for a
sixteen-foot-wide second story, not for a twenty-foot-wide second story. He told the builder to stop, and Maple came
over to discuss the issue. The McLeans
told Maple the second story was to be 20 feet by 20 feet with the ridge in the
center. Maple told them it would cost
an additional $1,200 for RVB to move the ridge. The McLeans said they did not have the money, they were on a
budget for the project. The suggestion
was made--whether by the Mcleans or by Maple is disputed--that the roof could
be extended farther on one side of the ridge than the other so that the second
story would be 20 feet wide, with the ridge eight feet from one side and twelve
feet from the other. The McLeans
acknowledge that they agreed to this construction, but testified that they did
so only under pressure, because they could not afford to pay more than the
contract price to have the ridge moved.
On
or about October 31, 1994, when RVB had finished framing the second story and
was roofing it, the McLeans fired RVB.
They hired another contractor, Rick Carroll, to reconstruct the second
story with a dimension of 20 feet by 20 feet and the ridge in the center. They paid Carroll $5,610.
The
McLeans sued RVB, alleging breach of contract for failing to timely complete
the work and for mistakes and improper work.
They also alleged that the contract violated Wis. Adm. Code § ATCP
110.05 and related provisions and that, as a result, they were entitled to
recover twice the amount of their damages, including costs and reasonable
attorney fees under § 100.20(5), Stats. RVB counterclaimed for foreclosure of
construction liens, breach of contract, unjust enrichment and quantum meruit.
After
a trial to the court, the court interpreted the written contract to provide for
a second story with a floor dimension of 20 feet by 20 feet; determined that
RVB had breached that contract by failing to provide that; and concluded that
the McLeans did not waive that breach by allowing construction to continue
after discovering the breach. The court
found that the damages reasonably and necessarily incurred by the McLeans were
$5,937.76, consisting of the cost of reconstruction by Carroll, repair of the
McLeans' utility trailer, repair of the subfloor and repair of the wall
holes. The court disallowed other items
of damages for failure of proof and other reasons. The court concluded that Wis.
Adm. Code § ATCP
110.05(2)(b) did not apply because the contract was not initiated by RVB
through solicitation but instead the McLeans contacted RVB. The court denied RVB's counterclaims and
discharged its lien rights because it determined RVB had not substantially
performed the written contract.
The
court issued a second decision after a request for reconsideration in which it
concluded that RVB was entitled to recover in quantum meruit for the
value of material and services provided, which it determined to be
$12,875. After offsetting the $7,275
already paid to RVB, the cost of reconstruction, and the damages due the
McLeans, the court entered judgment in their favor for $337.76.
INTERPRETATION OF WRITTEN
CONTRACT
The first issue is
whether the trial court properly construed the written contract. We conclude that it did.
The
trial court noted that the written contract described a "20 by 20 foot
addition" but was silent on the dimensions of the second story. It also noted that the parties disputed the
meaning of the term "frame roof to match existing," with Maple
testifying that meant the ridge of the new roof would match the ridge on the
existing roof and the McLeans testifying that meant the addition would look
like the existing wings on the other three sides of the house, which have the
second story walls aligned with the first story walls and the ridge in the
center. Maple's interpretation results
in a 16 by 20 foot second story and the McLeans' interpretation results in a 20
by 20 foot second story.
Implicit
in the trial court's decision is a conclusion that the contract is ambiguous on
the dimensions of the second story.
Whether a contract is ambiguous in the first instance is a question of
law, which we decide independently of the trial court. Wausau Underwriters Ins. Co. v. Dane
County, 142 Wis.2d 315, 322, 417 N.W.2d 914, 916 (Ct. App. 1987). Ambiguity exists in a contract if it is
reasonably susceptible to more than one meaning. Id. We
conclude the contract language is ambiguous because the interpretations
advanced by both parties are reasonable.
While
construction of a contract to ascertain the intent of the parties is ordinarily
a matter of law for this court, Eden Stone Co., Inc. v. Oakfield Stone
Co. Inc., 166 Wis.2d 105, 116, 479 N.W.2d 557, 562 (Ct. App. 1991),
where a contract is ambiguous the question of intent is for the trier of
fact. Armstrong v. Colletti,
88 Wis.2d 148, 153, 276 N.W.2d 364, 366 (Ct. App. 1979). We do not set aside the trial court's
findings of fact unless they are clearly erroneous. Section 805.17(2), Stats. We conclude that the trial court's
construction of the ambiguous written contract, based on the language of the
contract and the testimony of the parties, is supported by the record and is
not clearly erroneous.
The
description of the addition as 20 by 20 feet suggests that both stories will be
that dimension, unless something in the contract clearly indicates
otherwise. The language that RVB claims
indicates otherwise--frame roof to match existing--is cryptic, not clear. Maple's testimony of his discussion with the
McLeans prior to signing the contract supports RVB's contention that the
parties intended that the second story be 20 by 16 feet. However, testimony of the Mcleans
contradicts that testimony and supports their interpretation. It is for the trial judge as finder of fact,
not this court, to resolve such conflicts.
See Gehr v. City of Sheboygan, 81 Wis.2d 117, 122,
260 N.W.2d 30, 33 (1977). The trial
court implicitly credited the McLeans' testimony on these disputed points
rather than that of Maple. In addition,
the trial court correctly applied the rule of construing ambiguous language
against the drafter. See Goebel
v. First Fed. Savings & Loan Assn., 83 Wis.2d 668, 675, 266 N.W.2d
352, 356 (1978).
MODIFICATION OF
WRITTEN CONTRACT
RVB
argues that even if the trial court correctly interpreted the written contract,
the McLeans orally agreed to modify the contract by agreeing that RVB could
leave the ridge in place and extend one side of the roof to create a 20 foot
width. The McLeans respond that any
such agreement did not waive their right to recover under the written contract
because they did not knowingly, voluntarily and intentionally relinquish that
right.
We
first decide that modification of contract, rather than waiver, is the correct
frame of analysis for resolving this dispute.
In the context of contract law, the concept of waiver is properly used
to determine whether conditions to a party's obligations under a contract have
been eliminated by the voluntary words or conduct of that party alone. See Corbin
on Contracts § 752 at 478-82 (1960).[3] In the context of building contracts,
examples of conditions that may, under appropriate circumstances, be considered
waived by the owner are conditions of timeliness and of the owner's power to
reject work not meeting specifications.
See Corbin on Contracts
§ 756; see also Stevens Construction Corp. v. Carolina Corp.,
63 Wis.2d 342, 356-57, 217 N.W.2d 291, 299 (1974).
However,
when the allegation is that both parties have agreed to modify certain terms of
the original contract, waiver is not the applicable concept. Corbin
on Contracts, § 752 at 481-82.
Rather, the issue is whether there was a valid modification of the
contract. Id. A written contract may be modified by a
subsequent oral agreement, and that oral modification is binding if it
satisfies all the requirements of a valid contract, including assent. Kohlenberg v. American Plumbing Supply
Co., 82 Wis.2d 384, 393, 263 N.W.2d 496, 500 (1978). New consideration is not required to support
a modification of an executory contract, such as when the construction provided
for in the initial contract is not yet completed. See Everlite Mfg. Co. v. Grand Valley Machine &
Tool Co., 44 Wis.2d 404, 408, 171 N.W.2d 188, 190 (1969).
The
determination whether parties to a written contract have entered into a
subsequent oral agreement to modify the contract is ordinarily a factual
determination. Kohlenberg,
82 Wis.2d at 393, 263 N.W.2d at 500.
There is no dispute in this case that the McLeans agreed with RVB to
have one side of the roof extended farther than the other side to create a
second story of 20 x 20 feet. However,
whether that assent was sufficient to create a binding modification requires an
analysis of the reasons for the McLeans' assent. Cast in terms of modification of contract rather than waiver, the
McLeans' argument is that they could not possibly have foreseen what the
finished product would look like, and they did not voluntarily agree because
they could not afford to pay RVB more money to move the ridge.
Although
the trial court framed the issue in terms of waiver rather than modification of
contract, it did make factual findings pertinent to the validity of the
McLeans' assent. After referring to
some of the testimony on this issue, the trial court stated:
While McLeans may
have been aware of the mis-location of the ridge or peak during construction,
the court believes they could not have readily visualized and appreciated its
impact on the end product in order to make an intelligent decision or waiver
until after completion. The conduct of
McLeans was greatly influenced by financial considerations and limited
perceptions so as not to be completely free and unfettered.
We
have searched the record for testimony to support the trial court's finding
that the McLeans were unable to visualize the results of their agreement to
extend one side of the roof. We can
find only this testimony from Donald McLean:
QAnd I
believe in response to the judge's questions you said you had a problem
aesthetically with the way it was eventually built once the roof line was
dragged out.[4]
AI didn't like it.
We
conclude that this testimony is insufficient, as a matter of law, to void the
modification. A mistake by one
party--that is, a misconception about the meaning or implication of something, see
Security Pac. Nat'l Bank v. Ginkowski, 140 Wis.2d 332, 337, 410
N.W.2d 589, 592 (Ct. App. 1987)--is grounds for rescission of a contract if
there is fraud on the part of the other party.
Sorce v. Rinehart, 69 Wis.2d 631, 638, 230 N.W.2d 645, 649
(1975). Donald McLean's testimony
supports a finding that the McLeans did not like the end product from an
aesthetic standpoint, but it does not support a finding that they were mistaken
about what they were agreeing to. Even
if it did, there is no evidence that RVB misled the McLeans about how the end
product would look and there is no evidence of fraud by RVB.[5]
The
court's second finding--that the McLeans were influenced by financial
considerations--is supported by the record.
They testified they felt pressured into agreeing to leaving the ridge
where it was and extending the roof on one side because they could not afford
the additional money that Maple said he would charge to move the ridge, and
Maple knew they could not afford it.
The issue here is whether these facts are sufficient to support the
legal conclusion that their agreement did not create a binding modification of
the contract.
Economic
duress applied to one party by the other to a contract is a basis for voiding a
contract. Mendelson v. Blatz
Brewing Co., 9 Wis.2d 487, 494, 101 N.W.2d 805, 809 (1960). The elements for proving economic duress as
a tort were defined in Wurtz v. Fleischman, 97 Wis.2d 100, 293
N.W.2d 155 (1980). We have since
followed Wurtz when economic duress is asserted as a defense to a
contract action. See Pope
v. Ziegler, 127 Wis.2d 56, 60, 377 N.W.2d 201, 203 (Ct. App. 1985); Stillwell
v. Linda, 110 Wis.2d 388, 391, 329 N.W.2d 257, 258 (Ct. App.
1982). The elements identified in Wurtz
are:
1. The party alleging economic
duress must show that he has been the victim of a wrongful or unlawful act or
threat, and
2. Such act or threat must be one
which deprives the victim of his unfettered will.
As a direct result
of these elements, the party threatened must be compelled to make a
disproportionate exchange of values or to give up something for nothing. If the payment or exchange is made with the
hope of obtaining a gain, there is not duress; it must be made solely for the
purpose of protecting the victim's business or property interests. Finally, the party threatened must have no
adequate legal remedy. (Citations omitted.)
Wurtz, 97 Wis.2d at 109-10, 293 N.W.2d at 160. Without deciding whether the McLeans have established any other
element, we conclude they have failed to establish that they had no adequate
legal remedy as an alternative to agreeing to the extension of one side of the
roof.[6]
Donald
McLean testified that when Maple refused "to work with" him on the
ridge dispute, he started looking for legal advice and he and Julie watched the
builders complete the second story with the off-center ridge and extended roof
on one side while they were getting legal advice. Julie McLean acknowledged that after agreeing to that
construction, over a period of seven weeks they watched RVB proceed to build
the second story that way without stopping RVB. There is no evidence that suggests that they would have suffered
financial loss that could not have been compensated for in damages if they had
sought legal advice about enforcing their rights under the written contract
without first agreeing to an off-centered ridge and extension of the roof. We find the record devoid of any evidence to
support a finding that they did not have an adequate legal remedy as an
alternative to agreeing to the off-centered ridge and extension of one side of
the roof.
Because
we conclude that the McLeans agreed to modify the written contract by extending
the roof on one side and leaving the ridge eight feet from the other side, we
also conclude that RVB did not breach its contract with the McLeans by
constructing the second story in that manner.
Since the trial court held that it did, it determined what was owing RVB
based on quantum meruit rather than under the contract as modified. We are unable to determine what amount the
McLeans owe RVB in view of our holding that it did not breach the contract with
regard to the second story, and we remand to the trial court for that
determination.[7]
VIOLATION OF Wis. Adm. Code § ATCP 110
The Wisconsin Department
of Agriculture, Trade and Consumer Protection, pursuant to its authority under
§ 100.20(2), Stats.,[8]
has adopted regulations governing home improvement trade practices. Wis.
Adm. Code § ATCP
110. Wisconsin
Administrative Code § ATCP
110.05 imposes certain requirements on home improvement contracts between
owners of residential property and entities engaged in the business of making
or selling home improvements. See
Wis. Adm. Code § ATCP
110.01(1)(a), (4) and (5).
"Home improvements" include additions to residential
property. Wis. Adm. Code § ATCP
110.01(2). Persons who suffer a
monetary loss because of a violation of Wis.
Adm. Code § ATCP 110
may sue the violator directly under § 100.20(5)[9]
and recover twice the amount of the loss, together with costs and reasonable
attorney fees. See Note Wis. Adm. Code § ATCP 110.
Wisconsin Administrative Code § ATCP
110.05(1) provides:
Home improvement contract requirements. (1) The
following home improvement contracts and all changes in the terms and
conditions thereof, shall be in writing:
(a) Contracts requiring any payment of
money or other consideration by the buyer prior to completion of the seller's
obligation under the contract.
(b) Contracts
which are initiated by the seller through face-to-face solicitation away from
the regular place of business of the seller, mail or telephone solicitation
away from the regular place of business of the seller, mail or telephone
solicitation, or handbills or circulars delivered or left at places of
residence.
The
trial court concluded that Wis. Adm.
Code § ATCP 110.05
did not apply to RVB because RVB did not initiate the contract as provided in Wis. Adm. Code
§ 110.05(1)(b). Interpretation of
a regulation is a question of law, which we decide independently of the trial
court. Moonlight v. Boyce,
125 Wis.2d 298, 303, 372 N.W.2d 479, 483 (Ct. App. 1985). The plain language of the regulation covers
contracts described in subsec. (a) and contracts described in subsec. (b). On appeal, RVB offers no argument supporting
the trial court's interpretation of the regulation but does argue that the
contract at issue here is not governed by the regulations because the addition
was for Julie McLean's child care business and therefore the property is not
residential. We do not agree.
Julie
McLean testified that the first story of the addition was to provide more room
for the children she cared for in her home and the second story was to give her
family more space. It is undisputed
that the building to which the addition was added was a "structure used, in
whole or in part, as a home or place of residence ..." and is therefore
residential property. Wis. Adm. Code § ATCP 110.01(3). Home improvement means "... the
remodeling, altering, repairing, painting or modernizing of residential or
non-commercial property, or the making of additions thereto...." Wis.
Adm. Code § ATCP
110.01(2). There is no hint in the
language of the regulation that the use of an addition to residential property
for income producing purposes as well as residential purposes takes it out of
the definition of home improvement. We
conclude that the contract between RVB and the McLeans is a home improvement
contract and it is governed by Wis. Adm.
Code § ATCP 110.05.
The
McLeans argue that these violations of the regulations occurred: (1) The contract did not "clearly,
accurately and legibly set forth all the terms and conditions of the
contract," as required by Wis. Adm.
Code § ATCP
110.05(2)(b)[10] because it
did not clearly state the dimensions of the second story; (2) the contract
did not state the dates or time period on or within which the work was to begin
and be completed as required by Wis.
Adm. Code § ATCP
110.05(2)(d);[11] and
(3) RVB did not provide the McLeans with a copy of the written contract
before it began work or received any payment as required by Wis. Adm. Code § ATCP 110.05(3).[12] Because of the trial court's interpretation
of Wis. Adm. Code § ATCP 110.05(1), it did not determine
whether these requirements were violated.
RVB does not argue on appeal that they complied with these
requirements. Because the pertinent
facts are not disputed, we are able to determine as a matter of law whether
these three requirements were violated, and we conclude they were.
The
dimensions of the first and the second story of the addition were the subject
of discussions and proposals prior to signing the written contract and were,
without doubt, significant terms of the project which should have been clearly
and accurately stated in the contract.
This was not done, as our discussion on the proper construction of the
written contract demonstrates. If the
drawing showing a 16 by 20 foot dimension to the second story were considered
part of the written contract, that arguably would meet the requirements of Wis. Adm. Code § ATCP 110.05(2)(b) on this point. However, that drawing was not described in
the written contract as required by Wis.
Adm. Code § ATCP
110.05(2)(g), and was not attached to the copy of the written contract provided
to the McLeans. The copy of the written
contract was provided to the McLeans after the payment of $7,275 was received
by RVB and after work started. Finally,
the written contract did not contain start and completion dates.
In
light of our conclusion that the written contract was modified, we also hold
that Wis. Adm. Code § ATCP 110.05(1) was violated because the
terms of the modified contract were not in writing.
We
agree with RVB that the McLeans are entitled to double damages and attorney
fees under § 100.20(5), Stats.,
only if they suffered pecuniary loss because of a violation of Wis. Adm. Code § ATCP 110.05. We also agree with RVB that, because the trial court found that
the McLeans had not provided sufficient proof that they lost compensation from
Julie McLean's child care business because of the delay in completing
construction, that loss does not constitute a "pecuniary loss because of a
violation" of the code, even if it otherwise would. However, we do not agree with RVB that we
should review the record to make our own determination whether the damages to
the subflooring were caused by a violation of the code. Because each of the code violations requires
a determination whether that violation caused a pecuniary loss, and because the
trial court did not consider this issue for any violation, we are persuaded
that the proper course is a remand to the trial court.
On
remand, the court may conduct such further proceedings as it considers
appropriate to determine whether any of the violations of the code we have
identified caused the McLeans pecuniary loss, and if so, the amount of that
loss and the amount of reasonable attorney fees incurred to establish the
violation(s) and loss. Any attorney
fees recoverable by the McLeans do not include those incurred solely in the
defense of RVB's counterclaims. See
Boyce, 125 Wis.2d at 307, 372 N.W.2d at 485 (Ct. App. 1985).
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded with directions.
Not recommended for
publication in the official reports.
[2] Rock Valley Builders also challenges the
amount the court awarded in quantum meruit for its work. However, because of our disposition of the
other issues, we do not address this.
[3] Hanz Trucking, Inc. v. Harris Brothers
Co., 29 Wis.2d 254, 268, 138 N.W.2d 238, 246 (1965), on which the
McLeans rely for their waiver argument, illustrates this point. There the issue was whether the lessor of a
truck, who had billed the lessee for actual mileage rather than minimum monthly
mileage as the contract provided, could later recover the minimum monthly not previously billed.
[5] In Erickson v. Gundersen, 183
Wis.2d 106, 119, 515 N.W.2d 293, 299 (Ct. App. 1994), we recognized that Restatement (Second) of Contracts § 153
(1981) provided additional grounds for rescission based on a unilateral
mistake: "if the mistake leads to
an unconscionable result" or (b) "the other party had reason to know
of the mistake or caused the mistake."
However, we did not adopt that statement of the law in Erickson
because it was unnecessary to our decision.
In this case, even were we to adopt the Restatement standard, we would nevertheless conclude the
McLeans are not entitled to void the modified contract based on mistake because
the record does not support any of the Restatement
bases for rescission.
[6] We note that pre-Wurtz cases
recognizing economic duress as a contract defense concluded no adequate remedy
was an element of the defense. See
Minneapolis, St. Paul & Sault Ste. Marie Railway Company v. Railroad
Commission of Wisconsin, 183 Wis. 47, 197 N.W. 352 (1924) (in a
contract defense, "duress may sometimes be implied when payment is made or
an act performed to prevent great property loss or heavy penalties when there
seems no adequate remedy except to submit to an unjust or illegal demand and
then seek redress in the courts").
We also
note, that although the determination whether economic duress is proved is
ordinarily one for the finder of fact, Wurtz, 97 Wis.2d at 108,
293 N.W.2d at 159, since the pertinent facts are undisputed we are presented
with a question of law. See Wassenaar
v. Panos, 111 Wis.2d 524, 525, 331 N.W.2d 357, 361 (1983).
[7] We are unable to tell from the trial court's
opinion whether it determined that RVB did not breach the contract in the other
ways claimed by the McLeans; or whether it did not decide that because it found
no damages from other breaches; or whether it did not decide that because it
was unnecessary once it found a substantial breach with respect to the second
story. We also are unable to determine
the precise stage of construction on October 31, 1994, and whether that affects
the amount due RVB under the contract.
[8] Section 100.20(2), Stats., provides:
The department,
after public hearing, may issue general orders forbidding methods of
competition in business or trade practices in business which are determined by
the department to be unfair. The
department, after public hearing, may issue general orders prescribing methods
of competition in business or trade practices in business which are determined
by the department to be fair.
[9] Section 100.20(5), Stats., provides:
Any person
suffering pecuniary loss because of a violation by any other person of any
order issued under this section may sue for damages therefor in any court of
competent jurisdiction and shall recover twice the amount of such pecuniary
loss, together with costs, including a reasonable attorney's fee.
[10] Wisconsin
Administrative Code § ATCP
110.05(2) provides:
If a written home
improvement contract is required under sub. (1), or if a written home
improvement contract is prepared using the seller's pre-printed contract form,
the written contract shall be signed by all parties and shall clearly,
accurately and legibly set forth all terms and conditions of the contract,
including:
(a) The name
and address of the seller, including the name and address of the sales
representative or agent who solicited or negotiated the contract for the
seller.
(b) a
description of the work to be done and the principal products and materials to
be used or installed in performance of the contract. The description shall include, where applicable, the name, make,
size, capacity, model and model year of principal products or fixtures to be
installed, and the type, grade, quality, size or quantity of principal building
or construction materials to be used.
Where specific representations are made that certain types of products
or materials will be used, or the buyer has specified that certain types of
products or materials are to be used, a description of such products or
materials shall be clearly set forth in the contract.
(c) The total
price or other consideration to be paid by the buyer, including all finance
charges. If the contract is one for
time and materials the hourly rate for labor and all other terms and conditions
of the contract affecting price shall be clearly stated.
(d) The dates
or time period on or within which the work is to begin and be completed by the
seller.
(e) A
description of any mortgage or security interest to be taken in connection with
the financing or sale of the home improvement.
(f) A
statement of any guarantee or warranty with respect to any products, materials,
labor or services made by the seller or which are required to be furnished to
the buyer under s. ATCP 110.04(1).
(g) A
description or identification of any other document which is to be incorporated
in or form part of the contract.
[11] One significance of this requirement is that
the seller is required under Wis. Adm.
Code § ATCP
110.02(7)(c) to give the buyer timely notice of an impending delay in the
contract performance if performance will be delayed beyond the date specified
in the contract. If the seller fails to
give this notice or obtain agreement to a new deadline, the buyer has certain
remedies under the regulations, in addition to other remedies. See Wis.
Adm. Code § ATCP
110.07.