Wisconsin Management Co., Inc. v. Loken
| Decision Date | 16 July 1987 |
| Citation | 140 Wis.2d 866,412 N.W.2d 901 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. WISCONSIN MANAGEMENT CO., INC., Plaintiff-Respondent, v. KRIS LOKEN and GREG KUBLI, Defendants-Appellants. 86-1432. |
| Court | Wisconsin Court of Appeals |
Appeal from an order of the circuit court for Dane county: P. Charles Jones, Judge.
Before GARTZKE, P.J., DYKMAN, J. and SUNDBY, J.
Greg Kuebli and Kris Loken, resident apartment managers for Wisconsin Management Company, appeal from an order dismissing their two remaining counterclaims against Wisconsin Management. 1 The two counterclaims alleged Wisconsin Management (1) deducted amounts from Kuebli's wages in violation of sec. 103.455, Stats., 2 and refused to pay substantial amounts of wages allegedly due Kuebli contrary to ch. 109, Stats; and (2) wrongfully discharged Kuebli in retaliation for having complained to the Department of Industry, Labor and Human Relations about his wage arrangement with Wisconsin Management. 3 The counterclaims were dismissed for failure to state a claim. We conclude sec. 103.455 does not apply. However, Kuebli has stated a claim for wages due under ch. 109 and for wrongful discharge. We therefore affirm in part and reverse in part.
Kuebli was a resident apartment manager for Wisconsin Management. Wisconsin Management commenced a small claims action against him seeking eviction and payment of back rent. He denied owing any rent and alleged five counterclaims. Two of the counterclaims, breach of lease and breach of contract, were settled and dismissed. The abuse of process counterclaim is not pursued on this appeal. The two remaining counterclaims relating to unlawful deductions/refusal to pay wages and wrongful discharge were dismissed on Wisconsin Management's motion. Our scope of review requires that we determine whether the counterclaims were properly dismissed for failure to state a claim.
[W]e apply the familiar test that the pleadings are to be liberally construed to do substantial justice between the parties, and the [counterclaims] should be dismissed as legally insufficient only if it appears to a certainty that no relief can be granted under any set of facts that the [defendants] can prove in support of [their] allegations.
Strid v. Converse, 111 Wis.2d 418, 422, 331 N.W.2d 350, 353 (1983).
The parties dispute whether Kuebli's wage arrangement results in a wage deduction within the meaning of sec. 103.455, Stats. Kuebli's employment letter described his pay scale.
Monthly base salary: $315.00 per month. For every $3.00 lost income on the project, your salary will decrease by $1.00. An example of this would be if there was a room that was vacant for $150.00 for one month, your salary would be decreased by $50.00.
Wisconsin Management contends the damages Keubli seeks were unearned wages, not amounts that were deducted. It contends Kuebli's base salary had to be earned and that it would be decreased by lost rental income. We disagree. This interpretation is inconsistent with Kuebli's job description which assigns maintenance duties to him in addition to acting as a rental agent. Wisconsin Management's interpretation of the wage arrangement permits the unusual conclusion that Kuebli would not be compensated for performing maintenance duties if lost rental income sufficiently exceeded his monthly base.
Kuebli argues we should give due weight to DILHR's determination that Wisconsin Management violated sec. 103.455, Stats., and ch. 109, Stats. Kuebli appeals from a trial court order dismissing his counterclaims, not from DILHR's conclusion that Wisconsin Management violated certain statutes. We are not required to defer to DILHR's conclusion.
Kuebli argues sec. 103.455, Stats., prohibits the deductions made from his wages. The interpretation of a statute is a question of law which we determine without deference to the trial court's reasoning. Kraemer Bros. v. Pulaski State Bank, 130 Wis.2d 194, 197, 387 N.W.2d 94, 95 (Ct. App. 1986), aff'd, No. 85-0260, slip op. (wis. June 1, 1987). We first resort to the plain meaning of the statute. If its meaning is clear, we will not look outside the statute to determine the legislature's intent. If it is ambiguous, we may look to its legislative history. A statute is ambiguous if it is capable of being understood in either of two or more senses by reasonably well-informed persons. In Interest of J.V.R., 127 Wis.2d 192, 199-200, 378 N.W.2d 266, 269 (1985).
Section 103.455, Stats., provides in pertinent part:
No employer shall make any deduction for the wages due or earned by any employe, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property, unless the employe authorizes the employer in writing to make such deduction or unless the employer and a rrepresentative designated by the employee shall determine that such defective or faulty work, loss or theft, or damage is due to worker's negligence, carelessness, or wilful and intentional conduct on the part of such employe, or unless the employe is found guilty or held liable in a court of competent jurisdiction by reason thereof. If any such deduction is made or credit taken by any employer, that is not in accordance with this section, the employer shall be liable for twice the amount of the deduction or credit taken in a civil action brought by said employe. . . .
We must determine if managing an apartment building involves workmanship, lost, stolen or damaged property. 'All words and phrases shall be construed according to common and approved usage . . ..' Sec. 990.01(1), Stats. 'The common and approved meaning of a word can be established by reference to a recognized dictionary.' In Interest of B.M., 101 Wis.2d 12, 18, 303 N.W.2d 601, 605 (1981).
Workmanship is not a factor in managing an apartment building. Webster's Third New International Dictionary 2635 (1976) defines 'workmanship' as the actual art or skill of a workman or the quality or character given to an object by a skilled workman. Workmanship is equated with craftsmanship, and applies to objects manufactured or produced by manual labor. Section 103.455, Stats., was applied to deductions from pieceworkers' wages in Zarnott v. Timken-Detroit Axle Co., 244 Wis. 596, 13 N.W.2d 53 (1944) and Peters v. International Harvester Co., 248 Wis. 451, 22 N.W.2d 518 (1946). Performing routine maintenance and acting as a rental agent does not involve manufacturing or production.
Kuebli contends Donovan v. Schlesner, 72 Wis.2d 74, 240 N.W.2d 135 (1976) permits application of sec. 103.455, Stats., to employes not engaged in manufacturing or production. In Donovan, a gas station attendant cleaned the station, pumped gas, took care of customers and kept a record of gas, milk and candy sold during his shift. Amounts were deducted from his wages for shortages 'determined by comparing the property or items on hand with the amounts entered into the books representing sales.' Id. at 76, 240 N.W.2d at 137. These deductions reflected unaccounted for property, either lost or stolen, not defective or faulty workmanship. Consequently, sec. 103.455 applied. Unreceived rental income is not lost, stolen or damaged property because it never existed in the first place.
The plain meaning of sec. 103.455, Stats., refers to deductions from wages due to 'defective or faulty workmanship, lost or stolen property or damage to property.' Deductions for lost rental income do not fall into any of these categories. Section 103.455 is not ambiguous and does not apply to Kuebli's wages.
Kuebli alleges Wisconsin Management has refused to pay him substantial amounts of wages in violation of ch. 109, Stats. He contends sec. 109.03(5) creates a private right of action by the employe against the employer for wages due. Wisconsin Management disagrees.
The interpretation of ch. 109, Stats., is a question of law which we determine de novo. Kraemer Bros., 130 Wis.2d at 197, 387 N.W.2d at 95. Section 109.03(5) provides in pertinent part: 'Each employe shall have a right of action against any employer for the full amount of the employe's wages due on each regular pay day as provided in this section, in any court of competent jurisdiction.' Wisconsin Management does not address this section in its brief and argues that enforcement of the chapter is delegated to DILHR under sec. 109.09(1), which provides in pertinent part:
The department shall investigate and attempt equitably to adjust controversies between employers and employes as to alleged wage claims. The department shall enforce this chapter and §§ . . . 104.12. In pursuance of this duty, it may take an assignment in trust for the assigning employe of any wage claim it deems to be valid or any wage deficiency, such assignment to run to the department. The department may sue the employer on any wage claim or wage deficiency so assigned . . ..
We are to construe statutes so as to avoid a construction which renders a word or phrase superfluous. Electric Power Co. v. Public Service Comm., 110 Wis.2d 530, 534, 329 N.W.2d 178, 181 (1983). Wisconsin Management's interpretation of ch. 109, Stats., ignores the plain language of sec. 109.03(5). Chapter 109 establishes a private right of action.
Wages include 'remuneration payable to an employe for personal services . . ..' Sec. 109.01(3), Stats. Personal services must actually be performed in order for wages to be payable. DILHR v. Coatings, Inc., 123 Wis.2d 418, 422, 367 N.W.2d 812, 815 (Ct. App.), aff'd, 126 Wis.2d 338, 376 N.W.2d 834 (1985). Kuebli alleges his 'job responsibilities were performed during the above months without complaint or criticism by [Wisconsin Management].' Whether...
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