Berning Implement, Inc. v. Deutz-Allis Corp.
| Decision Date | 05 October 1989 |
| Docket Number | DEUTZ-ALLIS,No. 88-1775,88-1775 |
| Citation | 152 Wis.2d 772,450 N.W.2d 254 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. BERNING IMPLEMENT, INC., Plaintiff-Respondent, v.CORPORATION, f/k/a Allis-Chalmers Farm Equipment, Inc., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Sauk County.
AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
APPEAL from a judgment and an order of the circuit court for Sauk county: JAMES EVENSON, Judge.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
This is a dealership-termination case. Deutz-Allis Corporation, a manufacturer of farm equipment, appeals from a judgment on a jury verdict awarding damages, fees and costs to Berning Implement, Inc., a farm equipment dealer, on several causes of action relating to Deutz-Allis's termination of the dealership. Because Deutz-Allis failed to timely serve motions after verdict, we consider that Hartford Ins. Co. v. Wales, 138 Wis.2d 508, 406 N.W.2d 426 (1987), and Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 80 N.W.2d 380 (1957), limit our inquiry to whether, in our discretion, we should order a new trial under sec. 752.35, Stats., because "the real controversy has not been fully tried, or ... it is probable that justice has for any reason miscarried...."
We exercise that discretion with respect to the jury's assessment of damages. We do so because we are satisfied that, given the manner in which the case was tried, argued and presented to the jury, the special verdict was so misleading and confusing, and the chances of duplication of Berning's damages so great, that the damage issues were not fully tried.
Nondamage issues raised by Deutz-Allis include: (1) whether, as a matter of law, the evidence was sufficient to sustain the jury's verdict that Deutz-Allis conspired with another dealer to terminate Berning's dealership; (2) whether Berning's action is barred by the one-year statute of limitations found in sec. 893.93(3)(b), Stats; and (3) whether the trial court erred in submitting a question on punitive damages to the jury. Deutz-Allis has not persuaded us that it is entitled to reversal on any of these grounds under sec. 752.35, Stats. We therefore reverse the judgment and order insofar as they uphold the jury's award of damages and insofar as they treble certain items of damage and award costs and fees. We remand for a new trial on those issues and affirm in all other respects.
Berning had been an Allis-Chalmers dealer in Reedsburg, Wisconsin, for many years. In 1985, another farm implement manufacturer, K.H.D. Deutz of America, acquired the assets of Allis-Chalmers and reincorporated the combined enterprise as Deutz-Allis, Inc. As a result, all former Allis-Chalmers dealers, and all former K.H.D. Deutz dealers, were brought under the Deutz-Allis umbrella. The latter group included a Deutz dealer in Reedsburg, Koenecke Equipment, Inc.
In 1986, Deutz-Allis notified Berning that its dealership was being terminated, and Berning eventually brought this action, claiming that the termination violated the Wisconsin Fair Dealership Law, ch. 135, Stats. Berning also asserted several common-law causes of action. All in all, it sought redress on grounds that Deutz-Allis had: (1) unlawfully terminated the dealership in violation of sec. 135.03 and 135.04, Stats., and the terms of the underlying dealership agreement; (2) engaged in price discrimination in violation of sec. 133.04, Stats; (3) breached a "duty of good faith dealing"; and (4) conspired with Koenecke to restrain trade in violation of sec. 133.03(1) and injure Berning in its business, trade or reputation.
The jury found against Deutz-Allis on all counts and assessed varying amounts of damages for each claim. In sum, Berning was awarded compensatory damages totaling $198,325.37, together with punitive damages of $350,000 on the "business injury" claim.
While Deutz-Allis filed its postverdict motions in a timely manner, it inadvertently failed to serve them on opposing counsel until after the deadline for such motions found in sec. 805.16(1), Stats. The trial court ruled that the untimely service deprived it of competency to consider the motions and entered judgment on the jury's verdict. Because that failure bears upon our review of the appeal, we consider it first.
There is no question that the trial court lost competency to exercise its jurisdiction to hear Deutz-Allis's untimely postverdict motions. Hartford Ins. Co., 138 Wis.2d at 515-16, 406 N.W.2d at 429. Even in those circumstances, however, we retain our jurisdiction of the appeal, for Id. at 518, 406 N.W.2d at 430 (emphasis in original). The source of that discretionary power, according to the Hartford court, was its statutory authority to order a new trial in the interest of justice:
Sec[tion] 251.09, Stats., authorizes this court in its discretion to grant a new trial whenever we deem that there has been a miscarriage of justice. The exercise of such power is not dependent on whether the aggrieved party protected his [or her] rights by objection or motion in the trial court. While this power is sparingly exercised ... we do not hesitate to employ it in hardship cases to prevent a miscarriage of justice. Id., 138 Wis.2d at 518-19, 406 N.W.2d at 430, quoting Wells v. Dairyland Mut. Ins., 274 Wis. at 518, 80 N.W.2d at 387 (emphasis in Wells ).
The discretionary reversal authority of sec. 251.09, Stats. (1955), insofar as it applies to the court of appeals, is now found in sec. 752.35, Stats. (1987-88). That statute allows us, in the exercise of our discretion, to reverse a judgment "regardless of whether the proper motion or objection appears in the record," if it appears that "the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried...." Indeed, the Hartford court itself recognized that, despite the appellant's failure to file timely postverdict motions in that case, Hartford, 138 Wis.2d at 522, 406 N.W.2d at 432.
Our inquiry, then, is whether, based on the record as a whole, we are "convinced ... that there has been a miscarriage of justice or that the real controversy has not been fully tried." Brookhouse v. State Farm Mut. Ins., 130 Wis.2d 166, 171, 387 N.W.2d 82, 84-85 (Ct.App.1986). To reverse on miscarriage of justice grounds, we must find a substantial probability of a different result on retrial, whereas we are not so bound if we determine that the real controversy has not been fully tried. Id. at 171-72, 387 N.W.2d at 84-85.
As to Deutz-Allis's claim that the evidence is insufficient to support the jury's finding of a conspiracy between it and Koenecke to terminate Berning's dealership, our examination of the record leads us to conclude that there are no grounds for reversal under sec. 752.35, Stats.
A verdict will be sustained if there is any credible evidence to support it, and in deciding such questions we search for evidence to sustain the verdict returned by the jury. Gegan v. Backwinkel, 141 Wis.2d 893, 899, 417 N.W.2d 44, 47 (Ct.App.1987). We agree with Deutz-Allis that something more than proof of a competing dealer's complaints to a manufacturer, followed by termination, is required to support an inference of conspiracy under the Fair Dealership Law. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984). There should be direct or circumstantial evidence "that reasonably tends to prove that the manufacturer and others 'had a conscious commitment to a common scheme designed to achieve an unlawful objective.' " Id.
In this case, the other dealer, Koenecke, was one of the largest Deutz-Allis dealers in the United States prior to the merger. At some point after the merger, Koenecke told Deutz-Allis that "there was not room for two dealers in [Reedsburg]," and that he would leave Deutz-Allis if Berning was allowed to continue as a dealer. As time went on, Deutz-Allis employees informed Koenecke officials that they were working on terminating Berning's dealership. Then, just after Koenecke threatened to take legal action if Berning's dealership continued, Deutz-Allis began imposing interest charges on Berning's account. Finally, there was evidence that Koenecke had agreed with Deutz-Allis ahead of time to take over Berning's remaining inventory upon termination of the Berning dealership. In light of this evidence, we are satisfied that the jury's answers to the conspiracy questions do not require reversal in the interest of justice.
The jury also found that the conspiracy had an anticompetitive effect, as is required for recovery under the Fair Dealership Law. In addition to testimony from which the jury could infer that the likely effect of removing one of the two Deutz-Allis dealers in Reedsburg would be to drive down prices in the market area, there was evidence of Deutz-Allis's share of the market and "brand loyalty" in the area, as well as its "market power" with respect to various related products. Here, too, we see no grounds for reversal under sec. 752.35, Stats.
Deutz-Allis also contends that Berning's action was not brought within one year after accrual of the cause of action, as required by sec. 893.93(3)(b), Stats. It is undisputed that the action was commenced within one year of both the mailing and the receipt of the letter terminating Berning's dealership. However, Deutz-Allis contends...
To continue reading
Request your trial