County Civil Court: CONTRACTS – While it appears that there was an implied partial waiver of a written estimate, the trial court made insufficient factual findings to allow proper appellate review.  Case remanded.  C. De’s Truck and Auto, Inc., et al. v. Phillip Slone, No. 2011-AP-000004-ES (Fla. 6th Cir. App. Ct. June 18, 2012). 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

C. DE’S TRUCK AND AUTO, INC.,

ET AL.,     

                        Appellants,

 

v.                                                                                 UCN: 512011AP000004XXXXES

Appeal No:   2011-AP-4-ES

L.T. No:         11-CC-000545

PHILLIP SLONE,                                        

                        Appellee.                                                      

________________________________/

 

Appeal from Pasco County Court

County Judge Robert P. Cole

 

Peter Wansboro, Esq.

for Appellants

 

Theresa I. Wiggington, Esq.

for Appellee

 

 

 

ORDER AND OPINION

 

            Appellant argues that the trial court erred when it granted Appellee’s writ of replevin and damages based on an apparent failure to obtain a written estimate for vehicle repairs.  While it appears from the record that there was an implied partial waiver of the written estimate, the trial court made insufficient factual findings to allow proper appellate review.  Therefore, this court remands this cause as set forth below.

 FACTUAL BACKGROUND

            At a June 16, 2011 hearing, the following testimony was presented:  Appellants, Vincent and Cherylann Dehart, are the owners of C. De’s Auto and had performed repairs on Appellee’s vehicles thirty to sixty times since about 2005.  On or about October 8, 2010, a mechanic for C. De’s locked up the property for the night.  When the mechanic returned at 8:30 the next morning, Appellee’s 1997 Ford F-150 truck had been left.  Mr. Dehart contacted Appellee, but he could not give an estimate on what it would take to make the truck run again without taking it apart first.  Mr. Dehart provided a rough estimate of $2,500 to $2,700.  Appellee or Appellee’s son gave him two deposits of $1,250 and $500.  Mr. Dehart was never asked for a written estimate for the repairs and did not present Appellee in advance of doing any work with a written estimate.  Mr. Dehart, however, gave two work orders (labeled “invoice”), on October 26, 2010, which were produced as a work-up order to keep track of the repairs.

Appellee periodically came to the repair shop after the truck was dropped off.  Appellee never asked for an estimate for the truck, and Mr. Dehart never provided any estimate of either the diagnostic work or repairs.  At one point, Appellee took the truck for about an hour and filled it with gas.  Upon his return, Mr. Dehart showed Appellee the issues the truck was still having.  Sometime in December 2010, Mr. Dehart gave Appellee’s son one of the work orders after the repairs were already completed. 

After the repairs were completed, Appellee sent an employee to pick up the truck.  Ms. Dehart called Appellee to find out whether Appellee would pay if they let the employee take the truck that Saturday.  Appellee responded that if that is what they thought of him, to forget it, and he would be in on Wednesday to pick up the truck.  Ms. Dehart tried to call Appellee back three times since he had been a customer for five or six years and to tell him it would be okay to pick up the truck that day, but Appellee would not answer the phone.  Appellee returned about a week and a half later.  Apparently, Mr. Dehart demanded immediate payment or he would place a lien on the truck and sell it, which prompted the filing of the writ of replevin. 

On February 8, 2011, Appellee filed a Demand for Hearing and Verified Petition for Prejudgment Writ of Replevin and Complaint for Damages.  At the end of the June 16, 2011 hearing, the Honorable Robert P. Cole ruled for Appellee and stated that he would issue the writ of replevin.  In the July 14, 2011 final order on writ of replevin, the trial court found that Appellants operated a motor vehicle repair facility, which was regulated under Florida Statute 559, Part IX.  The trial court further found that Appellee took his vehicle to Appellants’ repair facility, the cost of the repairs exceeded $100.00, and Appellee paid Appellants $1,750.00 as a down payment for the repairs.  Appellants were ordered to immediately relinquish possession of the truck and return $1,750.00 minus $50.00 allowed by statute.  On July 25, 2011, Appellants filed a motion for reconsideration, of which the trial court appears to have never ruled.  Appellants filed a timely notice of appeal on August 12, 2011.    

 

                    

LAW AND ANALYSIS

Appellants argue that the trial court erred when it granted Appellee’s writ of replevin based on a failure to obtain a written estimate for the repairs performed.  Since the testimony appears uncontroverted that Appellee left his truck at Appellants’ repair shop after hours, there would be an implied partial waiver of the written estimate under Florida Statute 559.905(5):

If the customer leaves her or his motor vehicle at a motor vehicle repair shop during hours when the shop is not open or if the customer permits the shop or another person to deliver the motor vehicle to the shop, there shall be an implied partial waiver of the written estimate; however, upon completion of diagnostic work necessary to estimate the cost of repair, the shop shall notify the customer as required in s. 559.909(1).

As such, Appellants would have been required to notify Appellee in accordance to Florida Statute 559.909(1)(c), which provides:

An implied partial waiver exists for diagnostic work, as described in s. 559.905(5), and such diagnostic work has been completed, the customer shall be promptly notified by telephone, telegraph, mail, or other means of the additional repair work and estimated cost thereof.  A customer so notified shall, orally or in writing, authorize, modify, or cancel the order for repair.

While this court reviews the trial court’s statutory interpretation de novo, this court must defer to the trial court’s factual findings that are supported by competent, substantial evidence from the record.  McDougall v. Culver, 3 So. 3d 391, 392 (Fla. Dist. Ct. App. 2d Dist. 2009).  The trial court, however, made insufficient factual findings to allow proper appellate review. 

On remand, the court should make specific factual findings with respect to Florida Statutes 559.905(5) and 559.909(1)(c).  The trial court shall make a specific finding as to whether there was an implied partial waiver of the written estimate under §559.905(5) by Appellee leaving his truck after hours or having another deliver the truck to the repair shop, and if so, whether Appellee was promptly notified by telephone, telegraph, mail, or other means of the estimated repair work pursuant to §559.909(1)(c).  And if that be the finding, then the trial court shall make a factual finding as to whether Appellee orally or in writing authorized, modified, or canceled the order for repair.  Finally, the trial court shall rule upon any pending motions for reconsideration.  It is therefore,

 

            ORDERED that this cause is hereby REMANDED to the trial court for action consistent with this order and opinion.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 18th day of June 2012.

 

Original order entered on June 18, 2012 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Patricia A. Muscarella.