Petition — Slidell Ford Tractor, Inc. v. Ford Motor Co.

— Supreme Court, U. 8.

FI LED

} JUN ® 1978

;

4

—

MICHAEL RODAK, R., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1753

SLIDELL FORD TRACTOR, INC.,

Petitioner-Relator,

versus

FORD MOTOR COMPANY and

FORD MOTOR CREDIT COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

REVIEW A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS,

FOR THE FIFTH CIRCUIT

GERARD H. SCHREIBER

8137 Oleander Street

P.O. Box 13644

New Orleans, Louisiana 70185

Attorney for Petitioner-

Relator

JEANNE M. ROQUES

ROBERT B. CHOPIN

711 Old Spanish Trail

P.O. Box 236

Slidell, Louisiana 70459

504/651-2272

Attorneys for Petitioner-

Relator

SCOFIELDS’ QUALITY PRINTERS, P.O. BOX 63096. NO LA 70153 - 604/822-1611

— — . j —

; ß

TABLE OF CONTENTS

Page

tr eee eee 1

JURISDICTION ......... . 0 2

QUESTIONS PRESENTED FOR REVIEW ........ 2

PERTINENT CONSTITUTIONAL PROVI-

SIONS, STATUTES, AND RULES OF

/ ⁵Ä———Aʃ (,b 7

ere es eee 9

r . / / ß bees ee 16

CERTIFICATE OF SERVICE. 36

SPE Skbendbanddeds nocduesnccdescdcesccecce. la

TABLE OF CASES, STATUTES

AND AUTHORITIES

CASES

Brady v. Southern Railroad, 320 U.S. 476, 64

S.Ct. 232, 88 L.Ed. 239 (19433˙))j)- sees 19

Chicago, Rhode Islaad and Pacific Key Co. v.

Howell, 401 F.2d 752 (10th Cir. 1968) ............ 17

Continental Ore Co. v. Union Carbide and

Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8

2 ED 6.0.054006605c6deedbboesodeceeces 17

Deniring v. Bolin Oil Co., 422 F. 2d 55 (10th Cir.

22 e e b eee ee eee 17

Emich Motor Corp. v. General Motor Corp.,

181 F.2d 70 (7th Cir. 1950); 340 U.S. 558, 71

S.Ct. 408, 95 L.Ed. 534 (1951); reh. den. 341

U.S. 906, 71 S.Ct. 610, 95 L.Ed. 1345 (1951) ....... 21

Galloway v. Tenneco Oil Co., 313 So.2d 317

Si ME cutendsceuepndnadvaseseesesessess 29

' ii

TABLE OF CASES, STATUTES

AND AUTHORITIES (Continued)

Hays v. United Fireworks Mfg. Co., 420 F.2d

n -

Jolley Elevator Corp. v. Schwegmann Bros.

Giant Supermarkets, 230 So. 2d 640 (La.

App. 4th Cir. 1970) writ ref. 255 La. 813, 233

ee „0

...es ede ee e de de ee

New Mexico Savings & Loan Association v.

United States Fidelity and Guaranty Com-

pany, 454 F.2d 328 (10th Cir. 1972) ..............

Ouachita National Bank v. Williamson, 338

, ... ˙¾.‚ ....

Rhynard v. Felori, 315 F.2d 17%ch ii

Southern Television Electronics v. Read, 244

So.2d 624 (La. App. 4th Cir. 1971) writ ref.

Pm RR ERS ee nr

U.S. v. Arnold Schwinn & Co., 87 S.Ct. 1856,

388 U.S. 365, 186 L.Ed.2d 1249 (1967) Rem.

II wns ca cdinnecéesatbadesatadbeteue

U.S. v. General Motors Acceptance Corpora-

tion, 121 F.2d 376 (7th Cir. 1948) cert. den. 341

U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497 ..............

Volasco Products Company v. Lloyd A. Fry

Roofing Company, 308 F.2d 383 (6th Cir.

Die oa

iii

TABLE OF CASES, STATUTES

AND AUTHORITIES (Continued)

Page

William Goldman Theatres v. Lowe’s, Inc., 69

F.Supp. 103 (Dist. Ct. E.D. Penn. 1946) aff.

164 F.2d 1021 (3rd Cir. 1948) ................. 25,26

STATUTES

Rule 50(a), Federal Rules of Civil Procedure,

e i so een 8,16,19

15 United States Code 1 3,8,9,21

La. Revised Civil Code, Art. 19577777 7.8

La. Revised Civil Code, Art. 194222 8

AUTHORITIES

Lavine and Horning, Manual of Federal Prac-

r ! esse sees e cocese 19

5A Moore’s Federal Practice, Sec. 50-02 .......... 20

CONSTITUTION OF THE UNITED STATES

Amendments V and VII of the United States

D beak eve edingd Babee eee 2,3,4,5,6,7,18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

SLIDELL FORD TRACTOR, INC.,

Petitioner-Relator,

versus

FORD MOTOR COMPANY and

FORD MOTOR CREDIT COMPANY,

Respondents.

- PETITION FOR WRIT OF CERTIORARI TO

REVIEW A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Slidell Ford Tractor, Inc., petitions the

court to issue a writ of certiorari to review the judg-

ment of the United States Court of Appeals, for the

Fifth Circuit, in Case No. 77-2379 of the docket of that

court, affirming the judgment of a directed verdict for

the defendants, Ford Motor Company and Ford Motor

Credit Company, in the matter entitled “Slidell Ford

Tractor, Inc. vs. Ford Motor Company and Ford Motor

Credit Company”, Case No. 75-2691 of the docket of the

United States District Court for the Eastern District of

Louisiana, Section G“.

A copy of the judgment of the district court and its

minute entry or reasons for judgment is printed in the

appendix. A copy of the judgment and its reason for

judgment of the United States Court of Appeals for the

Fifth Circuit, is likewise printed in the appendix.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was dated March 16, 1978. No

rehearing was applied for by relator.

Further, the judgment of the United States District

Court for the Eastern District of Louisiana was dated

May 26, 1977. No motion for a new trial was filed. The

jurisdiction of this court is invoked under the provi-

sion 28 U.S.C. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1) That the United States District Court for the

Eastern District of Louisiana, unconstitu-

tionally and grossly exceeded its discretion in

directing a verdict in favor of respondents at the

conclusion of relator’s evidence, denying relator

its constitutional right to due process of law anda

trial by jury guaranteed to it by Amendments V

and VII of the United States Constitution;

3

2) That Slidell Ford Tractor, Inc., hereinafter

referred to as Slidell, was damaged by the tor-

tious breach of contract that it had with Ford

Motor Company, hereinafter referred to as Ford,

and Ford Motor Credit Company, hereinafter re-

ferred to as Ford Credit, in the amount estimated

by Ford and Ford Credit to be $826,822.00, over the

life of a Ford Motor Company Tractor Dealership

of 15 years, which breach of contract was accom-

plished by a conspiracy between Ford and Ford

Credit in restraint of trade in violation of the

Anti-Trust Laws of the United States of America,

according to which the amount of damages may

be trebled resulting in liability by respondents to

relator in the amount of $2,460,000.00, all of which

was proven with sufficient certitude and clarity

by a preponderance of the evidence which was

sufficient for the jury to base a verdict in favor of

Slidell;

3) That the court erred in directing a verdict in an

anti-trust suit on the grounds that Slidell did not

prove damages equal to the jurisdictional

amount in United States District Court, when

there is no jurisdictional amount requirements

under the anti-trust laws of the United States, and

this denied relator of due process of law as guar-

anteed by Amendment V of the United States Con-

stitution; and violated the provisions of 15 U.S.C.

15;

4) Whether the trial judge grossly and abusedly

erred in refusing to qualify as an expert in

management and decision science, accounting,

5)

4

quantitative science, and/or economics, a

college professor teaching management science

and accounting at Loyola University, who had

obtained a Bachelor of Business Administration

degree with a major in accounting in 1961; a

Master’s degree in accounting in 1966; and a Doc-

tor of Philosophy degree with a major in manage-

ment science with minors in accounting and

quantitative mechanics in 1975; and who had

been a supply officer in the Navy, an accountant

in private industry and small business consul-

tant, and a professor of accounting and allied

sciences over a period of 15 years; and who testi-

fied on direct examination that by an application

of management science or a combination of his

other areas of expertise, he could take a small

corporation with a given sales volume in the first

year of its operation and project forward what the

anticipated profit of that corporation might be

over a given number of years using a certain

percentage of profit as a base for the projection;

and in doing so denied relator of due process of

law as guaranteed by Amendment V of the Unit-

ed States Constitution;

Whether the trial judge erred in directing a ver-

dict based on his conclusion that the future

profits of a business can only be computed on its

past profits when the business was not in busi-

ness long enough to have a history of past profits

because of the tortious conspiratorial acts of the

appellees, its ability to make a profit having been

thwarted by the unlawful activities of the

appellees in breach of contract and restraint of

6)

8)

5

trade, and in doing so, denied relator of due

process of law as guaranteed by Amendment V of

the United States Constitution;

Whether the trial judge erred in considering that

the effect of the termination of a contract on

August 29th, which was two days before its ex-

press termination date on September ist, was not

a serious question to be decided by the jury and

thus denied relator of due process of law as guar-

anteed by Amendment V of the United States Con-

stitution;

Whether the trial judge erred in failing to observe

that a contract that binds a small business to in-

vest a large amount of money in setting up a busi-

ness to sell a product manufactured by a large

manufacturer who represented that the small

business would be supplied with enough stock to

operate profitably, but Which absolved the manu-

facturer from any obligation to furnish enough of

the product to make the business profitable con-

tains no mutuality of obligation and is contra

bonos mores, and thus denied relator of due

process of law as guaranteed by Amendment V of

the United States Constitution;

Whether the trial judge erred in directing a ver-

dict for appellees concluding the appellant did

not prove its damages because the court had re-

fused to allow appellant's expert to testify, when

the case was not one where the testimony of an

expert was absolutely required for the jury to un-

derstand the case and there was ample lay

9)

10)

11)

6

evidence in the record on which the jury could

base a verdict as to the merits and the quantum

and thus denied relator of due process of law as

guaranteed by Amendment V of the United States

Constitution;

Whether the trial judge erred in failing to observe

that a contract that binds one small party to in-

vest a large amount of money in a business on the

representation of a large financing institution

that they would furnish the small party with the

financing needed for the profitable operation of

its business, but which further provided that the

large financing institution could terminate the

obligation, make the small company put up as

much additional money as the large financing in-

stitution demanded, change the conditions of the

agreement anytime it so desired, and in its sole

discretion, contains no mutuality of obligation

and is contra bono mores, and thus denied relator

of due process of law as guaranteed by Amend-

ment V of the United States Constitution;

Whether the trial judge erred in directing a ver-

dict in an anti-trust case for the defendant when

the evidence proved restricted area for sales and

tie-in agreements between conspirators, and thus

denied relator of due process of law 4s guar-

anteed by Amendment V of the United States Con-

stitution;

Whether the trial judge erred in excluding

evidence as to which party to a contract drew up

the contract when Louisiana law provides that

12)

7

the terms of a contract shall be construed against

the person who-drew it up. LCC Art. 1957,

Ouachita National Bank v. Williamson, 338

So. 2d 172. And thus denied relator of due process

of law as guaranteed by Amendment V of the

United States Constitution.

The court erred in refusing to allow a certain

letter voluntarily furnished to relator by

respondents, which letter expressed an opinion

concerning the cancellation of relator’s franchise

directly opposite that of respondents position at

trial into evidence on the grounds it was privileg-

ed. Said letter was not privileged, and if it was,

such privilege was waived and the refusal to

allow its introduction into evidence deprived

relator of due process of law as guaranteed by

Amendment V to the United States Constitution.

PERTINENT CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES OF COUT

1) United States Constitution, Amendment V, (no

2

person shall be .... deprived of life, liberty or

property, without due process of law... .);

United States Constitution, Amendment VII, (In

suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried by

jury, shall be otherwise re-examined in any court

of the United States, than according to the rules of

the common law);

3) 15 United States Code, 15, (any person who shall be

injured in his business or property by reason of

anything forbidden in the anti-trust laws may sue

therefor in any district court of the United States in

the district in which the defendant resides or is

found or has an agent, without respect to the

amount in controversy, and shall recover three-

fold the damages by him sustained, and the cost of

suit, including a reasonable attorney's fee);

4) Rule 50(a) Federal Rules of Civil Procedure, 26

U.S.C. Rule 50(a) Motion for Directed Verdict:

When Made; Effect. A party who moves for a

directed verdict at the close of the evidence of-

fered by an opponent may offer evidence in the

event that the motion is not granted, without hav-

ing reserved the right so to do and to the same ex-

tent as if the motion had not been made. A motion

for a directed verdict which is not granted is nota

waiver of trial by jury even though all parties to

the action have moved for directed verdicts. A mo-

tion for a directed verdict shall state the specific

grounds therefor. The order of the court granting a

motion for a directed verdict is effective without

any assent of the jury;

5) Louisiana Revised Civil Code, Article 1957, (In a

doubtful case the agreement is interpreted against

him who has contracted the obligation);

6) Louisiana Revised Civil Code, Article 1942, (Legal

agreements having the effects of law upon the par-

ties, none but the parties can abrogate or modify

them. Upon this principle are established the

9

following rules... Second. the courts are bound

to give legal effects to all such contracts according

to the true intent of all the parties.

STATEMENT OF CASE

This is a claim in breach of contract, tort and anti-

trust by a small tractor dealership against a giant

manufacturer and its wholly owned financing sub-

sidiary.

Ford Motor Company and Ford Motor Credit Com-

pany joined together in a conspiracy in restraint of

trade to cancel the dealership franchise owned by

relator, and in doing so damaged it in its business in

violation of the provisions of 15 U.S.C. 15. They

breached the contract in effect between themselves

and Slidell Ford Tractor, Inc., and committed tortious

activities against it.

Slidell, a small Louisiana corporation entered into

an agreement with Ford for the establishment of a

Ford Motor Company Tractor Dealership in Slidell,

Louisiana. Negotiations for the establishment of the

dealership began in 1972 between two representatives

of Ford, namely, Bobby Lynn and Ed Farley and

Emory L. Graves, Sr., President of Slidell. Ford

originally solicited Slidell concerning the

possibilities of it becoming a franchise dealer.

At the time of the original solicitation and negotia-

tion, Slidell was named Christy-Ann-Lea, Inc., and

was in the equipment rental and construction

business.

10

Grandiose promises were made by Lynn and Farley

to Graves about the profits to flow by doing business

with Ford Motor Company. Lynn met with Graves and

filled out for Uraves the blank spaces boastfully en-

titled “Your Invitation To Opportunity”. One page

delineated the area in which Slidell was permitted to

sell, being 25% of St. Tammany Parish, Louisiana;

50% of Hancock County, Mississippi; and 50% of Pearl

River County, Mississippi. The territory was

specifically outlined on a map furnished to Graves.

The next page entitled “Trading Area Prospectus”,

was the seduction. It held out glowing promises of a

profitable business in its first year of operation based

on Total Retail Sales of $277,200; Operator’s Salary

Plus Net Profits before Taxes $21,800; and Based on

Projected Annual Going Rate, Return on Invested

Capital, 26.5%.

It did contain a caveat in small print at the bottom

page which provided:

NOTE: All figures are estimated. Obviously,

as in the case in all business, sales and profits

tend to vary and to rise or fall from year to year

due to changing economic, marketing, and

other conditions, and depending on the quality

and energy of the management of the business.

However, it did not mention the fact that everything

depended on Ford supplying Slidell with merchandise

to sell which as will be revealed they did not do.

11

At the time when Slidell took on this dealership

there were very few tractors in the whole area. Ford

counted them. There were only 41 of all makes, Ford

and otherwise.

So that Slidell’s sales had to depend on sale of trac-

tors and not on service as there were no tractors to ser-

vice.

Ford acknowledged this by specifying in a docu-

ment that Ford typed which repeated all of the same

figures, Retail Sales $277,200, Owners Salary Plus Net

Profit before Taxes $21,800, all being based on Ford

furnishing 21 tractors “First 12 Months Objective”.

Graves took the bait and made application for a

dealership.

Although the application was made to Ford, section

4 of the application listed four forms to be attached to

apply to Ford Credit for a line of credit to finance

purchases from Ford, all on Ford Credit forms.

although Ford tried to make it appear that there was

no compulsion for Slidell to do its wholesale financing

with Ford Credit and that this was only aconvenience:

1) the forms were picked up by the Ford

representative;

2) Graves testified he was compelled to make

application to Ford Credit;

3) B.R.Harvill, the Branch Manager for Ford

Credit, testified that he knew of no dealers

12

who did not finance their purchases from

Ford through Ford Credit.

Slidell’s application for a Ford dealership was ap-

proved as was its application to Ford Credit in a docu-

ment entitled “Tractor And Equipment Finance Plans

For Ford Motor Company Dealers”.

In good faith Slidell made elaborate arrangements

to operate a first-class Ford dealership.

1) Graves built a group of new attractive,

well equipped buildings with sales

facilities, parts storage facilities, repair

facilities, executive office facilities, and

demonstration facilities on a site ap-

proved by Ford, according to Ford Plans

and Specifications and under the super-

vision of Ford, without profit to himself;

2) Slidell employed salesmen, parts clerks,

repairmen, and clerical help and sent them

to schools conducted by Ford;

3) Graves invested in Capital Stock in Slidell

$10,000.00 and had loaned Slidell by

September, 1974, $104,618.00, which

method of investing was known to Ford

and Ford Credit from financial statements

given to Ford each month and never ob-

jected to by them;

4) And generally did all of the things re-

quired of Slidell in its application to Ford

as specified in the application.

13

Graves, himself, went to several schools at one of

which he was instructed that the average life of a Ford

Tractor dealership was 15 years and he was given a

piece of literature entitled “Growth Chart” which pro-

jected the sales of a dealership whose first years sales

was $250,000.00 to be $815,000.00 at the end of ten years

which if started with $277,000.00 sales in the first year

and extended for five more years and multiplied by

4.4% as specified in the Dealer Trade Area Prospectus

prepared by Ford would have earned for Slidell the

amount sued for.

Everything was set for Slidell to do a masterful job.

All that it needed to do so was tractors furnished by

Ford. In 15 months Ford should have furnished 24. In-

stead of doing so, between those that Ford did not fur-

nish and those furnished, but taken away and trans-

ferred to other dealers, Slidell was left with but eleven

tractors to sell. This was admitted by Ford in a list pre-

pared and furnished by Ford and testified to by

Graves.

Graves complained about it as did Slidell’s assistant

manager, Marguerite Rapp, but Ford did nothing.

Graves was of the opinion that Slidell had a line of

credit of $70,000.00. On May 30, 1974, Slidell executed a

document at the request of Ford Credit that he thought

increased the line of credit to $240,000.00.

Finally on July 17, 1974, at about 8:30 A.M., Farley

and another Ford representative by the name of

Morgan, came to Slidell’s premises and un-

ceremoniously walked into Graves’ office and an-

14

nounced to Graves that Ford Credit had cancelled

Slidell's line of credit and it was necessary for him to

resign. Graves was stunned. He was flabbergasted. He

tried to contact Ford Credit to verify the news, but

could not contact anyone.

Morgan or Farley told Graves that it made no

difference anyway and ordered Graves to sign a letter

of resignation, the form for which they furnished, or

Ford would take the dealership away anyway.

Graves crestfallen and beaten, yielded to the de-

mand, had Rapp copy the letter of resignation on

Slidell stationery and signed it. No meeting of the

Board of Directors of Slidell was convened to approve

or ratify the act.

Farley and Morgan left and within an hour Farley

was back with the Ford Tractor dealer from Ham-

mond with trucks and immediately started stripping

Slidell of everything saleable.

Ford inferred that Slidell consented to all transfers,

but it is significant to note that not one receipt was in-

troduced by Ford in evidence.

About two weeks later, Slidell received a letter from

Ford Credit dated July 16, 1974, which stated that

Slidell's wholesale line of credit was suspended, not

cancelled as Morgan stated, and ordered an additional

cash investment of $40,000.00 by September 1, 1974. By

September, 1974, Slidell had additional cash invested

of $41.455.47, which was acknowledged by Ford Credit.

15

Graves tried to get Slidell’s dealership re-

established. His overtures to Ford were met with the

answer that they were powerless because Ford Credit

had cancelled his line of credit. Ford Credit refused to

listen because Ford had cancelled the franchise and

he had to have a franchise“.

Slidell was boxed in by the conspiracy between Ford

and Ford Credit.

It should be noted that on July 17, 1974, Ford had

knowledge of a letter allegedly written on July 16,

1974, which was not received by Slidel! until several

weeks later. A strange coincidence!

Thereafter, back and forth, the conspiracy went on

even to the point of Ford Credit taking action to protect

Ford and Ford agreeing to pay Ford Credit's legal ex-

penses.

On the trial of the case Slidell offered as an expert

witness in management and decision sciences, ac-

counting, quantitative analysis and economics an

assistant professor of management sciences and ac-

counting at Loyola University, who had obtained a

bachelor’s degree in accounting in 1961; a masters

degree in accounting in 1966; and © doctorate with a

major in management science and minors in account-

ing and quantitative mechanics in 1975; and who had

been a supply officer in the Navy, an accountant in

private industry and small business consuliant, and a

professor of accounting and allied sciences for over 15

years. The trial judge refused to qualify the witness

because the court was “unable to accept the doctor as

16

an expert in management and decision science or

quantitative analysis, because I don't understand

what they are”.

Even though the witness testified that by the

application of management science or a combination

of his other areas of expertise he would be able to take

a small corporation with a given sales volume in its

first year of business and project forward anticipated

profit over a given number of years using a certain

percentage of profit as a base for the projection, the

trial judge still refused to qualify the witness even as

an accountant.

After the conclusion of Slidell's direct evidence, the

court directed a verdict for Ford and Ford Credit.

The United States Court of Appeals for the Fifth Cir-

cuit, affirmed the lower court’s granting the directed

verdict.

ARGUMENT

The district court erred in granting a directed ver-

dict after hearing Slidell's direct evidence. Rule 50(a)

of the Federal Rules of Civil Procedure allows a party

to move for a directed verdict at the close of the

evidence offered by an opponent. This was an abuse of

the court's discretion.

In directing its verdict, the trial court said that on a

motion for a directed verdict the court must consider

whether there is evidence in the record upon which a

jury could properly find a verdict for the party against

17

whom the directed verdict is requested. The court

must view the evidence most favorably to the party

against whom the motion is made and give that party

the benefit of all reasonable references from the

evidence.“

The first part of this statement is a partially correct

statement of the law.

In New Mexico Savings & Loan Association v. Unit-

ed States Fidelity and Guaranty Company, 454 F.2d

328, (10th Cir. 1972), the court said:

“Motions for a directed verdict .... may be

granted only when the evidence is all one way

or so overwhelming in favor of the movant

that the trial court in the exercise of its sound

discretion would be required to set the con-

trary verdict aside. Chicago, Rhode Island and

Pacific Key Co. v. Howell, 401 F.2d 752, 754

(10th Cir. 1968), Cf. Deniring v. Bolin Oil Co.,

422 F.2d 55, 57 (10th Cir. 1970). In applying this

rule, the court must view the evidence in the

light most favorable to the party opposing the

motion, and that party is to be given the benefit

of all inferences which the evidence fairly

supports, even though contrary inferences

might reasonably be drawn. Continental Ore

Co. v. Union Carbide and Carbon Corp., 370

U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed. 2d 777

(1962)

The error in the trial court's ruling is 1) that the word

any was not included to modify “evidence” and 2)

18

the word “properly” was used when it should not have

been.

There is no doubt about the fact that the court may

direct a verdict, but if it does, the court should proceed

with extreme caution. The court must remember that

the act of directing a verdict in a jury case is an act of

extreme egotism and transgresses on sacred grounds.

Amendment VII to the United States Constitution

not only guarantees trial by jury, but further enjoins

re-examining facts tried by juries.

There are no caveats imposed that threaten a

wrongful verdict. To the contrary, the constitutional

right to a trial by jury imports the right that a jury

may return a verdict that is wrong as well as returna

verdict that is right.

When a judge directs a verdict he is substituting his

judgment for that of six peers, whose judgment the

litigant is entitled to by constitutional right, on the

premise that they are too stupid, ignorant or un-

learned to see through the evidence and arrive at the

truth.

This is the conclusion that the trial court comes to

when the trial court in its ruling considered that the

jury had to “properly” find a verdict. “Properly” in

whose mind, the jury's or the judge’s?

The evidence in this record amply supports an in-

ference that could have been drawn by the jury that

Ford and/or Ford Credit breached their contracts with

19

Slidell and that in so doing they conspired in restraint

of trade; and there is also evidence that amply sup-

ports an inference as to how much Slidell was damag-

ed.

The jury would have returned a verdict for Slidell

which would have busted up Ford and Ford Credit's

cartel.

The second part of the court’s statement is absolute-

ly correct, except that the court did not follow it. If it

had, it would not have directed the verdict. What the

court actually did was to analyze Slidell's evidence

and then reject it. But that is not the function of the

court in a jury case. That is the function of the jury.

To the contrary, if there is any question about the

evidence, the motion may not be granted. Lavine and

Horning, Manual of Federal Practice, p. 585.

The suit sought redress for breach of contract on the

part of the defendants, Ford and Ford Motor Credit; as

well as for violation ofthe anti-trust laws of the United

States.

A directed verdict under Rule 50 of the Federal Rules

of Civil Procedure, 26 U.S.C. Rule 50, should only be

granted when the evidence adduced shows there can be

only one reasonable conclusion as to the verdict.

Brady v. Southern Railroad, 320 U.S. 476, 64 S.Ct. 232,

88 L.Ed. 239 (1943). The established rules require the

trial court to view the evidence in the light most

favorable to the party against whom the motion is

made. Jones & Laughlin Steel Corp. v. Matherne, 348

F.2d 394 (1965) 5A Moore’s Federal Practice Sec. 50.02.

The district court in granting the motion for a

directed verdict stated plaintiff had failed to prove its

damages. The Court of Appeals in affirming the dis-

trict court concluded in effect there was no contract in

effect between the parties and thus Ford had no

obligations toward Slidell Ford Tractor. There is no

question, that there was a contract in effect between

the parties. Ford Motor Company and Ford Motor

Credit Company admitted in its answer to the com-

plaint that there was an agreement in effect between

the parties. The agreements were introduced into

evidence. All the parties admitted there was acontract

in existence.

The testimony shows Slidell Ford Tractor, Inc., was

coerced into signing a letter resigning the franchise. If

a contract was not in existence there would have been

no need for such a letter. The Ford representatives

knew, and as their counsel admitted in its answer,

there was a contract in existence. The facts further

show Ford lacked sufficient cause to cancel it, but

decided to do so for some reason known only tothem.

The agreement required both parties to perform cer-

tain acts. If Ford’s position is accepted as correct, that

is they were only required to furnish Slidell with an

opportunity, they still breached the contract. They

failed to provide the opportunity. There was no possi-

ble way Slidell Ford Tractor, Inc., could be a

successful venture without merchandise to sell. The

evidence is abundantly clear the merchandise was not

21

furnished. The opportunity Ford Motor Company was

required and obligated to furnish Slidell Ford Tractor,

Inc., was not furnished. Ford violated the contract.

Slidell proved the defendants entered into an illegal

conspiracy in violation of the anti-trust laws of the

United States, and said conspiracy caused it to suffer

in its business. 15, U.S.C. 15, grants an individual the

right to prosecute a private anti-trust suit in the courts

of the United States, irrespective of the amount in con-

troversy. The court in this matter concluded Slidell

failed to show the amount of any damages it suffered.

Accordingly, it concluded a direct verdict must be

granted.

Graves testified he was forced, prior to becoming a

dealer, to do business with Ford Motor Credit. He

testified that on the very application he was required

to file certain Ford Credit forms. That this was not an

application for Ford Credit, but for a Ford dealership,

and unless he did business with Ford Credit, he could

not obtain the franchise. The courts have held it to be a

violation of the anti-trust laws for a automobile

manufacturer to force a dealer to use its finance outlet.

U. S. v. General Motors Acceptance Corporation, 121

F.2d 376 (7th Cir. C.A. 1948); cert. den. 341 U.S. 618, 62

S.Ct. 105, 86 L.Ed. 497; Emich Motors Corp. v. General

Motors Corp., 181 F.2d 70 (7th Cir. 1950); 340 U.S. 558, 71

S.Ct. 408, 95 L.Ed. 534 (1951); reh. den. 341 U.S. 906, 71

S.Ct. 610, 95 L.Ed. 1345 (1951).

Ford Motor Credit’s representatives testified that

Slidell Ford Tractor, Inc., was a decent client, but they

cancelled their contract

Because he had to have a franchise before we

could establish a line of credit and he had to

meet the financial requirements. Number one,

he had to have the two together. He had to have

substantial credit and he had to have a

franchise. He had to have equipment.”

It must be remembered that at the time Ford Motor

Credit Company cancelled Slidell Ford Tractor, Inc.'s

contract, they were not refusing to enter into a con-

tract with Slidell, they were cancelling an existing

contract. Slidell was their customer. Slidell was

good client. It paid its bills, and during their contrac-

tual history, no major problems arose between the

parties. When the contract was cancelled, Slidell hada

line of credit and only was attempting to keep it. The

only reason Ford Motor Credit Company cancelled the

contract was to please a separate and distinct entity,

Ford Motor Company.

The evidence was quite clear. Ford Motor Company

and Ford Motor Credit Company entered into a con-

spiracy to put Slidell Ford Tractor, Inc., out of

business. Ford Motor Credit Company said they would

reinstate relator if Ford Motor Company reinstated

the franchise. Ford Motor Company said they would

reinstate the franchise if Ford Motor Credit Company

reinstated their contract with Slidell. A truly vicious

circle.

Ford, after cancelling the contract, also took other

actions which revealed the conspiracy they were in-

volved in with Ford Motor Credit Company. Under the

23

Law of Louisiana, at the time Ford Motor Company

delivered merchandise to Slidell Ford Tractor, Inc.,

Slidell became the record owner of the merchandise.

Ford Motor Credit was granted by Slidell a chattel

mortgage on the merchandise. This chattel mortgage

clearly protected Ford Motor Credit Company in the

event Slidell did not make its payments. Ford Motor

Company no longer had an interest in the merchan-

dise. Yet within an hour ofthe cancellation Ford Motor

Company began removing everything saleable from

Slidell Ford Tractor, Inc. Merchandise it no longer not

only did not own, but that which it had no interest

whatsoever in. Ford alleges Slidell consented to all

transfers, yet it is significant to note that not one

receipt was introduced into evidence by Ford. Ford

went so far as to agree to pay legal fees incurred by

Ford Motor Credit Company in its dealings with

Slidell.

Ford Motor Credit for its part was worried about a

proposed lawsuit against Ford Motor Company, a

separate and distinct entity. They pushed to close the

matter out prior to a suit being filed not against them,

but Ford Motor Company. If they were not acting in

concert with Ford Motor Company, why worry abduta

proposed lawsuit they would not be a party to?

The interactions between Ford Motor Company and

Ford Motor Credit shows they were acting in concert

to drive Slidell Ford out of business. The two were one

and they go together as a Ford Motor Credit Company

representative testified. Such actions had the desired

effects, Slidell Ford was driven out of business.

24

Further there was evidence introduced that Ford

limited the area in which a dealer could sell his

products. The Dealer Sales Agreement required the

dealer to sell the product in volumes satisfactory to

Ford. One page 1 of said agreement at paragraph #4 it

is stated “while the dealer shall not be limited to the

dealer's locality in making sales, only sales by the

dealer to customers in such locality will be counted in

determing whether the dealer has made sales in

volumes satisfactory to Ford”. The intent of this

provision is quite clear. The dealer shall not sell, but

in his own locality. To keep his franchise he must sell

in a volume satisfactory to Ford, yet he is not given

credit if he sells to a customer who lives out of the area.

This is nothing more than an attempt to limit competi-

tion. Graves testified he was prohibited from selling

outside the assigned territories because the other area

had been previously assigned to other dealers. In U. S.

v. Arnold Schwinn & Co., 87S.Ct. 1856, 388 U.S. 365, 186

L.Ed. 2d 1249 (1967) Rem. 291 F.Supp 564, this court

held at page 1865:

“As the District Court held where a manufac-

turer selis products to his distributors subject

to territorial restrictions upon resale, a per se

violation of the Sherman Act results . Un-

der the Sherman Act, it is unreasonable

without more for a manufacturer to seek to

restrict and confine areas or persons whom an

article may be traded after the manufacturer

has parted with dominion over it”.

These specifics show there was evidence in the

record which could have led the jury to conclude the

25

defendants were acting in violation of the anti-trust

laws. Further there was sufficient testimony and

evidence to allow the jury to conclude Slidell had been

damaged in a set sum. In anti-trust actions a plaintiff

is not required to prove its damages with absolute or

mathematical certainty or accuracy. Hays v. United

Fireworks Mfg. Co., 420 F.2d 836 (9th Cir., 1969). The

‘evidence must only show some approximation of the

actual damages so that they may be determined with

reasonable certainty. Volasco Product Company v.

Lloyd A. Fry Roofing Company, 308 F.2d 383 (6th Cir.

1962). Further an award for loss profits is not depen-

dent upon showing a history of profits. In William

Goldman Theatres v. Lowe s. Inc., 69 F.Supp. 103 (Dist.

Ct. E. D. Penn. 1946) aff. 164 F.2d 1021 (3rd Cir. 1948) the

court was dealing with a firm that was never allowed

to enter the business. The defendants argued there

could never be a recovery for loss of profits in an anti-

trust case unless an established business had suffered.

The court rejected such a conclusion and allowed

damages based on comparative figures of other

theatres in the area. The court realized its decision had

some speculation and guess work involved in it, but

also recognized the Supreme Court rulings that the

amount of damages only be proven with approximate

accuracy.

In this case the plaintiff has proven its damage with

at least approximate accuracy. In the trading area

prospectus furnished to plaintiff it was shown he

could expect a first year operator’s salary plus net

profit before taxes to be $21,800.00. Further the same

document shows the return in a percentage figure.

namely, 26.8%. At page 91 of the record, a growth chart

furnished by the defendant Ford Motor Company,

shows what the plaintiff could expect its business to

look like over a ten year period.

These are the figures furnished by Ford and which

induced Slidell to enter into the agreement. While they

are estimates, it is not unreasonable, or merely a

speculation to say the jury could not have not conclud-

ed they were reasonably accurate. Ford, with all of its

experience, with its economist, and marketing per-

sonnel furnished these figures. Slidell proved if given

the opportunity it would have met or exceeded these

figures.

These figures are what Ford calculated a dealership

should make. They were based on information

available from the performance of other dealers. As in

William Goldman Theatres v. Lowe s. Inc., supra, they

could have been used by the jury as comparative

figures and the basis upon which to render a judgment

for relator. These figures were not merely conjectural

ones. They were ones this giant corporation with all of

its expertise in the tractor business concluded a

dealership such as Slidell Ford Tractor, Inc., could

reasonably expect to make in profit.

John H. Brandon, a former salesman for the plain-

tiff, testified the company seriously tried to sell trac-

tors. That they got deposits on some sales, but the

product was never furnished by Ford to conclude the

sale. That most of the sales were used tractors which

Slidell was able to secure on its own.

27

Rapp, formerly a secretary for Slidell, testified

about the need to obtain tractors and the refusal of

Ford to furnish them. Further, Slidell sold every used

tractor it could find. The testimony of the witnesses

show Slidell was able to produce, did sell what it could

get hold of, and the only reasons it was not much more

successful, was because Ford refused to furnish the

tractors.

The total of what Slidell sold is not speculative. The

business it was able to do is not purely conjectural. It

is a fact, this company was being operated properly. If

the product had been made available to it, it would

have sold it. The figures contained in the trade area

prospectus and the growth chart are not merely

speculative. If Ford had produced, as the contract re-

quired, Slidell would have made at least the figures de-

tailed in these documents.

The jury very easily could have concluded from the

uncontradicted testimony what Slidell would have

made on profits over the lifetime of this contract and

awarded damages accordingly.

The figures furnished were comparative figures fur-

nished by Ford. The jury could very well have based

their verdict on these figures. These figures were not

simply pulled out of the air, they were what the parties

felt were reasonable and realistic. The record of this

company shows there was sufficient evidence in the

record to justify a verdict. Any damages awarded

would not have been purely speculative or merely

guesswork. The evidence would have allowed the jury

to assess damages with reasonable accuracy.

The court ruled the plaintiff failed to meet the

jurisdictional amount required on its claim for breach

of contract. That the amount for damages proved only

exceed a little over $6,000.00, and the figures furnished

by Ford could not be used to show what Slidell would

lose in future profits by the termination of its

franchise.

Ford contends the contract in effect between the par-

ties only required Ford to furnish Slidell an oppor-

tunity. This is exactly what Slidell contends it was not

furnished. That if it had been given the opportunity it

would have upheld its end of the contract, and would

have been successful. It did uphold its obligations un-

der the contract as much as it could considering Ford's

breach of the contract.

The contract, paragraph 4 states the “dealer shall

vigorously and aggressively promote and make sales

of company products at dealers’ locality in volumes

satisfactory to Ford“. In paragraph 1 of the agreement,

Ford agrees to sell company products to the dealer. In

order for a dealer such as Slidell to meet its respon-

sibilities it must have products to sell.

The dealer has no opportunity to make a profit un-

less he has products to sell. The purpose of the con-

tract was supposedly to enter into a mutually and

Satisfactory arrangement whereby each party would

be benefited.

The equipment to be sold by Ford to its dealer is the

reason dealers enter into these contracts. Slidell be-

lieved it would be furnished tractors; Ford represented

29

it would. The uncontradicted testimony of the

employees of Slidell, Brandon, Rapp and Graves, was

Ford did not furnish the tractors. They furnished some

and irrespective of the fact they were already sold by

Slidell they were transferred to other dealers.

As in anti-trust matters, under Louisiana Law, it is

not necessary to prove loss profits with absolute cer-

tainty, or even mathematical certainty. It is only

necessary there be a sound and reasonable basis for

establishing the loss. Galloway v. Tenneco Oil Co., 313

So.2d 317 (La. App. 1975 4th Cir.) writ. den. 318 So.2d 42;

Southern Television Electronics v. Read, 244 So.2d 624

(La. App. 4th Cir. 1971) writ ref. 258 La. 570, 247 So.2d

392; Jolley Elevator Corp. v. Schwegmann Bros. Giant

Supermarkets, 230 So.2d 640, (La. App. 4th Cir. 1970)

writ ref. 255 La. 813, 233 So.2d 251.

Slidell proved its damages with reasonable certain-

ty. It showed it sold the products it was furnished. As

stated ante, it would not have been speculative if the

trier of facts in this matter, the jury, had concluded the

figures furnished by Ford on the trade prospectus and

the growth chart were accurate. Based on the history

of Slidell the jury could have concluded if Ford would

not have breached the contract, the amount sued for

was the amount Slidell lost.

The relator called as an expert witness Dr. John

Meredith.

In its Minute Entry of June 15, 1977, the court suc-

cinctly stated the qualifications of Dr. Meredith:

30

“Oral examination of Dr. Meredith revealed

that he had a Bachelor of Business Ad-

ministration Degree from Southern Methodist

University, a Master's Degree in accounting

from Southern Methodist University and a

Ph.D. in management sciences (with minors in

accounting and quantitative mechanics) from

North Texas State University. Until 1975 Dr.

Meredith's major experience both

professional and teaching was in the field of

accounting, although he has never become a

Certified Public Accountant. In 1975 he

became a professor of management sciences

and accounting at Loyola University. He also

testified that he had ‘made projections for

potential earnings ... performed certain ac-

counting functions .... and set up the ac-

counting systems’ for several small busi-

nesses in Nacogdoches, Texas area over an

unspecified three year period.

When asked to define ‘management science’ a

term with which the court was unfamiliar, Dr.

Meredith offered several vague and technical

examples of the application of management

science techniques. The impression con-

veyed was that management science is a com-

bination of systems used to optimize business

operations. Given a certain business situa-

tion, a management scientist could offer ad-

vice to improve the efficiency and profitabili-

ty of the business. This general explanation

did not imply that management science could

be used to give accurate projections of future

31

profits of existing businesses, although when

asked directly whether this was an applica-

tion of management science, Dr. Meredith

responded that it was. (italics added)

But the court refused to qualify Dr. Meredith as an

expert because:

In this case, I find that the witness was unable

to adequately define his area of specia\ization

in any form that would meaningfully relate to

this case. Dr. Meredith's practical experience

was admitted to be limited to three small

businesses in Nacogdoches, Texas. He re-

ceived his Ph.D. in management science only

in 1975, and had taught in the field only for one

year. He had never been qualified as an expert

in any court of law. Dr. Meredith's limited

practical and teaching experience hardly

qualify him as an expert and his inability to

explain his specialty in comprehensible

terms presented a further obstacle to

qualification.

This was a longer way of saying the same thing that

was summarized during the trial when the judge ruled

against allowing Dr. Meredith to testify because 1) the

judge stated that he did not know what management

and decision science, accounting, quantitative

analysis and economics were. 2) Dr. Meredith had

never been qualified as an expert before.

In other words, because in the judge’s opinion, since

he did not know or refused to learn what management

science was, which title incidentally explains itself,

an expert in management science is not qualified as

such; and because an expert has never been qualified

before as an expert he is not qualified as an expert.

This is warped logic at its best. Consider its im-

plications for example 1) because a judge never

previously judged a case, he is not qualified as a judge

2) because a lawyer never previously tried a case. he is

not qualified as a lawyer, 3) because a doctor never

previously administered to a patient, he is not

qualified as a doctor.

If this is logic, when, if ever, would the judge, the

lawyer or the doctor be qualified.

But Dr. Meredith was offered as an expert in ad-

ditional fields too, namely, accounting and economics.

Surely the judge knew what accounting and

economics is.

Appellant does not concede that an expert was even

necessary in this case. There has crept into the legal

practice a fallacious reliance on the role of the expert

and an erroneous exaggeration of the expert's impor-

tance. The only function of the expert is to help the

jury, if the jury needs help. In this case, the jury need-

ed no help. All of the evidence in this case pointed

toward an unavoidable conclusion that Ford Motor

Company and Ford Motor Credit Company induced

the plaintiff to go into business with promises of a

good business, and then conspired to pull the rug out

from under the plaintiff and keep it out.

However, the expert by way of education, training,

and experience was qualified to examine relator's

business and render an opinion as to what its position

would be if the opportunity required of Ford Motor

Company was furnished. To help the jury with exact

figures in returning a verdict for Slidell Ford Tractor,

Inc.

There was clear abuse by the trial judge in failing to

qualify Dr. Meredith. Rhynard v. Felori, 315 F.2d 176.

Prior to trial, Slidell Ford Tractor, Inc., in response

to a motion for production of documents, was fur-

nished a letter by an employee of Ford Motor Company

who happened to be an attorney. This letter was in-

itially viewed by counsel for relator in the office of

counsel for respondent. Upon request said letter was

photocopied by respondents counsel and later mailed

to counsel for relator, along with certain other

documents.

The morning of trial, respondents moved to have

this letter ruled inadmissible and returned. The court

granted said motion holding it to be privileged.

However, said letter, while rendering an opinion,

did so totally unsolicited. There was nocorresponding

letter or other request for this individual to render a

legal opinion as to the validity of the cancellation by

Ford Motor Company of Slidell Ford Tractor, Inc.,

franchise. The attorney-client privilege does not at-

tach everytime an attorney expresses his position ona

matter. The privilege is for the client. It is to allow him

to seek advice from his counsel. It is not to allow an at-

34

torney to render his unsolicited opinion on the validi-

ty of a transaction.

Further, the letter was requested and voluntarily

furnished. Other requested documents were not fur-

nished because respondents invoked a privilege to

them. When they voluntarily chose to furnish this

document, they voluntarily relinquished their right to

invoke the alleged privilege. Once the respondents

chose to relinquish the alleged privilege, it eould not

be regained at a later date. The document was not

covered under the attorney-client privilege, and even

if it was, respondents abandoned such a privilege, and

the letter should not have been ruled inadmissible.

The record in this matter shows Slidell proved by a

proponderance of the evidence that Ford Motor Com-

pany and Ford Motor Credit Company violated the

anti-trust iaws of the United States. That as a result of

the conspiracy entered into by them, Slidell was

seriously damaged in its business operation. The

record shows Slidell proved its damages it suffered.

The law does not require it to prove its damages with

mathematical certainty, but only with reasonable cer-

tainty, which it did. When the evidence is considered in

the light most favorable to Slidell, it shows the jury

could have been reasonably expected to bring in a ver-

dict for Slidell, It was an error on District Court’s part

to conclude the evidence could not possibly sustain a

verdict for relator. Further it was erroneous for the

Court of Appeals to conclude the figures furnished by

Ford Motor Company to relator, could not be accepted

by the trier of facts, the jury, as reasonably accurate

and upon which they could have rendered a judgment.

35

There is no question but that there was a contract in

effect between the parties to this lawsuit, and that

relator upheld its obligation under the contract. The

evidence shows Ford Motor Company violated the

contract by not furnishing Slidell with the product it

needed to sell. That there was a reasonable basis in the

record upon which the jury could have determined the

amounts of profits Slidell lost as a result of the breach

by Ford. There was evidence in the record to sustain a

verdict and evidence to sustain an award of damages

to Slidell. The action of directing a verdict in favor of

the respondents was erroneous.

The exclusion of Dr. John Meredith's testimony was

an abuse of the court’s discretion. He possessed the

necessary expertise by way of his formal education:

his teaching experience; and his business experience.

His testimony would have further proven the damages

sustained by relator.

The court erred in directing a verdict, the matter

should have been submitted to the jury, and a writ of

certiorari should be granted herein.

Respectfully submitted,

GERARD H. SCHREIBER

8137 Oleander Street

P. O. Box 13644

New Orleans, La. 70185

504/482-7861

JEANNE M. ROQUES

ROBERT B. CHOPIN

711 Old Spanish Trail

P. O. Box 236

Slidell, La. 70459

504/641-2272

Attorneys for Relator

CERTIFICATE

I certify that three copies of this petition were served

on Chaffe, McCall, Phillips, Toler & Sarpy, 1500 First

N.B.C. Building, New Orleans, La., attorneys for

respondents, by placing copies of same in the United

States Mail, postage prepaid, addressed to them at

their respective office of record.

GERARD H. SCHREIBER

la

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SLIDELL FORD TRACTOR, INC.

versus CIVIL ACTION

NO. 75-2691

SECTION “G”

FORD MOTOR COMPANY and

FORD MOTOR CREDIT COMPANY

JUDGMENT

The Court having on May 26, 1977, granted the defen-

dants motion for a directed verdict;

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of defendants, Ford Motor

Company and Ford Motor Credit Company and

against plaintiff, Slidell Ford Tractor, Inc., dismiss-

ing plaintiff's suit at his cost.

Dated at New Orleans, Louisia®Ma, this 26th day of

May, 1977.

/s/ NELSON B. JONES

NELSON B. JONES,

CLERK

2a

APPROVED AS TO FORM:

/s/ MOREY L. SEAR

UNITED STATES DISTRICT

JUDGE

[Filed: May 27, 1977]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2379

Summary Calendar*

SLIDELL FORD TRACTOR, INC.,

Plaintiff-Appellant

versus

FORD MOTOR COMPANY and

FORD MOTOR CREDIT COMPANY,

Defendants-Appellees

Appeal from the United States District Court for the

Eastern District of Louisiana

(March 16, 1978)

Before MORGAN, CLARK, and TJOFLAT, Circuit

Judges.

* Rule 18, United States Court of Appeals, Fifth Cir.; see Isbell

Enterprises, Inc. v. Citizens Cas» alty Co., 431 F.2d 409-(5th Cir.

1970).

PER CURIAM:

In its suit against Ford Motor Company and Ford

Motor Credit Company, Slidell Ford Tractor (Slidell)

contended that Ford Motor had breached a dealership

agreement with Slidell and that Ford Motor and Ford

Credit were engaged in a conspiracy in restraint of

trade. At the conclusion of Slidell's direct evidence,

the trial judge granted the defendants’ motion for a

directed verdict. In its appeal from that verdict, Slidell

contends that the trial judge committed ten errors.

Taken together, those errors amount to a contention

that there was evidence upon which a jury could have

found for Slidell. For Slidell to prevail it is essential

that its evidence establish two points: that Ford Motor

and Ford Credit violated contractual provisions or

that Ford Motor and Ford Credit engaged in a con-

spiracy to tie Ford dealerships to obtaining credit

from Ford Credit. On both points the trial judge was

correct in directing a verdict for Ford Motor and Ford

Credit.

Slidell bases its contention that there was a breach

of contract on Ford Motor’s failure to supply enough

tractors for Slidell to make a profit. To prove that it

had been damaged by that breach, Slidell relied upon

the prospectus that was prepared by Ford Motor prior

to the signing of the dealership agreement. The trial

judge explained in his minute entry that the primary

reason for the directed verdict “was that plaintiff had

failed to prove damages with sufficient specificity to

carry its burden of proof as to that essential element of

its claims.“ We find no error in that conclusion. The

prospectus was no more than a projection of estimated

4a

future earnings for the dealership. The prospectus

contained no guarantee that the actual earnings would

approximate the projected earnings. In fact, there was

an explicit disclaimer of any guarantee clearly print-

ed at the bottom of the prospectus. Moreover, the presi-

dent of Slidell testified that he knew that Ford Motor

was only giving him an opportunity to earn the sums

estimated on the prospectus and that the documents

which he signed contained no commitment from Ford

Motor. The documents themselves support that inter-

pretation.

Slidell’s allegation of an antitrust violation is based

upon its contention that it was compelled to use Ford

Credit as a condition of obtaining the dealership from

Ford Tractor. Again, however, that contention was

refuted by the testimony of the president of Slidell. He

admitted that there was no obligation that Slidell use

Ford Credit. His admission was also supported by the

documents which he signed.

Thus both the documentary evidence and the

testimonial evidence failed to provide a basis for

either of Slidell Ford’s causes of action. Because

reasonable men could not have arrived at a contrary

verdict,” the district judge was correct in directing a

verdict for Ford Motor and Ford Credit. See Boeing

Company v. Shipman, 411 F.2 365, 374 (5th Cir. 1969)

(en banc).

In addition to our synthesis of Slidell’s contentions,

we have considered each of the ten grounds of error

urged in its brief. Only one of those grounds requires

additional discussion. Slidell argues that the trial

5a

judge erred when he refused to qualify Slidell's expert

witness. That witness, an associate professor of

management sciences and accounting at Loyola Uni-

versity, would have testified to projected earnings

that Slidell could have expected had it been furnished

the number of tractors estimated in the prospectus. We

need not consider whether the professor's field of ex-

pertise is sufficiently defined to allow him to testify as

an expert, for we agree with the trial judge that even if

the professor were an expert his testimony, based as it

was upon only the estimated projections in the

prospectus, could not have formed the basis for

recovery. See Autrey v. Williams and Dunlap, 343 F.2d

730, 742 (5th Cir. 1965); Campbell v. Lelong Trust, 327

So. 2d 533, 536 (La. App. 1976). The trial judge has wide

discretion in deciding whether to admit a witness as

an expert. Salem v. United States Lines Company, 370

U.S. 31, 35, 82 S. Ct. 1119, 1122, 8 L. Ed. 2d 331 (1962).

There was no abuse of that discretion in this case.

AFFIRMED.

MINUTE ENTRY

*SEAR, J.

JUNE 15, 1977

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SLIDELL FORD TRACTOR, INC.

CIVIL ACTION

versus NO. 75-2691

SECTION G

FORD MOTOR COMPANY, ET AL.

This suit for breach of contract, tort, and antitrust

law violations came to trial on Monday, May 23, 1977.

At the close of the plaintiff's case on Thursday, May 26,

1977 the court granted defendants’ joint motion for a

directed verdict and assigned oral reasons for doing

so. The primary reason was that plaintiff had failed to

prove damages with sufficient specificity to carry its

burden of proof as to that essential element of its

claims.

During the course of the trial plaintiff called Dr.

John Meredith to testify regarding the anticipated per-

formance of plaintiff's business over a future period of

fifteen years from the demise of the business.

Specifically, Dr. Meredith was to project sales, net

profit, and owner's salary. Dr. Meredith was tendered

as an expert in management and decision science,

accounting, quantitative analysis, and economics.

After direct examination, traverse examination and

numerous questions by myself as to Dr. Meredith’s

credentials, I declined to qualify Dr. Meredith as an ex-

pert. Thereafter plaintiff submitted Dr. Meredith’s

handwritten statement as an offer of proof of the ex-

cluded testimony. Record Doc. No. 46. Pursuant to

Rule 103(b) of the Federal Rules of Evidence, the in-

stant statement is now offered as further clarification

of the character of the evidence, the form in which it

was offered, the objection made, and the ruling

thereon.” ;

Oral examination of Dr. Meredith revealed that he

had a Bachelor of Business Administration Degree

from Southern Methodist University, a Master’s

Degree in accounting from Southern Methodist Uni-

7a

versity and a Ph.D. in management sciences (with

minors in accounting and quantitative mechanics)

from North Texas State University. Until 1975 Dr.

Meredith’s major experience both professional and

teaching was in the field of accounting, although he

has never become a Certified Public Accountant. In

1975 he became a professor of management sciences

and accounting at Loyola University. He also testi-

fied that he had “made projections for potential earn-

ings ... performed certain accounting functions...

and set up the accounting systems” for several small

businesses in the Nacogdoches, Texas area over an

unspecified three year period.

When asked to define management science“, a term

with which the court was unfamiliar, Dr. Meredith of-

fered several vague and technical examples of the

application of management science techniques. The

impression conveyed was that management science is

a combination of systems used to optimize business

operations. Given a certain business situation, a

management scientist could offer advice to improve

the efficiency and profitability of the business. This

general explanation did not imply that management

science could be used to give accurate projections of

future profits of existing businesses, although when

asked directly whether this was an application of

management science, Dr. Meredith responded that it

was.

A witness may qualify as an expert by knowledge,

skill, experience, training, or education. Rule 702, Fed.

R. Evid. The question of whether a witness possesses

the requisite qualifications to entitle him to give ex-

8a

pert testimony, is one within the sound discretion of

the court. 2 Jones, Evidence § 14:17. A review of the

jurisprudence reveals that experts on the question of

damages have been qualified or rejected under a wide

variety of circumstances. See, e.g., Standard Oil Co. of

California v. Moore, 9 Cir. 1957, 251 F.2d 118, 221 cert.

denied 78 S.Ct. 1139 (expert qualified on basis of

“study, research and general background” although

witness lacked occupational experience); Jones v.

United States, 10 Cir. 1967, 387 F.2d 1004, 1008, cert. de-

nied 88 S.Ct. 2284 (trial court did not abuse discretion

in refusing expert qualification to witness who “‘testi-

fied that his specialty field [was] ‘the economy, the

finances, the regulation, evaluation and all the

elements that go * * * [into the] pricing of utility serv-

ices’, but ... admitted that he had ‘never made an

evaluation of an insurance company.): Southern Ce-

ment Co. v. Sproul, 5 Cir. 1967, 378 F. 2d 48, 49 (witness

properly qualified as expert when witness had prac-

tical experiehce, although witness had no

professional education); Thomas v. American

Cystoscope Makers, Inc., E.D. Pa. 1976, 414 F.Supp.

255, 270 (witness properly qualified as expert

economist by profession and experience, although he

was not actually an actuary); Motorola, Inc. v. Fair-

child Camera and Instrument Corp., D. Ariz. 1973, 366

F.Supp. 1173, 1189-90 (witness not accepted as expert

when witness testified that he based his opinion only

on probabilities, not actual business performance,

even though witness had “conducted extensive

studies upon the most effective style of management

and [had] authored books and articles in this area.)

In this case, I find that the witness was unable to ade-

quately define his area of specialization in any form

that would meaningfully relate to this case. Dr.

Meredith’s practical experience was admitted to be

limited to three small businesses in Nacogdoches,

Texas. He received his Ph.D. in management science

only in 1975, and had taught in the field only for one

year. He had never been qualified as an expert in any

court of law. Dr. Meredith’s limited practical and

teaching experience hardly qualify him as an expert

and his inability to explain his specialty in com-

prehensible terms presented a further obstacle to

qualification.

Even had Dr. Meredith qualified as an expert, the

testimony set forth in his written statement would

have been inadmissible. Dr. Meredith would have

testified as to future sales, net profit, and owner's

salary. Future profits are a proper element of damage

for breach of contract or tort under Louisiana law. The

sum of future profits is to be determined from past

profits. Maddox v. International Paper Co., W.D. La.

1942, 47 F.Supp. 829 (and Louisiana cases cited

therein). Damages for projected profits must be prov-

ed to a reasonable certainty, and may not be merely

conjectural or speculative. Autrey v. Williams and

Dunlap, 5 Cir. 1965, 343 F.2d 730; Guidry & Swayne v.

Miller, La. 1950, 47 So.2d 721.

Dr. Meredith’s statement may be divided into two

parts. The first part, consisting of numbered

paragraphs one through five, actually projects the

future sales, net profit, and owner's salary of the plain-

tiff. However, the data upon which this estimate is bas-

10a

ed are not derived from the actual business operations

of the defendant, but rather derive from plaintiff's ex-

hibits 6 and 9, documents prepared by Ford Motor

Company which optimistically project the course of a

hypothetical dealership in the Slidell area. These

documents are mere estimates based on Ford’s ex-

perience with other dealerships, and are set forth in

the most favorable light in order to persuade the plain-

tiff to enter into a dealership agreement with Ford.

They are not related to plaintiff's actual business per-

formance, and thus are inadmissible to prove future

performance.

The second portion of Dr. Meredith's statement,

consisting of the remaining paragraphs, discusses the

actual business performance of the plaintiff based on

plaintiff's business records. (It might be noted that the

accuracy of the records was called into question at

trial.) However, the only conclusion Dr. Meredith

draws from these figures is that they “do show a

steadily improving trend for the period in question.“

He also states that the figures are offered merely for

information“. Such evidence falls far short of the re-

quirement of reasonably certain proof of future

profits. Dr. Meredith projects no specific, or even ap-

proximate, dollar amount from these analyses.

In short, Dr. Meredith's statement would have been

excluded as entirely speculative, even had Dr.

Meredith crossed the threshold of expert qualifica-

tion.

/s/ MOREY L. SEAR

MOREY L. SEAR

UNITED STATES DISTRICT

JUDGE

(Filed: June 16, 1977]

ila

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2379

Summary Calendar

D. C. Docket No. 75-2691 “G”

SLIDELL FORD TRACTOR, INC.

Plaintiff-Appellant,

versus

FORD MOTOR COMPANY and

FORD MOTOR CREDIT COMPANY,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before MORGAN, CLARK and TJOFLAT, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was taken under

submission by the Court upon the record and briefs on

file, pursuant to Rule 18;

12a

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and tne same

is hereby, affirmed;

It is further ordered that plaintiff-appellant pay to

defendants-appellees, the costs on appeal to be taxed

by the Clerk of this Court.

March 16, 1978

ISSUED AS MANDATE: APR. 7, 1978