Design & Funding, Inc. v. Betz Garage, Inc.

Davidson, J.,

concurring in part and dissenting in part:

The majority here initially holds that "Betz did not violate § 14-1008 when it did not furnish a statement of customer rights to D&F prior to either the Cadillac or the truck transactions.” I do not agree. In my view, the repair facility here violated § 14-1008 (a) because that section requires a *281repair facility, before repairs are made, to present an invoice to a customer, informing the customer of a right to request a written estimate.

The majority additionally holds, with respect to the repair of the car, that the repair facility violated § 14-1004. However, notwithstanding this violation, the majority finds that the contract was valid and enforceable, that the doctrine of substantial performance applied, and that under that doctrine, the repair facility was not entitled to recover for the repair of the car. Finally, the majority holds, with respect to the repair of the truck, that there was insufficient evidence to show that the repair facility failed to tender return of the truck’s master cylinder and, therefore, that the repair facility violated § 14-1004. The majority concludes that the repair facility was entitled to recover for the repair of the truck.

I agree, with respect to the repair of the car, that the repair facility violated § 14-1004 that requires the return of unwarranted replaced parts. However, I do not agree with the majority that the contract was valid and enforceable and that the doctrine of substantial performance applies. In my view, the contract for the repair of the car was performed in violation of the requirements of a statute that imposed criminal penalties for failure to comply. The contract, therefore, is illegal as against public policy and should not be enforced. Therefore, I conclude that the repair facility was not entitled to recover for the repair of the car. Under these circumstances, I concur with the majority’s result with respect to the repair of the car.

Because, in my view, the repair facility violated § 14-1008 (a) with respect to the repair of the truck, that contract is also illegal as against public policy and should not be enforced. Therefore, I conclude that the repair facility was not entitled to recover for the repair of the truck. Under these circumstances, I respectfully dissent with respect to the repair of the truck.

The initial question to be determined is whether § 14-1008 (a) requires a repair facility, before repairs are *282made, to present an invoice to the customer informing the customer of the right to request a written estimate. While the statute expressly requires the repair facility to inform the customer of the right, it does not specify the time at which the customer must be so informed. Thus the language of § 14-1008 (a) is ambiguous. If § 14-1003 and § 14-1008 are construed together, the use of the past tense might indicate that the invoice notifying the customer of the rights delineated in § 14-1008 is not required to be presented until after the repairs are made. However, such a construction leads to an unreasonable, illogical result that is inconsistent with common sense because a customer would not be notified of the right to a written estimate until it was already too late for the right to be exercised.

The cardinal rule of statutory construction is to ascertain and effectuate the actual intent of the Legislature. In determining this legislative intent, a court must read the language of the statute in context and in relation to all of its provisions. In addition, it may consider the statute’s legislative history and must consider its purpose. Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Gartelman, 288 Md. 151, 156, 416 A.2d 734, 737-38 (1980); Department of State Planning v. Mayor of Hagerstown, 288 Md. 9, 14, 415 A.2d 296, 299 (1980). Results that are unreasonable, illogical or inconsistent with common sense should be avoided and an interpretation should be given which will not lead to absurd or anomalous results. Kindley v. Governor of Maryland, 289 Md. 620, 625, 426 A.2d 908, 911-12 (1981); Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 583, 414 A.2d 1246, 1253 (1980); Schweitzer v. Brewer, 280 Md. 430, 438-39, 374 A.2d 347, 352 (1977).

A review of the legislative history of the Act indicates that its purpose is to protect the public from unfair dealings by automotive repair facilities. Section 14-1001 et seq. was originally enacted as Md. Code (1957, 1969 Repl. Vol., 1974 Cum.Supp.), Art. 83, §§ 50-52, Sales and Notices.1 The *283purpose of the Act was to "imposte] certain requirements on automotive repair facilities” and to grant "certain rights to individual consumers.”2 The Act was recodified, without substantive change, as Md. Code (1975) Title 14, Miscellaneous Consumer Protection Provisions of the Commercial Law Article.3

The statutory scheme as originally enacted and recodified required repair facilities, before beginning any repair work costing more than $50 to give to customers, upon request, a written statement containing the estimated completion date and the estimated cost of the work. § 14-1002 (a). Repair facilities were prohibited from charging customers in excess of 10 percent of this estimate without the customer’s consent. § 14-1002 (b).4

The repair facility was required to prepare an invoice that described all work performed, parts supplied, and any used or rebuilt parts used in the repair. § 14-1003 (a) & (b). After the customer signed the invoice, the repair facility was required to give the customer a copy of it. § 14-1003 (c). In addition, the repair facility was required to tender return of all replaced parts not under a manufacturer’s warranty. § 14-1004. Customers were not prohibited from filing an action for damages. § 14-1005. Manifestly, the entire statutory scheme as originally enacted and recodified was designed to impose certain requirements on repair facilities for the protection of the public.

Effective 1 January 1976, §§ 14-1006 through 14-1009 were added to the Act.5 These amendments imposed additional requirements on repair facilities and granted additional rights to consumers. Repair facilities were prohibited from charging for repairs not originally authorized by customers. § 14-1006.6 In addition to the right to bring civil *284actions for damages, customers were granted the right to take any action under the Consumer Protection Act, Md. Code (1975 & 1981 Cum.Supp.) § 13-101 et seq. of the Commercial Law Article, including the right to file complaints with the Consumer Protection Division of the Office of the Attorney General. § 14-1007.7 Moreover, a violation of the Act was made "an unfair or deceptive practice” within the meaning of the Consumer Protection Act and was made subject to the enforcement and penalty provisions of the Consumer Protection Act. § 14-1009.8 Such unfair or deceptive trade practices were expressly prohibited. § 13-303.9 The performance of such a prohibited act was made a crime and a person who engaged in such an act was subject to a fine not exceeding $1,000 or imprisonment not exceeding one year or both, in addtion to any civil penalties.10

Most important, these amendments established that customers were entitled to be informed of their rights. If a customer was charged more than $50, the repair facility’s invoice was required to inform the customer in "conspicuous readable type” listed under the printed heading, "Customer’s Rights,” that the customer had the right to *285request a written estimate, the right not to be charged in excess of 10 percent of this estimate, the right to the return of any unwarranted replaced parts, and the right not to be charged for repairs not originally authorized. § 14-1008. These amendments to the statutory scheme reinforce the conclusion that the purpose of the Act was to protect the public. Indeed, the fact that one year after the Legislature established the customer’s right to a written estimate, it chose to maximize the customer’s opportunity and ability to exercise that right by creating a mechanism by which to inform the customer of that right, demonstrates the Legislature’s firm commitment to protect the public from unfair dealings by automotive repair facilities.

Simple logic and common sense dictate that the legislative purpose of protecting the consumer by establishing the right to a written estimate and notice of that right cannot be achieved if the notice and the written estimate are not presented to the customer before repairs are made. Accordingly, I would hold that § 14-1008 (a) requires a repair facility to present an invoice to a customer informing the customer of the right to request a written estimate before repairs in excess of $50 are made. Such a result is consonant with the language, legislative history, and the purpose of § 14-1008 (a). Indeed, to hold otherwise would lead to a result that is unreasonable, illogical, and inconsistent with common sense.

Here the record shows that the customer was not given an invoice or any other document before the repairs were made, informing it of the rights delineated in § 14-1008 (a), including the right to a written estimate. Moreover, there is uncontradicted testimony in the record to indicate that, at the critical times with respect to both the car and the truck, the customer was not advised of its right to a written estimate and was not aware of that right. The facts in this case, with respect to the car, dramatically demonstrate that a customer’s ability to protect itself is substantially diminished by the absence of an awareness of the right to a written estimate.

*286Here, the repair facility informed the customer by telephone that substantial, expensive work would be required. The customer authorized all necessary repairs and indicated that it did not care about the expense. Under these circumstances, it is apparent, as recognized by the District Court,11 that the only way in which the customer could have protected itself against an excessive charge was to demand a written or oral estimate. Section 14-1008 (a) of the Act requires the repair facility to inform the customer of that right. Had the customer been so informed, it might have exercised the right and, upon receipt of an estimate, might have refused to authorize the repairs. Thus, the repair facility’s failure to comply with the statutory requirement of § 14-1008 (a) deprived the customer of a basic protection the Legislaure intended to accord. Under the circumstances here, there was a material violation of § 14-1008 (a) of the Act with respect to the repair of both the car and the truck.12

The next question to be determined is whether there was also a violation of § 14-1004 (a) of the Act. The language of that section is plain and unambiguous. It requires the repair facility to tender the return of unwarranted replaced parts.

Here the record shows that the car was not under a manufacturer’s or distributor’s warranty at the time the repairs were made. The repair facility tendered the return of one rear wheel bearing that it replaced in the car. It failed to tender the return of one strap, one joint, two bearings, two hubs, two seals, one axle carrier bearing, and one rear wheel bearing that it replaced in the car. There was insufficient *287evidence to show that the repair facility failed to tender the return of a master cylinder that it replaced in the truck. Under the circumstances here, there was a material violation of § 14-1004 of the Act with respect to the repair of the car, but not with respect to the repair of the truck.

The final question to be determined is whether the repair facility may enforce the contracts, notwithstanding its violations of the Act. With respect to the repair of the car, the majority asserts that, notwithstanding the fact that the repair facility had violated § 14-1004, its contract to repair the car was valid and enforceable. The majority maintains that the doctrine of substantial performance applied, and that under that doctrine, the repair facility was not entitled to recover for the repair of the car. In support of its position, the majority relies upon four cases. However, the question presented here of whether a contract is illegal, invalid and unenforceable when in the performance of the contract a person engages in a statutorily prohibited act for which a criminal penalty is imposed was not raised, considered or decided in a single one of the cases 13 relied upon by the majority. Accordingly, those cases are inapposite.

*288Moreover, in reaching its conclusion that the contract here was legal, valid and enforceable, the majority totally ignores rudimentary legal principles applicable to cases in which a person in the performance of a contract engages in a statutorily prohibited act for which a criminal penalty is imposed and, nonetheless, seeks to enforce the contract. Restatement of Contracts § 580 (1) (2) (a) (b) and (d) (1932) states in pertinent part:

"(1) Any bargain is illegal if either the formation or the performance thereof is prohibited by constitution or statute.
"(2) Legislative intent to prohibit the formation of a bargain, or an act essential for its performance, may be manifested by
"(a) express prohibition, or
"(b) making the formation of the bargain or the performance thereof a crime. . . .
"(d) requiring a license, inspection, or something similar from persons making such bargains or. doing acts essential for their performance. .. .”

Comment a under § 580 states in pertinent part:

"The legislature can prohibit the formation of any bargain and thereby make it illegal. The question whether the legislature has done so depends on interpretation of the legislative action. In case of express prohibition or of declaring the act a crime there can be no doubt.” 14

*289Restatement of Contracts § 598 states:

"A party to an illegal bargain can neither recover damages for breach thereof nor, by rescinding the bargain, recover the performance that he has rendered thereunder or its value, except as stated in §§ 599-609.”

Comment a under § 598 states in pertinent part:

"[T]he rule of public policy that forbids an action for damages for breach of such an agreement is not based on the impropriety of compelling the defendant to pay the damages. That in itself would generally be a desirable thing. When relief is denied it is because the plaintiff is a wrongdoer, and to such a person the law denies relief. Courts do not wish to aid a man who founds his cause of action upon his own immoral or illegal act. If from the plaintiffs own statement or otherwise it appears that the bargain forming the basis of the action is opposed to public policy or transgresses statutory prohibitions, the courts ordinarily give him no assistance. The court’s refusal is not for the sake of the defendant, but because it will not aid such a plaintiff. . . .”

These principles have been applied repeatedly and consistently in Maryland. In Thorpe v. Carte, 252 Md. 523, 528-30, 250 A.2d 618, 621-22 (1969), this Court specifically adopted and applied the principles embodied in § 580 and § 598 of the Restatement of Contracts. There, an unlicensed real estate broker sued a seller for refusal to pay his commission under a contract of sale. A statute, Art. 56, § 227, made it unlawful for any real estate broker or salesman to pay compensation to any unlicensed real estate broker for the performance of a service or act required to be performed by a licensed broker. Section 228 specifically prohibited recovery in court by an unlicensed broker for the performance of any prohibitied service or act. In reaching its conclusion that the contract was illegal and unenforceable, this Court said:

*290"Carte’s contract to split his commission with Holmead, Frey violated §§ 227 and 228 and was illegal. 'Any bargain is illegal if either the formation or the performance thereof is prohibited by constitution or statute.’ 2 Restatement Contracts § 580. Generally a party to an illegal bargain cannot recover either damages for its breach or, after rescission, the performance he has rendered or its value. 2 Restatement Contracts § 598.” Thorpe, 252 Md. at 528-29, 250 A.2d at 621.

In addition, this Court, citing Goldsmith v. Manufacturers’ Liability Insurance Co. of New Jersey, 132 Md. 283, 103 A. 627 (1918) and Snodgrass v. Immler, 232 Md. 416, 194 A.2d 103 (1963), established that when, in the performance of a contract, a person engages in a statutorily prohibited act, recovery is not permitted even though the statute itself does not expressly prohibit such recovery.

In addition, in Harry Berenter, Inc. v. Berman, 258 Md. 290, 296, 265 A.2d 759, 763 (1970), this Court emphasized the fact that when, in the performance of a contract, a person engages in a statutorily prohibited act, the contract is illegal and unenforceable and there can be no recovery even on a theory of quantum meruit and unjust enrichment. In Harry Berenter, Inc., an unlicensed contractor sued to enforce a mechanic’s lien against a homeowner for failure to pay under a construction contract. A statute, Art. 56, § 255, required the contractor to be licensed. That statute did not specifically prohibit recovery in court by an unlicensed contractor. In reaching its conclusion that the unlicensed contractor’s contract or contracts were illegal and unenforceable, this Court said:

"The appellant Berenter, Inc., also argues that unless the mechanic’s lien is enforced, the Bermans will be 'unjustly enriched to no small extent.’ However, as we said in Thorpe v. Carte, supra , quoting from 2 Restatement, Contracts, § 598, comment a:
'The court’s refusal is not for the sake of the *291defendant, but because it will not aid such a plaintiff.’
"Nor is the contention that there is unjust enrichment of the defendants tenable. To permit a recovery on a quantum meruit would defeat and nullify the statute.” Harry Berenter, Inc., 258 Md. at 296, 265 A.2d at 763.

I recognize that both Thorpe and Harry Berenter, Inc. involve violations of licensing statutes. In such cases, in determining whether a contract is illegal and unenforceable, a distinction is drawn between a violation of a licensing statute regulatory in nature designed for the protection of the public, and a violation of a licensing statute designed to raise revenue. However, under the basic principles defined in § 580 and § 598 of the Restatement of Contracts in determining whether a contract is illegal and unenforceable, no distinction is made between violations of statutes designed for the protection of the public that require a license and violations of other statutes designed for the protection of the public that require other types of acts such as the giving of notice. Indeed, in Maryland, this Court has frequently recognized in a variety of other circumstances, that in order to discourage practices forbidden by law, contracts made or performed in violation of the requirements or prohibitions of a statute, particularly one that imposes a criminal penalty for the performance of a prohibited act, are held to be illegal as against public policy and ordinarily will not be enforced unless the Legislature indicates to the contrary. Queen v. Agger, 287 Md. 342, 346, 412 A.2d 733, 735 (1980) (contract for fee for health care service greater than that approved by Workmen’s Compensation Commission); Downing Dev. Corp. v. Brazelton, 253 Md. 390, 398-400, 252 A.2d 849, 854-55 (1969) (contract for sale of corporate assets); Thorpe v. Carte, 252 Md. 523, 528-30, 250 A.2d 618, 621-22 (1969) (contract for division of commission between licensed real estate broker and unlicensed individual); Van Meter v. Wilkinson, 187 Md. 492, 496-99, 50 A.2d 557, 559-60 (1947) (contract by retired *292army officer to assist in prosecuting a claim against United States); Webb v. Haeffer, 53 Md. 187, 190 (1880) (agreement to hold mortgage sale outside county where mortgaged property situated). 3 Pomeroy, Equity Jurisprudence § 930 at 646 (5th ed. 1941). See also Gannon & Son, Inc. v. Emerson, 291 Md. 443, 452, 435 A.2d 449, 454 (1981). I find no legislative intent to the contrary and would apply these principles here.

In my view, the repair facility materially violated § 14-1008 (a) of the Act with respect to the repair of both the car and the truck, and it materially violated § 14-1004 of the Act with respect to the repair of the car but not with respect to the repair of the truck. In so doing, it committed statutorily prohibited, unfair and deceptive practices that constitute a crime. The purpose of the Automotive Repair Facilities Act is to protect the consumer. I cannot conceive how that purpose can be achieved by holding a contract valid and enforceable, notwithstanding the performance of criminal acts by the party seeking enforcement. I will not here, as I would not in Gannon & Son, Inc.,15 join with the majority in an unnecessary, convoluted, and tortured interpretation designed to deprive consumers of protections accorded to them by the Legislature. I would find both the contract for the repair of the car and the contract for the repair of the truck to be unenforceable.16 Accordingly, I would reverse.

Judge Eldridge authorizes me to state that he joins me in the views expressed herein.

. Ch. 695, 1974 Md.Laws, effective 1 July 1974.

. See n.l above.

. Ch. 49, § 3, 1975 Md.Laws, effective 1 July 1975.

. § 14-1002 (b) provides:

"An automotive repair facility may not charge a customer without his consent any amount which exceeds the written estimate by 10 percent.”

. Ch. 431, 1975 Md.Laws, effective 1 January 1976.

. § 14-1006 provides:

"An automotive repair facility may not charge the customer for *284repairs not originally authorized or requested by the customer. Additional repairs may be charged to the customer if the automotive repair facility receives written or oral permission from the customer.”

. § 14-1007 provides:

"Any person aggrieved by a violation of any provision of this subtitle may take any action available under the consumer protection title of this article. Complaints may be filed with the Consumer Protection Division of the office of the Attorney General.”

. § 14-1009 provides:

"A violation of any provision of this subtitle is an unfair or deceptive practice within the meaning of Title 13 of this article and is subject to the enforcement and penalty provisions contained in Title 13.”

. § 13-303 provides in pertinent part:

"A person may not engage in any unfair or deceptive trade practice, as defined in this subtitle....”

. § 13-411 (a) provides in pertinent part:

"[A]ny person who violates any provision of this title is guilty of a misdemeanor and, unless another criminal penalty is specifically provided elsewhere, on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding one year or both, in addition to any civil penalties.”

. The District Court specifically stated:

"[W]hat happened, obviously, is that Mr. Coke just didn’t expect to get any $750 bill and that’s what the bill was. Perhaps if Mr. Carmen had said well, wait a minute, you know, even though you are telling me to go ahead,, this thing could run 800 or $1,000, he might have hesitated. He may not, I don’t know. But at least that’s the only thing I see that the plaintiff could have done to protect himself more.” (Emphasis added.)

. I emphasize that I am not here considering the questions whether there would be a material violation of § 14-1008 (a) if a repair facility failed to give the required notice to a customer who nonetheless had actual knowledge of the right to a written estimate, or to a customer who expressly or by conduct waived the right, or if a repair facility gave the required notice by a method other than the presentation of an invoice.

. In Beca v. Mayor of Baltimore, 279 Md. 177, 182, 367 A.2d 478, 481 (1977), the police department of Baltimore City sued an employee who violated a departmental regulation requiring reimbursement of proceeds of a settlement obtained from a third party tort feasor. This Court held that the regulation requiring reimbursement was a condition implied in the contract of employment and was enforceable.

In Dennis v. Mayor of Rockville, 286 Md. 184, 192, 406 A.2d 284, 288 (1979), a homebuyer sued a seller who violated an ordinance imposing a duty on property owners or their agents to give purchasers an opportunity to examine the master plan for the area, and giving the buyer the right to terminate the contract in the event the ordinance was violated. This Court determined that the provision permitting the purchaser to terminate was not a forfeiture and, indeed, that it was a condition implied in the contract of sale and was enforceable. Accordingly, this Court held that the buyer had the right to terminate.

In Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 437-38, 237 A.2d 4, 9 (1968), a homebuyer sued a builder who violated a provision of the county building code requiring that the height for "habitable” rooms be TV* feet. This Court determined that the building code provision was an implied condition of the contract and was enforceable. It held that because of the builder’s violations of the code, the homebuyer was justified in his refusal to consummate the purchase of the dwelling.

In Speed v. Bailey, 153 Md. 655, 657-58, 139 A. 534, 535-36 (1927), a buyer sued a contractor who had violated certain terms and specifications of a contract of sale. The case involved no violation of a statute.

*288Manifestly, none of these cases present the question here whether, when in the performance of a contract a person engages in a statutorily prohibited act for which a criminal penalty is imposed, the contract is illegal and may not be enforced.

. Section 580 (c) and (e) states that legislative intent to prohibit an act essential for the performance of a contract may additionally be manifested by:

"(c) imposing a penalty for the formation of the bargain or for doing an act that is essential for the performance thereof, or
(e) other terms of a statute interpreted in the light of the purpose of its enactment.”

. 291 Md. at 462, 435 A.2d at 459 (Davidson, J., dissenting).

. Courts in other jurisdictions that have considered similar questions under similar statutes agree. See, e.g., Bennett v. Hayes, 53 Cal.App.3d 700, 704, 125 Cal.Rptr. 825, 827 (Ct.App. 1975); Schreiber v. Kelsey, 62 Cal.App.3d Supp. 45, 48, 133 Cal.Rptr. 508, 509 (App.Dep’t Super.Ct. 1976); Brooks v. R. A. Clark’s Garage, Inc., 117 N.H. 770, 771-2, 378 A.2d 1144, 1145 (1977).