TELE-PORT v. AMERITECH MOBILE COMMUNICATIONS

• Citation: 248 Wis.2d 846,637 N.W.2d 782,2001 WI App 261
• Decision Date: 09 October 2001
• Docket Number: No. 00-2627.,00-2627.
• Parties: TELE-PORT, INC., a Wisconsin corporation, Plaintiff-Appellant, v. AMERITECH MOBILE COMMUNICATIONS, INC., a Delaware corporation, Ameritech Mobile Communications of Wisconsin, Inc., a Wisconsin corporation, Milwaukee SMSA Limited Partnership, a Delaware Limited Partnership, and Car Phones +, Inc., a Wisconsin corporation, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

248 Wis.2d 846

2001 WI App 261

637 N.W.2d 782

TELE-PORT, INC., a Wisconsin corporation, Plaintiff-Appellant,¹ v. AMERITECH MOBILE COMMUNICATIONS, INC., a Delaware corporation, Ameritech Mobile Communications of Wisconsin, Inc., a Wisconsin corporation, Milwaukee SMSA Limited Partnership, a Delaware Limited Partnership, and Car Phones +, Inc., a Wisconsin corporation, Defendants-Respondents.

No. 00-2627.

Court of Appeals of Wisconsin.

Submitted on briefs September 4, 2001.

Decided October 9, 2001.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert B. Corris, S.C. of Robert B. Corris, S.C., Milwaukee; Bruce A. Ranta of Cunningham & Lyons, S.C., Milwaukee; and Edward T. Joyce and Rowena T. Parma of Edward T. Joyce & Associates, PC., Chicago, Illinois.

On behalf of the defendant-respondent, Car Phones +, Inc., the cause was submitted on the brief of John Theiler Bode of Bode, Carroll, McCoy, Hoefle & Mihal, S.C., Waukesha.

On behalf of the defendant-respondent, Ameritech Mobile Communications, Inc., the cause was submitted on the brief of Jon P. Christiansen and Cynthia J. Franecki of Foley & Lardner, Milwaukee.

Before Fine, Schudson and Curley, JJ.

¶ 1. FINE, J.

Tele-Port, Inc., appeals from a judgment dismissing its claims against Ameritech Mobile Communications, Inc., and Car Phones+, Inc. We affirm.

¶ 2. Tele-Port is an Ameritech dealer for cellular telephone service. So is Car Phones+. The essence of Tele-Port's many claims against Ameritech is that Ameritech gave more market development funds to Car Phones+ than it did to Tele-Port. The market development funds about which Tele-Port complains were separate from and in addition to contributions that Ameritech made to its cellular-service dealers, the level of which was computed pursuant to formulae based on a dealer's Ameritech-business volume. These business-volume based contributions took the form of a cooperative advertising fund, which was limited to advertising expenditures, and, starting in 1997, a Dealer Development Fund, which could be used for "special promotional activities" approved by Ameritech. According to Tele-Port, as phrased by its final amended complaint, Ameritech's payment of market development funds to Car Phones+ permitted Car Phones+ "to flood the competitive area with advertising, open new locations, and obtain a disproportionate share of the market."

[1-4]

¶ 3. The trial court decided this case on summary judgment. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. WIS. STAT. RULE 802.08(2); U.S. Oil Co. v. Midwest Auto Care Servs., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Of course, "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977). In order to survive summary judgment, however, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," WIS. STAT. RULE 802.08(3), material to that element. Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139 (Ct. App. 1993). Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987)

. For ease of analysis, we will discuss in sequence each of the claims that Tele-Port pursues on this appeal.

1. Fair Dealership Act claim.

[5]

¶ 4. Tele-Port asserts that Ameritech's alleged preferential treatment of Car Phones+ violated provisions of Wisconsin's Fair Dealership Law, specifically WIS. STAT. §§ 135.03 and 135.04, by changing the competitive circumstances of Tele-Port's dealership agreement with Ameritech.² All claims under WIS. STAT. ch. 135 must be "commenced within one year after the cause of action accrues or be barred." WIS. STAT. § 893.93(3). The trial court granted summary judgment to Ameritech on Tele-Port's chapter-135 claims because, among other reasons, it determined that Tele-Port's lawsuit was commenced more than one year after these claims accrued. On our de novo review, we agree.

¶ 5. Tele-Port contends that Ameritech gave Car Phones+ preferential treatment starting in 1991. Tele-Port did not commence this action until September 29, 1998. Tele-Port's president, Gary Sennett, submitted an affidavit to the trial court averring that he did not learn of the arrangement between Ameritech and Car Phones+ that he argues violates the Fair Dealership Law until March of 1998. Tele-Port thus asserts that under the "discovery rule" first adopted by Hansen v. A.H. Robins, Co., 113 Wis. 2d 550, 560, 335 N.W.2d 578, 583 (1983) ("tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first"), its Fair-Dealership-Law claims did not "accrue" until that date. Ameritech, on the other hand, argues that the discovery rule does not apply to chapter-135 actions, and, in any event, Tele-Port either knew or in the exercise of reasonable diligence should have known that Ameritech was giving the funds to Car Phones+ well prior to one year before September 29, 1998. We agree with this latter contention, and, accordingly, do not discuss whether the "discovery rule" applies to claims under the Fair Dealership Law. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989)

(cases should be decided on the "narrowest possible ground").

¶ 6. Ameritech disputes Sennett's contention that the earliest he knew that Ameritech was giving market development funds to Car Phones+ was in March of 1998. But this dispute is immaterial because the issue is what Tele-Port either knew or in the exercise of reasonable diligence should have known and Tele-Port does not dispute with evidentiary material that the manager of one of its stores knew about those funds more than one year before Tele-Port commenced this action.

[6, 7]

¶ 7. Tele-Port is a corporation. "Notice" to a corporation can only be through its employees. Knowledge acquired by an employee of a corporation during his or her employment and concerning something pertinent to the subject matter of that employment, so that the employee therefore becomes an "agent" of the employer for the purposes of that information, is notice to the corporation for statute-of-limitations purposes, irrespective of whether the employee communicates that knowledge to anyone else in the corporation. 3 W. FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 793 (rev. perm. ed. 1994) (notice to agent is imputed to principal "if the matter" about which notice is given "is relevant or pertinent to the subject matter of the agency" or employment); see also Suburban Motors of Grafton, Inc. v. Forester, 134 Wis. 2d 183, 192-193, 396 N.W.2d 351, 355 (Ct. App. 1986)

("`corporation is charged with constructive knowledge, regardless of its actual knowledge, of all material facts of which its officer or agent receives notice or acquires knowledge while acting in the course of his employment within the scope of his authority, even though the officer or agent does not in fact communicate his knowledge to the corporation'") (quoting 3 W. FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 790 (rev. perm. ed. 1975)).

¶ 8. The undisputed evidence in the record indicates that Eugene Rosenberg managed Tele-Port's store in Mequon for several years, but no later than 1996. His brother, Gary Rosenberg, handled advertising for Car Phones+, and, indeed, put together many of Car Phones+'s proposals for market development funds from Ameritech. Gary Rosenberg testified at his deposition that when his brother was the Mequon store manager, Gary Rosenberg told his brother that he was getting significant promotion funds from Ameritech for Car Phones+ in addition to the cooperative-advertising formula-based contributions that Ameritech was giving to each dealer, and suggested that Tele-Port also seek that money. Tele-Port contends, however, as phrased by Sennett's affidavit, that "Eugene Rosenberg had no authority whatsoever relating the [sic] subject matter of the communication that Gary Rosenberg described in his deposition." This contention is off the mark.

¶ 9. The issue here is not whether Eugene Rosenberg could have either personally sought promotion funds from Ameritech on Tele-Port's behalf or personally designed and implemented promotions with those funds, but whether he had the corporate interest and opportunity to both appreciate the significance of the information and pass it on to those who could pursue it further. Tele-Port does not dispute that Eugene Rosenberg's authority and corporate interest (as opposed to those whose employment responsibilities are unrelated to the substance of a company's business — maintenance personnel, for example) encompassed helping Tele-Port remain as competitive as possible vis-à-vis not only Car Phones+ but also other cellular-service sellers. Thus, Eugene Rosenberg not only learned during his employment by Tele-Port that Car Phones+ was receiving promotion funds from Ameritech that exceeded and were different than the normal cooperative-advertising allotments, but it was also within his authority to act on that information — that is, to tell Sennett that there was a way to seek extra funds from Ameritech. ¶ 10. Significantly, Tele-Port also received market development funds from Ameritech. In 1996, when Ameritech wanted a presence on Bluemound Road, it gave $7,300 to Tele-Port to help Tele-Port open a store there. This money was unrelated to cooperative-advertising funds, and was paid...