Saturday, November 23, 2013

Fee Shifting In The Wind?

The general rule is that parties in civil litigation have to pay their own attorney; this is what is known as the American Rule.  Yes, sometimes contracts require the losing party to pay the winning party's attorneys' fees should a dispute arise under that contract.  Yes, sometimes judges order one party to pay another party's attorneys' fees based upon a violation of Wis. Stat. (Rule) s. 802.05 or for discovery abuse pursuant to Wis. Stat. (Rule) 804.12.  Most significantly for the purposes of this post, certain consumer statutes require courts to award a prevailing party reasonable attorneys' fees.  These statutes include Wis. Stat. s. 100.18 and Wis. Stat. s. 100.20.  The purpose of this "fee shifting" is to encourage attorneys to take these cases and to deter sellers from defrauding buyers.  See Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, 308 Wis. 2d 103, 746 N.W.2d 762; First Wis. Nat'l Bank v. Nicolaou, 113 Wis. 2d 524, 335 N.W.2d 390 (1983).  I like these statutory causes of action, and I plead them whenever I can on behalf of my defrauded clients.

However, I recognize that the American Rule generally applies in civil litigation.  For example, I know that I cannot seek reasonable attorneys' fees on behalf of clients whose use and enjoyment of their property has been interfered with by the actions of another.  These are the nuisance cases that I discussed in a previous post.  Some of our clients claim that their property has diminished in value as the result of the opening of an Aldi in their neighborhood.  Others claim that their property has diminished in value as the result of a gas pipeline or a Superfund site nearby.  Plaintiffs with such claims have to pay their attorney even if they prevail.

Given my background in pursuing diminishment in value claims on behalf of property owners, I was very interested to hear about a new law proposed by Senator Lasee.  Senate Bill 167 would entitle property owners to reasonable attorneys fees if they could prove that they were damaged by a wind energy system.  The law also entitles owners of property near wind turbines to recover for emotional damages, pain and suffering, and relocation expenses.

If you guessed that I favor this legislation, then you guessed incorrectly.  I don't dispute that wind turbines negatively affect property values.  Then again, gas pipelines and Superfund sites also negatively affect property values and have been linked to deadly health problems, including cancer.  Why should those who live near wind turbines recover reasonable attorneys' fees while property owners damaged by other nuisances are left out in the cold?  Furthermore, I see no public policy justification for this exception to the American Rule.  Reasonable attorneys' fees are recoverable under Wis. Stat. s. 100.18 and 100.20 because we want to deter fraud and other deceptive practices.  Theft by fraud is a criminal offense.  In contrast, there is nothing illegal about wind turbines.  Of course, this proposed law would encourage attorneys (including yours truly) to take these cases, but that could justify any fee shifting statute.  Where's the NEED to encourage attorneys to take these cases?

Please feel free to comment below, as I would reconsider my initial opinion if someone justifies fee shifting in these cases.

Sunday, October 6, 2013

Don't Take The Easy Way Out- My Take On Ivancevic v. Reagan

On September 17th, the Wisconsin Court of Appeals filed its decision in Ivancevic v. Reagan and recommended it for publication.  In Ivancevic, the buyers of a property sued their sellers, seeking to rescind their purchase contract on the grounds of "mutual mistake."  They claimed that neither party was aware of defects in the property's roof and attic ventilation system and that the sellers should be forced to repair or buy back the property as a result.  The Court of Appeals affirmed the trial court's order dismissing the case, citing firmly established precedent for the proposition that reformation of a contract on the grounds of mutual mistake is available only when both parties to the contract are not aware of even the possibility of material defects.

In my opinion, the proposition that the parties to a residential real estate transaction are not aware of the possibility that the property contains material defects is absolutely ridiculous.  The likelihood of property defects is why buyers should insist on receiving a Real Estate Condition Report from the seller, as I advised in an earlier post.  Also, the standard WB-11 Residential Offer To Purchase contains contingencies giving buyers the opportunity to have a professional inspect the property for defects.  If the home inspector discovers defects, the contract may give the sellers the right to cure these defects or give the buyers the right to void the offer because of these defects.  True, the home inspector is unlikely to discover all (or even most) defects affecting the property.  Regardless, buyers insist on Real Estate Condition Reports; home inspections; and even specialized foundation, roof, mold, radon, septic, well, and well water inspections because they know (or have been advised by a real estate agent, their parents, or anyone with an ounce of common sense) that it is possible that the property they're considering purchasing will have defects.

What really happened in Ivancevic is that the buyers were either unwilling or unable to plead and prove that the sellers misrepresented the condition of their property - that they knew of defects affecting their property that they did not disclose.  In most cases, buyers' only viable claims against sellers are misrepresentation claims.  Even buyers' "breach of contract" claims are really misrepresentation claims because the standard sales contract only requires sellers to disclose known defects, as discussed in Ivancevic.  It's certainly not easy to prove that sellers lied about their property's condition in their Real Estate Condition Report.  It's certainly not "nice" to call sellers "liars," which is what you're doing when you sue them for misrepresentation and fraud.  Then again, it's certainly not "nice" to sell a wide-eyed twenty-something couple their first home without telling them that they will have to excavate the foundation, replace the roof, drill a new well, or install a mound system.

If you convince me that your sellers knew about the defects affecting your property, I will tenaciously pursue misrepresentation claims on your behalf.  If I am not convinced that your sellers lied to you, I will not take the easy way out by pursuing a half-baked "mutual mistake" claim, for such a claim would waste your time, my time, and the court's time.  Instead, I will be upfront with you about the shortcomings of your case, advise you how you could address those shortcomings, and warn you about the time limits on misrepresentation claims.  If pursuing claims on behalf of homeowners against sellers was easy, every attorney would do it!  

Monday, September 30, 2013

Every Year Is Getting Shorter, Never Seem To Find The Time

In a previous post with a borrowed Pink Floyd lyric as its title, I warned readers about the statutes of limitation on various claims alleged in real estate misrepresentation cases.  While these cases are our firm's bread and butter, we also pursue property damage claims against owners of neighboring properties (nuisance claims) and claims against builders, engineers, and home improvement contractors.  For some claims against contractors, the governing statute of limitations is the 6-year statute of limitation provided for in Wis. Stat. s. 893.93(1)(b).  The Wisconsin Supreme Court has held that this statute of limitation applies to Home Improvement Practices Code claims that are based upon alleged misrepresentations.  See Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, 308 Wis. 2d 103, 746 N.W.2d 762.

What about negligence claims against neighbors, builders, engineers, and contractors for property damage?  Wis. Stat. s. 893.52 provides as follows:  "An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed"  

However (and you saw that word coming from a mile away!), the legislature might soon change this statute of limitations.  2013 Assembly Bill 367 and 2013 Senate Bill 281 both propose the following change:

SECTION 3.  893.52 of the statutes is amended to read:
893.52  Action for damages for injury to property.  Except in the case where a different period is expressly prescribed, an action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within  3 years after the cause of action accrues or be barred.

Though these bills have yet to make it out of committee, I presume that they will become law.  I certainly encourage you to contact your legislator to register your opposition to these bills, which threaten to deny justice to numerous Wisconsin homeowners.  Barring a miracle, the new law will cut in half a homeowner's time to sue for negligent construction, improvement, or design.

The bottom line is that homeowners will need to be more diligent in the future.  If you discover cracks, bulges, or gaps in your driveway, siding, kitchen, bathroom, or foundation, you need to contact professionals (including legal counsel) right away!

Monday, April 22, 2013

Nuisance Actions- When All Is Not Good In The 'Hood

With the widespread flooding of the past week and the corresponding increase in interest in my law firm's services, it's about time for another post on this blog.  I strongly recommend that those visiting this blog for the first time review these earlier posts: http://atty4homeowners.blogspot.com/2013/02/do-you-really-need-me.htmlhttp://atty4homeowners.blogspot.com/2013/02/do-you-really-need-me.htmlhttp://atty4homeowners.blogspot.com/2013/03/your-basement-should-be-in-pictures-and.html

Most of our cases are seller misrepresentation cases - our clients are alleging that the people who sold them their home misrepresented its condition by failing to disclose defects at the time of sale in their Real Estate Condition Report.  However, we also pursue nuisance cases.  While many defendants and their attorneys may view all of our cases as nuisance cases, that's not what I mean!

Legally speaking, a nuisance is an invasion of interest of another in the private use and enjoyment of land.  In other words, a homeowner may have a claim against his or her neighbors for interfering with his or her property rights.  "Neighbors" is not necessarily limited to homeowners who live next to each other on quarter-acre lots in a subdivision.  For instance, property owners can sue owners of nearby businesses for the loss of use and enjoyment caused by excessive noise, odors, and vibrations.  See Krueger v. Mitchell, 106 Wis. 2d 450, 317 N.W.2d 155 (Ct. App. 1982).  We currently represent homeowners who claim to have been damaged by the demolition of an existing building and the construction of a new one - they are suing the developer and contractors for foundation damage caused by vibrations and the annoyance and inconvenience caused by excessive noise and dust.

More commonly, we represent homeowners who claim that their neighbors caused their basement to leak by altering the flow of surface water through the following activities:
  • Erecting a structure, such as a home, garage, or shed;
  • Installing a driveway or parking lot;
  • Erecting a retaining wall;
  • Building a berm;
  • Digging a swale;
  • Extending or redirecting the discharge pipes for downspouts and sump pumps.
The neighbors' liability largely depends upon whether or not their use was reasonable.  They will argue that they merely wanted additional storage space or a place to park, while we will argue that they also (or really) wanted to divert their water onto your property.

Interestingly enough, your neighbors could be held liable for nuisances that they did not create:

One who maintains a nuisance created by another is liable for injuries sustained because of the danger incident thereto just as clearly as if he had himself created the danger in the first place. If the owner or the occupier of property continues a nuisance created thereon by others, he is liable, not because he owns or occupies the premises, but because he does not abate the nuisance.

Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, 254 Wis. 2d 77, 646 N.W.2d 777.  Of course, this presupposes that your neighbors can abate (or correct) the nuisance.  More importantly, it presupposes that you have given them the opportunity to do just that!  Regardless of whether or not your neighbors created the nuisance, you need to give them the opportunity to make the necessary corrections before suing them for damages - it's the neighborly thing to do!

Alas, neighbors (and their insurance companies) tend to be stubborn when confronted with the damages caused by their activities.  If your neighbors refuse to come correct, we may be willing to pursue your case on a contingency fee basis and will seek reimbursement for your correction of the condition, repairs, diminished value, and loss of use.  A jury may award punitive damages if it finds that your neighbors intentionally disregarded your rights.

Monday, March 11, 2013

Your Basement Should Be In Pictures (And Videos)!

Unfortunately, many of you will have leaky basements this week.  The snow is slowly melting in southeastern Wisconsin, causing the water table to rise.  Add over a inch of rain in many areas over the past weekend, and you have a perfect recipe for a leaky basement.

As I advised in this previous post, you need to take photographs and videos of the water in your basement.  Photographs and videos MAKE or BREAK a leaky basement case.  If you have awesome photographs and videos, your sellers will be forced to explain how the conditions depicted therein just magically appeared after they transferred title to you.  Your case should settle on favorable terms long before trial.  On the other hand, YOU will be on trial if you do not have any photographs of the alleged leaky basement.  The sellers' attorney will call you a liar, especially if you claim that there was standing water throughout your basement or property damage.

This advice applies even if you're not considering civil litigation against that "nice old couple" that sold you your home.  You should still take photographs and videos because you might have a homeowners insurance claim, particularly if you have a sewer backup or sump pump overflow endorsement.

Here are some pointers for taking photographs of your leaky basement:
  • Use a digital camera;
  • Ensure adequate lighting;
  • Keep a notebook and document the date, time, and location of each photograph;
  • Capture the depth and breadth of the water;
  • Capture your efforts to clean up the water;
  • Capture any damaged building materials, such as drywall, paneling, tile, studwall, and tack strips;
  • Capture any walls or floors with staining, bubbling block, or mold;
  • Capture any products in your basement that may have been used to conceal evidence that the basement leaked in the past, such as DRYLOK or KILZ; and
  • Capture any damaged personal property, such as furniture, exercise equipment, entertainment centers, musical instruments, wedding dresses, etc.
Here are some good photographs from my clients:

Rotted Wood Stud Wall
Waterproofing Paint
Leaky Basement Wall
Iron Ochre
Videos of water leaking into your basement or of you cleaning it up are even better, but PLEASE resist the temptation to narrate your video.  In the heat of the moment, you will inevitably say something that we will not want the jury to hear.  You may fault yourself for not discovering or further investigating this issue prior to closing.  You may make derogatory or sarcastic remarks about the sellers, real estate agents, or home inspector.  You may use profanity.  These are all natural responses in the heat of the moment, but they risk offending the jury.  You will have a chance to narrate your video and/or describe what you were trying to depict at trial.    

Thursday, February 28, 2013

Below v. Norton, Irrelevant After All These Years

Five years ago this week, I argued two cases before the Wisconsin Supreme Court.  The first of these cases was Below v. Norton, which I argued on the morning of Tuesday February 26, 2008.

The trial court and the Court of Appeals had both held that my client's intentional misrepresentation claim against her sellers was barred by the economic loss doctrine, which disfavors tort claims (such as negligence and strict liability claims) between contracting parties.  The Wisconsin Supreme Court had held that the economic loss doctrine barred most intentional fraud claims between commercial parties, see Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, and even intentional fraud claims brought by consumers.  See Tietsworth v. Harley-Davidson, Inc., 2004 WI 32.  The Wisconsin Supreme Court had also held that the economic loss doctrine barred some misrepresentation claims in commercial real estate transactions, see Van Lare v. Vogt, Inc., 2004 WI 110, and negligent construction claims by homeowners.  See Linden v. Cascade Stone Co., 2005 WI 113.  Somehow, I convinced the Wisconsin Supreme Court to accept my petition for review in the face of this daunting precedent and also convinced it not to dismiss my petition for review as improvidently granted after it decided Wickenhauser v. Lehtinen, 2007 WI 82.  Unfortunately, despite my best efforts and the best efforts of amicus curiae Wisconsin Academy of Trial Lawyers (now the Wisconsin Association for Justice), the Wisconsin REALTORS Association, the University of Wisconsin Consumer Law Litigation Clinic (whose students also "mooted" my arguments), AARP, Consumer Justice Law Center LLC, Legal Action of Wisconsin, and the Legal Aid Society of Milwaukee, the Wisconsin Supreme Court was unwilling to recognize an exception to the economic loss doctrine for intentional fraud claims brought by noncommercial purchasers of residential real estate.  It held that the economic loss doctrine bars common law intentional misrepresentation claims in all real estate transactions.  See Below v. Norton, 2008 WI 77.

Realtors and lawyers advised their clients on the implications of the Below decision until the legislature abrogated its holding by enacting Wis. Stat. 895.10.  Under this statute, a purchaser of residential real estate may pursue a tort claim against his or her seller for fraud or intentional misrepresentation arising from a residential real estate transaction completed on or after April 23, 2009.  See Shister v. Patel, 2009 WI App 163, n.6. 

If you've purchased a defective home, well-meaning friends and family may tell you that you have no legal remedy.  Thank them for their advice, but please recognize that what they've heard is urban legend.  If you purchased your home on or after April 23, 2009, Below v. Norton does not bar your common law intentional misrepresentation claim.  Even without Wis. Stat. s. 895.10, purchasers of defective residential property still had claims for violation of Wis. Stat. s. 100.18 and breach of contract, as the Below decision itself pointed out.  Furthermore, the Wisconsin Court of Appeals has since held that the economic loss doctrine does not bar claims for violation of Wis. Stat. ss. 895.446 and 943.20.  See Ferris v. Location 3 Corp., 2011 WI App 134.

While it was quite an experience arguing before the Wisconsin Supreme Court, the Below decision is largely irrelevant to claims arising from the purchase of defective residential real estate as we sit here today.  If you're considering buying a home, please follow the advice in my previous post regarding Real Estate Condition Reports.  If you've already discovered that you've bought a home with defects, please review my post regarding statutes of limitations.

Monday, February 18, 2013

No One Told You When To Run - You Missed The Starting Gun!

One of the more common questions that I get from people who have purchased a defective home is how long they have to sue their sellers.  In legal terms, when does the statute of limitation on real estate misrepresentation cases run?

Fortunately, reality turns out to be far better than perception on this issue.  Many new homeowners think that it's too late if more than a year has passed since the sale.  The truth is that most claims have a six-year statute of limitation, which may be extended further by the discovery rule and equitable estoppel arguments.

VIOLATION OF WIS. STAT. s. 100.18: Sellers violate Wis. Stat. s. 100.18 by making representations about the condition of their home that are untrue, deceptive, or misleading.  Per Wis. Stat. s. 100.18(11)(b)3., "no action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action."  Generally, buyers must commence a s. 100.18 action within 3 years after viewing a Real Estate Condition Report.  

BREACH OF CONTRACT: Sellers breach the standard WB-11 Offer To Purchase contract by failing to disclose defects in their Real Estate Condition Report. Per Wis. Stat. s. 893.43, a breach of contract action "shall be commenced within 6 years after the cause of action accrues or be barred." A contract cause of action accrues at the time of breach.  Therefore, a buyer must commence a breach of contract action within 6 years after the sellers accepted the offer to purchase.

INTENTIONAL MISREPRESENTATION: Per Wis. Stat. s. 893.93(1)(b), an "action for relief on the ground of fraud" "shall be commenced within 6 years after the cause of action accrues or be barred."

VIOLATION OF WIS. STAT. ss. 895.446 and 943.20: Wis. Stat. s. 895.446 creates a cause of action for victims of theft by intentional fraud.  Wis. Stat. s. 895.446 does not contain any statute of limitation.  Its cause of action may be governed by s. 893.93(1)(b) or it may be governed by s. 893.93(1)(a), which provides that "an action upon a liability created by statute when a different limitation is not prescribed by law" "shall be commenced within 6 years after the cause of action accrues or be barred."  Regardless, the statute of limitation is clearly 6 years after accrual.

WHEN DOES A FRAUD CLAIM "ACCRUE"?
Wis. Stat. s. 893.93(1)(b) declares that a fraud cause of action "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud."  


Let's say that you purchase a home with a brand new finished basement and live in it for 8 years.  You put it up for sale and the only interested buyer insists that you remove the drywall for his home inspector.  Upon removing the drywall, both of you discover that the foundation walls are cracked and caving in.  Not surprisingly, you lose your buyer but gain several $30,000+ foundation repair estimates.  In my opinion, you have a cause of action against your sellers for intentional fraud thanks to the "discovery rule."  

I would also argue that the sellers should be equitably estopped from asserting the statute of limitations as a defense based upon their intentional concealment of defective foundation walls.  Equitable estoppel is appropriate when a defendant’s conduct is “so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing actions.”  State ex. rel. Susedik v. Knutson, 52 Wis. 2d 593, 598, 191 N.W.2d 23, 26 (1971). 

The bottom line is that homebuyers are not necessarily out of luck when defects are discovered years after purchase.  Indeed, I won a Waukesha County jury trial in 2009 for clients who purchased their home way back in 2001.  See Keller v. Gaszak.

That being said, you should contact professionals right away when you discover defects in a newly-purchased home.  As I recommended in an earlier post, you should start with your real estate agents, consultants, and repair professionals.  You also need to seek legal counsel as soon as possible.  The Wis. Stat. s. 100.18 claim is a powerful claim.  You don't have to prove intent to defraud.  You don't have to prove that the representation was actually false; only that it was "deceptive" or "misleading."  You don't even have to prove that it was reasonable for you to rely upon the representation.  You're entitled to recover reasonable attorneys' fees from the sellers if you win.  However, the 3-year statute of repose is harsh, and the discovery rule does not apply.  Furthermore, juries believe that timing matters regardless of what the law is.         

Sunday, February 17, 2013

The Real Estate Condition Report- Don't Buy Home Without One!

For over 20 years, Chapter 709 of the Wisconsin Statutes has required most sellers of residential real estate to provide a Real Estate Condition Report to prospective buyers.  Sellers are required to certify whether or not they are aware of defects in numerous areas of the property being sold, including the roof; the electrical system; the plumbing system; the HVAC system; the septic system; the well; and the basement.  They are also required to certify whether or not they are aware of other conditions affecting the property such as boundary line disputes; unsafe levels of radon or mold; and remodeling that was completed without the required permits.  Sellers are in the best position to provide this information to buyers because they have usually lived in the property for several years.  In comparison, home inspectors are only allowed to access the property for an hour or two and are usually not allowed to move the sellers' personal property, much less wall and floor coverings.

In the ideal scenario, a buyer receives a Real Estate Condition Report signed by someone who has owned and lived in the property for several years prior to making an offer.  Unfortunately, I often deal with the following less-than ideal scenarios:

  • The buyer does not receive the Real Estate Condition Report until after he or she has already agreed to purchase the property.  
  • The buyer receives a Real Estate Condition Report signed by someone who does not own the property and will not receive any of the proceeds from the sale.
  • The buyer receives a Real Estate Condition Report signed by an absentee owner likely ignorant of the property's true condition.
  • The property has never been inhabited by anyone, i.e., a spec home.
  • The sellers who owned and lived in the property for several years convey the property to a relocation company that completes the Real Estate Condition Report and sells the property (yes, that really happens!).
You might be able to get a great deal on a foreclosed property, a spec home, or a home being sold by the personal representative of an estate. However, that deal won't seem so "great" anymore when you learn that roofers and basement repair contractors don't provide 5-year payment plans.  You will have to commit to paying a bank hundreds of thousands of dollars over the next thirty years in order to buy a home, so the true condition of this home should be absolutely critical to your decision.  Do yourself a favor and insist on receiving a Real Estate Condition Report signed personally by all owners of the property and all persons familiar with the property's condition before you make your offer!    

Wednesday, February 13, 2013

Do You Really Need Me?

This might sound like the worst elevator speech ever, but please bear with me.  Many new homeowners call me about their leaky basements.  In some cases, it is not in their best interests to file a civil lawsuit against their sellers.

I met with such a prospective client this afternoon.  He purchased a $600,000 home in God's Country last spring and has since discovered that one basement wall leaks.  His children's playroom has gotten wet.  Someone who buys such a nice home on such a nice lot deserves better.  His sellers disclosed nothing, and I find it hard to believe that the basement didn't leak during their 8 years of ownership.

He received two estimates from reputable WAFRP member contractors, one of whom referred him to me.  They recommended replacing the inside drain tile in the affected area and adding a sump crock for around $2,000.

My firm represents defrauded homeowners on a contingency fee basis, which means that we get paid a percentage of the amount recovered.  Other firms charge an hourly rate ranging from $200-$500 per hour.  If the problems with your home can be repaired for less than $10,000, it's probably not in your best interests to file a civil lawsuit.

This gentleman might need my services down the line.  Perhaps his sellers will agree to pay for the repairs but ask him to sign a release.  I can make sure that he's protected in case additional basement repairs are needed or defects are discovered in other areas of his home in the future.  Perhaps his sellers will ignore his calls.  I can write his sellers a Golke letter so that he can proceed with repairs without jeopardizing his future case.

If you've purchased a new home with a leaky basement, this is what you need to do:
  • Take photographs and videos of the water;
  • Document and preserve all water-damaged property, especially drywall, studwall, carpeting, and tack strips;
  • Contact your real estate agent;
  • Contact an independent foundation consultant, such as Chuck Weber or Mike Shadid; and
  • Obtain estimates from reputable contractors based upon the independent foundation consultant's recommendations. 
Sometimes, homeowners can solve their leaky basement problems simply by making exterior, above-grade improvements, such as building up the grade or extending the downspouts.  Unfortunately, these relatively inexpensive improvements don't always work and the homeowner is forced to consider drain tile replacement, waterproofing, and other expensive foundation repairs.  In short, you might need my services in the future even if you don't need them right now.        

Thursday, January 31, 2013

"Not Another Leaky Basement Case!"

Growing up in the shadows of the Menomonee River in a home that was built before World War II, I learned from an early age that a leaky basement is a very bad thing.  When our basement leaked, our tile flooring peeled up, our furniture was destroyed, and my dad's collection of books and classic rock albums were trashed. Our basement turned from a family room into a place that my family avoided like the plague.  Years later, I graduated from law school and found myself working for the "King of Leaky Basement Cases." Nothing wrong with that, right?

I quickly learned, however, that many lawyers and even some members of the judiciary are offended by "leaky basement cases."  Why is that?  The best explanation is that some people believe that a leaky basement is a petty annoyance and that no one should be dragged into court over such a minor issue.

To homeowners, a leaky basement is hardly a petty annoyance. Water intrusion into a basement from the outside destroys everything in its path.  It saturates wood, drywall, and carpeting.  It wrecks exercise equipment, musical instruments, toys, stereos, speakers, and TVs.  It ruins wedding dresses and photo albums.  A leaky basement prevents homeowners from using an area where they should be able to relax, entertain, and play.  Ask a child who can't play in the basement on a rainy day whether a leaky basement is a petty annoyance!  Ask a man who has been deprived of his "man cave" whether a leaky basement is a petty annoyance!

Additionally, leaky basements have to be repaired.  Some homeowners fix the problem by building up the grade around their home or rerouting their gutters and downspouts.  Others aren't so lucky.  Some have to replace hampered drain tile.  Some have to excavate their foundation and waterproof it from the outside. Some actually have to raise their entire foundation above the water table.  Foundation repairs can cost anywhere from $10,000 to $100,000!

If you're telling an attorney about your leaky basement, it must be more than a petty annoyance.  You need to help your attorney develop a compelling story to tell the jury.  How did you like waking up in the middle of the night to squeegee your basement floor?  What was it like to haul furniture and saturated carpeting up the stairs?  Do you miss hosting Packer parties in your basement?  Do your kids miss building forts or playing air hockey?  How many sick days did you have to spend obtaining opinions from engineers and estimates from contractors?  When will you finally take that trip to Cancun that you delayed so that you could repair your basement.  Every leaky basement case has a compelling story behind it, and we will help you develop yours so that no one will say "not another leaky basement case!"

Sunday, January 27, 2013

Welcome To My Blog

My name is Rudy Kuss, and I am a Shareholder with Stevens & Kuss, S.C. in Brookfield, Wisconsin.  Our law firm primarily represents homeowners who have purchased defective property and homeowners who are experiencing problems with their newly-constructed home or a home improvement project. We pursue claims against sellers, real estate agents, home inspectors, developers, builders, contractors, and material suppliers.

I was born in Milwaukee and grew up in Wauwatosa. After graduating from Wauwatosa East High School in 1994, I attended the University of Wisconsin on an Evans Scholarship. I remained active in the Evans Scholars House, marched in the University of Wisconsin Marching Band, and graduated with a BBA from the Wisconsin School of Business in 1998. I moved back to the Milwaukee area and worked in sales for Northwestern Mutual Life, New Horizons Computer Learning Center, and Substance Abuse Management, Inc. before enrolling at Marquette Law School in the fall of 2002. I graduated from Marquette Law School in 2005 and started working as an associate for Attorney Daniel W. Stevens soon after. Attorney Stevens and I formed Stevens & Kuss, S.C. in January of 2012.

My wife and I purchased a home in Grafton the summer before I enrolled in law school, and we still live there with our son, daughter, and cat. 

I will share my residential real estate law experience and the lessons that I have learned from this experience through this blog, and I hope that this blog will become a resource for aspiring homeowners, real estate professionals and attorneys. Please connect with me on LinkedIn and follow me on Twitter.