C. A. May Marine Supply Co. v. Brunswick Corp.

• Decision Date: 06 July 1981
• Docket Number: No. 79-1543,79-1543
• Citation: 649 F.2d 1049
• Parties: C. A. MAY MARINE SUPPLY COMPANY, Plaintiff-Appellant, v. BRUNSWICK CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1049

649 F.2d 1049

C. A. MAY MARINE SUPPLY COMPANY, Plaintiff-Appellant, v. BRUNSWICK CORPORATION, Defendant-Appellee.

No. 79-1543.

United States Court of Appeals, Fifth Circuit.

July 6, 1981.

John C. Butters, Atlanta, Ga., for plaintiff-appellant.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court For the Northern District of Georgia.

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.

PER CURIAM:

The appellant, C.A. May Marine Supply Company (May Marine), challenges the sufficiency of the damages awarded in its action against the appellee, Brunswick Corporation (Mercury), for the wrongful termination of its franchise as a Mercury motors dealer. May Marine also raises several errors allegedly occurring in the trial on damages as well as the trial court's disallowance of attorney's fees. To put these allegations in context, we briefly review the facts.

May Marine offers a full line of boats, trailers, sailboats, canoes, parts and accessories and operates a shop for repairing marine equipment in the Atlanta metropolitan area. Since 1966 Mercury outboard motors were one of its many lines of merchandise. May Marine's right to sell Mercury motors was governed by a series of direct sales contracts. Each of the one-year agreements gave either party the right to terminate on thirty days notice and specifically provided that Mercury was under no duty to enter into a new contract for the following year. The parties agreed that the contractual obligations were to be "interpreted and construed according to the laws of the State of Wisconsin". The Wisconsin Fair Dealership Law provided that the grantor of a dealership must give the dealer 90 days notice of its intent not to renew and 60 days to rectify claimed deficiencies. ¹

Chester A. May, Jr. was the president and main shareholder of May Marine. His wife was the only other stockholder and officer in the corporation. Although he had been in the marine supply business for approximately 20 years, May had expressed concern about the future of the outboard motor business because of the 1974 oil shortage. A few weeks before he received notice that his dealership would not be renewed, May stated that within five years he intended to sell only accessories and that he was going to "pull in his horns" and reduce both advertising and inventory.

On August 11, 1975, Mercury notified May Marine that it did not intend to enter into a new sales contract after the termination of the existing contract on August 31, 1975. Although Mercury complied with the express termination provisions of the direct sales contract, the cancellation was in apparent contravention of the Wisconsin dealership statute. May Marine filed an action on January 22, 1976 for injunctive relief and damages resulting from Mercury's alleged violation of the Wisconsin Fair Dealership Law in failing to renew May Marine as a Mercury outboard motor dealer. In its answer, Mercury contended that the Wisconsin law did not apply to the contract.

On June 30, 1976, the district court granted May Marine's motion for summary judgment on the question of liability, holding that Mercury's nonrenewal of May Marine's dealership was in violation of the Wisconsin law. ² In the per curiam opinion, this court affirmed the order of summary judgment in favor of May Marine. Only the issue of damages remained for trial.

At the trial on damages, the jury was required to determine whether May Marine had suffered injury by virtue of Mercury's breach of the contract, the extent of the damage, if any, and the sufficiency of May Marine's efforts to mitigate its losses. Much of the testimony centered on the measure of damages. Evidence was presented as to both the impairment of the business' value overall and the loss of profits. May Marine's expert witness on damages testified that the business' value before August 31, 1975, was $153,468.00, that immediately after the notice of nonrenewal the value was reduced to $58,898.00 and that as of the trial date the business' value had declined to $9,989.00. In contrast, the defendant's expert witness stated that the business was worth $66,000.00 on August 31, 1975.

As far as lost profits were concerned, May could not state what percentage of his sales were attributable to outboard motors. However, the evidence revealed that while it carried the Mercury line, May Marine's average before tax earnings for the five years prior to termination was $6,910.00, $8,875.00 for the three years prior to nonrenewal, and for the last year a sales loss of $4,506.00 and a net income before taxes of $1,970.00. Neither the change in value nor earnings attributable to loss of the motor dealership could be isolated.

Not until the trial did the judge make a determination of the measure of damages. On September 22, 1978 and prior to trial, May Marine deposed a witness with respect to certain charts and information he had compiled, purportedly to aid defense counsel in the preparation of his case on damages. During the deposition the witness was instructed by counsel not to answer questions pertaining to the charts. The attorney claimed that the charts were protected by the "work product" privilege. Counsel for May Marine did not file a motion to compel discovery of this material. Instead, both parties joined in an amendment to the pretrial order which stated that charts and tables of Mercury's experts would not be supplied or identified until the trial court ruled on the appropriate measure of damage.

This determination was not made until the morning of the trial. Charts prepared for use at trial were then shown by Mercury to May Marine in accordance with the amended pretrial order. The charts were used extensively at trial, and, when they were finally tendered, no objections were made to their admissibility. Counsel for May Marine submits that any objection was mooted by the judge's statement prior to admission that "I am going to let them all in for whatever they may be worth. That's for the jury to say."

May Marine sought to introduce into evidence contact reports prepared by Mercury's sales personnel showing the business conditions experienced by other Mercury dealers in the Atlanta area. These reports disclosed that the other dealers uniformly experienced an extreme recession in 1975 followed by great increases in sales during 1976, 1977 and 1978. On objection by Mercury, the contact surveys were excluded. However, the trial court thereafter admitted over objection May Marine's offering of a computer printout showing sales of Mercury outboard motors to Mercury dealers statewide during 1970-1978. The records did not include the sales of motors from the Mercury dealers to the public.

May Marine also offered a customer survey petition maintained at May Marine's business establishment for some six months shortly after the cancellation of the dealership. The survey basically asked the customers three questions: (1) Did May Marine "push the sale of Mercurys"? (2) Did May Marine give "good service"? (3) Should May Marine continue as a "Mercury dealer?" It was May Marine's contention that the survey weighed on the subject of lost future profits because it reflected customer loyalty and the business reputation of May Marine in the community. However, the trial court sustained Mercury's objection and refused to admit the survey on the ground that customer opinion on the merits of the termination was irrelevant.

Mitigation of damages, or the lack thereof, was another issue at the trial. The evidence reveals that May delayed seven months after nonrenewal before meeting with representatives of the manufacturer of Johnson outboard motors. He made no attempt to secure a dealership for the Chrysler line of motors. Although he was party to discussions in November, 1975, directed toward acquisition of an Evinrude motor dealership, he subsequently withdrew his request. Finally, May refused to consider Mercury's December, 1977 offer to reinstate his dealer status. This latter alleged refusal to mitigate, May maintains, was in fact the rejection of a settlement offer made after suit had been filed in 1976.

The trial of damages began on October 10, 1978. Six days later the jury returned a verdict in favor of May Marine in the sum of $7,027.00. May Marine filed a motion for a new trial and, two days later, a bill of costs seeking attorney's fees, despite the trial judge's statement at a chambers conference just before trial that May Marine was not entitled to recover attorney's fees. Mercury filed a motion to review and disallow costs, attacking the attempt to tax as costs May Marine's attorney's fees. On January 29, 1979, the district court passed on the two motions in a single order denying the motion for new trial and disallowing attorney fees as costs. The appellant filed a notice of appeal "from the order filed January 29, 1979, denying plaintiff's motion for new trial." It asserts that the damages award was grossly insufficient and that the trial court erred in its rulings on the charts the contact reports, the customer survey and the attorney's fees.

It is within the discretion of the trial judge to grant a new trial where the jury verdict is inadequate. A refusal to do so is subject to reversal for abuse of discretion only where the jury's verdict is without factual support in the record. McKinzie v. Fleming, 588 F.2d 165 (5th Cir. 1979). We find no abuse here and affirm the district court award of $7,027.00 as compensation for all loss resulting from nonrenewal of the sales contract.

In Wisconsin dealership termination cases, standard damage principles apply. ³ As the trial judge instructed the jury, there are two general ways by which this dealer could have proved his damages for breach of the Wisconsin law incorporated in the contract.

A showing of the profits lost by the dealer as a result of the breach of contract is the...