Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc.

• Decision Date: 10 January 1995
• Docket Number: No. 93-0195,93-0195
• Citation: 190 Wis.2d 650,529 N.W.2d 905
• Parties: , 1995-1 Trade Cases P 70,937 CARLSON & ERICKSON BUILDERS, INC., Plaintiff-Respondent-Cross Appellant-Petitioner, v. LAMPERT YARDS, INC., Portside Properties, Inc. and Door County Material Specialists, Inc., Defendants-Appellants-Cross Respondents. d . Oral Argument
• Court: Wisconsin Supreme Court

Page 905

529 N.W.2d 905

190 Wis.2d 650, 1995-1 Trade Cases P 70,937

CARLSON & ERICKSON BUILDERS, INC. Plaintiff-Respondent-Cross Appellant-Petitioner, v. LAMPERT YARDS, INC., Portside Properties, Inc. and Door County Material Specialists, Inc. Defendants-Appellants-Cross Respondents.^d

No. 93-0195.

Supreme Court of Wisconsin.

Oral Argument Jan. 10, 1995.

Opinion Filed March 7, 1995.

For the plaintiff-respondent-cross appellant-petitioner there were briefs by Robert L. Binder, William M. Conley, Lynn J. Splitek and Foley & Lardner, Madison and oral argument by William M. Conley.

For the defendants-appellants-cross respondents, Lampert Yards, Inc., there was a brief by Tom Rusboldt and Nash, Spindler, Dean & Grimstad, Manitowoc and oral argument by Tom Rusboldt.

For the defendants-appellants-cross respondents, Portside Properties, Inc. and Door County Material Specialists, Inc., there was a brief by William J. Ewald, Erik J. Pless and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay and oral argument by William J. Ewald.

Amicus curiae brief was filed by Roy R. Korte, Asst. Atty. Gen. with whom on the brief was James E. Doyle, Atty. Gen. and oral argument by Roy R. Korte.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of a published decision of the court of appeals, Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 183 Wis.2d 220, 515 N.W.2d 305 (Ct.App.1994), reversing in part and affirming in part an order of the circuit court for Door county, John D. Koehn, circuit judge. We reverse the decision of the court of appeals.

Two questions are presented to this court: (1) Which burden of proof applies to private, civil antitrust actions under Chapter 133, Stats. 1991-92, the Wisconsin antitrust law? (2) Did the circuit court err in ordering a remittitur?

The plaintiff, Carlson & Erickson Builders, commenced this private, civil antitrust action against defendants Lampert Yards, Inc., Portside Properties, Inc., and Door County Material Specialists, Inc., (DCMS), in July of 1990. The circuit court instructed the jury on the ordinary, civil burden of proof. Applying this burden of proof, the jury found that Lampert Yards had intentionally discriminated in price between the plaintiff and Portside Properties and that it had allowed unearned discounts and extended special services and privileges not extended to all purchasers upon like terms and conditions in violation of secs. 133.04 and 133.05, Stats. 1991-92.

The court of appeals concluded that the middle burden of proof was applicable and remanded the cause to the circuit court for a new trial on all issues. We conclude that the circuit court properly determined the burden of proof. Accordingly, we reverse the decision of the court of appeals.

Because the court of appeals remanded for a new trial on all issues, it did not address Carlson & Erickson Builders' cross appeal challenging the circuit court's remittitur order. By its cross appeal, Carlson & Erickson Builders preserved its right of appeal on this issue. Carlson & Erickson Builders asks this court to decide the issue on the briefs or remand the issue to the court of appeals for decision. After examining all the parties' briefs on this issue, we decide this issue rather than remand it to the court of appeals in order to advance the interests of judicial economy, speedy resolution of appeals, reduced costs to the litigants, and finality of decisions. ¹ After reviewing the record, we conclude that the circuit court erred in determining that the jury's award was excessive and in ordering remittitur. ² Accordingly, we remand the cause to the circuit court with directions to vacate the circuit court's remittitur, to determine the cost of the suit, including reasonable attorney fees, and to enter judgment in accordance with the jury award of damages ($177,100), trebled, and the cost of the suit, including reasonable attorney fees, as the circuit court determines.

I.

We turn first to the question of the burden of proof (persuasion) standard in private, civil antitrust actions under chapter 133. Because the facts upon which the jury decided liability and damages are not relevant for this issue, we do not recite them.

Wisconsin law recognizes three degrees of burden of proof. In criminal cases the jury is told that the state has the burden to convince the jury beyond a reasonable doubt. ³ In certain civil cases, a higher civil standard is used; the jury is told that a party has the burden to convince the jury to a reasonable certainty by evidence that is clear, satisfactory and convincing. ⁴ In most civil cases the lower, ordinary burden of proof applies; the jury is told that a party has the burden to satisfy the jury to a reasonable certainty by the greater weight of the credible evidence. ⁵

Determination of the appropriate burden of proof in this case presents a question of statutory interpretation, a question of law which this court determines independently of other courts, benefitting from their analyses. ⁶ The principal objective of statutory interpretation is to ascertain and give effect to the intent of the legislature.

The statute is silent about the burden of proof in antitrust cases. No statutory history exists on the specific issue of the burden of proof for a civil violation of ch. 133. We must therefore look to other indicia of legislative intent.

According to the defendants, one indicator of legislative intent is the longstanding Wisconsin case law applying the middle burden of proof in cases which the defendants analogize to antitrust cases. ⁷ The defendants exhort us to conclude that the legislature intended ch. 133 to incorporate this body of law.

Wisconsin cases have long applied the middle burden in civil actions involving such matters as punitive damages, conduct that could be prosecuted as a crime, and allegations of fraud and undue influence. ⁸ The court has explained that a greater degree of certitude is required in these cases because these matters are more serious than the factual issues in the ordinary civil case and fall within "certain classes of acts for which stigma attaches." Wangen v. Ford Motor Co., 97 Wis.2d 260, 300, 294 N.W.2d 437 (1980).

The defendants argue that a private, civil antitrust action is similar to cases in which the courts have applied the middle burden. They analogize treble damages awarded in a successful private, civil antitrust action to punitive damages to which the middle burden applies. ⁹ Further they point out that the conduct prohibited under chapter 133 may subject the perpetrator to criminal penalties, secs. 133.04(2) and 133.05(4), Stats.1991-92, and that in civil actions in which criminal conduct is involved the middle burden has been applied. In addition, defendant Portside Properties, Inc., contends that a civil violator of the antitrust statutes is in effect accused of dishonesty in business and suffers the loss of reputation. Portside Properties asserts that Fran Shefchik, a principal owner of Portside and part owner of DCMS, is subject "to a stigma no less dishonorable than other tortious conduct that must be proven to an elevated degree of certainty." ¹⁰

Accordingly, the defendants urge the court to follow this line of cases applying the middle burden of proof and to hold that, because treble damages in private, civil antitrust actions are comparable to punitive damages, and because violations of the antitrust laws may constitute a crime and stigmatize the defendants, the added protections of the middle burden are required in this private, civil antitrust action. The court of appeals adopted this approach in interpreting ch. 133.

Standing alone without analysis of the purpose and policies of the private, civil antitrust suit, the analogy between the cases imposing the middle burden of proof and treble damages in a private, civil antitrust action may seem apt. Yet, the court must examine the cases imposing the middle burden of proof--imposing a barrier to a claimant's relief--in the context of the purpose of the private, civil antitrust action. ¹¹ Our examination of the purpose and policies underlying the antitrust law convinces us that the legislature intended the ordinary, lower civil burden of proof to apply to antitrust actions. This lower burden of proof advances the legislature's purpose in enacting the antitrust law and comports with Wisconsin's longstanding tradition of adhering to interpretations of the federal antitrust laws on which chapter 133 is based.

Antitrust laws are intended to prevent restraints on free competition, restraints which can harm purchasers, consumers of goods and the public. The importance of the antitrust laws in preventing monopolies and encouraging competition, "the fundamental economic policy of this state," is directly reflected in the statement of legislative intent in sec. 133.01, Stats. 1991-92, and in the case law. American Medical Transport v. Curtis-Universal Inc., 154 Wis.2d 135, 151, 452 N.W.2d 575 (1990); Madison v. Hyland, Hall & Co., 73 Wis.2d 364, 373, 243 N.W.2d 422 (1976), appeal dismissed sub nom. 429 U.S. 953, 97 S.Ct. 373, 50 L.Ed.2d 320 (1976). The legislature commands in sec. 133.01 that ch. 133 be given "the most liberal construction to achieve the aim of competition." ¹²

The Wisconsin legislature determined that private, civil antitrust suits are important methods of enforcing chapter 133. To encourage private enforcement, the legislature built incentives into the statute. These include tolling the statute of limitations under certain circumstances, allowing the cost of the suit, including reasonable attorney fees to prevailing claimants, awarding treble damages, ¹³ and granting expedited treatment to civil antitrust actions in the courts. Section 133.18(1)(a), (3), (5); Kink v. Combs, 28 Wis.2d 65, 80-81, 135 N.W.2d 789 (1965). Under this legislative scheme, a private party "performs the office of a private attorney general," when bringing...