COURT OF APPEALS
DATED AND FILED
February 17, 2011
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
Toyota Motor Credit Corporation,
North Shore Collision, LLC, by Registered Agent,
Ferdinand Harold Jones, III,
from an order of the circuit court for Milwaukee County: william
sosnay, Judge. Reversed and
cause remanded with directions.
Before Vergeront, P.J., Lundsten and Sherman, JJ.
¶1 SHERMAN, J. North
Shore Collision, LLC, appeals an order of summary judgment in favor of Toyota
Motor Credit Corporation. The circuit
court determined that Toyota was entitled to
possession of a 2006 Toyota Camry being held by North Shore
pursuant to a statutory lien under Wis.
Stat. § 779.43(3) (2009-10). The court also determined that North Shore
was entitled to $1,799.35 from Toyota as a
condition precedent to Toyota obtaining
possession of the vehicle, an amount that included a repair deductible and fees
charged by North Shore for storing the vehicle. North Shore
challenges the court’s determination of the amount owing to it. We conclude that the circuit court erred in
its determination of the storage fees owing to North Shore
and that an issue of material fact remains regarding that issue. Accordingly, we reverse the court’s order and
remand this case for further proceedings.
¶2 In 2009, a vehicle owned by Robert Cunningham and financed
was damaged in an accident. With
Cunningham’s permission, the vehicle was towed in August 2009 to North Shore
Collision for repairs, which were paid for by Cunningham’s automobile insurer
less a $500 deductible.
¶3 A sign was posted in North
Shore’s waiting area and “visible
within 15 feet,” which stated North
Shore would charge a
$300 administration fee and $99.95 per day for storage on cars left at the
facility after repairs had been completed.
The repair work on Cunningham’s vehicle was completed sometime on or
about September 28, 2009, and North
Cunningham to pick his vehicle up.
Approximately two weeks later, Cunningham informed North
Shore that “he had financed the car,
the car was no longer worth the amount ... North Shore
claimed [it] was owed, and he was just giving up on the car and walking
¶4 Ferdinand Jones, the president of North Shore, averred
that after Cunningham informed him that Cunningham would not be picking up the
vehicle, he “started calling Toyota” regarding the vehicle. At the time, Jones was apparently unaware
that on October 13, 2009, Toyota
obtained a judgment of replevin against Cunningham and became the title holder
of the vehicle. Jones averred,
[i]n the first phone calls, the live people (as opposed
to automated responses) I was able to speak with denied that Toyota had
financed this car. Finally, on October
19, 2009, I spoke with a person, who identified himself as “Manuel,” who
acknowledged that Toyota
financed the car and who would look into the matter.
Jones averred that he also
placed calls to Toyota
on October 22, October 23, November 11, “and probably other days in
between.” Jones further averred that on
November 11, he spoke with an employee of Toyota
who informed him that Toyota would pick up the
vehicle, but that Toyota
was unwilling to pay more than the $500 deductible. According to Jones, he responded that Toyota would have to pay for storage, which he calculated
to be $5,594.42 in a letter sent to Toyota
on November 12.
¶5 Toyota and North Shore
were unable to come to an agreement as to the amount owed by Toyota
and on December 2, 2009, Toyota filed the
present replevin action against North Shore
to gain possession of the vehicle. Toyota later moved for
judgment on the pleadings. The circuit
court received evidence outside the pleadings and therefore, with the parties’
consent, treated the motion as one for summary judgment.
¶6 Following a hearing on Toyota’s
motion, the circuit court ruled that Toyota was
entitled to a judgment of replevin conditioned on it paying North Shore
$1,799.35. According to the court, that
amount included the $500 deductible plus storage, at a daily rate of $99.95,
from September 28, 2009, through October 10.
The court described October 10 as the date North
Shore learned it was “dealing with a
different situation, hence a different owner of the car … because in effect Mr.
Cunningham had walked away from it … [and North
Shore] through [its] actions, clearly
demonstrate[d] that [it] viewed Toyota
as the responsible party and the owner and began to contact [it].”
STANDARD OF REVIEW
¶8 “We review summary judgments de novo, applying the same
methodology as the circuit court.” Hardy
v. Hoefferle, 2007 WI App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is
no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Id.; Wis. Stat. § 802.08(2).
¶9 The circuit court determined that Toyota
is entitled to possession of the vehicle in question provided it pays North Shore
Shore does not dispute the court’s
determination that Toyota
is entitled to possession of the vehicle.
Rather, it disputes the amount of storage fees the court determined it
was entitled to. North Shore
contends that because it posted a sign stating its storage fee policy in
compliance with Wis. Stat. § 779.43(3),
it was entitled to storage fees from September 28, 2009, the approximate date
repairs were completed on the vehicle, until the removal of the vehicle from
its property. Toyota, in contrast,
contends the circuit court correctly limited North Shore’s entitlement to
storage fees from September 28 until October 10, the approximate date North
Shore learned that Cunningham was not going to pick up the vehicle from North
Shore’s premises and that the vehicle was financed.
¶10 Wisconsin Stat. § 779.43(3)
gives each and every “keeper of a garage” a statutory lien for the amount due
for the storage of a vehicle, until the storage charges are paid. To obtain this lien, all that is required by
the statute is that the keeper of the garage give “notice of the charges for
storing [the vehicle] … on a signed service order or by posting in some
conspicuous place in the garage … a card that is easily readable at a distance
of 15 feet.” Id.
In giving a “keeper of a garage” a lien for storage costs, Wis. Stat.
§ 779.43(3) modified the common law rule regarding
bailments. See Bob Ryan Leasing v. Sampair,
125 Wis. 2d
266, 268-69, 371 N.W.2d 405 (Ct. App. 1985).
¶11 A bailment is created by delivery of personal property from one
person to another to be held temporarily for the benefit of the bailor (the
person who delivers personal property to another to be held in a bailment), the
bailee (the person who receives possession or custody of property under
circumstances constituting a bailment), or both, under an express or implied
contract. Manor Enters., Inc. v. Vivid,
Inc., 228 Wis.
2d 382, 398, 596 N.W.2d 828 (Ct. App.
1999). Although possession of the
property that is the subject of the bailment is temporarily transferred, title
remains in the hands of the property’s original owner. Id.
¶12 At common law, a bailee would acquire a lien over the bailed
property only if: (1) the bailee
increased the value of the bailed property or was “in a public calling where
the law require[d] him to accept the bailed item”; and (2) the owner of the
bailed item consented to the bailment. Bob
Ryan, 125 Wis. 2d
at 268. Wisconsin Stat. § 779.43(3) modified the common law rule
in that it allows a bailee to acquire lien rights over bailed property so long
as the notice requirement of that statute is met. Section 779.43(3) did not, however, modify
the common law requirement that the title holder of the vehicle consent to the
bailment before the garage keeper acquires lien rights. Bob Ryan, 125 Wis. 2d at 268-69. Thus, under § 779.43(3), a keeper of a
garage may acquire lien rights over a vehicle left temporarily in its
possession even though the garage keeper has not increased the value of the
vehicle or was not required by law to accept possession of the vehicle if the
notice requirements of the statute are met, but only if the title holder of the
vehicle consented to the bailment.
¶13 The parties do not dispute that North Shore
was a “keeper of a garage” within the meaning of Wis. Stat. § 779.43(3) and that it had posted in a
“conspicuous place” a sign “easily readable at a distance of 15 feet” stating
that a storage fee of $99.95 per day would be imposed on vehicles left at North
Shore after repairs had been completed by the facility. See § 779.43(3). Thus, the remaining question in determining North Shore’s
lien rights under § 779.43(3) is whether the title holder to the vehicle (first
Cunningham and later Toyota)
“consented” to the bailment within the meaning of Bob Ryan.
¶14 Wisconsin Stat. § 779.43(3) sets forth the
requirements of the establishment of a garage keeper’s lien for storage fees;
thus, the “consent” required by Bob Ryan is necessarily
limited. While a party might consent
expressly, for example by signing a work order, a party might also consent
impliedly. For example, the owner of the
vehicle might simply leave the vehicle with the garage keeper for repair or the
vehicle might be towed to the garage keeper by a third party. What provides “consent” in those contexts is
the owner’s knowledge that the car is being left in the care of the garage
keeper. Similar to other contractual
situations, consent is implied from the owner’s acquiescence in the garage
keeper’s possession of the vehicle. See Tatera
v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d
810 (a bailment is a contractual transaction); Dickman v. Vollmer, 2007
WI App 141, ¶19, 303 Wis. 2d 241, 736 N.W.2d 202 (consent to a contract may be
implied from conduct).
¶15 The facts are undisputed that Cunningham knew that the vehicle
in question was placed in North Shore’s possession and thus consented to North Shore’s
bailment. At that time, Cunningham was
title holder to the vehicle. The facts
are also undisputed that Cunningham remained title holder to the vehicle when
the repairs were completed on or around September 28, 2009, until
October 13, 2009, when Toyota obtained a
judgment of replevin against Cunningham, giving Toyota title to the vehicle.
¶16 Because Cunningham consented to the bailment of the vehicle
with North Shore
and because North
satisfied the notice requirement of Wis.
Stat. § 779.43(3), North Shore had a lien on the vehicle for
storage fees from September 28, 2009, until October 12, the last date on which
Cunningham was title holder to the vehicle and, under the statute, North Shore
had a right to “retain the possession thereof for the amount due for ...
storage ... until paid.” Section 779.43(3).
On October 13, when Toyota
took title to the vehicle, it acquired with the title the obligation to satisfy
the lien charges incurred before that date.
¶17 Following October 13, 2009, for North Shore
to have a lien on the vehicle under Wis.
Stat. § 779.43(3) enforceable against Toyota, two criteria must
have been met: North Shore must have
satisfied the notice requirements of that statute; and as in Bob
Ryan, the bailment of the vehicle must have been with Toyota’s
consent. In Bob Ryan, we declined to
impute to the property’s true owner the consent to bailment made by an
individual who did not own the property.
We similarly decline to do so here.
¶18 Thus, even though the bailment in this case began with the
consent of the then-owner, Cunningham, we hold that Cunningham’s consent was
not imputed to the vehicle’s subsequent owner, Toyota. Once Toyota
became the owner of the vehicle, its consent was a necessary element to
establish the bailment of that property.
¶19 If Toyota became aware that North
Shore had possession of the vehicle, Toyota impliedly consented to the bailment of the vehicle
with North Shore
by continuing to leave the vehicle in North Shore’s
possession. Because the facts are not in
dispute that North Shore continued to fulfill the
statutory notice requirement for the imposition of storage fees under Wis. Stat. § 779.43(3) during the
duration of Toyota’s ownership of the vehicle, those fees would accrue from the
date on which Toyota knew that the vehicle was being stored at North Shore,
until the date the lien was satisfied and the car was removed from its
care. However, the date on or after
October 13, 2009, when Toyota learned its vehicle was being stored at North
Shore cannot be determined as a matter of law from the facts before us and thus
remains an issue of material fact for the circuit court.
¶20 In summary, North
Shore had a lien on
the vehicle for storage fees from September 28, 2009, until October 12, when
ownership of the vehicle changed. Toyota is responsible for
these fees. And, as explained above, if
and when, during its ownership of the vehicle, Toyota consented—that is, Toyota
learned that its vehicle was being kept at North Shore and continued to leave
the property there—North Shore had another lien on the vehicle from the date of
Toyota’s consent until the date the lien was satisfied. Because the question of whether Toyota
consented to North Shore’s possession of the vehicle remains an issue of
material fact, we reverse the order of summary judgment in favor of Toyota and
remand this matter for further proceedings to determine if and when Toyota, by
its conduct, consented to the bailment and, if so, the amount of storage fees
to which North Shore is entitled, in a manner consistent with this opinion.
By the Court.—Order reversed and cause
remanded with directions.