Steele v. Pacesetter Motor Cars, Inc.

• Decision Date: 14 October 2003
• Docket Number: No. 03-0640.,03-0640.
• Citation: 2003 WI App 242,267 Wis.2d 873,672 N.W.2d 141
• Parties: William J. STEELE, Jr., Plaintiff-Appellant, v. PACESETTER MOTOR CARS, INC., Defendant-Respondent.
• Court: Wisconsin Court of Appeals

267 Wis.2d 873

2003 WI App 242

672 N.W.2d 141

William J. STEELE, Jr., Plaintiff-Appellant, v. PACESETTER MOTOR CARS, INC., Defendant-Respondent.

No. 03-0640.

Court of Appeals of Wisconsin.

Submitted on briefs September 2, 2003.

Decided October 14, 2003.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Debra A. Slater of Weiss Berzowski Brady, LLP, of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown, of Milwaukee.

Before Fine, Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

William J. Steele, Jr., appeals from the judgment, following a two-day bench trial, awarding him damages of $1972 for Pacesetter Motor Cars, Inc.'s breach of a service contract to repair, restore and refurbish Steele's car. He argues that the trial court made several errors leading it to deny him the $14,281.98 he claimed. We conclude that the trial court erred, as a matter of law, in ruling: (1) that Steele, who had repeatedly taken his car back to Pacesetter for it to complete the restoration and repair work for which he and Pacesetter had contracted, was precluded from recovering amounts he paid for repair services rendered by Uptown Motorcars, Inc., to which he subsequently brought his car, because he had not first given Pacesetter one more opportunity to fix it; and (2) that Allis Machine, the subcontractor to which Uptown sent Steele's engineer (and to which Pacesetter, coincidentally, had subcontracted some of its work on the car), not Pacesetter, was the party potentially liable for Steele's additional repair costs. Accordingly, we reverse and remand for the trial court's consideration of the evidence under the correct legal standards.¹

I. BACKGROUND

¶ 2. In 1989, Steele bought a 1963 Chevrolet Impala with the intention of restoring it to its original condition. After doing much of the disassembling work himself, Steele, in 1996, met Patrick Murray, an instructor in the automotive program at Waukesha County Technical College, who had employment experience with General Motors and at a local Chevrolet dealership. Murray expressed interest in restoring the engine; he and Steele contracted for Murray's company, Pacesetter, to do the work, initially estimated at $3,343.84.

¶ 3. From July 1996 through May 1999, Pacesetter worked on the engine and other aspects of the car's restoration. Pacesetter charged Steele more than $21,000 for the work, almost all of which he paid. Although Steele felt some frustration as the costs mounted and more and more time passed, he concluded that it would be best to allow Pacesetter to complete the work. Upon "completion," however, the troubles began.

¶ 4. When Steele picked up the car from Pacesetter in May 1999, the engine backfired each time it was turned off. Steele complained, and Murray instructed him on how to turn off the engine to prevent backfiring. While deeming such special instructions "ridiculous," Steele, anxious to finally drive the car home, left without insisting on further repair. As Steele and his son drove home, however, they noticed that the car was not operating well and that the engine was unusually loud. And when they parked at home, they soon saw oil on the driveway, apparently leaking from the engine. They immediately returned the car to Pacesetter.

¶ 5. Pacesetter took the car back and continued working on it for two weeks, solving some problems, charging for some additional services and not charging for others. Steele remained dissatisfied, however, particularly with what Murray explained would be some unavoidable oil leakage. And, when Steele then attempted to drive the car, the engine would not start. Murray opened the hood, took off the air cleaners, and attempted to start the car, only to see flames shooting from the carburetor and singeing the hood insulation. Steele refused to accept the car.

¶ 6. Murray then sent the car to a carburetor shop and, a few weeks later, advised Steele that it was ready. On delivery, however, Steele still was not pleased with its condition and performance. So when he took the car to Uptown Motorcars for realignment, he also asked that Uptown take "a quick look at the engine because it still seemed to be running very rough." Steele paid Uptown $993.55 for its services, almost all of which related to alleged adjustments to and corrections of Pacesetter's work.

¶ 7. But Steele, still not satisfied with the way the car was running, took it to another Uptown dealership for additional mechanical and body work. From July 1999 through February or March 2000, Uptown then performed extensive work, charging Steele $4,710.82 for body work to "redo previous work done by another shop best as possible," and $8,577.61 to fix the engine. To accomplish that engine work, Uptown sent the engine to Allis Machine, a company that routinely performed engine work on a subcontract basis, and coincidentally, the very company to which Pacesetter had sent the engine for some of the earlier engine restoration.

¶ 8. Having been informed by Uptown's mechanic and body shop manager that Pacesetter's work was deficient, and that it led to the need for most of the subsequent services, Steele sued Pacesetter alleging violation of WIS. ADMIN. CODE § ATCP 132, governing automobile repair practices, and breach of contract. Denying Steele's allegations, Pacesetter asserted that Allis Machine was responsible for the engine problems. Moreover, Pacesetter maintained that Steele should have given it another chance to address the problems so that it could have returned the engine to Allis Machine for repairs. Pacesetter also contended that Steele's son's secret driving of the car had caused some of the problems.

¶ 9. Following a two-day bench trial, the court concluded that Pacesetter had not violated the administrative code, and had "performed all of its services .. . relative to the engine, clutch, power train . . . in a good and workmanlike manner to the extent allowed by Steele." The trial court also found, however, that some of Pacesetter's work "with respect to the reassembling the vehicle, specifically aligning parts and the trim and carpet on the interior were not performed in a proper and workmanlike manner." For that, the court awarded Steele $1972. On appeal, Steele does not challenge the court's conclusion under the administrative code. He does, however, challenge the trial court's findings and conclusion under his breach-of-contract claim.

II. DISCUSSION

[1-3]

¶ 10. We will not reverse factual findings made by a trial court unless they are clearly erroneous. See WIS. STAT. § 805.17(2) (2001-02); Benn v. Benn, 230 Wis. 2d 301, 307, 602 N.W.2d 65 (Ct. App. 1999).² However, whether the facts found by the trial court constitute a breach of contract is a legal issue we review de novo. See Edwards v. Petrone, 160 Wis. 2d 255, 258, 465 N.W.2d 847 (Ct. App. 1990). In evaluating a breach of contract claim, a court must determine whether a valid contract exists, whether a party has violated its terms, and whether any such violation is material such that it has resulted in damages. See Management Computer Servs., Inc. v. Hawkins, Ash, Baptie Co., 206 Wis.2d 158, 178-83, 557 N.W.2d 67 (1996).

[4, 5]

¶ 11. "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. RESTATEMENT (SECOND) OF CONTRACTS 1 (1981). Moreover, and of particular relevance to this case:

Non-performance is not a breach unless performance is due . . . . When performance is due, however, anything short of full performance is a breach, even if the party who does not fully perform was not at fault and even if the defect in his [or her] performance was not substantial . . . . Non-performance includes defective performance as well as an absence of performance.

Id. at § 235 cmt. b.

A. Was Steele Required to Return the Car to Pacesetter Again?

[6]

¶ 12. Steele first argues that the trial court erred in concluding that his failure to afford Pacesetter one more chance to fix the car precluded any additional recovery. Steele is correct.

¶ 13. At trial, Murray testified, "I believe it was Mr. Steele's responsibility to come back to me if he felt that I did something wrong with that engine and the engine needed attention," and in closing argument, Pacesetter's counsel emphasized this theory. The trial court agreed. While expressing some sympathy for Steele's circumstances, the court concluded:

Seems to me that if Mr. Steele had brought the vehicle back to Mr. Murray and given him an opportunity to figure out why the engine wasn't running properly, . . . [i]t would have gone back to Allis [Motors] or some other engine rebuilder to discover what Uptown was ultimately able to force Allis to discover . . . .

Well, Mr. Murray didn't get the benefit of making Allis do it over. But now he is supposed to pay the penalty for Allis doing the job right they [sic] should have done right the very first time Mr. Murray sent the vehicle there. I don't see how that can be Mr. Murray's fault, when he isn't given an opportunity to send it back.

Do I fault Mr. Steele for that? Not entirely. Because I guess at that point, given how long Mr. Murray had had the car, ... it's certainly understandable [that] Mr. Steele is frustrated and wants his car . . . . But I don't think it means Mr. Murray doesn't get the benefit of trying to fix what Allis did wrong. And Mr. Murray was not given that opportunity.

[7]

¶ 14. Whether the contract required Steele to return to Pacesetter one more time in order to recover the costs of subsequent repairs under his breach-of-contract claim is a legal issue we review de novo. See Management Computer Servs., Inc., 206 Wis. 2d at 178-83. Under the facts and circumstances of this case, we conclude that Steele had no obligation to go back to Pacesetter one more time.

¶ 15....