*1 LIGHTCAP, Plaintiff-Appellant-Petitioner, Joann
v. HOMES, STEENBERG INC. аnd First Financial Sav- Association, ings Defendants-Respondents.
Supreme Court Argued 24, January No. 89-1248. 1991.—Decided March
1991. (Also 904.) reported in 466 N.W.2d *3 plaintiff-appellant-petitioner a there was For the argu- by Simonson, and oral E. Madison Archie brief by Simonson. Archie E. ment Steenberg defendant-respondent, Homes, For the Sager, by Pavlick and Inc., Elizabeth V. a brief there was argument Wirtz, S.C., and oral Fond du Lac Pavlick & by Pavlick. Elizabeth V. defendant-respondent, Financial Sav- First
For the by ings Shafton, Association, David G. was a brief there argument G. David Point and oral Stevens Shafton. G., CALLOW, is review of an J. This a WILLIAM appeals, unpublished which of the court decision judgment Dane court for of the circuit affirmed County, Judge Steingass. The sole issue
Susan properly an denied the circuit court case is whether plaintiff-appellant-peti- attorney fees to the award Lightcap, fees who had incurred these tioner Joann judicial litigation in a determination that which resulted acceptance which of mobile home her she had revoked defendant-respondent purchased from the had she (Steenberg). Steenberg Homes, We conclude that Inc. an action. not recoverable such fees are *4 Lightcap April In follow. The relevant facts Steenberg purchased $21,902.50. for a mobile home from warranty1 one-year from the written received a (Mobile) provides, Warranty 1The Home Manufactured part: complies (mobile) with manufactured home identified above The by (mobile) prescribed the Secre- home standards
the manufactured 610 manufacturer, Homes, Liberty (Liberty), pursuant Inc. 218.14(1), (1987-88),3 to sec. in which Stats.2 it war- tary Housing Development and Urban that were effect at the (mobile) time the manufactured home was manufactured and the (mobile) free from manufactured home is defects in material or work- manship. warrantly obligate This shall the manufacturer to take [sic] appropriate period corrective action within reasonable of time in nonconformity instances such standards instances of and/or workmanship defects in materials or which evident within 1 become year (mobile) delivery the from date of home manufactured Purchaser(s) (their transferee(s)), give which and as to or his year days written notice the manufacturer not later and 10 than delivery after the date set forth above. Such notice shall written delivered to the manufacturer-warrantor at the address set forth warranty obligate herein. This shall not the manufacturer to correct (mobile) defects or considtions in the manufactured home that [sic] may usage proper occur as a result of abnormal or a lack of maintenance. 218.14(1), Stats., provides: 2Section Warranty (1) one-year warranty A disclosure written is required every primary housing by for new unit or leased sold manufacturer, state, salesperson or this home dealer every primary by housing any person new unit sold who induces a by personal the state into the resident of to enter transaction solici- by telephone tation in state or mail or solicitation directed to the particular customer in this state. The contain shall following terms: (a) housing primary pre- That the unit standards meets those by department industry, law or scribed administrative rule of the relations, labor and human which are in the time of effect at its manufacture. (b) housing primary That the unit is free from defects in mate- workmanship reasonably rial and and is fit for habitation if it human receives reasonable care and maintenance rule of as defined department industry, human labor and relations. (c) primary housing 1. That the unit and dealer manufacturer shall take corrective action for defects which become evident within year delivery primary housing one from the and as to which date given unit has dealer owner notice to manufacturer or not later year days delivery than and 10 at the one after date and address warranty; primary housing set forth in the and that the unit manu- *5 in free from defects mobile home was ranted that the obligated warranty This also workmanship. material and home to cor- of the mobile manufacturer and dealer the the any nonconformity to a reasonable time within rect (HUD) Housing Development Urban of and Department workmanship or which or materials defects standards of year delivery of the evident within ope became home. home, exper- moving into the mobile
After it, irregularities many such as problems ienced with floor, on other water leak- spots water the wall and the frame, the bend- separating from age, windows and walls frames, of twisting twisting of door and window ing and roof, problems of the rippling unusual ceiling panels, adjustments appropriate and and make the facturer dealer shall defect, repairs, days of at the site within after notification the of housing primary housing charge primary to the unit the unit without adjustment, If the the manufacturer shall owner. dealer makes the fully the reimburse dealer. replacement, repair, If a or alteration is made 2. substitution discovered, expiration warranty it is or after of under the and before repair, replacement, warranty period, the substitution or the that primary housing not unit to the condition alteration has restored tear, except it and such in which was warranted reasonable wear warranty primary and the failure shall be deemed violation of housing be it was war- unit shall restored to the condition which except to be at the time of the sale for reasonable wear ranted tear, assignee notwithstanding purchaser no or his that at cost repair may expiration after the the additional occur period. (d) during any period if after That time notification uninhabitable, by defect, primary housing unit is as defined rule relations, department industry, and human of the labor part one-year warranty period of time shall not considered period. (e) parts equipment A not list all covered warranty. statutory 3A11 references are to the 1987-88 Wisconsin Stat utes, annotated. unless otherwise *6 system
with the heating and other structural defects. Lightcap Steenberg contacted problems, correct the attempts and numerous were made both Steenberg them, Liberty and to correct no at to Lightcap. cost In August Lightcap contacted a building inspector Department from the of Industry, Labor and Human (DILHR), inspected Relations who the mobile home October 1987. DILHR then its findings issued of fаct on twenty-nine different complaints, ordering the manufac- turer to correct several defects that had not previ- been ously resolved. DILHR not refer Lightcap's did com- plaint attorney to the general for enforcement. 31, 1988,
On March Lightcap wrote to Steenberg, revoking acceptance home, her pursuant the mobile 402.608, Stats., purchase and demanding price of рlus mobile home costs. alleged She that defects in the mobile home had not been corrected. Steenberg satisfy did not Lightcap's payment. demanded On June 8, 1988, Lightcap against commenced an action defendants-respondents, seeking to enforce her revoca- tion and recover her In damages. complaint, Light- her cap charged Steenberg that had exprеss breached its and warranties, implied and that because the mobile home corrected, defects had not been its value was substan- tially impaired, and she was entitled to revoke her acceptance of the mobile requested attorney home. She 218.17(3), Stats., fees under sec. requested her dam- $20,200.00. ages held,
The trial, circuit court after a bench that Lightcap accеptance was entitled to revoke her home, because the substantial defects in the nonconforming home it substantially rendered impaired its value to her. In its of damages, award attorney circuit court refused to allow fees because attorney was not entitled to fees under the statutes, secs. revocation breaches .715, 402.608, .714, Stats. circuit court on appeals affirmеd the court
The 402.608, Stats., provide not (a) did that sec. grounds: fees, not recover- (b) attorney fees were that "inciden- they were not because able under sec. 402.715 (c) noncompli- damages, and consequential" tal or not warranty did constitute the written ance with Light- 218.14, granted This court Stats. violation (Rule) 809.62, pursuant to sec. petition for review cap's Stats. *7 by governed in are of mobile homes Wisconsin
Sales (UCC), sec. Uniform Commercial Cоde—Sales Stats., subchapter chapter 402.101-.725, by VI and 218.10-.17, A mobile home is "commer- Stats. 402.105(l)(a), unit," the sale of a mobile cial 402.105(l)(c), and is "goods," sec. a sale of home is buyer 402.102. A UCC. Section scope of the within the an damages the breach may reasonable recover Specifically, warranty under the UCC. implied or éxpress "between the value buyer may the difference recover they vаlue would have had accepted and the goods of the 402.714(2). Inci- if warranted." Section they had been as under sec. 402.715 consequential damages dental and warranty occurs. a breach of may be recovered when also in 402.714(3). not Attorney fees are recoverable Section actions, represent incidental attorney as fees dó not such Rambler, Holiday Murray v. consеquential damages. or Inc., (1978). 406, 436, 513 2d 265 N.W.2d Wis. unit
Additionally, buyer accepts if a a commercial cured, seasonably are not and its nonconformities her of the unit under may acceptance his or buyer revoke 402.608, case, conditions of sec. In Stats.4 circuit court held that could accept- revoke her ance, as the nonconformities the mobile home sub- stantially impaired its value her and the defects had not seasonably been cured. The court circuit held that Lightcap was entitled to a return of paid the sums she any consequential by damages, set off her use of the home, as measured by the reasonable rental value home, of the mobile attorney but did not award fees. Attorney generally fees are not recoverable unless by statutory authorized prоvision. or contractual Mur- ray, 83 Wis. 2d inquiry at 435. The critical determin- ing Lightcap fees, if is entitled to therefore is: Is statutory there a or provision allowing contractual 402.608, Stats., provides: 4Section acceptance part. (1) buyer Revocation of whole or The may acceptance revoke his aof lot or commercial unit whose noncon- formity substantially impairs accepted its to him if value he has it: (a) assumption nonconformity On the reasonable its cured; seasonably would cured and it has not been or (b) discovery nonconformity acceptance if Without such his reasonably difficulty discovery was induced either before acceptance byor the seller's assurances. *8 (2) acceptance Revocation of must occur within a time reasonable buyer ground after the discovers or should have it discovered for any change goods and before substantial in is condition which by buyer not their own is caused defects. It not effective until the notifies the it. seller of (3) buyer rights A who so revokes has same and duties with regard goods rejected to if involved as he had them. acceptance remedy Note: Revocation of a in is available addition See Official UCC Comment warranty. to an action for breach 1, ("[T]he buyer required longer sec. 402.608. is no to elect acceptance recovery damages between revocation of him.") breach. Both are now available to Unless attorney fees this case? to recover Lightcap exists, to attor- Lightcap is not entitled provision a such nеy fees. not complaint, Lightcap does contend
In her Steenberg existing with provision she has a contractual Light- fees. attorney her to Liberty or that would entitle attorney fees under a she to contends that is entitled cap 218.17(3), Section Stats. statutory provision, sec. 218.17(3) provides: subchapter prohibits bringing of
[n]othing in this manufacturer, against a mobile home a civil action by If salespersоn aggrieved customer. or an dealer on an for the customer based judgment is rendered manufacturer, or dealer sales- act or omission person, a violation this sub- which constituted proper plaintiff chapter, shall recover actual and attorney's otherwise addition to costs fees recoverable. a
If
or omissions
violation
Steenberg's acts
constituted
218.10-.17),
(seс.
VI
would
subchapter
other dam-
attorney
in addition to her
entitled to
fees
is
fees
that she
entitled
ages. Lightcap claims
because,
218.17(3)
failing
restore the
under sec.
for which it was war-
home to the condition
218.14(l)(c).
ranted,
Steenberg violated
attorney fees rests on an inter-
Lightcap's claim for
218.14(1) (c),
pretation of
The construction of
Stats.
law,
need not
question
is
court
a statute
а
appeals
the court of
when
to the circuit court or
defer
Sewerage
Met.
of law. Milwaukee
deciding
question
71,
DNR,
2d
examine language of the statute Id. itself. Section 218.14(l)(c)2 provides, in part:
Warranty (1) one-year and disclosure. A written warranty required. is . .. The warranty shall contain following terms:
(c) . repair . .2. If a ... is under made warranty and it is repair. discovered. . . that . . hаs not restored the to the condition [mobile home] in which it . . was warranted . such failure shall be deemed a violation of . . .. alone,
While this language, standing
is clear and
unambiguous,
it is
ambiguous by
rendered
its interaction
218.17(3),
White,
with sec.
Stats. See State v.
97 Wis. 2d
193, 198,
(1980).
618 Friendly Ford-Mercury, v. 2dWis. 453 N.W.2d (Ct. 1990). App. Had legislature intended 218.14 operate law," as a mobile home "lemon it could have or drafted its amended language resemble sec. 218.015. 218.17(3), Stats., provides
Section fees manufacturer, when a dealer or salesperson give fails to *11 the required sec. 218.14. We conclude that 218.17(3) provide does attornеy not for fees that consumer incurs as a result of a violation of required the warranty itself. A of cause action in this only case would accrue 218.17(3), under sec. if Steenberg had to failed give express an written warranty, or had failed to include in warranty Lightcap its to language required by sec. 218.14. Lightcap has alleged not that Steenberg commit- ted such a violation.
Lightcap
attorney
insists we award
fees for reasons
equity
of
and fairness.
attorney
She contends that
in
fees
cases such as
plaintiffs
these constitute a
largest mone-
tary expense,
fees,
and without attorney
consumers will
not
to protect
be able
language
their interests. She cites
Nicolaou,
from First Wisconsin Nat'l Bank v.
113 Wis.
(1983):
2d
"[ijndeed,
N.W.2d 390
the cost
legal representation will
recovery
often exceеd the
in a
.
Consumer
case.
. .
potential
The
[Wisconsin
Act]
impact of these cases
run
long
over the
induces creditors
litigate
to
them
that,
to the fullest. The
in
being
result
attorney
awards,
absence
sufficient
fee
consumers
will
financially
to
unable
maintain meritorious
Nicolaou,
claims."
Neither Magnuson-Moss 15 U.S.C. secs. Act. under the fees ques- (1982). Therefore, address we do not 2301-12 Magnuson-Moss attorney fees under of whether tion particular сase. Act are awardable summary, the circuit court did In we conclude damages denying as fees err not Steenberg against of warranties for breach in her action Attorney acceptance mobile home. of a and revocation applicable sections, UCC under the not allowable fees are 218.17(3), they applicable Stats., noas under sec. are nor 218.14 оccurred. violation of sec. appeals
By of the court decision the Court.—The is affirmed. (dissenting). CECI, I dissent and J. J.
LOUIS attorney's proper petitioner actual and would award 218.17(3), Steenberg Stats., vio- because fees under *12 provision of ch. Stats. Steen- of subch. VI lated compliance bring berg's home to the mobile into failure attempts warranty, failed to do numerous with the after 218.14(1)(c)2, Contrary to the so, Stats. violated petitioner majority's action, of this characterization upon simple bring action breach did not this based nonconforming warranty, by I of a which mean sale brought petitioner Rather, action based unit. bring Steenberg's repairs upon failure of warranty. compliance This mobile home into with the is failure of the crucial because it distinction is conformity bring repairs home with the mobile into warranty, repairs, that violates not the need for the 218.14(l)(c)2. Accordingly, I would reverse the deci- sion of the court of appeals.