Every residential contractor can
think of a dozen good reasons to have written contracts. Last week, a Wisconsin
appellate court piled on still one more reason. I’ll explain.
In the winter of 2014, Pat and David
Sandlund were thinking about improvements to their home in Door County, Wisconsin.
If you’re not familiar with Wisconsin geography, Door County is north of Green Bay
on a peninsula that extends into Lake Michigan. Winters are cold in Door County.
And that’s part of our story.
In the spring of 2015, Pat and David talked with Progressive Carpentry about replacing the windows and shingle roof on their
home. Rich Birnschein and his son run Progressive Carpentry. Both Birnscheins met
with David at the Sandlunds' home on July 22. According to Rich, Dave gave Progressive
the go-ahead to order shingles and Andersen replacement windows. While at the Sandlund
home, the Birnscheins took measurements for the windows and a sliding glass door.
Later Dave and the Birnscheins met at a building supply warehouse to select the
exact window style. Progressive placed the window order in August, 2015.
The first thing to know about replacement
windows is that they’re custom-made. All have to fit precisely in an existing wall
opening. Even the dual-pane insulating glass is custom made. A second point about
replacement windows should be obvious. They’re not cheap. Custom replacement windows
and doors for a 4-bedroom home can run $40,000 or more.
Two weeks after ordering the windows,
Progressive sent Dave Sandlund an email with some news. The shingles had arrived. Dave replied with more
news. He had a change of heart:
The kids think I am nuts to spend that
much on the house at this stage of our lives ... The kids are now looking for someplace
for us to move to warm and easier living ... I must admit this whole process has
gotten me to thinking about just selling and moving on. I love it up here but maybe
it is time for us to move on. Naturally I am not going to let you get stuck with
any material costs that you have incurred but no decision has been made yet.
Birnschein tried to salvage the project.
But the Sandlunds wouldn’t budge – and wouldn’t pay for the windows. Birnschein
filed suit.
At trial, an attorney for the Sandlunds
had powerful arguments:
- There was no contract. Wisconsin’s Home Improvement Practices Act, Wis. Admin. Code § ATCP 110 requires a written contract for home improvement work. Oral agreements in violation of the law are said to be unenforceable against the owner.
- The Sandlunds didn’t authorize the order. Again, there was nothing in writing. Progressive was stuck with the windows.
- There was no building permit. Work never got beyond planning and ordering materials.
What the Court Decided
The court sided with Progressive.The Sandlunds authorized Birnschein to
buy the windows. The Sandlunds and Progressive had an oral contract. “It is a grave
error to assert that all contracts in violation of a statute are unenforceable.”
This case is a prime example of buyer's
remorse . . . [The Sandlunds] intended to have [Birnschein] do additional remodeling
work on their home and authorized him to order the windows and shingles. When [the
Sandlunds] procrastinated long enough into September and [Birnschein] then told
them he couldn't get to their project until the spring of 2016. . . [the Sandlunds]
got angry and then had someone else do the work.
The court awarded Progressive reimbursement
for the windows -- but not their loss of profit. If Progressive had a written agreement,
as required by Wisconsin law, the result could have been very different. Progressive
would have collected for the windows, loss of profit plus attorney fees.
With a written contract, buyer’s remorse
won’t affect your jobs. Construction Contract Writer makes it easy to put it in
writing, no matter where you build and no matter the type of project.
