W. Oliver Tripp Co. v. American Hoechst Corp.

Decision Date14 July 1993
Docket NumberNo. 91-P-953,91-P-953
Citation34 Mass.App.Ct. 744,616 N.E.2d 118
PartiesW. OLIVER TRIPP COMPANY v. AMERICAN HOECHST CORPORATION.
CourtAppeals Court of Massachusetts

Floyd H. Anderson, Boston, for plaintiff.

Thomas J. Dougherty, Boston (Edmund C. Kenealy with him), for defendant.

Before KASS, JACOBS and GREENBERG, JJ.

KASS, Justice.

W. Oliver Tripp Company ("Trippco") did not receive submissively the news in late December, 1985, of American Hoechst Company's cancellation of a dealership agreement between Hoechst's Enco Printing Products division ("Enco") and Trippco. Within a month, Trippco brought an action against Enco seeking injunctive relief, damages for breach of contract, tortious interference with contractual relations, violations of the Massachusetts Antitrust Act (G.L. c. 93, §§ 4-6), and damages for unfair and deceptive practices under G.L. c. 93A, §§ 2 and 11.

At trial, a judge of the Superior Court reserved to himself the c. 93A claims. Upon the request of Enco, other claims were tried to a jury. After the plaintiff's evidence was in, the judge directed verdicts for the defendant on the antitrust and tortious interference claims. The jury returned a verdict of $500,000 for the plaintiff on the breach of contract claim. As to the c. 93A claims, the judge ruled that Enco had not committed a breach of the dealership agreement; to the contrary, Trippco had violated the agreement and thoroughly deserved to be discharged. The judge denied a defense motion for judgment notwithstanding the verdict but granted a motion for a new trial. Before the case came up for retrial, the defendant moved for summary judgment on the ground that the trial judge's findings of fact under the c. 93A portion of the case worked a collateral estoppel against the plaintiff that barred it from bringing the contract claim to a new trial. A Superior Court judge other than the trial judge allowed the motion for summary judgment. From that judgment Trippco has appealed, bringing up as claims of error (1) the allowance of the motion for a new trial, (2) the directed verdict on the tortious interference claim (Trippco has not pressed the antitrust claim on appeal), (3) the judge's decision of the c. 93A claims, and (4) the grant of summary judgment. 1 We affirm the allowance of the motion for the new trial, the directed verdict, and the c. 93A decision. We reverse the summary judgment barring a new trial on grounds of collateral estoppel.

These, in summary, are the facts. Trippco is a "full service" graphic arts products distributor, operating out of Braintree, that sells to printing businesses throughout New England. In addition to the line of products made by the defendant Enco, which it had carried since 1967, Trippco also sold equipment and supplies for competing manufacturers, including Kodak, DuPont, and 3M. Enco, headquartered in Somerville, New Jersey, sells its products, such as photographic plates, processors, and developing chemicals, through a nationwide network of nonexclusive dealers, who in turn sell to end users, e.g., printers, as well as to retailers.

Beginning in 1982, Enco and Trippco entered into annual written dealership agreements defining their reciprocal obligations and, to a certain extent, obligations owed to ultimate customers. Those agreements contained minimum requirements for the purchase by Trippco of specified Enco products and provided for cancellation by Enco on thirty days' notice if Trippco failed to meet its obligations under the contract. On January 16, 1985, Enco and Trippco signed a new dealership agreement, this time for a three-year term. In addition to several minimum purchase requirements, the 1985 contract required Trippco, as dealer, to develop markets for Enco products and to use its best efforts in promoting the Enco line. To that end, Trippco personnel were to participate in workshops, seminars, and training programs sponsored by Enco to promote its products.

Rather than promoting its line, Enco thought Trippco was sabotaging it. That and a precipitous decline of Trippco's sales of Enco products (down 22%) provoked the cancellation notice by Enco dated December 23, 1985. Trippco would have us understand Christmas was no holiday. Hard feelings between Enco and Trippco had their origins in 1984, when Trippco inked an agreement with Sage Technology, Inc. ("Sage"), to be the exclusive dealer for Sage graphic arts chemicals in New England. Sage produced a developer specifically designed for use with Enco printing plates 2 that gave off an inoffensive smell. In this regard it had an edge on Enco's developer, which, although effective in processing printing plates, was seriously malodorous. Indeed, users attributed headaches, nausea, blurry vision, and skin irritation to the exhalations of the Enco developer.

Enco's smell problem provided a basis for Trippco's touting the merits of the Sage chemicals, to the obvious displeasure of Enco. So much for cooperation in promotional efforts on behalf of the Enco line. Enco retaliated with warnings that the Sage chemicals would fail to develop Enco plates properly and would gum up the works of Enco processors. Trippco assigns as a further cause of the souring of the relationship with Enco the taking on, as an exclusive dealer, of a line of printing plates made by Hawson-Algraphy, a competitor of Enco. For its part, Enco identifies, as the prime cause of the severance of the Trippco dealership, not so much irritation about Trippco's pushing competitive products but rather Trippco's deliberate unwillingness to promote Enco products and the sharp decline in sales of Enco products by Trippco.

1. Allowance of the motion for a new trial. Although the allowance of a motion for a new trial is not beyond review, see, e.g., Evans v. Multicon Constr. Corp., 6 Mass.App.Ct. 291, 293-297, 375 N.E.2d 338 (1978), the occasions on which appellate courts have thought the broad discretion of a trial judge to have been abused on such a motion are extremely rare; like snow storms in mid-May, such occasions may occur, but they induce considerable astonishment when they do. See Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 61, 80 N.E.2d 16 (1948). The standard that a trial judge is to apply on a motion for a new trial in a civil case is whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion. Scannell v. Boston Elev. Ry., 208 Mass. 513, 514-515, 94 N.E. 696 (1911). Hartmann v. Boston Herald-Traveler Corp., 323 Mass. at 60, 80 N.E.2d 16. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, 536 N.E.2d 344 (1989). The decision to grant or deny a motion for a new trial rests in the discretion of the trial judge, and an appellate court will not vacate such an order unless the judge has abused that discretion. Id. at 520-521, 536 N.E.2d 344. By abuse of discretion, courts in this context mean the failure to avoid idiosyncratic choice brought on by arbitrary determination, capricious disposition, or whimsical thinking. Davis v. Boston Elev. Ry., 235 Mass. 482, 496, 126 N.E. 841 (1920). Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 433, 388 N.E.2d 309 (1979). International Totalizing Sys., Inc. v. PepsiCo., Inc., 29 Mass.App.Ct. 424, 438, 560 N.E.2d 749 (1990).

Measured against these standards, the allowance of a motion for a new trial by the trial judge in this case is unassailable. To begin with, the judge explained his reasons for granting a motion for a new trial on the contract count in a careful memorandum. The judge recounted evidence he thought decisive and uncontroverted about the drop in Trippco's sales of Enco products, the refusal of Trippco to boost Enco sales, the stonewalling of Trippco's president, Gerry L. Tripp, about minimum sales figures, and the hostile words and acts by Tripp in regard to Enco, which amounted to a breach of the cooperation and promotion obligations of the dealer under the contract. The judge also expressed his view that there was no evidence whatever to support the $500,000 in damages found by the jury. That which is reasoned and explained is not a likely candidate for categorization as arbitrary, capricious, whimsical, or idiosyncratic unless, upon inspection, it is simply divorced from the reality of the record.

Such is not the case. A sampling of eleven volumes of transcript discloses substantial support for the judge's decision on the new trial motion. There was evidence that following Enco's cancellation Trippco's gross sales and net profits showed an over-all increase, thus casting considerable aura of mystery about where the jury's $500,000 in damages from termination of the contract came from. It was undisputed that prior to Enco's notice of termination to Trippco, the distributor's sales of Enco product had declined 22%. Gerry Tripp conceded there were conflicts between his company and Enco, that he did not want to go along with Enco's discounting policies, that he regarded Enco chemistry products as low profit items, that his company was making efforts to convert customers to Sage chemistry products in preference over Enco products, that he had expressed to Enco his anger about Enco's efforts to boost its own product line--and to disparage the Sage line--with end use customers, and that, as he had an exclusive dealership with Sage (as opposed to the nonexclusive one with Enco), it was profitable for him to push Sage products. There was evidence that Tripp, on behalf of himself and his company, contemptuously brushed off efforts by Enco to hold seminars and sales meetings with Trippco to promote Enco products. The record is full of testimony and documents from which the inference is almost compelled that Trippco...

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