Supreme Court Plants another Sloppy Wet Kiss on State Trial Bar

By Deb Jordahl

Friday, Wisconsin’s Supreme Court delivered another blow to Wisconsin business and industry.  In yet another far reaching 4-3 decision, allegedly written to protect Wisconsin consumers, the court has guaranteed higher costs for business and consumers and higher fees for trial attorneys.

In Stuart v. Weisflog, the court determined that ANY business entity or person providing a home improvement could be sued for twice the amount of damages caused by simple negligence on the part of contractor. Prior to the case, litigants could be awarded double the amount of damages and court costs for damage caused by contractor misrepresentation.  Simple contractor negligence did not allow for double damages.   

The decision means the Stuarts and their attorneys will get $190,000 for $95,000 in actual damages awarded by the jury rather than the $118,750 under the old formula.  In the part of the decision addressing court costs, the majority really puckers up for the bar. 

According to the Milwaukee Journal Sentinel, “the trial court had awarded the couple's lawyers a little more than $15,000 in fees based on a percentage of a lower damage award; the high court decision held that the fees should be based on the number of hours the lawyers worked multiplied by a reasonable hourly rate. At trial, the lawyers asked for more than $200,000. The Waukesha County trial court will have to reconsider attorney fees using the hours worked method based on the decision.”

Cha-ching!

Consider that home improvement is defined as everything from making an addition to your home to painting, landscaping and repairing driveways. Now ask yourself: 

Will the Stuart decision encourage reluctant consumers to become private attorneys general and fight unfair trade practices which will deter future contractor malfeasance and promote the public good, as the majority asserts?

Or, will it place an unwarranted burden of possible criminal prosecution on the building trades and have far-reaching impacts throughout Wisconsin, as Justice Roggensack predicts in her dissent?[i]

Finally consider whether the lofty goal of turning reluctant consumers into attorneys general is an appropriate role for our state Supreme Court, because it sounds a bit like legislating from the bench to me.

-March 31, 2008

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