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Clark v. Luepke

April 11, 1991

KERRY R. CLARK, APPELLANT,
v.
RICK LUEPKE, ET AL, RESPONDENTS



Morgan, J. Petrich, A.c.j., and Alexander, J., concur.

Author: Morgan

Clark appeals a determination that Luepke, an automotive repairman, is entitled to be paid even though he violated the Automotive Repair Act, RCW 46.71. We affirm.

At all material times, Clark owned a 1978 Jeep CJ5 with a high performance engine. The engine quit functioning, and on August 22, 1985, Clark took the vehicle to Luepke for repairs. Luepke owned and operated a car repair shop.

The repair work that was needed was exceptional rather than routine, and Luepke could not estimate the cost of repairs without tearing down the engine. Nevertheless, Clark gave oral authorization to proceed with repairs.

At the time of their initial contact, the parties discussed the fact that Clark might have insurance or warranty coverage for all or part of the repairs, and Luepke talked to Clark's insurance company on the phone. However, Luepke never agreed that he would look only to the insurance company for payment, and Clark remained ultimately responsible to pay whatever amount was properly due Luepke.

Luepke completed the work without undue delay, and his bill came to $2,764. In view of the work performed, the bill was not excessive or unreasonable. Nevertheless, Clark could not pay it, and over Clark's objection, Luepke refused to release the vehicle.*fn1 After about 6 weeks, Clark paid the bill*fn2 and Luepke released the vehicle. Clark, according to his own testimony, did not suffer any damage due to Luepke's retention of the vehicle.*fn3

At all material times, Luepke failed to comply with the Automotive Repair Act (ARA), RCW 46.71. His shop did not have the sign required by RCW 46.71.043,*fn4 and even though the cost of repairs was obviously going to exceed $75, he never gave Clark a written estimate or presented him with the alternatives set forth in RCW 46.71.040.

In July 1986, Clark filed this lawsuit. At trial, he asked for restitution of the money that he had paid Luepke, and for reasonable attorney's fees. After finding the facts described above, the trial court denied relief.

On appeal, Clark's first contention is that various findings are not supported by substantial evidence. Holland v. Boeing Co., 90 Wash. 2d 384, 390, 583 P.2d 621 (1978); Morgan v. Prudential Ins. Co. of Am., 86 Wash. 2d 432, 437, 545 P.2d 1193 (1976). After carefully reviewing the record, we are satisfied that each finding was properly supported by the evidence.

[1] Clark's second and central contention is that he is entitled to restitution because Luepke was in violation of the ARA. A payor may maintain an action to recover money paid involuntarily due to coercion, duress or compulsion,*fn5 Hawkinson v. Conniff, 53 Wash. 2d 454, 458, 334 P.2d 540 (1959); Speckert v. Bunker Hill Ariz. Mining Co., 6 Wash. 2d 39, 52, 106 P.2d 602, 131 A.L.R. 125 (1940); Maxwell v. Provident Mut. Life Ins. Co., 180 Wash. 560, 567, 41 P.2d 147 (1935), if retention of the money would unjustly enrich the payee. Pacific Coal & Lumber Co. v. Pierce Cy., 133 Wash. 278, 281, 233 P. 953 (1925). Thus, when a payor sues for the restitution of an allegedly involuntary payment, the essential elements are (1) that payment was made, (2) that it was made involuntarily, and (3) that the payee would be unjustly enriched if allowed to retain the payment. Wendell's, Inc. v. Malmkar, 225 Neb. 341, 405 N.W.2d 562, 568 (1987); In re ...


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