Opinion
No. 77-896
Decided August 24, 1978. Rehearing denied September 14, 1978. Certiorari denied November 27, 1978.
In action to recover for allegedly unauthorized repairs performed on his automobile by defendant, trial court awarded plaintiff only nominal damages, and, finding that defendant had not engaged in deceptive trade practice, refused to award attorney's fees. Plaintiff appealed.
Affirmed in Part, Reversed in Part.
1. CONSUMER'S RIGHTS — Automobile Mechanic — Makes Repairs — Without Authorization — Not Entitled — Compensation — Owner's Desires — Control — Regardless — Economic Justification. An automobile mechanic making repairs on an automobile without the authorization and against the will of the owner is not entitled to compensation for the repairs, even though some benefit results to the owner; the owner's judgment as to the desired repair work is controlling regardless of the mechanic's or a court's views of its economic justification.
2. Evidence Conflicting — Finding — No Fraudulent Misrepresentation — Auto Repair Shop — Denial — Attorney's Fees — Consumer Protection Act — Proper. Where the evidence was conflicting as to whether automobile repair shop had made a knowingly false representation concerning its intended repair to plaintiff's automobile, the trial court's finding that there was no such misrepresentation is binding on review and supports the trial court's refusal to award plaintiff attorney's fees which fees are authorized under the Consumer Protection Act when a deceptive trade practice has occurred.
Appeal from the District Court of Jefferson County, Honorable Daniel J. Shannon, Judge.
Ireland, Stapleton, Pryor Holmes, Hardin Holmes, Jeffrey F. Reiman, for plaintiff-appellant.
Boatright Deuben, David C. Deuben, for defendant-appellee.
Plaintiff, Bertram A. Bidwell, initiated this action against defendant, German Motors, Inc., seeking to recover damages resulting from defendant's allegedly unauthorized repair of plaintiff's 1962 Mercedes-Benz Model 190 SL automobile. Trial was to the court which found that German Motors had replaced the original engine in Bidwell's automobile with a rebuilt engine, without Bidwell's authorization, but that Bidwell had failed to establish that he had sustained any damage from the unauthorized replacement. The court therefore ruled that Bidwell was entitled only to nominal damages in the amount of ten dollars. Additionally, the court determined that German Motors had not engaged in a deceptive trade practice justifying an award of Bidwell's attorney's fees pursuant to the Colorado Consumer Protection Act. We reverse the court's damage determination, but affirm the court's denial of plaintiff's attorney's fees.
In connection with certain repairs being performed on plaintiff's car by German Motors, the shop's owner and operator, Karl Nickel, suggested that a rebuilt engine be installed in the car, rather than repairing the original engine. However, according to his testimony, Bidwell believed that his car was a classic automobile which would be more valuable with its original engine, and therefore specifically instructed Nickel not to install a replacement engine. In contrast, Nickel claimed he had not had such a specific directive from Bidwell and had interpreted a remark of Bidwell's attorney, Hans Von Mende, as authorizing the replacement. The trial court found that "at no time did Nickel receive a specific authorization from Von Mende or from Bidwell to replace the engine block."
Nevertheless, German Motors replaced the original engine with a rebuilt one, and on discovery of the engine's replacement, Bidwell stopped payment on his check. Thereafter, Bidwell returned the car to German Motors, asserting at trial that an agreement for reinstallation and repair of the original engine had been made. Nickel, however, denied knowledge of any such agreement or of the reason for the car's return, and had by then junked the original engine. Bidwell eventually paid the charged sum of $898.82 to secure the car's return, and instituted this action.
I.
Bidwell first contends that the trial court erred in awarding him only nominal damages. In the circumstances present here, we agree.
The court limited Bidwell to recovery of nominal damages principally because of: (1) his failure to demonstrate that the original engine could have been repaired with moderate effort and expense, and thus, that the replacement was completely unnecessary, and (2) his failure to establish that the value of his car was diminished as a result of the replacement of the original engine with a rebuilt engine. These conclusions apparently stemmed from Nickel's testimony that repair of the original engine would be more expensive than replacement and that the engine then might last only 1,000 miles plus the testimony of German Motors' expert that a 1962 Mercedes-Benz Model 190 SL was not a classic automobile.
[1] Nevertheless, an automobile mechanic making repairs on an automobile without the authorization and against the will of the owner, is not entitled to compensation for the repairs, even though some benefit results to the owner. 14 D. Blashfield, Automobile Law Practice § 475.12 (3d ed. 1969). See generally, Mann v. Farnum, 17 Colo. 427, 30 P. 332 (1892).
The owner's judgment as to the desired repair work is controlling regardless of the mechanic's or a court's views of its economic justification. Cf. Capone v. Skidmore, 55 So.2d 637 (La.App. 1951).
Here, regardless of its merit, it was Bidwell's expressed belief that his car was of special vintage and more desirable with its original engine. In such circumstances, the trial court's insistence on proof of the economic feasibility of repairing the original engine, and of proof of diminution of the car's value resulting from installation of the rebuilt engine was not justified. Such a burden was particularly inappropriate in view of Nickel's discarding of the original engine. We therefore conclude that Bidwell is entitled to recover from German Motors the amount charged for its unauthorized replacement of the car's original engine.
II.
Bidwell also urges that the trial court erred in concluding German Motors did not commit a deceptive trade practice so as to warrant an award of his attorney fees pursuant to the Colorado Consumer Protection Act. See § 6-1-113, C.R.S. 1973.
[2] Section 6-1-105(1), C.R.S. 1973, provides:
"A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he . . . [k]nowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods or services . . . ."
Here, the trial court found that while German Motors' service work was unauthorized, there was "no showing of a knowing, intentional or false representation."
Bidwell argues that German Motors impliedly made such a representation (1) by accepting the car for servicing on two occasions without disclosing that it would not repair the original engine, and (2) by arranging with Von Mende for repair and reinstallation of the engine with knowledge that it had already been disposed of. However, the evidence concerning these events was in conflict and susceptible of varying inferences. Accordingly, the trial court's finding is binding on review. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336 (1970).
The judgment denying attorney fees is affirmed and that part of the judgment awarding only nominal damages is reversed and the cause is remanded with directions to enter judgment for the plaintiff consonant with this opinion.
JUDGE COYTE and JUDGE SMITH concur.