Reusch v. Roob, 98-3102.

• Decision Date: 14 March 2000
• Docket Number: No. 98-3102.,98-3102.
• Citation: 610 N.W.2d 168,234 Wis.2d 270,2000 WI App 76
• Parties: Duane P. REUSCH, Laura K. Reusch, Karen M. Newton and Roger A. Newton, Plaintiffs-Respondents, v. Mark W. ROOB, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

234 Wis.2d 270

2000 WI App 76

610 N.W.2d 168

Duane P. REUSCH, Laura K. Reusch, Karen M. Newton and Roger A. Newton, Plaintiffs-Respondents, v. Mark W. ROOB, Defendant-Appellant.

No. 98-3102.

Court of Appeals of Wisconsin.

Oral argument January 13, 2000.

Decided March 14, 2000.

On behalf of the defendant-appellant, the cause was submitted on the brief of Jeffrey W. Jensen of Law Offices of Jeffrey W. Jensen of Milwaukee. There was oral argument by Jeffrey W. Jensen.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Erik B. Ellingson and Steven E. Berg of Law Offices of Erik B. Ellingson of Milwaukee. There was oral argument by Eric S. Darling.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. WEDEMEYER, P.J.

Mark W. Roob appeals from a money judgment entered in favor of Duane P. Reusch, Laura K. Reusch, Karen M. Newton and Roger A. Newton (Reusch) and from an order awarding costs and reasonable attorney's fees.

¶ 2. Roob's appellate claims may be summarized as follows. The trial court erred as a matter of law in concluding: (1) that his relationship with the Reusches was a consumer approval transaction under WIS. STAT. § 423.201 (1997-98)¹ or a home solicitation under WIS. ADMIN. CODE § ATCP 127.01; (2) that the evidence was sufficient to establish that he violated certain provisions of WIS. ADMIN. CODE § ATCP 127; (3) that he committed an unfair trade practice under WIS. STAT. § 100.20; and (4) that damages in excess of $5,000, the small claims limitation, should be awarded. We conclude that Roob's relationship with the Reusches was not a consumer approval transaction or a home solicitation under WIS. ADMIN. CODE § ATCP 127.01; however, we also conclude that the trial court did not err in determining that Roob committed an unfair trade practice. We remand the matter to the trial court for a determination of what pecuniary loss, if any, flowed from the unfair trade practice. Further, we conclude that an award of costs and attorney's fees in excess of the $5,000 small claims limitation is not improper. Accordingly, we affirm in part, reverse in part and remand the case for consideration of the damage issue.

I. BACKGROUND

¶ 3. This appeal involves a dispute arising from a contractual relationship between a bride and groom on one side and Mark Roob, a commercial wedding photographer, on the other side. Mrs. Newton, the mother of the bride (on behalf of Laura and her fiancé, Duane), called Roob and requested that he provide his photographic services for her daughter's wedding. Roob conducted his photography business from two locations. His photography studio was located at 11625 West Bluemound Road, Wauwatosa, while his business office was located at 1524 Upper Parkway South in his Wauwatosa residence. Mrs. Newton met with Roob at the Upper Parkway South address on September 9, 1995, and conferred with him by phone the following day. Roob had not solicited the business. A purchase contract was signed by Laura, Duane and Mrs. Newton on May 28, 1996, at the Upper Parkway South address. By terms of the agreement, Roob would provide his services as a photographer for a fixed fee, as well as eighty five-by-seven prints and one hundred five-by-five prints. Additionally, the Newtons and the Reusches were obligated to purchase an album to be selected later from Roob for a separate charge determined by a rate sheet that Roob supplied. Excluding the charge for the album and additional pictures, the cost to the Newtons and the Reusches was $2,455.20, which they paid.

¶ 4. Laura and Duane were married on October 19, 1996. Roob performed his services. There is no dispute about the quality of the photography. To facilitate the obligation to purchase a wedding album, the contract also provided for a "design session" to take place after the wedding, at which time the quantity of pictures and the type of album were to be selected. The "design session" occurred on November 11, 1996, at the Upper Parkway South address. The meeting lasted over five hours during which Roob prevailed upon Laura and Duane to commit to an extra $2,666.82 for additional pictures and the album, as evidenced by signed invoice orders of the same date. The following day, Roob visited Duane at his place of employment and obtained a check from him for $500 as a down payment on the additional purchase price. Later the same day, Laura and Duane had second thoughts about their additional purchases. With the assistance of Laura's parents, they drafted a letter to Roob informing him to stop all work being performed on the May 28, 1996 contract, and terminate the invoice orders signed November 11, 1996. The basis for their action, as stated in the notice, was a failure to arrive at "a meeting of the minds" over the selection of pictures and an album pursuant to paragraph 13 of the contract. On November 13, Duane hand delivered the notice to Roob at the Upper Parkway South address. The check for $500 was never deposited by Roob and, in fact, a stop payment order had been executed against the check.

¶ 5. The Reusches and the Newtons filed a small claims complaint against Roob, alleging breach of contract and a violation of the Wisconsin Consumer Act, Chapter 423, seeking all the remedies and penalties set forth in WIS. STAT. ch. 425. Roob appeared pro se. Trial was to the court, and under the less than exacting procedures of a small claims trial, the trial court patiently extended itself in attempting to settle the case, but to no avail. At the conclusion of the evidence, the trial court granted the Reusches' motion to amend the pleadings for a claim in replevin to conform to the proofs of record.

¶ 6. The court rendered a written decision. It concluded that two contracts existed: a contract dated May 28, 1996, to which the Reusches and Mrs. Newton were parties with Roob, and a contract dated November 11, to which only Laura and Duane were parties with Roob. It concluded that the November 11, 1996, transaction of ordering the album and additional pictures was conducted away from Roob's regular place of business. Thus, the trial court found that Roob violated the Wisconsin Consumer Act for failing to provide the plaintiffs with notice of their right to rescind their contract within three business days of the transaction as provided by WIS. STAT. §§ 423.202 and 423.203, and again violated the Wisconsin Consumer Act by failing to accept the Reusches' timely termination of the November 11, 1996 order/invoice contract. Finally, the court concluded that Roob engaged in unfair trade practices under WIS. ADMIN. CODE § ATCP 127, and WIS. STAT. §§ 100.20(5) and 100.20(lt), by withholding the printing of the initial order of eighty photographs, which was a service within his control, in order to enforce his claim for payment of the additional photographs, thereby entitling the Reusches to recover twice the amount of their loss, plus reasonable attorney's fees. We conclude that the trial court correctly concluded that Roob engaged in an unfair trade practice, but not for all of the reasons stated. Further, we conclude a remand to the trial court is necessary for a resolution of the pecuniary loss issue.

II. ANALYSIS

1. Nature of Contract.

¶ 7. We first address the nature of the contractual relationship that is the genesis for this dispute. After a bench trial, the trial court found that two contractual relationships were created: the first one on May 28, 1996, between Roob, Duane, Laura and Mrs. Newton; the second on November 11, 1996, signed by the same parties with the exception of Mrs. Newton. We disagree with this conclusion.

[1]

¶ 8. In reviewing findings of fact, we determine whether the trial court's findings are clearly erroneous. See WIS. STAT. § 805.17(2). Under this standard, even though the evidence would permit a contrary finding, findings of fact will be affirmed on appeal as long as the evidence would permit a reasonable person to make the same finding. See Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). Here, the evidence leads to only one reasonable conclusion: one contract existed.

¶ 9. The pre-printed contract order form clearly sets forth that Roob is the photographic service provider, and inserted in bold print are the names of "Duane" Paul Reusch and "Laura" Kristine Newton as groom and bride co-contractees. On the signature lines, however, appear M. Roob, Laura K. Newton, Duane Reusch and Karen Newton. There is little doubt that Mrs. Newton acted on behalf of the bride and groom to obtain Roob's services. As part of the contract in paragraphs 12 and 13, the contractees were required to purchase an album from Roob at additional cost, and select the contracted-for prints. This requirement was to be fulfilled within thirty days at a prearranged "design session." The manner and method by which this requirement was to be fulfilled is the tempest in this legal teapot. Although there are three contractees who signed the purchase contract, one of them, Mrs. Newton, was not present when the album was ordered. We deem this fortuity of no consequence because there was but one contract that was executed, even though it had two separate order provisions, the latter of which, and the circumstances under which it was executed, are determinative of this appeal.

2. Application of WIS. STAT. § 423.01 and WIS. ADMIN. CODE § ATCP 127.01.

[2]

¶ 10. We next examine the trial court's application of WIS. STAT. § 423.01, and WIS. ADMIN. CODE § ATCP 127.01 to the evidence of record. Because the facts relevant to the application of these statutory provisions are essentially not in dispute, the issue is whether the trial court properly applied the statute and code provision. Whether a particular statute applies to undisputed facts is a question of law that we review independently. See Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 560, 514 N.W.2d 399 (1994); Bantz v. Montgomery...