Home Valu v. Pep Boys Manny

• Decision Date: 24 May 2000
• Docket Number: No. 99-1168,99-1168
• Citation: 213 F.3d 960
• Parties: (7th Cir. 2000) Home Valu, Inc., Plaintiff-Appellant, v. Pep Boys Manny, Moe and Jack of Delaware, Inc., Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 960

213 F.3d 960 (7th Cir. 2000)

Home Valu, Inc., Plaintiff-Appellant, v. Pep Boys Manny, Moe and Jack of Delaware, Inc., Defendant-Appellee.

No. 99-1168

In the United States Court of Appeals For the Seventh Circuit

Argued February 14, 2000

Decided May 24, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-531--J.P. Stadtmueller, Chief Judge.

Before Bauer, Flaum, and Evans, Circuit Judges.

Bauer, Circuit Judge.

After a real estate deal fell apart, Home Valu, Inc. sued Pep Boys Manny, Moe & Jack of Delaware, Inc. for the torts of negligent misrepresentation, strict responsibility misrepresentation, and intentional misrepresentation. Home Valu also brought a breach of contract claim. Exercising jurisdiction over this state law dispute under 28 U.S.C. sec. 1332, the district court dismissed Home Valu's complaint for failure to state a claim upon which relief can be granted. Home Valu appeals.

We affirm.

I. Background

Home Valu operated a retail store under the name "Drexel" located at 8787 West Brown Deer Road in Milwaukee, Wisconsin. Drexel sold repair and home improvement goods. Although its Drexel store was profitable, Home Valu decided to close it and sell the property to Pep Boys--then a rapidly growing retailer of automotive parts and services--to accommodate Pep Boys' planned expansion into Wisconsin.

Home Valu and Pep Boys executed a written Agreement of Sale on May 15, 1997. The Agreement gave Pep Boys 180 days to satisfy certain contingencies, such as obtaining local and state permits to operate its auto service business and to verify environmental and other characteristics of the property. Once the contingencies were met, the parties were to close within 30 days. The Agreement provided, however, that if Pep Boys could not satisfy the contingencies, Pep Boys had the option of terminating the Agreement, after giving notice to Home Valu, or the right to waive the contingencies and finalize without reference to the contingencies.

About 30 days before the time the Agreement gave Pep Boys to complete the contingencies, the parties extended the closing date to December 31, 1997. Then, roughly a month later, the parties entered into a written Amendment of their original Agreement of Sale.¹ The Amendment extended the deal's closing date again, this time until March 1, 1998.

At some point, Pep Boys experienced a downturn in revenue. Shortly before it negotiated the Amendment, Pep Boys' Chairman and CEO commented in a written memorandum that "It is definitely NOT business as usual at Pep Boys. Literally everything we do is being revalidated--nothing is sacred." Pep Boys' CEO also stated that the company's 1998 expansion rate would be lower and that Pep Boys did not know how many new states it would enter because expansion plans were undeveloped.

Pep Boys notified Home Valu in mid-February 1998 that it would not purchase the Drexel property. The contract contained a liquidated damages clause which limited Pep Boys' liability for breach of the contract to $50,000. Pep Boys invoked the liquidated damages clause and offered to pay Home Valu $50,000 for the breach. Home Valu refused the offer.

Home Valu was unhappy with the $50,000 offer because, shortly after extending the closing date until March 1, 1998, Home Valu began the expensive process of closing its Drexel store. Home Valu spent more than $800,000 closing down Drexel in preparation for the scheduled March 1, 1998 sale. Rather than accepting $50,000 to compensate it for $800,000 in expenses, Home Valu filed suit against Pep Boys in Wisconsin state court. Pep Boys removed the case to federal district court and Home Valu filed an amended complaint. Home Valu's seven-count amended complaint alleged two counts of negligent misrepresentation, two counts of strict responsibility misrepresentation, two counts of intentional misrepresentation, and one count of breach of contract.

Home Valu's misrepresentation claims can be divided into two groups. The first group concerned statements Pep Boys made which induced Home Valu into executing the Amendment. In these pre-Amendment statements, Pep Boys repeatedly assured Home Valu that it would purchase the property if the closing date were extended to March 1, 1998. Home Valu claimed that these statements were false and that when Pep Boys made them it had no intention of purchasing the property. Home Valu claimed that Pep Boys made these false statements for the sole purpose of inducing Home Valu into executing the Amendment and that Pep Boys had an economic interest in extending the closing date. According to Home Valu, these false statements constituted negligent, strict responsibility, and intentional misrepresentations.

The second group of claimed misrepresentations related to statements that Pep Boys made after the parties executed the Amendment extending the purchase date. In these claims, Home Valu said that it became concerned about whether Pep Boys would honor its obligation under the Amendment and proceed with the purchase on March 1, 1998. As a result of these concerns, Home Valu again asked Pep Boys about its intent to finalize the real estate transaction on the scheduled closing date. In response to these inquiries, Pep Boys told Home Valu on several occasions that it would in fact purchase the property on or before the closing date. According to Home Valu, these statements were false and Pep Boys knew them to be false when it made them. Home Valu asserted that these untrue statements caused it to continue closing its Drexel store when it would have abandoned the process and averted substantial financial losses if it had known that Pep Boys was not going to consummate the deal. Based on these facts, Home Valu stated that Pep Boys had committed the torts of negligent, strict responsibility, and intentional misrepresentation.

In its breach of contract claim, Home Valu first made the simple allegation that Pep Boys breached the contract by failing to purchase the property by March 1, 1998. In addition to this claim, Home Valu alleged that Pep Boys violated the covenant of good faith and fair dealing. Home Valu stated that it began closing its Drexel store because Pep Boys waived the applicable contingencies and this waiver required Home Valu to begin shutting down Drexel. Home Valu asserted that "in exercising its right to require Home Value to undertake the expensive process of closing down its profitable Drexel . . . store, Pep Boys had a continuing duty to act in good faith and fair dealing and to cooperate with Home Valu." According to Home Valu, Pep Boys breached this duty of good faith by repeatedly reassuring Home Valu that it would purchase the property even though "Pep Boys knew in 1997 and in January and February of 1998 that it might not honor its Agreement to close on the purchase of the property."

The district court dismissed Home Valu's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Home Valu now challenges the district court's ruling.

II. Analysis

We review the district court's grant of a motion to dismiss under Rule 12(b)(6) de novo. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). In reviewing a dismissal, we accept all factual allegations in the plaintiff's complaint as true and draw all reasonable inferences in the plaintiff's favor. Klug v. Chicago Sch. Reform Bd. of Trustees, 197 F.3d 853, 858 (7th Cir. 1999). We will affirm only if it appears beyond a doubt that the plaintiff cannot prove any set of facts that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Frederick v. Simmons Airlines, 144 F.3d 500, 502 (7th Cir. 1998). Finally, by virtue of the parties' agreement, we apply Wisconsin tort and contract law to this dispute. See Harter v. Iowa Grain Co., 211 F.3d 338, 352-53 n. 12 (7th Cir.2000) (we forego choice of law analysis when the parties agree on the law that governs a dispute and there is a reasonable relation between the dispute and the forum whose law has been selected).

Because resolution of the issues in this case depends on Wisconsin law, "we must apply the law that would be applied in this context by the Wisconsin Supreme Court." McGeshick v. Choucair, 9 F.3d 1229, 1232 (7th Cir. 1993) (citing Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 761 (7th Cir. 1986)). If the Wisconsin Supreme Court has not spoken on the issue, we generally treat decisions by the state's intermediate appellate courts as authoritative "unless there is a compelling reason to doubt that [those] courts have got the law right." Rekhi v. Wildwood Indus., 61 F.3d 1313, 1319 (7th Cir. 1995). When we are faced with two opposing and equally plausible interpretations of state law, "we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability." Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996) (citing Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412 (7th Cir. 1994)).

A. Misrepresentation Claims

The district court dismissed all six of Home Valu's misrepresentation claims as barred by Wisconsin's economic loss doctrine. The Wisconsin Supreme Court has followed "the majority of courts across the country in applying the economic loss doctrine to commercial transactions." State Farm Mut. Auto Ins. Co. v. Ford Motor Co., 592 N.W.2d 201, 208 (Wis. 1999). Under the economic loss doctrine, Wisconsin law bars tort claims which seek only "economic losses" related to a commercial transaction. Wausau Tile, Inc. v. County Concrete Corp., 593 N.W.2d 445, 451 (Wis. 1999). Wisconsin's highest court draws the line between economic and non- economic loss by emphasizing that economic loss is damage "which does not cause personal injury or damage to other property." Daanen & Janssen, Inc. v. Cedarapids, Inc., 573 N.W.2d 842, 845 (Wis. 1998)....