LES MOISE, INC., Plaintiff-Appellant. V. ROSSIGNOL SKI CO., INC., Defendant-Respondent-Petitioner.
No. 83-300
Supreme Court of Wisconsin
January 31, 1985
Argued September 5, 1984.
122 Wis. 2d 51 | 361 N.W.2d 653
I am authorized to state that JUSTICE WILLIAM G. CALLOW and JUSTICE DONALD W. STEINMETZ join this concurrence.
For the plaintiff-appellant there was a brief by William E. Glassner, Jr., Ann Kerns and Charne, Glassner, Tehan, Clancy & Taitelman, S.C., Milwaukee, and oral argument by William E. Glassner, Jr., and Ms. Kerns.
DAY, J. This is a review of a published decision of the court of appeals1 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),
We hold that a cause of action under the WFDL,
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 ter-
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
According to Les Moise‘s amended complaint, this agreement with Rossignol was a “dealership” within the meaning of
Les Moise‘s complaint alleged that the written notice of termination sent by Rossignol was in violation of
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.
“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 in competitive circumstances.”
“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
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.
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
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.
According to the court of appeals, just as this court in Hansen “modified the law to compensate for the injustices caused when a tort claimant had an injury but no notice of it,” its proposed deviation from the Barry rule would obviate harsh results “where a plaintiff has notice, but has not yet suffered an injury.” Les Moise, 116 Wis. 2d at 275 and 281.
The court of appeals gave several reasons for its reliance upon Hansen to deviate from the Barry rule. First, the court stated that the policy of the WFDL,9 to protect
The court of appeals also rejected a distinction discussed in Hammil v. Rickel Mfg. Corp., 719 F.2d 252 (7th Cir. 1983). In Hammil, the seventh circuit affirmed a district court judgment under the WFDL. The district court held that a cause of action under
We agree with the conclusion of the court of appeals in rejecting the distinction made by the district court in Hammil. In this case, although Les Moise did claim violations of both
We disagree with the court of appeals’ conclusion that the Barry rule should not apply to actions brought under the WFDL. First, the remedy provisions of the WFDL become available to dealers upon the grantor‘s violation of the statute with no need for a determination of actual injury. This legislative scheme is consistent with both commercial reality and the WFDL‘s policy to protect dealers in their relationships with grantors. Upon receipt of a written notice of termination which does not comply with the WFDL, the dealer has a cause of action which does not require him to wait until actual injury and yet allows him relief from the obvious commercial burden of doing business under a written termination notice. Even if actual injury could not be shown until the termination occurs, the WFDL gives the dealer the right to obtain injunctive relief to prevent termination.
Second, the Hansen case is distinguishable. This court in Hansen said that the Barry rule “equitably regulates the statute of limitations in the majority of cases.” Hansen, 113 Wis. 2d at 554. Even assuming that Hansen is a deviation from the Barry rule, in Hansen, the limitation period had expired before the claimant knew or should have known about the injury. Hansen, 113 Wis.
Finally, the legislative history of the WFDL is consistent with this court‘s application of the Barry rule to the instant case. The Legislative Reference Bureau‘s analysis of the initial draft of the Wisconsin Fair Dealership Law was cited by this court in interpreting the WFDL in White Hen Pantry v. Buttke, 100 Wis. 2d 169, 178, 301 N.W.2d 216, 221 (1981). This analysis says:
“This bill prohibits franchisors from terminating, cancelling, failing to renew or substantially changing the competitive circumstances of a franchise without good cause as defined in the bill. The franchisor must give 90 days’ notice of such action and state all the reasons for such actions. The franchisee is given 60 days to correct the deficiency and if corrected within that period, the franchisor‘s action is void. The franchisee is given 10 days to remedy a nonpayment of sums due under the franchise. A franchisee may bring an action for damages or injunctive relief within one year after the violation if the franchisor violates any provision of this bill. The bill does not apply to motor vehicle dealers, distributors or wholesalers.”
We conclude that the WFDL gives a dealer a cause of action upon violation of its provision. Under the Barry rule, the cause of action here accrued for purposes of the statute of limitations when the written notice was received. Therefore, Les Moise‘s action commenced on April 14, 1981, and was barred by the statute of limitations. The circuit court was correct in dismissing Les Moise‘s complaint.
By the Court.—The decision of the court of appeals is reversed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I would dismiss this case as moot. The court is giving an advisory opinion on the basis of general factual allegations in the pleading. Yet it is apparent from the briefs and the oral argument that the parties disagree about the
Without the facts and without careful analysis of various potential factual situations, the majority concludes that, although the complaint alleged violations of
According to
I conclude that in each case the facts must be examined to determine when the cause of action for each particular violation accrued. Although the opinion is ambiguous, it can be read as establishing a blanket rule: where the grantor gives written notice of termination, whether or not the notice is defective, the dealer‘s cause of action for “termination without good cause,” as well as the dealer‘s cause of action for failure to furnish sufficient notice, accrues as of the date of receipt of the written notice. P. 61. I do not believe that such a blanket rule, if that is what the majority is creating, will stand the test of time.