Stuart v. Weisflog's Showroom Gallery, Inc.

2008 WI 22, 746 N.W.2d 762, 308 Wis. 2d 103, 2008 Wisc. LEXIS 17

• Court: Wisconsin Supreme Court
• Decided: March 28, 2008
• Docket: 2005AP886
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This is a review of a published decision of the court of appeals,¹ affirming in part, reversing in part, and remanding with directions, an order of the Circuit Court for Waukesha County, Judge Patrick C. Haughney.²

¶ 2. Petitioners, Weisflog's Showroom Gallery, Inc. (WSGI), Ronald Weisflog (Weisflog) individually, and American Family Mutual Insurance Company, WSGI's and Weisflog's insurer, seek review of the court of appeals' decision that affirmed in part and reversed in part the circuit court's judgment in favor of the respondents, Robert Stuart and Lin Farquhar-Stuart (collectively, the Stuarts). This case involves the interpretation and application of the Home Improvement Practices Act (HIPA), which is contained in Wis. Admin. Code § ATCP 110 (Oct., 2004)³ (ATCP 110), and Wis. Stat. § 100.20(5) (2003-04)⁴.

¶ 3. There are six principal issues upon review: 1) Whether the HIPA and negligence claims of the respondents are barred by a statute of limitations? 2) Whether the HIPA, which provides for the doubling of damages "because of a violation... of any order" (Wis. Stat. § 100.20(5)) issued pursuant to HIPA, authorizes the doubling of an entire damage award even if a HIPA violation is combined with additional wrongdoing that contributes to the loss in question? 3) Whether, given the evidence presented in the present case, the circuit court committed error in asking the jury to apportion damages between the Stuarts' HIPA claims and their negligence claims? 4) Whether the economic loss doctrine (ELD) applies to bar the HIPA violation claims or the negligence claims of the respondents? 5) Whether a corporate employee may be held personally liable for acts, he or she takes on behalf of the corporate entity that employs him or her, that violate the HIPA? and 6) Whether the circuit court erred in its determination of the appropriate attorney fee award?

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

H

¶ 5. The Stuarts hired WSGI to remodel and to put an addition onto their home in Brookfield, Wisconsin. Weisflog is the president of WSGI, a home building and remodeling company. In 1995, the Stuarts met with Weisflog to discuss their project. The Stuarts claim that Weisflog promised them that, for an architectural fee of $1,000, he would provide them with a design and final drawings for the remodeling and for the addition. Robert Stuart testified at trial that Weisflog promised him "independent architectural service[s]." In addition, Weis-flog stated that he understood Brookfield building codes and regulations, and that he would comply with them. The Stuarts signed a "Remodeling Architectural Contract" (Architectural Contract) encompassing this agreement.⁵ Neither Weisflog nor his son, Robert, who was the project manager, was a licensed architect. Furthermore, no outside architects were retained for the project. This claimed misrepresentation that the Stuarts would receive "Architectural" services, when the services of an architect were not provided, is one of the bases for the Stuarts' HIPA and negligence claims. In May 1996, after receiving the drawings, the Stuarts entered into a second contract for the remodeling and for the construction of their home addition (Remodeling Contract), which called for a total payment of $278,000.

¶ 6. In support of the Stuarts' misrepresentation claims, Robert Stuart testified at trial that Weisflog had promised the Stuarts that the products Weisflog would use on their project were high quality, that he was familiar with and understood the local building codes and regulations, and that "he could provide architectural service" for the Stuarts, which included doing the "architectural design work."⁶ However, in contrast to Weisflog's representations, the Stuarts highlighted at trial the poor quality of the services and products they had received, and also emphasized Ronald and Robert Weisflog's admissions at trial about their lack of familiarity with local building codes and regulations. For example, at trial, Ronald Weisflog admitted he was not familiar with certain relevant portions of the City of Brookfield's building code.⁷ Furthermore, Robert Weis-flog testified he was not even aware that Brookfield had a building code.

¶ 7. Under Robert Weisflog's direction, WSGI remodeled the home and built the addition, which included a room containing a hot tub. In 2001, Robert Stuart stepped through the floor of the hot tub room. When he lifted up the carpet in that room, he discovered that the floor had rotted through. The Stuarts then hired an engineer/home inspector who found many other serious construction defects and building code violations.

¶ 8. In April 2003, approximately two years after the Stuarts discovered the problems and approximately 'seven years after construction commenced, the Stuarts filed this lawsuit. In the various versions of their complaint, the Stuarts initially alleged negligence in design and construction, breach of contract, and the HIPA violations by virtue of the claimed misrepresentations made by WSGI and Weisflog. However, just before the trial began, the Stuarts dismissed their breach of contract claims.

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

II

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

¶ 11. When determining whether Wis. Stat. § 100.20(5) authorizes the doubling of an entire damage award, even if a HIPA violation is combined with additional wrongdoing that contributes to the loss in question, we apply the same standard of review as we do for other issues of statutory construction. We must give effect to statutory enactments by determining the statute's meaning, especially through its language, which we presume expresses the intent of the legislature. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 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 object. Shands v. Castrovinci, 115 Wis. 2d 352, 356, 340 N.W.2d 506 (1983). However, for questions of statutory construction, such as this one, our review is de novo. DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶ 26, 299 Wis. 2d 561, 729 N.W.2d 396. Administrative rules or regulations are to be construed in the same manner as are statutes. Baierl v. McTaggart, 2001 WI 107, ¶ 21, 245 Wis. 2d 632, 629 N.W.2d 277. We utilize an identical standard of review in determining whether a corporate employee may be held personally liable for the acts, he or she takes on behalf of the corporate entity that employs him or her, that violate the HIPA, since that issue also involves the interpretation of statutes and administrative regulations.

¶ 12. In determining whether the circuit court erred by asking the jury to apportion damages between the HIPA and the negligence claims, we start with the requirement that a special verdict must cover all material issues of ultimate fact. Wis. Stat. § 805.12. However, the content of the special verdict remains within the discretion of the circuit court, and this court will not interfere with the special verdict submitted, so long as all material issues of fact are covered by appropriate questions, Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 445-46, 280 N.W.2d 156 (1979), and so long as the form correctly and adequately covers the law that applies to the case. Vogel v. Grant-Lafayette Elec. Coop., 201 Wis. 2d 416, 422, 548 N.W.2d 829 (1996).

¶ 13. We are satisfied that the ELD cannot apply to bar statutory claims, including those under HIPA, because of public policy issues that we discuss herein. When reviewing whether the ELD applies to bar the negligence claims of the respondents, we will determine whether the contracts in question are predominantly for services or for products, and then must apply the ELD to the relevant set of facts. Linden v. Cascade Stone Co., 2005 WI 113, ¶¶ 8, 22, 283 Wis. 2d 606, 699 N.W.2d 189. See also Ins. Co. of N. Am. v. Cease Elec., Inc., 2004 WI 139, ¶¶ 14, 15, 276 Wis. 2d 361, 688 N.W.2d 462. Both of these determinations are questions of law that remain subject to our independent review. Ins. Co. of N. Am., 276 Wis. 2d 361, ¶¶ 14, 15.

¶ 14. Whether the circuit court erred in its determination on the amount of the attorney fee award to the Stuarts is subject to a different standard of review. Unless the circuit court erroneously exercised its discretion, the amount of an attorney fee award typically is left to the discretion of the circuit court, given that court's greater familiarity with the locality's billing norms and its firsthand opportunity to witness the quality of the attorney's representation. Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 22, 275 Wis. 2d 1, 683 N.W.2d 58 (Kolupar I); see also Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶ 15, 303 Wis. 2d 258, 735 N.W.2d 93 (Kolupar 77); Anderson v. MSI Preferred Ins. Co., 2005 WI 62, ¶ 19, 281 Wis. 2d 66, 697 N.W.2d 73. However, we may examine the circuit court's explanation to determine whether the court employed a logical rationale that was based on the appropriate legal principles and on the facts in the record. Id.

III. STATUTE OF LIMITATIONS

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

¶ 16. This court first adopted the discovery rule in Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 559, 335 N.W.2d 578 (1983). In Hansen, we stated that it would be "manifestly unjust for the statute of limitations to begin to run before a claimant could reasonably become aware of the injury." Id. We noted that "as a practical matter a claim cannot be enforced until the claimant discovers the injury and the accompanying right of action." Id. Without the discovery rule, there could be instances where claims would be time barred before a harm was, or even could be, discovered, which would make it impossible for an injured party to seek redress. Id. As we noted, this would punish victims who were blameless for the delay and would benefit many wrongdoers by barring such meritorious claims. Id. We held "that the injustice of barring meritorious claims before the claimant knows of the injury outweighs the threat of stale or fraudulent claims." Id. As a result, we concluded that the discovery rule applied to "all tort actions other than those already governed by a legislatively created discovery rule." Id. at 560. Finally, we held that "[s]uch tort claims shall accrue on the date the injury is discovered[,] or with reasonable diligence should be discovered, whichever occurs first." Id. We later extended the discovery rule to hold that a claim did not accrue until the cause of the injury was discovered. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 335, 565 N.W.2d 94 (1997).

¶ 17. We are satisfied that none of the Stuarts' claims are barred by a statute of limitations. The Stuarts' HIPA claims and their negligence claims are governed by the discovery rule. We hold that the Stuarts' harm was of the type that the HIPA was intended to prevent, the Stuarts were within the class of persons that the HIPA was enacted to protect, that there was a clearly expressed legislative intent that the HIPA provide a basis for the imposition of civil liability, and that, accordingly, violations of HIPA provisions constitute a basis for the imposition of civil liability separate and apart from any breach of contract claims. See generally Taft v. Derricks, 2000 WI App 103, ¶¶ 2, 12, 235 Wis. 2d 22, 613 N.W.2d 190. As a result, we apply the discovery rule to the Stuarts' claims. Id.

¶ 18. We hold that Wis. Stat. § 893.93(1)(b) is the applicable statute of limitations given the allegations of fraud and misrepresentation upon which the Stuarts' claims, including both their HIPA and negligence claims, are based. The relevant statute reads: "An action for relief on the ground of fraud. The cause of action in such case[s] is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud." Wis. Stat. § 893.93(l)(b).

¶ 19. Applying the discovery rule and Wis. Stat. § 893.93(l)(b), we are satisfied that, as a matter of law, the Stuarts timely filed their claims. Discovery by the Stuarts of the facts could have occurred no earlier than when Robert Stuart's foot went through the floor of the hot tub room in the fall of 2001. The Stuarts filed their claims on April 11, 2003, which was less than two years after the discovery of the facts in 2001. The filing date was well within the six-year statute of limitations prescribed by § 893.93(l)(b). Accordingly, none of the Stuarts' claims are barred by the statute of limitations.

IV DAMAGES

¶ 20. The petitioners argue that double damages should be assessed only on the amount of the damages that the jury apportioned to HIPA violations, and not to the portion of the pecuniary loss attributed to negligent construction and design. In contrast, the Stuarts argue that their entire pecuniary loss should be doubled because that result would preserve the remedial nature of the important consumer protections encompassed in the HIPA.

¶ 21. Given the facts of the present case, we hold that the HIPA should be applied to require the petitioners to pay double damages on the Stuarts' entire pecuniary loss, even though the Stuarts alleged other, non-HIPA, claims. While the HIPA is silent on whether the doubling of damages applies to the entire amount of the pecuniary loss when other conduct by the contractor contributes to the loss, remedial statutes must be liberally construed to advance the remedy that the legislature intended to be afforded. Benkoski v. Flood, 2001 WI App 84, 242 Wis. 2d 652, 626 N.W.2d 851.

¶ 22. In Benkoski, a case in which the court of appeals addressed the question of double damages, the court held that a mobile home owner (Benkoski) should receive damages in the amount of twice the sales price of the mobile home, twice the advertising expenses Benkoski incurred, and an attorney fee award when the mobile home park's owner violated Wis. Admin. Codes §§ ATCP 125.06 and 125.09, and Wis. Stat. § 710.15, by adding an unreasonable restriction on the sale of the mobile home. Benkoski, 242 Wis. 2d 652, ¶¶ 1-3. The mobile home park's owner had added a condition to Benkoski's mobile home park lot lease that a future purchaser would have to remove the mobile home from the park at the end of the lease when Benkoski sold the mobile home. Id. The court of appeals held that the remedy of double damages was appropriate because it would: 1) encourage those who were injured by unfair trade practices that violated administrative regulations to bring suit; 2) encourage individuals to become "private attorney generals" in enforcing their own rights, with the aggregate effect operating to enforce the rights of the public; 3) deter impermissible conduct that violated administrative regulations by subjecting violators to double damages, an attorney fee award, and costs; and 4) augment the Wisconsin Department of Justice's enforcement of administrative regulations. Id., ¶ 17.

¶ 23. We agree with the statement of the court of appeals in the matter before us that "double damages and attorney fees help dispel the reluctance of parties injured by unfair trade practices to bring forward their causes of action and help deter similar and future contractor malfeasance, with the aggregate effect of working to the public good." Stuart v. Weisflog's Showroom Gallery, Inc., 2006 WI App 109, ¶ 48, 293 Wis. 2d 668, 721 N.W.2d 127 (citation omitted). In such cases, the entire pecuniary loss should be doubled for HIPA violations. Double damages are an available remedy for HIPA violations, given that the clear language of Wis. Stat. § 100.20(5) allows for the recovery of "twice the amount of such pecuniary loss ...." Wis. Stat. § 100.20(5).

¶ 24. Furthermore, in the present case, the Stuarts' entire pecuniary loss was suffered because of the petitioners' HIPA violations, namely the initial misrepresentations, upon which the Stuarts relied in entering into both contracts. A clear causal connection exists between the Stuarts' entire pecuniary loss and the HIPA violations. That connection is certainly within the statutory language that a person must suffer a "pecuniary loss because of a violation...." Wis. Stat. § 100.20(5). The present case meets the HIPA requirement of a seller making a misrepresentation "to induce any person to enter into a home improvement contract . . . ." Wis. Admin. Code § ATCP 110.02(11). Petitioners made their misrepresentations out "of their own volition and design.. . ." Rayner v. Reeves Custom Builders, Inc., 2004 WI App 231, ¶ 15, 277 Wis. 2d 535, 545, 691 N.W.2d 705. Accordingly, a doubling of the Stuarts' entire pecuniary loss is appropriate in the present case given the facts in this record. Upon remand, the circuit court should double the damages based upon the entire pecuniary loss for the reasons stated herein.

V. APPORTIONMENT

¶ 25. Over the Stuarts' objection and at the petitioners' request, the circuit court submitted a question to the jury asking the jury to apportion the- Stuarts' damages between those damages caused by WSGI's negligent design and construction and those damages caused by WSGI's misrepresentations that were actionable under the HIPA. Specifically, the parties disagreed over the inclusion of Question 16B of the special verdict submitted to the jury. Question 16B read as follows: "Taking 100 percent as a total amount of damages, what percentage of the amount you placed in answer 16A[⁸] do you attribute to: Misrepresentation_% Negligence in construction_% Total 100%."

¶ 26. The jury found WSGI liable under both the negligence claims and the HIPA claims. After determining the Stuarts' damages to be $95,000, the jury apportioned 75 percent of the damages to the negligence claims and 25 percent of the damages to the HIPA misrepresentation claims.

¶ 27. The Stuarts filed a postverdict motion in the circuit court arguing that the inclusion of Question 16B was erroneous. The circuit court denied that motion. Befóte the court of appeals, the Stuarts once again argued that the circuit court erred by submitting the apportionment question to the jury because doing so frustrated the public policy behind the HIPA. The court of appeals agreed and, therefore, reversed the circuit court. The Stuarts continue to make that argument to this court.

¶ 28. We hold that the circuit court erred by having the jury apportion damages between the negligence claims and the HIPA claims. The circuit court's special verdict, particularly Question 16B, was not consistent with the law. The HIPA was intended to curb unscrupulous business tactics that cause financial distress to both consumers and to persons engaged in legitimate businesses. See generally Benkoski, 242 Wis. 2d 652, ¶ 17.

¶ 29. There is no place in this remedial framework for the apportionment of damages when, as here, the Stuarts' damages flowed from the petitioners' misrepresentations. Certainly, the misrepresentations were instrumental in causing the Stuarts to enter into the contracts.

¶ 30. To obtain apportionment in lawsuits that contain HIPA claims, we hold that, before a party may request apportionment, it must meet the burden of showing that the damages can be separated.⁹ The petitioners failed to do so in the present case. In cases such as the present one, where there is no clear way to apportion the Stuarts' pecuniary loss between negligence damages and HIPA damages, doubling the entire pecuniary loss serves public policy concerns by encouraging victims to become "private attorney generals" and by providing larger disincentives to unscrupulous contractors.

¶ 31. There are additional reasons why apportionment is not appropriate in the present case. There was not enough evidence presented at trial for the jury to make a determination on apportionment, as demonstrated by the record. Furthermore, the circuit court did not instruct the jury on the apportionment issue.¹⁰ Accordingly, we are satisfied that the jury did not have enough information or instruction, as a matter of law, to apportion damages between the Stuarts' negligent design and construction claims and their HIPA claims. We are satisfied that if, as here, the party requesting apportionment fails to meet its burden of providing sufficient evidence at trial to necessitate apportionment, that there should be no apportionment.¹¹

VI. ECONOMIC LOSS DOCTRINE

¶ 32. On review, the petitioners argue that the Stuarts' claims were barred by the ELD, and the petitioners urge this court to apply the "predominant purpose test," set forth in Linden. Linden, 283 Wis. 2d 606, ¶¶ 8, 22. Petitioners want this court to hold that the transactions here were primarily for the sale of goods used in construction and not for services. In contrast, the Stuarts argue that the ELD does not apply to bar their claims.

¶ 33. We hold that the ELD is inapplicable to the Stuarts' claims, and, therefore, the ELD does not apply to bar those claims. If we were to apply the ELD to bar the HIPA claims, we would be ignoring the public policies that are the basis for the HIPA. We are satisfied that the ELD cannot apply to statutory claims, including those under HIPA, because of such public policies.¹² Whether or not the ELD applies to the Stuarts' non-HIPA negligence claims would be analyzed and determined using the predominant purpose test. In analyzing those claims in light of the predominant purpose test, we hold that the architectural contract, which was one for services,¹³ was the core transaction from which the contract for the remodeling and for the addition flowed. That second contract also involved services, as well as some products. Given that the core contract was one for services, and given that both contracts involved services, we are satisfied that the transactions were primarily for services and that the ELD does not apply in the present case. The appropriate application of the predominant purpose test leads us to that result.

¶ 34. In our Insurance Co. of North America v. Cease Electric decision, we enunciated a "bright line rule" that the ELD is "inapplicable to claims for the negligent provision of services." Ins. Co. of N. Am., 276 Wis. 2d 361, ¶ 52. Accordingly, we hold that the ELD is not applicable to the Stuarts' claims because there were two contracts, both involving services, and because the most significant one, applying the HIPA, was the first one for the provision of so-called architectural services by Weisflog and WSGI.¹⁴ As we noted in Linden, economic damages for the purpose of the ELD "are those arising because the product does not perform as expected, including damage to the product itself or monetary losses caused by the product." Linden, 283 Wis. 2d 606, ¶ 6 (citation omitted). Here, the Stuarts' damages resulted from the HIPA violations and from the negligent design and construction practices of the petitioners, not from a failure of the construction supplies and products.¹⁵ Accordingly, for this additional reason, we hold that the ELD is inapplicable to the Stuarts' claims.

¶ 35. As noted previously, to apply the ELD to the HIPA claims would defeat the public policies underpinning the HIPA and the remedies it provides. Public policy concerns require consumer protection statutes and administrative regulations be read in pari materia to achieve the goals of providing consumers, as well as persons engaged in legitimate businesses, with necessary protections and appropriate remedies. Jackson v. DeWitt, 224 Wis. 2d 877, 887, 592 N.W.2d 262 (Ct. App. 1999).

¶ 36. In a case involving another unfair trade statute, our court of appeals held that the ELD did not apply to bar a claim under the "Fraudulent representations" statute, Wis. Stat. § 100.18. See Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132. As the Kailin court noted, applying the ELD to HIPA claims would eliminate the consumer protection that the state legislature intended. Id.

¶ 37. Furthermore, the HIPA gives no indication that the legislature merely intended to add a remedy to common-law breach of contract or misrepresentation claims. Accordingly, we hold that the ELD does not extend to HIPA claims, nor does it cover negligence claims such as the ones here that are the result of misrepresentations under the HIPA.

VIL PERSONAL LIABILITY

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

¶ 39. The court of appeals held that the circuit court erroneously refused to submit to the jury special verdict questions on whether Weisflog should be held personally liable for the respondents' damages.¹⁶ As a result, the court of appeals remanded that issue to the circuit court with instructions to hold a new trial on whether Weisflog should be held personally liable.

¶ 40. The HIPA envisions that a person, such as Weisflog, may be personally liable given its plain language which reads: " 'Seller' means a person engaged in the business of making or selling home improvements and includes corporations, partnerships, associations and any other form of business organization or entity, and their officers, representatives, agents and employees." Wis. Admin. Code §ATCP 110(5) (emphasis added). Furthermore, Wis. Stat. § 100.20(5) states: "Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefore . .. and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee." (Emphasis added.)

¶ 41. We hold that a corporate employee may be personally liable for acts, he or she takes on behalf of the corporate entity that employs him or her, that violate the HIPA. Accordingly, such violations may create personal liability for individuals who are alleged to be responsible for prohibited, unfair dealings and practices.¹⁷ However, we note that merely being an officer, agent, employee, representative, shareholder, or director will not be enough to impose individual liability on a person in such a class in the absence of proof that he or she was personally responsible for prohibited, unfair dealings or practices.

¶ 42. Furthermore, our decision today is in line with our prior jurisprudence in related areas of the law. As we have stated, "The general rule is that the agent, as well as the principal for whom he is acting[,] is responsible for the tortious acts of the agent." Hanmer v. DILHR, 92 Wis. 2d 90, 97, 284 N.W.2d 587 (1979) (citation omitted).¹⁸ In another decision, we made it clear that this principle also applies to the tort of misrepresentation. Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis. 2d 683, 692-93, 273 N.W.2d 285 (1979) (holding a nonresident corporate officer personally liable for misrepresentations the officer "personally commit[ted] or participate[d] in" on behalf of the corporation while present in Wisconsin).

¶ 43. We remand the case to the circuit court with instructions to hold a new trial on whether Ronald Weisflog should be held personally liable for the Stuarts' damages.

VIII. ATTORNEY FEES

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

¶ 45. The Stuarts contend that the circuit court erred in using this methodology instead of correctly applying the lodestar methodology. The Stuarts had sought approximately $200,000 in attorney fees. In Kolupar I, this court adopted the lodestar methodology for determining reasonable attorney fees under fee shifting statutes and specifically directed "the circuit courts to follow its logic when explaining how a fee award has been determined." See Kolupar, 275 Wis. 2d 1, ¶ 30. In Anderson, we noted that "[ujnder this analysis, the circuit court must first multiply the reasonable hours expended by a reasonable rate.... The circuit court may then make adjustments using the SCR 20:1.5(a) factors." Anderson, 281 Wis. 2d 66, ¶ 39 (citations omitted); see also Kolupar II, 303 Wis. 2d 258, ¶ 15.

¶ 46. As noted above, the apportionment of damages between the Stuarts' negligence claims and their HIPA claims, upon which the amount of damages for the attorney fee award determination was based, was erroneous. Furthermore, we are satisfied that the use of a percentage contingency fee instead of the lodestar methodology was an erroneous exercise of discretion by the circuit court given the facts of the present case.

¶ 47. We remand this matter to the circuit court for a determination of what constitutes a reasonable attorney fee award in this case utilizing the lodestar methodology.

IX

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

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

By the Court. — Affirmed and remanded to the circuit court.

1 Stuart v. Weisflog's Showroom Gallery, Inc., 2006 WI App 109, 293 Wis. 2d 668, 721 N.W.2d 127.

2 The companion case to this case, Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 86, _ Wis. 2d_, 753 N.W.2d 488 (Stuart II),was released on July 10, 2008.

3 All further references to the Wisconsin Administrative Code are to the October 2004 version unless otherwise noted.

4 All further references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

5 In answer to a special verdict question, the jury found that WSGI made false, deceptive, or misleading representations in order to induce the Stuarts to enter into the remodeling architectural contract or for payment under said contract.

6 Contrary to the concurrence/dissent's assertion, these statements show that Weisflog made misrepresentations on behalf of WSGI about his then existing qualifications, knowledge, and abilities, not just about future performance, in regard to the Remodeling Contract. Concurrence/Dissent, ¶¶ 67-76. For example, his assertion that he understood Brookfield codes and regulations very well was exactly such a present misrepresentation given his later admissions at trial to the contrary. He could not comply with building codes that he was not aware of, and this was a present misrepresentation. Accordingly, the record reflects that Weisflog and WSGI made present misrepresentations in regard to both the Architectural Contract and the Remodeling Contract. Indeed, the jury answered "yes" when asked whether the remodeling contractor or its agents made false, deceptive, or misleading representations that the remodeling work would comply with the building codes. The jury further found that this was a cause of damages to the Stuarts.

7 A good example was Ronald Weisflog's admission at trial that he was unaware of the local building code for properly exhausting dryer vents. The improperly-exhausted dryer vent was linked by the Stuarts' engineer/home inspector to the later mold growth and lint accumulation in the Stuarts' attic. We note, again, that the jury found that the remodeling contractor or its agents made false, deceptive, or misleading representations that the remodeling work would comply with the building codes.

8 Question 16A read: "What sum of money, if any, will fairly and reasonably compensate Robert and Lin Stuart for damages resulting from the negligence of the defendant(s)?" The jury answered this question with a figure of $95,000.00.

9 The concurrence/dissent argues that the jury had enough information to separate the negligent construction that occurred as a result of the erroneous specifications in the Weisflog-created plans from the negligent construction that occurred as a result of the builders not following the plans. Concurrence/Dissent, ¶ 98. Our review of the record does not support the concurrence/dissent's assertion that the jury had enough information to draw such distinctions.

10 The record reflects that the circuit court judge read Question 16, including Question 16B, to the jury. The record also reflects that the judge read only standard jury instructions to the jury on negligence, contractors' negligence, damages, and causation. The only explanation the judge gave to the jury on Question 16 specifically was that it was a damage question and then stated, 'You must answer the damage questions no matter how you answered any of the previous questions in the verdicts. The amount of damages, if any, found by you, should in no way be influenced or be affected by any of your previous answers to questions in the verdict." The judge then continued by reading standard jury instructions on damages, proof of damages, ATCP 110 claims, misrepresentation, and negligent misrepresentation.

11 The concurrence/dissent misconstrues our reasoning as requiring a defendant to prove damages. Rather, we are placing the burden of proving that the evidence is of sufficient detail to allow for apportionment on a defendant who requests apportionment in an ATCP action. Concurrence/Dissent, ¶ 97.

12 The ELD does not bar the statutory claims. Given the inability in the present case to apportion damages between the statutory and the common law claims, none of the Stuarts' claims should be barred by the ELD.

13 In arguing that the Remodeling Contract was predominantly a contract for goods (products), the concurrence/dissent elevates form over substance by claiming that the contract is one for "drawings," as opposed to being a contract for the service of creating architectural designs and communicating those designs. Concurrence/Dissent, ¶ 106.

14 While not controlling, we find helpful and illustrative the approach a Minnesota court used when faced with two separate contracts, one of which was for services and one of which was for goods. See Minn. Forest Prods., Inc. v. Ligna Mach., Inc., 17 F. Supp. 2d 892 (D. Minn. 1998). That court refused to apply the predominant purpose test when faced with the existence of "two separate and distinct contracts," one of which was for the design of a sawmill and one of which was for the sale of sawmill equipment. Id. at 904.

15 The report of the Stuarts' engineer/home inspector, Thomas Feiza, which the Stuarts presented at trial, is replete with examples of how the architectural and design services provided by WSGI and Weisflog were the cause of the rotting wood in the hot tub room, as opposed to deficient products.

The Stuarts' expert noted the following deficiencies in the hot tub room's design that led to the rotting wood: the plans for the hot tub room lacked appropriate specifications and details; the plans failed to specify the required pressure treated wood to discourage decay and termites; there was no ventilation in the unheated crawl space below the hot tub room; the sole exhaust fan in the hot tub room had no visible exterior discharge or termination; proper surface drainage was not specified; there was not slab on grade construction to prevent moisture problems with the wood framed flooring; there were no gutters on the hot tub room to drain water away from its foundation; the lack of a drain tile system; the use of a wood retaining strip instead of a metal retaining strip on the roof of the hot tub room, in contradiction to the manufacturer's specifications, which caused water to build up on the roof; the lack of crawl space access panels, as required by Brookfield building codes; and the lack of sufficient roof venting.

For the reasons discussed herein, this case is very different than the circumstances presented to us in the case of 1325 North Van Buren, LLC v. T-3 Group, Ltd., 2006 WI 94, 293 Wis. 2d 410, 716 N.W.2d 822, where the mixed contract was predominantly for a product, rather than for services.

16 Contrary to the concurrence/dissent's assertion that "the Stuarts asked for no question that would have assigned personal liability to Ronald Weisflog for misrepresentation" (Concurrence/ Dissent, ¶ 113), the Stuarts made exactly such a request in the Plaintiffs' Proposed Special Verdict, requests 12 through 14.

17 Despite the argument of the petitioners, our previous jurisprudence in Americans with Disabilities Act (ADA) cases, such as Alberte v. Anew Health Care Services, Inc., 2000 WI 7, 232 Wis. 2d 587, 605 N.W.2d 515, is distinguishable given that Wis. Stat. § 100.20(5) and ATCP 110 clearly provide for individual liability for corporate employees who are wrongdoers, whereas the ADA does not contemplate such individual liability.

18 In Hanmer, two business owners were held to have voluntarily terminated their own employment for unemployment compensation purposes when they decided the business should file for bankruptcy. Hanmer v. DILHR, 92 Wis. 2d 90, 95, 284 N.W.2d 587 (1979). We noted that the co-owners did not enjoy a legal status apart from the business entity they jointly owned for this purpose. Id. In so holding, we stated, "It is not now, nor has it ever been, the law in this state that such an individual escapes liability merely because he was acting in the capacity of a corporate director." Id. at 97.