Les Moise, Inc. v. Rossignol Ski Co., Inc., 83-300

• Decision Date: 11 November 1983
• Docket Number: No. 83-300,83-300
• Citation: 116 Wis.2d 268,342 N.W.2d 444
• Parties: LES MOISE, INC., Plaintiff-Appellant, v. ROSSIGNOL SKI CO., INC., Defendant-Respondent. *
• Court: Wisconsin Court of Appeals

Page 444

342 N.W.2d 444

116 Wis.2d 268

LES MOISE, INC., Plaintiff-Appellant, v. ROSSIGNOL SKI CO., INC., Defendant-Respondent. ^* No. 83-300.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 15, 1983.

Opinion Released Nov. 11, 1983.

Opinion Filed Nov. 11, 1983.

Charne, Glassner, Tehan, Clancy & Taitelman, S.C., Milwaukee, with William E Glassner, Jr., Milwaukee, of counsel, for plaintiff-appellant.

Foley & Lardner, Milwaukee, with Steven E. Keane and Michael A. Bowen, Milwaukee, of counsel, for defendant-respondent.

Before WEDEMEYER, P.J., and DECKER and MOSER, JJ.

DECKER, Judge.

This appeal arises from an alleged violation of ch. 135, The Wisconsin Fair Dealership Law. Les Moise, Inc., (Moise) appeals from an order dismissing its complaint as barred by the statute of limitations. Moise contends that, under sec. 893.93(3)(b), Stats., the statute of limitations should be deemed to begin to run at the actual time of termination of the ski supply agreement rather than at the time of notice of termination. We agree and reverse the order of the trial court and remand for further proceedings.

Moise is a retailer of sports equipment. It carried the skis of respondent Rossignol Ski Co. (Rossignol) for some twenty-five years. On January 16, 1980, Rossignol notified Moise that the written agreement between them would be terminated upon the expiration date of that agreement, May 21, 1980. On April 14, 1981, Moise filed the original summons and complaint in this action. Rossignol filed a motion to dismiss on the ground that the complaint was barred by sec. 893.93(3)(b), Stats., the applicable one-year statute of limitations for an action commenced under ch. 135, Stats., the Wisconsin Fair Dealership Law. The trial court granted the motion, holding that the statute of limitations began to run from January 16, 1980, the date of notice, rather than from May 21, 1980, the effective date of termination. In this case the record reflects that the date of termination was the date of actual injury to Moise.

The question of the starting time for the statute of limitations to run under ch. 135, Stats., is apparently one of first impression in Wisconsin. Both parties on appeal, as well as the trial court in its memorandum decision, rely principally upon two federal cases. We will discuss both.

The case which the trial court held to be controlling is Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (7th Cir.1956). There, Emich was given notice on April 7, 1936, that General Motors would cancel and terminate the selling agreement "effective three months after the delivery of this notice ..." Id. at 719. This date was later extended to September 1, 1936. Id. The seventh circuit held that the April 7 date set the statute of limitations running because the notice received on that date terminated Emich's "contract right to receive cars." Id. at 720.

What distinguishes Emich from the case we consider here is a clause in the franchise agreement between Emich and General Motors:

"Any cancellation or termination of this agreement shall also operate as a cancellation of all orders for standard motor vehicles, chassis, parts, accessories or service and other equipment which may not have been shipped prior to receipt of notice of such cancellation or termination by Dealer...." [Emphasis in original.]

Id.

This clause, which the seventh circuit noted "as meaning that notice of intention to cancel terminated the dealer's right to receive cars," id., effectively made notice of termination the time of actual injury as well. As such, Emich is different from this case because here, the notice of termination and the effective date of actual injury were two different dates. Emich, therefore, is inapposite. ¹

We are more persuaded by the decision of the ninth circuit in Marquis v. Chrysler Corp., 577 F.2d 624 (9th Cir.1978). There, Marquis had a franchise agreement with Chrysler which gave Chrysler the right to terminate the dealership on ninety days' notice upon the dealer's failure to perform various obligations. Id. at 626. On January 5, 1968, Chrysler gave Marquis notice that his dealership was to be terminated in ninety days. Id. at 628. Marquis sued on April 2, 1971, within the applicable three year statute of limitations if the date of actual termination were applied to start the statute running, but beyond it if the date of notice were applied. Id. at 629. Chrysler argued that Emich required that the date of notice started the statute to run; the ninth circuit disagreed:

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. ²

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

Id.

Here, as in Marquis, there is no evidence that notice of termination immediately diminished Moise's rights under the contract. While Moise received its termination notice on January 16, 1980, Moise's answers to Rossignol's interrogatories indicate that Moise purchased products from Rossignol at least as recently as March 10, 1980. Rossignol attempts to distinguish Marquis by stating, "to the extent abstract impairment of theoretical contractual rights has any relevance to this problem, such impairment occurred here on the date notice of termination was received, just as it did in Emich." We do not concur in Rossignol's interpretation of Emich, nor do we believe that any of the cases herein discussed are concerned with the "abstract impairment of theoretical contractual rights." Rather, they all concern themselves with present actual rights. ³

We are guided in our actions here by a recent Wisconsin Supreme Court case, Hansen v. A.H. Robins Co., Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983). ⁴ There, our supreme court reconsidered the rule that tort claims accrue on the date of injury. See, e.g., Peterson v. Roloff, 57 Wis.2d 1, 203 N.W.2d 699 (1973). The court weighed the conflicting public policies raised by the statute of limitations: the discouraging of stale and fraudulent claims versus the allowing of diligent, meritorious claimants an opportunity to seek redress for injuries sustained. Hansen, supra, 113 Wis.2d at 558, 335 N.W.2d at 582. The court concluded that "the injustice of barring meritorious claims before the claimant knows of the injury outweighs the threat of stale or fraudulent actions." Id. at 559, 335 N.W.2d at 582. The court then created the following rule that "all tort actions other than those already governed by a legislatively created discovery rule ... shall accrue on the date the injury is discovered or with reasonable diligence should be discovered...." Hansen, supra, 113 Wis.2d at 560, 335 N.W.2d at 583.

The Hansen court acknowledged that while a change of the statute of limitations is peculiarly a question of policy which should be left to the legislature, id. at 556, 335 N.W.2d at 581, the court reserved to the judiciary the power to establish when claims accrue for statute of limitation purposes. Id. at 559-60, 335 N.W.2d at 582. The wisdom and propriety of the court in reserving and exercising that power was presaged by Professor Corbin in discussing statutes of limitations and anticipatory repudiations:

This is not injustice; nor is it an unjustifiable nullification of the legislative will. In passing a statute of limitations, the legislature cannot foresee all the cases to which it may be applied. "Accrual of the cause of action" has not one eternal and exclusively correct meaning, ordained by God or by the legislature. There is no "infallible logic" that compels one application rather than another.

4 A. Corbin, Corbin on Contracts § 989 (1951).

In adopting the discovery rule in tort claims, the Hansen court augmented the earlier and oft-cited rule for a cause of action accruing which was first set forth in Wisconsin in Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488, 490 (1906): "A cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it." [Citations omitted.] Obviously, a present but undiscovered injury in tort satisfies the Barry rule and, in the past, has yielded extremely harsh results. See Hansen, supra 113 Wis.2d at 555-56, 335 N.W.2d at 580-81. The Hansen discovery rule, therefore, ameliorates this harshness by augmenting the Barry rule.

We believe we are faced with a question which, while the converse of that in Hansen, is equally problematic but equally susceptible to the same kind of policy analysis. In Hansen, the supreme court modified the law to compensate for the injustices caused when a tort claimant had an injury but no notice of it. Conversely, we here have a situation where a plaintiff has notice, but has not yet suffered an injury. In spite of the Barry rule, which might be read to require, in this case, the statute to begin to run upon notice without injury, we feel obliged, for a number of reasons, to depart from such an application.

First, the express public policy behind ch. 135, Stats., makes it clear that the chapter is remedial and is to be liberally construed in favor of dealers. Section 135.025, Stats., reads in pertinent part:

Purposes; rules of construction; variation by contract. (1) This chapter shall be liberally construed and applied to promote its underlying remedial purposes and policies.

(2) The underlying purposes and policies of this chapter are:

(a) To promote the compelling interest of the public in fair business relations between dealers and grantors, and in the...