K & S Tool & Die v. Perfection Machinery

• Decision Date: 12 June 2007
• Docket Number: No. 2005AP2148.,2005AP2148.
• Citation: 732 N.W.2d 792,2007 WI 70
• Parties: K & S TOOL & DIE CORPORATION, Plaintiff-Respondent, v. PERFECTION MACHINERY SALES, INC., Defendant-Appellant-Petitioner, Industrial Rebuilding & Machining, Inc., Defendant, United National Insurance Company, Intervenor.
• Court: Wisconsin Supreme Court

732 N.W.2d 792

2007 WI 70

K & S TOOL & DIE CORPORATION, Plaintiff-Respondent, v. PERFECTION MACHINERY SALES, INC., Defendant-Appellant-Petitioner Industrial Rebuilding & Machining, Inc., Defendant United National Insurance Company, Intervenor.

No. 2005AP2148.

Supreme Court of Wisconsin.

Argued December 14, 2006.

Decided June 12, 2007.

For the defendant-appellant-petitioner there were briefs by Gregory P. Seibold and Murphy Desmond D.C., Madison; Paul T. Fox and Greenberg Traurig, LLP, Chicago, IL, and oral argument by Gregory P. Seibold.

For the plaintiff-respondent there was a brief by Michael J. Hanrahan and Fox, O'Neill & Shannon, S.C., Milwaukee, and oral argument by Michael J. Hanrahan.

¶ 1 JON P. WILCOX, J

This is a review of a published court of appeals decision, K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc., 2006 WI App 148, 295 Wis.2d 298, 720 N.W.2d 507. The court of appeals affirmed a judgment of the Jefferson County Circuit Court, Jacqueline R. Erwin, Judge, in favor of K & S Tool & Die Corporation (K & S). K & S claimed that Perfection Machinery Sales, Inc. (Perfection) violated Wis. Stat. § 100.18 (2005-06),¹ Wisconsin's Deceptive Trade Practices Act (DTPA), by making a misrepresentation about the pressing force of a press K & S purchased from Perfection. After a trial, the jury found in favor of K & S.

¶ 2 Perfection petitioned this court for review of two issues. First, whether the circuit court erred in ruling that Perfection was not entitled to a ruling as a matter of law pertaining to K & S's status as a member of "the public" for the purpose of Wis. Stat. § 100.18(1).² We hold that the circuit court did not err because whether K & S was a member of "the public" under § 100.18(1) presented a question of fact that the court properly submitted to the jury. Second, whether the jury erred in finding that the misrepresentation in Perfection's quotation for the two 1000-ton presses caused K & S pecuniary loss pursuant to Wis. Stat. § 100.18(11)(b)2.³ We hold that the jury did not err because sufficient evidence supports its finding. Accordingly, we affirm the court of appeals.

I

¶ 3 K & S creates metal parts and dies in Ixonia, Wisconsin. One service offered by K & S is production stamping, which entails using a press and a die to stamp steel into parts.

¶ 4 Late in 1999, or early in 2000, John Deere approached K & S about creating platforms for some of its riding lawnmowers. As an initial step, K & S began building a die. It performed die tryouts with a press that had a 450-ton pressing force.⁴

¶ 5 After completing the die, K & S began producing the platforms with their 450-ton press. It soon discovered that it needed a press with at least a 1000-ton pressing force. A 1000-ton press would allow K & S to create the platforms with one hit, rather than needing multiple hits from its 450-ton press. Needing fewer hits would allow K & S to create the platforms more profitably. Upon its discovery, K & S began shopping for a 1000-ton press.

¶ 6 Perfection, an Illinois corporation, sells used industrial machinery to commercial clients nationwide. When K & S began looking for a 1000-ton press, it was familiar with Perfection because Perfection had periodically sent K & S catalogs highlighting its inventory. K & S had also purchased a machine known as a roll former from Perfection in 1996.

¶ 7 Thomas Klusken (Klusken), an owner of K & S, contacted Jason Broderick (Broderick), a Perfection sales representative, to inquire about the 1000-ton press K & S sought. Perfection had a 1000-ton Danly press in its inventory, but it did not have the cushions that K & S required. With the 1000-ton Danly press not being suitable, Perfection did not have a press meeting K & S's specifications in its inventory. However, the conversation between Klusken and Broderick ended with Broderick agreeing to keep an eye out for a 1000-ton press that fit K & S specifications.

¶ 8 Broderick subsequently contacted Klusken to inform him that he had found two 1000-ton presses in Michigan. Shortly thereafter, Perfection faxed a quotation to K & S on Perfection letterhead that began with form language stating "GENTLEMEN: We are pleased to offer for your consideration ..." followed by

TWO (2) 1000 TON CLEARING STRAIGHT SIDE PRESSES

Model #: SE4-1000-108-60

Serial No.: 10-1646 and 10-4163

                   Bed Area:               108" × 60"
                   Ram Area:               108" × 60"
                   Stroke:                  20"
                   Adjustment:              15"
                   Shut Height:             50"
                   SPM:                     25
                   Bolster:                  8" "T" Slotted
                

                   Cushions
                   Gibbings:                  8 point
                   T-Slotted Ram
                   Controls
                   Recirculating Lube System
                   Pit
                   Hydraulic Overloads
                   Hydraulic Tie-Rod Nuts
                   PRICE:.......$225,000.00 Each As Is Loaded
                

SPECIFICATIONS ARE APPROXIMATE ONLY, INTENDED SOLELY AS A GUIDE AND ARE NOT BINDING

The letterhead also stated the following at the bottom: "THE COUNTRY'S LARGEST INVENTORY OF USED LATE MODEL PRESSES, FABRICATING & METALWORKING EQUIPMENT."

¶ 9 K & S hired Industrial Rebuilding & Machining, Inc. (Industrial Rebuilding) to inspect the condition of the two presses, both of which were dismantled. The inspection did not include assessing the pressing force. After the inspection, Industrial Rebuilding recommended one of the presses over the other. K & S contacted Perfection to let it know that it was interested in purchasing the press that Industrial Rebuilding recommended. Perfection then purchased the press and sold it to K & S. After K & S had purchased the press, it hired Industrial Rebuilding to rebuild and install the press in K & S's plant.

¶ 10 When K & S began using the press, it discovered that the press failed to function as expected. Rather than creating the John Deere platforms with one hit, it took three hits. After K & S unsuccessfully attempted to adjust the press to remedy the problem, it contacted the manufacturer of the press. The manufacturer informed K & S that it had bought an 800-ton press, which had been converted from a 1000-ton press.

¶ 11 K & S filed suit against Perfection and Industrial Rebuilding asserting a number of claims. Although K & S settled its claims against Industrial Rebuilding, it proceeded to trial against Perfection claiming that Perfection had violated the DTPA.

¶ 12 After the close of K & S's evidence, Perfection moved to dismiss on two grounds. First, Perfection argued that K & S had provided no evidence that it had relied on Perfection's quotation when it purchased the 800-ton press. Second, Perfection argued that K & S was not a member of "the public" for the purpose of § 100.18(1). The circuit court denied the motion to dismiss as it pertained to reliance, but took the motion under advisement as it related to whether K & S was a member of "the public."

¶ 13 After the close of all of the evidence, Perfection renewed its motion to dismiss on the same grounds. The circuit court made the same ruling, denying it related to reliance and taking the member of "the public" issue under advisement.

¶ 14 The circuit court submitted the following special verdict questions to the jury:

1. Was K & S Tool & Die Corporation a member of the "public" under § 100.18 of the Wisconsin Statutes?

                                        ____   ____
                                        Yes    No
                

2. Regardless of whether or not K & S was a member of the public,

Did Perfection Machinery Sales, Inc. violate § 100.18 of the Wisconsin Statutes?

                                              ____   ____
                                              Yes    No
                

Only if you answered Question #2 "Yes", answer Question # 3.

3. Did the untrue representation cause K & S Tool & Die Corporation to enter a transaction with Perfection Machinery Sales, Inc.?

                                      ____  ____
                                      Yes   No
                

Regardless of how you answered Questions 1-3, answer Question # 4.

4. What monetary loss, if any, did [K & S] sustain as a result of a § 100.18 violation?

                                      $ _________
                

The jury marked "Yes" for the first three questions and filled in $306,000 for the fourth.

¶ 15 Perfection made five motions after verdict: (1) to dismiss, (2) to change answers, (3) for judgment notwithstanding verdict, (4) for remittitur, and (5) for a new trial. Perfection presented multiple grounds for the various motions. Like with its previous motions to dismiss, it argued that K & S failed to establish that it was a member of "the public" or prove that it relied on Perfection's quotation. Perfection also argued that the jury answer related to damages was excessive and not supported by the evidence. Finally, Perfection moved the court based on what it characterized as inflammatory and prejudicial comments made during K & S's closing argument. The circuit court denied all of the motions after verdict.

¶ 16 Perfection appealed to the court of appeals. It sought review of three issues. First, whether K & S was a member of "the public" as a matter of law. Second, whether the circuit court erroneously instructed the jury related to the meaning of "the public." Finally, whether sufficient evidence supported the jury's finding that Perfection's untrue representation caused K & S pecuniary loss.

¶ 17 The court of appeals affirmed the judgment of the circuit court. It concluded that Perfection was not entitled to a ruling as a matter of law as to K & S being a member of "the public," the circuit court did not erroneously instruct the jury on the meaning of "the public," and the jury did not err in its finding related to K & S's pecuniary loss.

¶ 18 Perfection petitioned this court for review of two issues. First whether the circuit court erred in ruling that Perfection was not entitled to a ruling as a matter of law pertaining to K & S's status as a member of "the public" for the purpose of Wis. Stat. § 100.18(1). Second, whether the jury erred in finding that Perfection's quotation for the two 1000-ton...