General Telephone Co. of Wisconsin v. Auto-Owners Ins. Co., AUTO-OWNERS

• Decision Date: 05 May 1987
• Docket Number: No. 86-0158,AUTO-OWNERS,86-0158
• Citation: 409 N.W.2d 133,140 Wis.2d 10
• Parties: The GENERAL TELEPHONE COMPANY OF WISCONSIN, Plaintiff-Appellant, v.INSURANCE COMPANY and Harold Mohr, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 133

409 N.W.2d 133

140 Wis.2d 10

The GENERAL TELEPHONE COMPANY OF WISCONSIN, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY and Harold Mohr, Defendants-Respondents.

No. 86-0158.

Court of Appeals of Wisconsin.

Argued Jan. 20, 1987.

Opinion Released May 5, 1987.

Opinion Filed May 5, 1987.

Review Denied.

Thomas Terwilliger argued, of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau, for plaintiff-appellant.

George A. Richards argued, and Barbara A. Hermanson of Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, for defendants-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

General Telephone Company of Wisconsin (GTE) appeals a nonfinal order granting a new trial and denying its motions for judgment on the verdict and for liquidated damages. GTE claims that the trial court had no authority to rule on Mohr's untimely new trial motion; that the trial court rendered its decision on the new trial motion in an untimely fashion; and that the trial court abused its discretion in ordering a new trial and by denying GTE's motions for judgment on the verdict and for liquidated damages. Because we conclude that the trial court had no authority to order a new trial, we reverse that order. However, because it appears from the record that the issues were not fully tried, we independently remand for a new trial under sec. 752.35, Stats.

In 1977, Mohr conceived an idea for selling telephone advertising messages. According to Mohr's plan, a "Time and Temperature Announcement Service" (T & T) number would be listed in the local phone directory. Persons calling the number would receive a short, recorded advertising message followed by the correct time and temperature. Mohr's idea was unusual in that it changed messages hourly in order to serve many clients. Most similar services apparently only carried a single sponsor.

In late 1979, Mohr contracted with GTE, who would provide the necessary equipment and connections for Mohr to offer the T & T service in the Minocqua area. In early 1980, he entered into a similar contract to provide the service in the Eagle River area. Later, GTE assigned phone numbers for the T & T service. Mohr contends that after the contracts were signed, he and a GTE representative had a phone conversation where Mohr requested that his private business number also appear in both the Minocqua and Eagle River yellow pages, indented beneath the T & T number. GTE, Mohr claims, agreed to such listings in the Minocqua and Eagle River yellow pages.

Later, GTE published its directories for the Minocqua and Eagle River areas. The white pages in each directory listed the T & T number with Mohr's private business number indented below. In the Minocqua yellow pages, however, Mohr's name and private business number appeared alone under the heading, "Time and Temperature Service." The listing did not include the T & T number. No listing appeared in the Eagle River yellow pages.

Because the Minocqua yellow pages listed only Mohr's private number under the T & T heading, Mohr personally received many calls, at all hours, requesting the correct time and temperature. Mohr and GTE met in an effort to solve this problem, but the two parties came to no agreement. Mohr's advertising customers subsequently began to cancel their subscriptions to the service, and Mohr stopped making payments under his contracts with GTE.

GTE filed suit against Mohr and Auto-Owners ¹ for $55,445.70, the amount specified in the contracts' liquidated damage clauses. Mohr counterclaimed, alleging breach of contract and negligence, and claiming damages of $425,000. Specifically, Mohr counterclaimed that GTE breached a verbal agreement to provide yellow page listings in both Minocqua and Eagle River that included the T & T number as well as Mohr's private business number. In addition to the alleged breach, Mohr argued that GTE acted negligently by failing to exercise due care in helping him plan and implement the T & T service. GTE argues that Mohr received precisely the listings specified in the written contracts, contends that no extrinsic agreement existed, and denies the negligence claim.

The ensuing trial lasted nearly two weeks. On June 14, 1985, after deliberating for about three hours, the jury returned its answers to the special verdict questions placed before it. The jury found, among other things, that Mohr, and not GTE, had breached the contracts. However, the jury also found that Mohr's breach had caused GTE "zero" damages.

On July 3, 1985, GTE filed timely motions after verdict urging the trial court to set aside the verdict, dismiss Mohr's counterclaim, and enter judgment for liquidated damages. Twenty-seven days after the jury's verdict, on July 11, Mohr filed motions asking the court to set aside the verdict, to find that GTE had breached its contracts and, in the alternative, to grant a new trial. GTE then moved to strike Mohr's motions after verdict, claiming they were untimely under the twenty-day limit of sec. 805.16, Stats.

The trial court heard arguments in August on the motions after verdict and took under advisement GTE's motion to strike Mohr's untimely motions. In addition, the trial court granted an enlargement of the ninety-day period for the court to render a decision on the motions after verdict. ² The hearing transcript and the clerk's minutes reveal that the trial court stated it would render its decision by October 4, 1985, a date beyond the ninety days specified in sec. 805.16.

Mohr asserted as a ground for a new trial that he discovered a GTE tariff that purportedly entitled him to the yellow page listings he never received. His discovery preceded his petition to the Wisconsin Public Service Commission (PSC) for an opinion on the tariff's applicability to his contracts with GTE. The PSC issued a staff opinion stating that the tariff entitled Mohr to yellow page listings he had not received under his contracts with GTE. The PSC later vacated its staff opinion when it learned of the pending litigation.

The trial court entered its decision on the motions after verdict on November 26, 1985, fifty-three days after the court's self-imposed October 4 deadline and seventy-two days beyond the ninety-day limit contemplated by sec. 805.16. In its decision, the court denied GTE's motions to strike Mohr's motions after verdict and ordered a new trial.

GTE moved to vacate the trial court's order because it had been rendered after the October 4 extended deadline. After a hearing, the trial court denied GTE's motion, claiming that it believed the deadline was December 4. The trial court added that regardless of whether Mohr's original motions after verdict were timely, it "would have" granted a new trial on its own motion.

Initially, we consider the timeliness of Mohr's motions after verdict. Mohr first argues that his failure to file the motions within the twenty-day limit stemmed from excusable neglect. Section 805.16 provides that "[m]otions after verdict shall be filed and served within 20 days after the verdict is rendered." Although sec. 801.15(2)(a), Stats., provides generally for enlargement of procedural time periods upon a showing of excusable neglect, sec. 801.15(2)(c), Stats., provides that "[t]he time ... for motions after verdict under s. 805.16 ... may not be enlarged." Thus, the general rule allowing enlargement of procedural periods is negated with respect to motions after verdict by the specific language of sec. 801.15(2)(c). Brookhouse v. State Farm Mut. Auto. Ins. Co., 130 Wis.2d 166, 169-70, 387 N.W.2d 82, 84 (Ct.App.1986).

Mohr also argues that despite his motions being filed after the twenty-day deadline, they were properly before the court because GTE's timely motion "raised all the issues and obvious problems with the jury's verdict." We disagree. Although it is true that both parties challenged the jury's verdict, it is also true that the parties challenged distinct aspects of that verdict for differing reasons. One party's timely motion after verdict may not imbue a court with authority to rule on another party's untimely motion.

Mohr also argues that the trial court had the inherent power to grant a new trial in the interest of justice. We conclude that a trial court's sua sponte new trial motion is subject to the statutory time limits governing the parties' motions.

The trial court's inherent power to grant a new trial in the interest of justice on its own motion is well established. Estate of Noe, 241 Wis. 173, 177, 5 N.W.2d 726, 728 (1942). However, this power is not limitless. It is true that a trial court may grant a new trial at any time when an order or judgment was obtained by fraud or a similar violation of equity. Estate of Baumgarten, 12 Wis.2d 212, 222-23, 107 N.W.2d 169, 175 (1961). However, where there is no equitable ground, such as fraud, for setting aside an order or judgment, the trial court's exercise of power is subject to statutory time limits. See id. at 223, 107 N.W.2d at 175. Where, as here, the trial court orders a new trial because the real issues have not been fully tried, its decision is subject to the time limits imposed by statute.

This conclusion makes it immaterial whether the court actually relied on its inherent power or on Mohr's untimely motion in ordering the new trial. In either case, the trial court erred by failing to decide the motion by the specified date of October 4, 1985. ³ Because the certified transcript as well as the clerk's minutes indicate the deadline for rendering a decision was October 4, we conclude that the trial court had lost its authority to rule on the motions when it made its November 26 decision. ⁴ Anticipating this result, Mohr argues that GTE's filing of documents after October 4 amounted to waiver of the specified deadline. However, Wisconsin law is clear that such conduct does not constitute an implied waiver of the right to have a motion decided on...