Les Moise, Inc. v. Rossignol Ski Co., Inc.

• Decision Date: 31 January 1985
• Docket Number: No. 83-300,83-300
• Citation: 361 N.W.2d 653,122 Wis.2d 51
• Parties: LES MOISE, INC., Plaintiff-Appellant, v. ROSSIGNOL SKI CO., INC., Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 653

361 N.W.2d 653

122 Wis.2d 51

LES MOISE, INC., Plaintiff-Appellant, v. ROSSIGNOL SKI CO., INC., Defendant-Respondent-Petitioner.

No. 83-300.

Supreme Court of Wisconsin.

Argued Sept. 5, 1984.

Decided Jan. 31, 1985.

Michael A. Bowen (argued), Milwaukee, for defendant-respondent-petitioner; Steven E. Keane and Foley & Lardner, Milwaukee, on brief.

William E. Glassner, Jr., and Ann Kerns (argued), Milwaukee, for plaintiff-appellant; William E. Glassner, Jr., and Charne, Glassner, Tehan, Clancy & Taitelman, S.C., Milwaukee, on brief.

DAY, Justice.

This is a review of a published decision of the court of appeals ¹ reversing an order of the Circuit Court for Milwaukee County, Hon. Laurence C. Gram, Jr., Circuit Judge, dismissing the complaint with prejudice. The issue on review is: Does a cause of action for termination of a dealership upon written notice not complying with the Wisconsin Fair Dealership Law (WFDL), Chapter 135, Stats., and without good cause as required by such statute, accrue for purposes of starting the statute of limitations to run on the date the dealer receives the non-conforming written notice, or on the date termination, pursuant to that notice, actually occurs?

We hold that a cause of action under the WFDL, Chapter 135, Stats., for termination of a dealership upon written notice not complying with the requirements of that chapter and without good cause as required by that chapter, accrues and starts the running of the statute of limitations on the date such written notice is received by the dealer. We therefore reverse the decision of the court of appeals and reinstate the order of the circuit court.

After oral argument we received written notice from the attorneys for the parties saying that this matter has been settled. This court has, however, set out exceptions to the general rule of dismissal for mootness:

"[T]his court has held that it will retain a matter for determination although that determination can have no practical effect on the immediate parties: ... where the issue is likely to arise again and should be resolved by the court to avoid uncertainty, Fine v. Elections Board, 95 Wis.2d 162, 289 N.W.2d 823 (1980) ... This court has a law-declaring function, that is, determining on common-law principles what the law should be in view of the statutory and decisional law of the state and in view of the general trend of the law.... It is not inappropriate for this court, where a problem is likely to recur, to declare the law for the guidance of other courts, even though the particular controversy is moot." State ex rel. LaCrosse Tribune v. Circuit Court, 115 Wis.2d 220, 229-230, 340 N.W.2d 460 (1983).

Since this statute of limitations issue under the WFDL is likely to recur and since we disagree with the published decision of the court of appeals, we choose to decide the issues that were presented for review. We do this even though, because of their settlement, our opinion will not affect these parties directly.

For purposes of this review, all of the factual allegations stated in Les Moise's amended complaint are assumed to be true.

On or about May 22, 1979, Les Moise and Rossignol entered into a written agreement for the distribution by Les Moise of Rossignol's products in Wisconsin. This agreement had an expiration date of May 21, 1980, but was to be renewed automatically if not terminated.

In January of 1980, Les Moise was sent a written notice by Rossignol terminating Les Moise as a dealer effective upon the expiration date of the agreement. ² The written notice did not state the reasons for the termination nor did it provide any period of time within which Les Moise could rectify any alleged deficiencies.

Les Moise brought the instant action on April 14, 1981, which was within one year of the date of actual termination but more than one year after the written notice of termination had been received. Les Moise alleged that Rossignol had terminated Les Moise without good cause and without proper notice in violation of the WFDL. On January 6, 1983, the circuit court granted Rossignol's motion to dismiss Les Moise's complaint on the grounds that Les Moise had failed to commence the action within the applicable one-year statute of limitation period of Section 893.93(3)(b), Stats.1981-1982. ³ Les Moise appealed. The court of appeals in its decision dated November 11, 1983, reversed the circuit court decision and remanded the case for further proceedings holding that the statute of limitations started to run when termination pursuant to the written notice actually took place. Rossignol filed a petition for review. This Court accepted review on January 17, 1984, to determine when the cause of action accrues and starts the running of the statute of limitations.

According to Les Moise's amended complaint, this agreement with Rossignol was a "dealership" within the meaning of Section 135.02(3), Stats.1981-1982. ⁴ Les Moise was a "dealer" under Section 135.02(2). ⁵ Rossignol was a "grantor" under Section 135.02(5). ⁶ This agreement, therefore, is governed by the WFDL.

Les Moise's complaint alleged that the written notice of termination sent by Rossignol was in violation of Section 135.04, Stats.1981-1982, ⁷ for failing to meet the written notice requirements, and of Section 135.03, 1981-1982, ⁸ for termination without good cause. If Les Moise's cause of action accrued on the date it received the written notice from Rossignol, January of 1980, its action, filed April 14, 1981, is barred by the one-year limitation period of Section 893.93(3)(b). If Les Moise's cause of action accrued on May 21, 1980, the date termination became effective, its action is not barred.

In Wisconsin, a cause of action generally accrues for statute of limitations purposes " '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.' " Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488, 490 (1906). When a grantor violates the provisions of the WFDL, the dealer is given a claim capable of present enforcement, a suable party in the grantor, and a present right to enforce that claim. Section 135.06, Stats.1981-1982, provides:

"135.06 Action for damages and injunctive relief. If any grantor violates this chapter, a dealer may bring an action against such grantor in any court of competent jurisdiction for damages sustained by him as a consequence of the grantor's violation, together with the actual costs of the action, including reasonable actual attorney fees, and the dealer also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal or substantial change of competitive circumstances."

Section 135.065, Stats.1981-1982, provides:

"135.065 Temporary injunctions. In any action brought by a dealer against a grantor under this chapter, any violation of this chapter by the grantor is deemed an irreparable injury to the dealer for determining if a temporary injunction should be issued."

The remedies of these sections are available to a dealer at the time the grantor violates the WFDL.

The use by the grantor of a written termination notice which does not comply with the WFDL constitutes a violation of the WFDL. Designs in Medicine, Inc. v. Xomed, Inc., 522 F.Supp. 1054, 1057 (E.D.Wis.1981). Therefore, the use of a non-conforming written notice by Rossignol, the grantor, was a violation of the WFDL which gave Les Moise a presently enforceable right of action on receipt of that written notice, under Section 135.06 and Section 135.065, Stats. Therefore, under the Barry rule, Les Moise's cause of action accrued for statute of limitations purposes upon its receipt of Rossignol's written notice.

The court of appeals recognized that Les Moise could have brought an action against Rossignol when Les Moise received the written notice. The court of appeals said in pertinent part:

"We now address one further point made by Rossignol, that Rossignol could not have prevented Moise from bringing suit upon notice and that, therefore, that should be the date, under the Barry rule, upon which the statute should begin to run. While the point is, to some extent, hypothetical because Moise did not in fact choose to bring suit before injury, we acknowledge, especially in the light of our discussion of anticipatory repudiation, that Moise could have brought suit upon that date. This does not persuade us, however, that the date of notice should set the statute to running." Les Moise, 116 Wis.2d at 280, 342 N.W.2d 444.

The requirements of the Barry rule were met at the time Les Moise received the written notice. The court of appeals, however, formulated the following exception to the Barry rule: "For the above reasons, we determine that, in a ch. 135, Stats. action, if the dates of actual injury and of notice are different, the statute of limitations is set running from whichever date is later, regardless of a claimant's ability to bring suit upon the earlier date." Les Moise, 116 Wis.2d at 280-281, 342 N.W.2d 444. In this case, the Court of Appeals held that actual injury occurred on the date the dealership agreement was terminated.

The court of appeals cited this court's opinion in Hansen v. A.H. Robins Co., Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983) as a precedential basis for its deviation from the Barry rule. In Hansen this court held:

"In the interest of justice and fundamental fairness, we adopt the discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first. All cases holding that tort claims accrue at the time of the negligent act or injury are hereby overruled." Hansen, 113 Wis.2d at 560, 335 N.W.2d 578.

According to the court of appeals, just as this court in Hansen "modified...