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

CourtCourt of Appeals of Wisconsin
Writing for the CourtCANE
Citation409 N.W.2d 133,140 Wis.2d 10
PartiesThe GENERAL TELEPHONE COMPANY OF WISCONSIN, Plaintiff-Appellant, v.INSURANCE COMPANY and Harold Mohr, Defendants-Respondents.
Docket NumberNo. 86-0158,AUTO-OWNERS
Decision Date05 May 1987

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.

Page 134

[140 Wis.2d 12] Thomas Terwilliger argued, of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau, for plaintiff-appellant.

George A. Richards argued, and Barbara A. Hermanson [140 Wis.2d 13] 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 [140 Wis.2d 14] 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

Page 135

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[140 Wis.2d 15] 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 [140 Wis.2d 16] 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

Page 136

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.

[140 Wis.2d 17] 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...

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13 practice notes
  • City of Brookfield v. Milwaukee Metropolitan Sewerage Dist., No. 90-1263
    • United States
    • United States State Supreme Court of Wisconsin
    • November 13, 1992
    ...256, 271-72, 279 N.W.2d 469 (1979); Wisconsin Collectors Ass'n, 32 Wis.2d at 47, 145 N.W.2d 33; General Tel. Co. v. Auto-Owners Ins., 140 Wis.2d 10, 22, 409 N.W.2d 133 Primary jurisdiction presents a discretionary decision, and "the court must consider which course would best serve the ends......
  • Wis. Prop. Tax Consultants, Inc. v. Wis. Dep't of Revenue, 2020AP485
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2022
    ...administration, first take the jurisdiction that both the agency and the courts share." Gen. Tel. Co. of Wis. v. Auto-Owners Ins. Co., 140 Wis. 2d 10, 23, 409 N.W.2d 133 (Ct. App. 1987). Where both the court and the agency have authority to answer the question presented, the circuit court h......
  • Wis. Prop. Tax Consultants v. Wis. Dep't of Revenue, 2020AP485
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2022
    ...administration, first take the jurisdiction that both the agency and the courts share." Gen. Tel. Co. of Wis. v. Auto-Owners Ins. Co., 140 Wis.2d 10, 23, 409 N.W.2d 133 (Ct. App. 1987). Where both the court and the agency have authority to answer the question presented, the circuit court ha......
  • State v. Cole, No. 90-2778-CR
    • United States
    • Court of Appeals of Wisconsin
    • November 6, 1991
    ...exercise this discretionary power without the necessity of a request from an appellant. See General Tel. Co. v. Auto-Owners Ins. Co., 140 Wis.2d 10, 19, 409 N.W.2d 133, 137 Section 752.35, Stats., is express authority for our discretionary power of reversal: Discretionary reversal. In an ap......
  • Request a trial to view additional results
13 cases
  • City of Brookfield v. Milwaukee Metropolitan Sewerage Dist., No. 90-1263
    • United States
    • United States State Supreme Court of Wisconsin
    • November 13, 1992
    ...256, 271-72, 279 N.W.2d 469 (1979); Wisconsin Collectors Ass'n, 32 Wis.2d at 47, 145 N.W.2d 33; General Tel. Co. v. Auto-Owners Ins., 140 Wis.2d 10, 22, 409 N.W.2d 133 Primary jurisdiction presents a discretionary decision, and "the court must consider which course would best serve the ends......
  • Wis. Prop. Tax Consultants, Inc. v. Wis. Dep't of Revenue, 2020AP485
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2022
    ...administration, first take the jurisdiction that both the agency and the courts share." Gen. Tel. Co. of Wis. v. Auto-Owners Ins. Co., 140 Wis. 2d 10, 23, 409 N.W.2d 133 (Ct. App. 1987). Where both the court and the agency have authority to answer the question presented, the circuit court h......
  • Wis. Prop. Tax Consultants v. Wis. Dep't of Revenue, 2020AP485
    • United States
    • United States State Supreme Court of Wisconsin
    • June 30, 2022
    ...administration, first take the jurisdiction that both the agency and the courts share." Gen. Tel. Co. of Wis. v. Auto-Owners Ins. Co., 140 Wis.2d 10, 23, 409 N.W.2d 133 (Ct. App. 1987). Where both the court and the agency have authority to answer the question presented, the circuit court ha......
  • State v. Cole, No. 90-2778-CR
    • United States
    • Court of Appeals of Wisconsin
    • November 6, 1991
    ...exercise this discretionary power without the necessity of a request from an appellant. See General Tel. Co. v. Auto-Owners Ins. Co., 140 Wis.2d 10, 19, 409 N.W.2d 133, 137 Section 752.35, Stats., is express authority for our discretionary power of reversal: Discretionary reversal. In an ap......
  • Request a trial to view additional results

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