Huff and Morse, Inc. v. Riordon

• Decision Date: 01 February 1984
• Docket Number: No. 83-155,83-155
• Citation: 345 N.W.2d 504,118 Wis.2d 1
• Parties: HUFF AND MORSE, INC., a Wisconsin corporation, Plaintiff-Respondent, v. Frank RIORDON, d/b/a Der Boathaus, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 504

345 N.W.2d 504

118 Wis.2d 1

HUFF AND MORSE, INC., a Wisconsin corporation, Plaintiff-Respondent, v. Frank RIORDON, d/b/a Der Boathaus, Defendant-Appellant.

No. 83-155.

Court of Appeals of Wisconsin.

Argued Nov. 30, 1983.

Opinion Released Feb. 1, 1984.

Opinion Filed Feb. 1, 1984.

Richard W. Torhorst, Lake Geneva, for defendant-appellant.

Edward F. Thompson of Hammett, Williams, Riemer & Thompson, Delavan, for plaintiff-respondent.

William C. Wolford, Asst. Atty. Gen., for amicus curiae.

Before SCOTT, C.J., BROWN, P.J., and ROBERT W. HANSEN, Reserve Judge.

BROWN, Presiding Judge.

Frank Riordon appeals from the trial court's decision that he owes $1,504.94 to Huff and Morse, Inc., a service station and auto repair shop in Delavan. Riordon claims that the shop cannot collect for repairs to his 1970 Ford truck because it failed to comply with the written estimate requirement in Wis.Adm.Code, ch. Ag 132. He also makes a similar argument regarding repairs to his 1974 Pontiac. We hold the shop did indeed fail to comply with the requirement. As such, the underlying contracts are invalid as a matter of law. We also hold, however, that because the record indicates Riordon orally authorized the repair work, the shop is entitled to recover on quantum meruit grounds.

Wisconsin Administrative Code, ch. Ag 132 was promulgated to attack the abuses occurring in the motor vehicle repair industry. In order to prevent unauthorized repairs from being performed and charged to a customer, sec. Ag 132.02 states in pertinent part:

Prior to the commencement of any repairs whose price to the customer may exceed $25.00, the shop shall provide the customer with a copy of a dated written repair order legibly describing the repairs to be performed; except that such copy need not be provided if the customer's motor vehicle has been brought to the shop without face-to-face contact between the customer and a representative of the shop.

There is no case in Wisconsin that has defined or interpreted this language. Construction of administrative rules is governed by the same principles that apply to statutes. Basinas v. State, 104 Wis.2d 539, 546, 312 N.W.2d 483, 486 (1981). The interpretation by an agency of its own administrative regulation is entitled to controlling weight, unless it is inconsistent with the language of the regulation or is clearly erroneous. Beal v. First Federal Savings & Loan Association of Madison, 90 Wis.2d 171, 183, 279 N.W.2d 693, 698 (1979). Beal is largely inapposite here, however, because the Department of Agriculture has offered little interpretation of the precise issues presented. Thus, construction will be, for the most part, without benefit of agency interpretation.

The construction of a statute is a question of law. Kluenker v. Department of Transportation, 109 Wis.2d 602, 605, 327 N.W.2d 145, 147 (Ct.App.1982). So, likewise, is construction of an administrative rule. Our principal aim is to achieve a construction which will effectuate the purpose of the rule. State ex rel. Melentowich v. Klink, 108 Wis.2d 374, 380, 321 N.W.2d 272, 275 (1982). We will reject an unreasonable construction where a reasonable construction is possible. Alberti v. City of Whitewater, 109 Wis.2d 592, 601, 327 N.W.2d 150, 154 (Ct.App.1982). The court may enlarge or restrict the meaning of a word in a statute to harmonize it with the manifest intent of the entire section. Mutual Federal Savings & Loan Association of Milwaukee v. Savings & Loan Advisory Committee, 38 Wis.2d 381, 387, 157 N.W.2d 609, 612 (1968). Thus, where one of several interpretations of a statute is possible, the court may determine the scope of the term by its context in a particular instance. See Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources, 85 Wis.2d 518, 528-29, 271 N.W.2d 69, 73-74 (1978). Finally, in determining which of several interpretations is correct, we may consider material extrinsic to the code itself, such as comments of nonlegislative committees. In re Estate of Haese, 80 Wis.2d 285, 297, 259 N.W.2d 54, 59 (1977). We now turn to the facts.

Riordon brought his truck into the shop in June of 1980. Originally, the purpose of the appointment was to increase the oil pressure and put in an oil pump, but by the time the truck was brought in, there was also a "ticking" noise in the engine. Riordon and one Mr. Morse, on behalf of the shop, discussed the problem. Morse said he would "check into it" and get back to Riordon. No written estimate was provided. ¹ Several telephone conversations occurred while the truck was being repaired, with Morse informing Riordon of the general progress he was making. When the work was completed, Riordon's wife picked up the truck and wrote out a check for $1,504.94. When his wife got home, she contacted Riordon, who was out of town, and informed him that the "ticking" noise still existed. Riordon then stopped payment on the check.

The shop instituted this action to collect the $1,504.94. Riordon answered, raising as a defense the shop's failure to comply with Wis.Adm.Code, ch. Ag 132. Judgment was granted in favor of the shop. The facts involving the 1974 Pontiac will be discussed later.

Wisconsin Administrative Code, sec. Ag 132.02 clearly states that a shop shall provide the customer with a copy of a dated written repair order legibly describing the repairs to be performed. The shop makes three arguments in its attempt to excuse its failure to provide a choice of written estimate alternatives. ² First, it claims that no one follows the law anyway and that it is a custom of the trade to ignore the code. That argument is meritless. Second, it argues that the work to be performed was "diagnostic" and that a price could not be given until the exact nature of the mechanical difficulty was ascertained. The shop asserts that because it did not charge for the diagnosis, a written estimate is not required. It correctly points out that a written estimate is only required in those instances where repairs exceed $25. We also reject this argument summarily. The record indicates that the Ford truck was originally brought in because of a problem of low oil pressure. At the initial face-to-face contact, Morse, on behalf of the shop, suggested that he put in rod bearings to help increase the oil pressure. Riordon and the shop agreed to "go ahead with the oil pump and rod bearings" and to "check into" the engine noise. The shop was therefore required to give written estimate alternatives, at least for the agreed upon oil pump work. ³

The shop's third and final argument meets a similar fate. The shop directs our attention to Wis.Adm.Code, sec. Ag 132.04. Section Ag 132.04(1) provides as follows:

Authorization to Proceed. (1) Before undertaking any repairs other than those previously authorized by the customer, the shop shall call the customer and provide him with a description of the proposed additional repairs, together with a good faith estimate of the price for such repairs. The shop shall not then undertake the additional repairs until it receives the customer's written or oral authorization to do so.

The shop claims that sec. Ag 132.04(1) excuses it from having to provide a written estimate. The shop claims that it was impossible for it to provide a written estimate during the initial face-to-face contact because the engine still had to be disassembled and the problem had to be diagnosed. Because Riordon traveled a great deal and was hard to reach, the shop, as an accommodation to Riordon, called when the diagnosis was complete and received oral authorization to do the work. The shop claims that under sec. Ag 132.04 it can get an oral authorization in lieu of a written one.

The problem with this argument is that there was an initial face-to-face contact between the customer and the shop. When there is an initial face-to-face contact, one of the written estimate alternatives is required. Section Ag 132.04 allows oral authorizations for additional repairs only. It does not take the place of the initial written authorization which must be given during the face-to-face contact between the customer and the shop. We conclude that the shop failed to provide a written estimate in accordance with sec. Ag 132.02.

Having determined that the shop failed to provide a written choice of estimate alternatives to Riordon, we must still determine what affect this violation has on the transaction. Riordon claims Wis.Adm.Code, sec. Ag 132.07(2)(a), provides an absolute penalty. The penalty is that the contract is invalid, and the shop shall not be able to collect for repairs. We agree that the contract is invalid and that the shop may not collect under it. We disagree that the shop is precluded from collecting under any other legal theory.

Wisconsin Administrative Code, sec. Ag 132.07(2)(a), states that, "No shop shall collect or attempt to collect for: (a) Repairs not authorized either orally or in writing by the customer." Riordon reads this section to prohibit payment for any repair work unless the oral or written authorization given by the customer complies with each and every technical prerequisite under the code. In other words, he reads "not authorized" to mean an "unlawful" or "illegal" method of obtaining consent. Therefore, a shop and a customer may agree on repairs, and repairs may be made as requested. If, however, the form of consent given is not the type permitted by the code, then a shop may not attempt collection.

That reading loses sight of the major purpose behind Wis.Adm.Code, ch. Ag 132, which is to prevent uncommissioned repairs from being performed by repair shops. Shops which obtain consent to proceed on specific repair work have been commissioned to do so. The code was promulgated to prevent shops from proceeding with repairs unless they have received permission to do so. To read sec. Ag 132.07(2)(a) as Riordon would have us read it would allow every customer finding...