Marquis v. Chrysler Corp., 75-2815

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation577 F.2d 624
Docket Number75-2881 and 75-3499,No. 75-2815,75-2815
Parties1978-2 Trade Cases 62,155 Don MARQUIS, Plaintiff-Appellant, v. CHRYSLER CORPORATION et al., Defendants-Appellees. Don MARQUIS, Plaintiff-Appellee, v. CHRYSLER CORPORATION and Chrysler Motors Corporation, Defendants-Appellants. Don MARQUIS, Plaintiff-Appellee, v. CHRYSLER CORPORATION, Chrysler Motors Corporation and Chrysler Realty Corporation, Defendants-Appellants.
Decision Date29 June 1978

Kristina M. Hanson (argued), San Francisco, Cal., for plaintiff-appellant.

Franklin Wilson (argued), McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT and SNEED, Circuit Judges, and TAYLOR, District Judge. *

EUGENE A. WRIGHT, Circuit Judge:

In this suit against the corporate defendants Marquis 1 alleged that the manner in which they terminated his Dodge dealership violated the Automobile Dealers' Day in Court Act (15 U.S.C. §§ 1221-1225), the Sherman Act (15 U.S.C. §§ 1-7), and the Robinson-Patman Act (15 U.S.C. §§ 13, 13a, 13b, 13c & 21a). The court directed verdicts for the defendants on all but the Dealers' Act claim, on which the jury returned a verdict of $116,097 for Marquis.

On appeal Marquis challenges the directed verdicts disposing of his Sherman Act claims. Chrysler Corporation and Chrysler Motors Corporation cross-appeal the Dealers' Act judgment and Chrysler Realty joins in a challenge to a $2,000 discovery sanction imposed against three of the defendants. Chrysler Financial Corporation is a party only as respondent to the Marquis appeal.


Marquis owned Don Marquis Dodge, an independent, franchised dealership in Concord, California, from 1960 to 1968, when Chrysler Motors terminated the dealership agreement. 2 Under Chrysler Motors' marketing system for Dodge automobiles, the Marquis dealership had primary responsibility for selling cars and trucks in Sales Locality No. 31. That was part of the larger East Bay District, which in turn was part of the San Francisco Sales Region. 3

Don Marquis Dodge operated under a standard franchise known as the Direct Dealer Agreement (the Agreement). During its early months the dealership operated under a temporary letter agreement. Marquis and Chrysler Motors executed formal Dealer Agreements in 1961 and 1963.

The Agreement gave Chrysler Motors the right to terminate the dealership on 90 days' notice upon the dealer's "failure . . . to perform fully any of the Direct Dealer's undertakings and obligations" under its terms. Among them was Marquis' duty to sell enough cars and trucks to meet or exceed his Minimum Sales Responsibility (MSR).

Marquis was obligated to satisfy separate MSR's for cars and trucks. The MSR was computed as the number of new Dodge cars (or trucks) registered in the sales region during a given period, divided by the total number of all new cars (or trucks) registered there during that period. Total registrations in the sales locality were multiplied by the regional ratio to obtain the dealer's MSR. 4 Periodically, and some time after

the expiration of the period to which the MSR applied, the dealer's sales were compared to MSR and his sales performance was analyzed. 5

The Agreement provided that MSR would be adjusted to reflect available vehicle supplies, dealer sales trends, and local conditions affecting the dealer's ability to sell. 6

In accordance with this scheme, the district sales manager for Chrysler Motors' Dodge Division visited the Marquis dealership regularly to conduct a "sales responsibility review." During these visits he presented Marquis with a sales review form which set forth the period's MSR and the dealership's sales. The form included a summary of recommendations to improve sales. Marquis signed the forms to verify the accuracy of their figures, to acknowledge that the review had taken place, and to indicate that he would act on the recommendations.

In addition to the sales review sessions Chrysler Motors reminded Marquis of the need to improve sales in other ways. In early 1966 Mr. King, who was then the Dodge regional sales manager, wrote to Marquis that "(n)either you nor Dodge can afford this loss of sales and resulting loss of profit." Later Mr. Loomis, who succeeded King, continued to counsel Marquis about his sales record. In 1963 and 1966 Chrysler Motors prepared special dealer surveys aimed at improving the dealership's sales record. Through these channels and the sales review sessions, Marquis was given numberous suggestions for sales improvement. 7

Don Marquis Dodge consistently failed to meet its MSR. Only in 1966 was MSR attained, and then only for trucks. In other years sales amounted to approximately 51% to 80% of MSR.

Early in 1966 two Chrysler Motors representatives showed Marquis a three-acre lot in Concord and asked for his evaluation of it as a dealership site. Marquis told them he thought it lacked accessibility. He asked what the rent would be if the manufacturer acquired the site and leased it to a dealer. When he was told it would be about $9,000

or $10,000 a month, he expressed surprise at the figures. There was little further discussion and as they left the representatives told Marquis that they would "talk about it later."

In a month a Chrysler Motors representative again visited Marquis and asked if he had thought further about the new site. Marquis said he still considered it a poor location. On neither occasion was there an express request that Marquis relocate or a statement that his facility was inadequate.

In September 1966 Marquis read a newspaper account of Chrysler Motors' purchase of the Concord property and its request for a use permit to construct an auto dealership there. 8 He made calls to Chrysler Motors officials and was assured that the land would not be developed for five to ten years. As it turned out, a corporate-owned Dodge retail facility was constructed on the site soon after the Marquis dealership was terminated.

In October 1967, Loomis offered Marquis the services of a Chrysler Motors employee to assist the sales effort, but Marquis declined the offer. Loomis told him that he would watch the dealership's sales figures "with interest." Unbeknown to Marquis, Loomis had already initiated a request for termination of the dealership. 9

On January 5, 1968, Chrysler Motors informed Marquis that his dealership was to be terminated in 90 days. On January 11 he wrote to Mr. McCurry, a vice president of the Dodge Division, asking for reconsideration. McCurry refused by letter on February 6. Marquis wrote again on February 9 and received a similar response. Marquis met with Loomis in mid-February, but the meeting resulted in no change in the decision.

Marquis testified that while attending an auto dealers' convention in February he first learned of the Chrysler Motors Appeals Board, an intra-corporate body that reviews dealership termination decisions. Chrysler Motors maintained that all its dealers, including Marquis, were told of the board's creation and function when it was formed late in 1966. No letter to Marquis at the time of, or subsequent to, his termination mentioned his right to appeal to the board.

Marquis wrote McCurry a third letter on March 1, requesting that he forward an enclosed letter to the appeals board, explaining that he did not know the board's address. McCurry apparently forwarded the letter to the board because on March 7 the board's secretary wrote Marquis, explaining that, because his request for review was not filed within 31 days of the notice of termination, it was untimely and would not be considered.

There followed a series of letters between Marquis and Loomis and McCurry and at least one more meeting between Marquis and Loomis. All of Marquis' pleas for reconsideration proved unavailing and the dealership was terminated in April.

In the years 1966-1970 a number of independent Dodge dealers in the East Bay District went out of business. During the same period Chrysler Motors established five new corporate-owned facilities (Dealer Enterprise or D.E. outlets) there.


Chrysler contends that it is not a proper party defendant to Marquis' Dealers' Act suit. In addition, Chrysler and Chrysler Motors urge that we reverse the judgment because:

a. the claim was barred by the statute of limitations;

b. the verdict was not supported by the evidence and was incorrect as a matter of law;

c. other errors, including improper jury instructions and evidentiary rulings, prejudiced the defense; and

d. the damages award was based on speculation and conjecture.

A. The Statute of Limitations.

The Dealers' Act includes its own three-year statute of limitations. 10 Marquis received notice of termination on January 5, 1968, to be effective April 4, 1968. He sued on April 2, 1971, more than three years after the termination notice, but less than three years after actual termination.

The cross-appellants contend that the limitations period runs from the date Marquis received notice of the termination. Citing Emich Motors Corp. v. General Motors Corp., 229 F.2d 714, 720 (7th Cir. 1956), they argue that Marquis could have instituted suit on the day of notice and that the limitations period ran from that date.

Emich, however, is distinguishable and does not stand for the general proposition that the Dealers' Act limitations period runs from the date of the termination notice. In Emich the notice canceled the dealer's contract right to receive cars from the manufacturer. It coincided with actual injury to the dealer and, after giving such notice, "General Motors could not prevent (the dealer) bringing action at that time for the unlawful breach." 229 F.2d at 720.

There is no evidence that notice of termination immediately diminished Marquis' rights under the contract. Moreover, the existence of...

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