Burton v. Ascol, 51818-1
| Decision Date | 06 March 1986 |
| Docket Number | No. 51818-1,51818-1 |
| Citation | 105 Wn.2d 344,715 P.2d 110 |
| Parties | Marion D. BURTON, d/b/a Burton's Construction, Appellant, v. Richard B. ASCOL, d/b/a Dick's Suzuki, and the marital community composed of Richard B. Ascol and Patricia Ann Ascol, Respondents, Allied Fidelity Company, a foreign corporation, Appellant. En Banc |
| Court | Washington Supreme Court |
Goss, Moe & Sampson, P.S., Stanley Kempner, Spokane, for burton.
Patrick J. Downey, Spokane, for Allied Fidelity Ins. Co.
Powell & Morris, Larry J. Kuznetz, Kenneth Eikenberry, Atty. Gen., Donna L. Walker, Asst. Atty. Gen., Spokane, amici curiae for respondents.
Marion D. Burton, a general contractor, brought a lien foreclosure action against Richard B. Ascol for work performed by Burton. Ascol counterclaimed against Burton, alleging negligent workmanship, breach of contract, and violations of the Consumer Protection Act, RCW 19.86. Ascol also filed a claim against Allied Fidelity Company, Burton's surety. The trial court entered a judgment for Ascol. In this appeal, Burton and Allied Fidelity contend the trial court erred by applying the Consumer Protection Act and awarding Ascol costs and attorney fees pursuant to the mechanics' and materialmen's lien foreclosure statute, RCW 60.04. Burton and Allied Fidelity also raise a number of issues concerning the trial court's award of damages and attorney fees pursuant to the Consumer Protection Act. Allied Fidelity further contends that the trial court lacked jurisdiction because Allied Fidelity never consented to have the case heard by a judge pro tem pursuant to RCW 2.08.180 and the state constitution, art. 4, § 7, and that the judgment against it is void for lack of notice. We hold that the trial court erred in applying the Consumer Protection Act and in awarding Ascol costs and fees pursuant to RCW 60.04. We also hold that the trial court did have jurisdiction and the judgment against Allied Fidelity is not void for lack of notice. Because we conclude that the Consumer Protection Act does not apply, we need not address the issues concerning damages and fee awards under the Act.
On November 5, 1982, Burton and Ascol entered into a contract for the purpose of constructing an addition to a building owned by Ascol. The contract provided that Ascol would pay Burton $31,976 to build the addition. Burton impliedly warranted that the addition would be constructed in a good and workmanlike manner. Burton and Ascol discussed the fact that the building would be constructed according to code. Burton began construction before the engineering plans were approved or certified by the Building Department. He completed the project on approximately January 10, 1983, and was paid the $31,976 provided for in the contract. Three days later, Ascol received a bill for extras from Burton in the amount of $4,872. On February 2, 1983, Burton filed a lien against Ascol for the extras.
In March 1983, Burton brought an action to foreclose the lien in Spokane County Superior Court. Ascol denied that he owed the amount claimed for extras and filed a counterclaim alleging damages for negligent workmanship, breach of contract for failure to construct the building in a workmanlike manner, and violations of the Consumer Protection Act. Ascol also brought a claim against Allied Fidelity, which had issued Burton a bond in the amount of $4,000, to recover the amount of that bond.
The cause of action came to trial on December 13, 1983, before the Honorable B.J. McLean, sitting as judge pro tempore. That day, the attorneys for Burton and Ascol signed a stipulation consenting to the judge pro tem. At the beginning of the trial, Allied Fidelity's attorney, Patrick Downey, appeared in court and stated that he saw no reason to participate in the trial himself because Burton was actively defending the counterclaim. Downey asked the court if he could simply read into the record the dates of the contractor's bond. Counsel for Ascol requested that a copy of the bond be admitted and the other counsel and the court agreed. The bond was stipulated into the record and Downey then asked the court to excuse him from the proceedings. Counsel for Burton and Ascol stated they had no objection to this and the court excused Downey for the remainder of the trial.
Testimony was then heard about the items of work for which Burton charged Ascol as extras. Both Burton and Ascol testified as to which work was covered by the contract and how the work charged as extras was performed. Ascol also testified that defects arose after the job was done and final payment was made. Specific problems about which he testified included damage to the roof and the interior of his existing building, leaks in the roof drain and rain gutters, improper installation of a door and a conduit, missing air vents, loosening outside walls, and defects in an extension to a loading ramp.
Ascol presented Robert Sackmaster as a witness. Sackmaster testified about agreements into which he had entered with Burton in 1981 and 1982. Burton agreed to perform a number of remodeling projects in Sackmaster's home and to build him a garage. Sackmaster testified that the quality of the materials and workmanship in the remodeling projects was defective. He stated that bookshelves had warped, cabinet doors had shrunk, electrical wiring was not new, and areas were not properly stained. Regarding the garage, Sackmaster testified that support beams were not mounted as agreed, electrical outlets were left uncovered, pegboard was patched and warped, the floor was poured so that water could not drain from the driveway, and rain gutters leaked. Sackmaster also testified that Burton had stated that the work and materials would be of a good quality, that the job would be finished in a workmanlike manner, and that Burton's work did not conform to plans Sackmaster had made.
In its findings of fact, the trial court listed specific aspects of the project which it found were defective, missing, or negligently performed. It also stated which items of work were extras and determined the reasonable charges for the extras. It also found that the quality of Burton's work was "questionable". It found that a number of Burton's acts and practices were "subject to repetition" and had the "capacity to deceive a substantial portion of the purchasing public." These included the failure to perform work in a workmanlike manner, defective workmanship, negligent workmanship, representing to Ascol that the structure was built in conformance with engineering plans, failing to pay for materials as purchased, and using a person not licensed as an electrician to do electrical work.
The court found that Ascol sustained actual damages resulting from Burton's defective workmanship, breach of contract and misrepresentation in the amount of $5,000. It then assessed treble damages for violation of the Consumer Protection Act, bringing Ascol's total damages to $15,000. The court offset from this total the $4,680.95 which it found Burton should receive for extras. This resulted in a judgment for Ascol of $10,319.05. In addition, the court found that Ascol was entitled to attorney fees of $9,092.27 and costs of $282.15 pursuant to the Consumer Protection Act, and in the alternative found Ascol could recover attorney fees and costs pursuant to RCW 60.04.210(7) for Burton's unjust lien or as the prevailing party pursuant to RCW 60.04.130. The court also found that Ascol was entitled to the amount of the bond which Allied Fidelity had issued to Burton. The trial court entered a judgment in favor of Ascol accordingly on December 28, 1983. Burton and Allied Fidelity appeal from the trial court's judgment.
The appellants' first contention is that the trial court erred by applying the Consumer Protection Act to this case. The Consumer Protection Act provides that "unfair or deceptive acts or practices in the conduct of any trade or commerce" are unlawful. RCW 19.86.020. Private parties are authorized to bring actions for violations of the Act: "Any person who is injured in his business or property by a violation of RCW 19.86.020 ... may bring a civil action in the superior court ..." RCW 19.86.090.
Under this court's construction of RCW 19.86.090, there are three requirements for a private party to bring a consumer protection action. The conduct complained of must: (1) be unfair or deceptive, (2) be within the sphere of trade or commerce, and (3) impact the public interest. Anhold v. Daniels, 94 Wash.2d 40, 45, 614 P.2d 184 (1980).
In Anhold, this court also established a 3-part test for determining when the public interest is present for purposes of allowing a private party to bring a consumer protection action. The private party must prove that
(1) the defendant by unfair or deceptive acts or practices in the conduct of trade or commerce has induced the plaintiff to act or refrain from acting; (2) the plaintiff suffers damage brought about by such action or failure to act; and (3) the defendant's deceptive acts or practices have the potential for repetition.
Anhold, at 46, 614 P.2d 184. The third prong of the public interest test, requiring the potential for repetition, is the matter specifically at issue here. Ascol presented one witness who testified that he had also experienced problems with the quality of Burton's workmanship in performing construction contracts. The question is if this evidence was substantial enough to support a finding of a potential for repetition of deceptive acts or practices, and, therefore, application of the Consumer Protection Act.
It would be arbitrary and meaningless for this court to set a specific number of instances of unfair or deceptive conduct which necessarily establishes the potential for repetition. Such a quantitative and mechanistic standard would be inherently unfair. Each case must rest on its own facts. In Eastlake Constr. Co. v. Hess, 102 Wash.2d 30, 686 P.2d 465 (1984),...
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