Modine Mfg. Co. v. ABC Radiator, Inc.

• Decision Date: 16 January 1979
• Docket Number: 77-1549,Nos. 77-1548,s. 77-1548
• Citation: 367 So.2d 232
• Parties: MODINE MANUFACTURING COMPANY, Appellant, v. ABC RADIATOR, INC., Appellee. MODINE MANUFACTURING COMPANY, Appellant, v. BLIZZARD DIAGNOSTIC SYSTEMS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 232

367 So.2d 232

MODINE MANUFACTURING COMPANY, Appellant, v. ABC RADIATOR, INC., Appellee.

MODINE MANUFACTURING COMPANY, Appellant, v. BLIZZARD DIAGNOSTIC SYSTEMS, INC., Appellee.

Nos. 77-1548, 77-1549.

District Court of Appeal of Florida, Third District.

Jan. 16, 1979.

Rehearing Denied Feb. 28, 1979.

Daniels & Hicks and Sam Daniels, Mark Hicks, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.

Dubbin, Schiff, Berkman & Dubbin, Susan Goldman, Podhurst, Orseck & Parks and Walter H. Beckham, Jr., Miami, for appellees.

Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PEARSON, Judge.

Plaintiff-counterdefendant Modine Manufacturing Company brings these consolidated appeals from a final judgment on a counterclaim, entered upon jury verdicts, awarding to the defendants-counterplaintiffs ABC Radiator, Inc., and Blizzard Diagnostic Systems, Inc., the appellees, extensive compensatory and punitive damages. The counterclaim was filed upon leave of the trial court following an appeal to this court, which affirmed in part, reversed in part and remanded with directions. To understand this present appeal, we will discuss this cause from its beginning.

On February 4, 1972, appellant Modine Manufacturing Company filed a complaint in replevin against the appellees, ABC Radiator, Inc., and Blizzard Diagnostic Systems, Inc. The non-jury action went to court on the issue of the right to possession of replevied merchandise, i. e., 1,544 radiators, and on June 7, 1973, resulted in a final judgment in replevin in favor of ABC and Blizzard, or in the alternative, a money judgment in their favor in the event they elected not to accept the return of the replevied goods. Modine's post-judgment petition for rehearing or, alternatively, motion for new trial was denied. On August 6, 1973, Modine appealed to this court. This resulted in a partial affirmance, see Modine Manufacturing Company v. Israel, 294 So.2d 369 (Fla. 3d DCA 1974), in which this court said, in part:

"This appeal is from judgments for the defendants after a trial before the court without jury in an action for replevin. The plaintiff-appellant urges: (1) that the evidence was not sufficient to support the finding that the appellees had the right of possession, and (2) that the money judgments were erroneous in that the amount assessed as the value of the property is not supported by the record. We affirm upon the first point and reverse upon the second.

"The plaintiff-appellant was the seller of the goods sought to be replevied. There was evidence before the court upon which the court determined that the goods were sold upon credit and that the agreed period for payment had not expired.

"The award of $39,805.65 to ABC and $6,773.41 to Blizzard, which represents the value of the goods at the time that they were replevied, cannot be sustained since neither appellee has ever paid for the goods. The record shows that each of the defendants has elected to take the money judgment.

"The judgment appealed is affirmed in part and reversed in part and the cause is remanded for a trial to determine the value of the defendants' special equity in the goods replevied."

Modine, thereafter, petitioned to the Florida Supreme Court for writ of certiorari. This petition was denied at 303 So.2d 644 (Fla.1974).

Upon remand, ABC and Blizzard sought leave on May 7, 1975, to file a counterclaim, asserting a cause of action for compensatory and exemplary damages for wrongful replevin. Modine opposed the motion, which was granted, and the counterclaim was filed on July 2, 1975. Modine filed a reply on July 11, 1975, and on January 12, 1976, the trial court denied Modine's motion to strike the counterclaim, determining that the issue of damages for wrongful replevin had not been litigated in the original replevin action and, therefore, could be litigated under the counterclaim or in a separate plenary action.

In February of 1976, Modine filed in this court a "Motion to Require Compliance with this Court's Opinion and Mandate." The motion was denied without opinion. A petition for writ of certiorari was thereafter denied in the Florida Supreme Court.

Subsequently, following replies to the counterclaim, a five-day jury trial commenced on March 28, 1977, from which verdicts were rendered in favor of ABC and Blizzard for both compensatory and punitive damages. From the judgments entered thereon, Modine has appealed.

The series of events leading up to the February, 1972, replevin began with the developing and designing of a new concept of marketing radiators by ABC and by Blizzard. It was the intention of the appellees to use this marketing concept on a large scale through a national program with the Sears chain of stores. The Modine radiator which had a design that could fit five or six automobile models and which was lower priced than other radiators was the radiator that the appellees planned to use in the contemplated national marketing program with Sears. ABC was already a Modine distributor and its majority stockholder, Leonard Kaye, approached Robert Simm of Modine in 1970 and discussed with him Blizzard's potential mass merchandising program through Sears. Kaye advised the Modine management that he enjoyed a good relationship with Sears and if Modine would assure continuous radiator supply, Kaye eventually could generate his program nationwide. Because of Blizzard's expertise in the aftermarket radiator field, Modine was extremely interested. Pursuant to a January 8, 1971, letter agreement from Modine, assuring Blizzard of a continuous supply of radiators for the Sears program, Blizzard sought to activate its plan to obtain a national contract with Sears. Sears was enthusiastic about Blizzard's national radiator program, but its one concern involved the assurance of an uninterrupted source of Modine radiators. Once Sears was assured of Modine's complete knowledge of the Blizzard program and of the fact that there would be no shortages of radiators, the Blizzard program was implemented, mainly in the south Florida area, and proved to be successful. As a result, permission was obtained from Sears to proceed in nine states. Sears also gave indications to Blizzard that it planned to take the program nationwide.

The appellees argue that Modine, because of its optimistic national sales projections for the Blizzard-Sears program and because of its awareness of the actual success of the early stages of the program, began to think about changing its relationship with Blizzard so that it (Modine) would control the program. It is further argued that Modine decided upon an attempt to convert Blizzard into a manufacturers' representative and that a proposed agreement based thereon was forwarded to Blizzard in October, 1971, but was rejected.

The appellees argue that this new strategy on the part of Modine led to a wrongful replevin of 1,544 radiators on February 4, 1972, and that as a direct result thereof, both ABC and Blizzard were unable to ship their orders and Blizzard, therefore, lost the Sears national program. On March 10, 1972, Sears formally notified Blizzard that the Blizzard...