Vol. 82, No. 8, August 2009
In the popular television show “Extreme Makeover Home Edition,” a team of builders helps struggling families renovate and refurnish their existing homes in just seven days. The legal profession’s version of that process, albeit one that spanned more than seven days and had quite a few interesting turns, happened this past year for Michael Martin Sr. with the help of his pro bono attorney, Kim Hurtado.
Michael Martin is an American Indian and lives in northern Wisconsin. He is 100 percent disabled as the result of a work-related injury, and his sole income is from disability payments. Martin qualified to purchase a 1,200-sq.-ft. home constructed as part of a low-income housing project undertaken by his tribe’s housing authority, with funding assistance from the U.S. Department of Housing and Urban Development (HUD). Unfortunately, the contractor hired for this development project tricked the tribe into reusing plans for low-income housing originally designed for Arizona desert country, and the work was riddled with hidden defects caused by cheap materials and poor construction methods.
The house Martin bought had almost no insulation and had improperly designed heating and ventilation, and the roofing, siding, and caulking were so poorly constructed that there were open joints everywhere, resulting in water leaks throughout the home. Within a few months after the houses in this project were finished, walls and ceilings in numerous homes began to show evidence of serious mold problems. Martin, all his children, and several other tribe members contracted asthma and other respiratory illnesses as a result of a toxic form of mold growing in their homes. The conditions were so severe in Martin’s home that he sent his children to live with several different relatives. In the meantime, he had to continue living in the mold-infected house, or he would have violated the HUD mortgage requirements and would have lost the home entirely.
It took several years before the toxic mold conditions were properly identified and the tribe was able to secure funding to help repair the affected homes. Martin’s house was among the most severely damaged and was not fully restored even after two rounds of remediation. During the second restoration effort, every piece of furniture in Martin’s home was determined to be contaminated and was removed and destroyed. For many months thereafter, Martin slept on the floor breathing in the toxic mold.
Martin had no money to make additional repairs, much less seek legal assistance to try to resolve the serious problems he was facing. His tribe and HUD had exhausted their funding allocated for corrective efforts, and the contractor had been jailed for fraud, and thus was not in a position to contribute to a solution for Martin’s difficulties. Fortunately, Martin contacted Jeff Brown, the State Bar of Wisconsin’s pro bono coordinator. Brown referred him to attorney Kim Hurtado, a past chair of the State Bar’s Construction and Public Contract Law Section, who accepted Martin’s case on a pro bono basis. Hurtado is the managing shareholder of Hurtado S.C., Counselors at Law, Wauwatosa, and has extensive experience in construction law and alternative dispute resolution.
Hurtado started by examining construction, environmental, and real property law issues in light of a complex interplay of federal HUD regulations and tribal law to determine if Martin had any legal remedies. Could additional HUD funds be obtained to restore the home? Were there any tribal remedies or potential claims against the tribe’s housing authority that had retained the contractor and sold the house to Martin? Could any warranty or insurance claims be made to other third parties?
Assessing those legal options required Hurtado to research federal statutes, tribal codes, and state case law regarding tribal sovereignty and environmental and real property remedies, and to examine several decades’ worth of HUD administrative regulations and housing project records. The State Bar’s Pro Bono Program reimbursed the costs of computer research, postage, duplicating, and similar items for Hurtado S.C. Nevertheless, after multiple contacts with HUD and the tribe, and after thoroughly reviewing the purchase contracts and other project records, Hurtado determined that the exculpatory clauses in the housing documents shielded HUD and the tribe from further responsibility. Thus, it appeared that Martin had no immediate legal remedy.
Undaunted by these frustrating circumstances, Hurtado looked for other ways to help Martin. First, she persuaded an engineering firm, GZA GeoEnvironmental Inc., to provide a new environmental analysis, documenting mold problems that still existed, and to develop and implement a remediation plan – all at a significantly reduced rate. Jeff Brown then assisted Hurtado in locating state and county home-restoration loan programs, and Hurtado helped Martin apply for a loan to pay for these services.
Hurtado next contacted several Wisconsin contractors and obtained free advice about ways to keep the mold from returning. Miller Homes Inc., Brookfield, made numerous repairs to the home at no cost to Martin. Working with its subcontractors, who donated paint, caulk, and building materials, Miller Homes installed new gutters, caulking, insulation, interior and exterior paint, window treatments, hardware, bathroom and kitchen fans, and other items to make the house weather-tight. A Milwaukee furniture store donated bedroom furniture for Martin and his children, and Hurtado S.C. donated an air cleaning machine, so that dust and outdoor allergens could be removed from the house on an ongoing basis. Several volunteers, including attorneys and staff from Hurtado S.C., spent a weekend working with Miller Homes to complete the needed repairs. Miller Homes then provided new landscaping to complete the home restoration.
After all the corrections were completed and Martin was reunited with his children in the restored home, Hurtado and Martin negotiated with his tribe’s board, which agreed to reimburse Martin for the cost of the new environmental remediation despite having no legal obligation to do so.
Overall, Hurtado estimates that her firm provided about 135 hours of free legal services to resolve Martin’s problems and that her construction clients donated about $35,000 worth of materials and labor to restore his home.
“The outcome for Mr. Martin was something that my whole firm felt really good about,” said Hurtado, whose firm requires every attorney and staff person to make pro bono contributions on a monthly basis. “Lawyers are among the most educated folks on the planet. We need to make the time and set an example of meaningful service to the community, particularly for those of limited resources.
“Since most cases assigned by the State Bar’s Pro Bono Program are not of this complexity, it’s a great way for attorneys to reach out to those in greatest need, and I challenge each attorney that reads about Mr. Martin to participate in this program or to work with other nonprofit programs around the state to make similar pro bono contributions,” she says. In this case, Hurtado S.C. made a huge difference for a client who could not have navigated all the legal and procedural hurdles on his own.
For more information about how lawyers can participate in the State Bar’s Pro Bono Program, contact Jeff Brown, the pro bono coordinator, at (608) 250-5502 or firstname.lastname@example.org, or visit www.wisbar.org/probono.