Appendix — Deas v. PACCAR, Inc.
Supreme Court brief1986
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Supreme Court, US.
FILED
MAR 26 1986
JOSEPH F. SPANIOL, JR.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
JAMES E. DEAS and PETERBILT OF FLORIDA, INC.,
a Florida corporation,
Petitioners,
v.
PACCAR, INC., a Delaware corporation,
Respondent.
On Petition for A Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
APPENDIX TO BRIEF FOR RESPONDENT
IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI
ELI H. SUBIN
(Counsel of Record)
JOHN M. BRENNAN
Subin, Shams, Rosenbluth & Moran, P.A.
Suite 670, CNA Tower
Post Office Box 285
Orlando, Fiorida 32802
(305) 841-7470
Attorneys for Respondent
March 26, 1986
SE IEE LET LET EEE TITTLE TT LE A Oe REALL EEE EDS R EE LD SELES EON OTE LLP IES
CASILLAS PRESS INC. - 1717 K ST NW WASHINGTON DC - 223-1220
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TABLE OF CONTENTS
Order of District Court Denying Motion for
JNOV and Granting Motion for New Trial .........
Transcript of Court’s Oral Ruling Granting
PACCAR’s Motion for New Trial .................
Order Excluding Parol Evidence As to Dealer
ra a as ca ipsa
Motion for Relief from Order Granting New
TUM CRM GD RUINS 5 i nc nc ccc nec ccscncccess
Memorandum in Support of Motion for Relief
from Order (Rule 60({b) Motion) ..................
Transcript of Hearing on Motion for Relief
from Order (Rule 60(b) Motion) ..................
Order of District Court Granting Motion for
JNOV and Alternatively New Trial ................
Opinion of the United States Court of Appeals
Pe NTE, kin nw acccvananceessesceaae’
la
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES E. DEAS and PETERBILT
OF FLORIDA, INC., a Florida corp.,
Plaintiffs,
VS. Case No. 79-598-Orl-Civ-Y
PACCAR, INC., a Delaware corporation,
Defendant.
ORDER
This cause came on for hearing on December 3, 1982 on
defendant’s motion for judgment notwithstanding verdict
or alternative motion for new trial. For the reasons stated
from the bench at the conclusion of the aforesaid hearing
the motion for judgment notwithstanding verdict should
be denied, but the alternative motion for new trial should
be granted. It is this Court’s opinion that the admission of
Dr. Westbrook’s testimony (the expert who testified on be-
half of plaintiff) as support for both liability and damages
was in error in that it was completely speculative. Without
such evidence the plaintiff could not have prevailed. Ac-
cordingly, it is
ORDERED that the motion for judgment notwith-
standing verdict be and is hereby DENIED; and it is fur-
ther
ORDERED that the alternative motion for new trial be
and is hereby GRANTED.
2a
SO ORDERED in Chambers at Orlando, Florida, this
23rd day of December, 1982.
/s/ George C. Young
SENIOR UNITED STATES
DISTRICT JUDGE
Copies to:
John A. DeVault, Esquire
and Peter Webster, Esquire
1500 Barnett Bank Building
Jacksonville, Florida 32202
Eli H. Subin, Esquire
Post Office Box 285
Orlando, Florida 32802
FILED
ORLANDO, FLA.
DEC 23 1982
CLERK
U.S. DISTRICT COURT
3a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES E. DEAS and PETERBILT __No. 79-598-Orl-Civ-Y
OF FLORIDA, INC.,
Plaintiffs,
—VS—
PACCAR, INC.,
Defendant.
Transcript of excerpt of proceedings held on Friday,
December 3, 1982, commencing at 1:00 o’clock p.m., in
Courtroom 3, United States Courthouse and Federal
Building, 80 North Hughey, Orlando, Florida, before the
Honorable George C. Young, Senior Judge. __
LIBBY LESTER REPORTING SERVICES, INC.
REGISTERED PROFESSIONAL REPORTERS
2 West Central Blvd./Suite 630/Orlando, Florida 32801
TELEPHONE 305/425-6543
4a
PROCEEDINGS
THE COURT: Well, as Mr. Webster has currently
pointed out every case must stand on its own bottom. The
tacts of this case are that Mr. Deas bought out the Peter-
bilt dealership and the most it was ever capitalized for was
some $9,000 plus. When he bought the dealership it sold
not only Peterbilt trucks but another brand of trucks as
well and operated under a different name.
t. decided to sell only Peterbilt trucks, although he was
never required to confine himself to the one brand and the
evidence is that other Peterbilt dealers throughout the
country do on occasion sell other brands.
With permission of Peterbilt Motor Company, a sub-
sidiary of the Defendant, he changed the name of the
dealership to Peterbilt of Florida. Thereafter he sold only
Peterbilt trucks.
His relations with the manufacturer started out poorly
in that when he acquired the dealership the contract was
on a month-to-month basis, could be terminated by either
side by 30 days notice.
Shortly after he acquired the dealership the manufac-
turer wanted a new contract which provided among other
provisions for a three-year term. He objected to the three-
year term and signed the contract with an accompanying
letter of protest which presumably did not endure to the
best of relations with the other contracting party.
Subsequently this operation left much to be desired, as
evidenced by a declining net worth which soon became a
negative net worth. His accountant, according to the an-
nual reports that are in evidence, kept criticizing these pro-
Sa
cedures and operations and urging him to take corrective
measures which were not taken and to increase his operat-
ing capital by borrowing before interest rates went too
high, a prophecy which subsequent events have proved to
be correct.
Further, Mr. Deas through Peterbilt of Florida gave nu-
merous bad checks amounting to thousands of dollars, not
only to various creditors in the community but even to
Peterbilt Motor Company itself. His credit was such that it
required Peterbilt Motor Company to put him on a COD
status for the delivery of parts.
Furthermore, his financial condition was such that his
floor rlanning financing source, associates, put certain
requirements as did Peterbilt Motor Company in connec-
tion with each truck being assured that financing was
available for it before it was delivered.
As pointed out by counsel for Plaintiff, Mr. Rohr, when
he became general manager he expressed a desire to have a
different dealer. Much is made of the fact that Rohr had
an interoffice communication asking his subordinates to
prepare a file to gather information “o support a subse-
quent termination of the relationship between Peterbilt
Motor Company and Peterbilt of Florida.
This standing alone just would not justify liability and
damages under either of the Florida or Federal dealers’
acts. It is perfectly obvious that with the existence of these
acts that if a dealer is conducting himself in such a way —
that a manufacturer desires to terminate the relationship,
then an appropriate file needs to be accumulated.
If the taking of steps to prepare information to support
a justifiable termination is in itself a violation of either or
both of the acts, then it would mean that the acts make it
6a
impossible for any termination to ever be made regardless
of the sufficiency of the ground for such termination.
Now, the contract Peterbilt of Florida had with Peter-
bilt Motor Company provided that an additional facility
would be provided by the dealer when required and there
was no provision in the contract or in any other contract in
this case requiring the Defendant to provide financing for
such expansion.
In his argument counsel for the Plaintiff has stated the
contention that the Plaintiff, Paccar, was responsibile for
the poor financial condition of Peterbilt of Florida be-
cause, one, it required the expansion from Orlando to
Jacksonville, Tampa and Fort Lauderdale; secondly, that
it discriminated deliveries necessary to financially support
such expansion; and thirdly, that Paccar failed to provide
the necessary finances to pay for such expansion.
As I have pointed out, there was no requirement for
such financial support. As a matter of fact, Mr. Deas hi.n-
self in testifying in connection with the expansion urged
upon him by representatives of Paccar stated, and I quote,
they seemed to indicate that they could help get financing.
At one point during the efforts of Deas to get Peterbilt
Motcr Company to provide financing and an offer was
made for a loan which was never consummated because
Deas did not agree to all of the proposed terms for the
loan, including a requirement that he and his family not
draw down more than $75,000 annually during the term of
the loan.
Now, as to the discrimination in delivery both as to the
number of trucks and as to the time, the sole evidence that
was offered on this point was that of Dr. Westbrook, the
Plaintiffs’ expert. Dr. Robert Westbrook’s testimony was
admitted over objection by defense counsel and both as to
7a
his conclusions of discrimination and damages. It was
extraordinary to say the least.
It is my opinion there is no proper factual basis in
regard to the four companies that he selected as being
picked out at random. Of all of the numerous dealers in-
stead of picking them at random he just picked four that
he suspected got favor treatment which might show that
those four got favor treatment but by comparing Peterbilt
of Florida to them would not necessarily come up with the
— could not come up with the conclusion that Peterbilt of
Florida was discriminated against as to the average dealer
but only that it was discriminated against as to a favored
dealer. One of these dealers was not in the southeast sec-
tion.
On this point both the evidence of the Plaintiff and the
evidence of the Defendant were, I think — was consider-
ably deficient. The testimony of Neville was because of his
connection with Paccar in the past and an attitude such
that it could have resulted reasonably. It was never shown
by either side on this discrimination point of how many
trucks were being produced and how many actually were
available to come to Peterbilt of Florida and whether
Peterbilt Motor Company was deliberately allocating 125
trucks when they could have allocated 250, for example.
The Plaintiff didn’t show that and the Defendant didn’t
show that.
There was evidence that there was a strike at one time
and then there was talk, well, that that would have af-
fected the delivery, but I saw no concrete evidence as to
what effect the strike had on the deliveries and on the
quotas.
Now, we had — or rather on sales allocations, truck
allocations there is two different situations during the
semaine iiiiicataaitaainaainiinaaia icin itiaiaiieieaiaaiiaaniiti
10a
insufficient amount to pay the debts that he then owed
which included mortgages and back taxes to the State of
Florida so that there would not have been any more money
to put into the operation of his business in Orlando. It was
a distortion of the evidence to come up with any other
contention. In addition to giving bad checks and being in a
negative net worth and losing money he was also failing to
pay taxes.
There was no evidence as to what the market was in the
Fort Lauderdale, Miami area. Again the record was defi-
cient both by the Plaintiff and the Defendant in this re-
spect as to the effect of the cancel determination of the —
that portion of the estate as to what profits were lost or
could have been made there.
The contention of Dr. Westbrook that sales will con-
tinue to spiral without any increase in costs and without
taking into consideration any inflation was extraordinary.
I have been tempted to grant a judgment N.O.V., but
after all of the circumstances I am not going to do so and
we will grant a new trial.
MR. DeVAULT: Your Honor, if that is the Court’s rul-
ing, we would respectfully request that Your Honor consi-
der reassigning the case to another judge for retrial.
THE COURT: I have no intention of retrying it.
MR. DeVAULT: Thanks.
THE COURT: I don’t retry cases.
(Whereupon, the hearing concluded at 2:40 o’clock
p.m.)
lla
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES E. DEAS
Plaintiff,
Vs. Case No. 79-598-Orl-Civ-Y
PACCAR, INC., et al.,
Defendants.
ORDER
This cause came on for trial on September 20, 1982,
with two motions outstanding. Defense counsel objected
to the introduction of parol evidence as to the January 31,
1972, December 15, 1975 and January 11, 1979 contracts
between Peterbilt of Florida and Paccar. Plaintiff had
moved in limine to prohibit evidence of other reasons for
non-renewal of plaintiff’s franchise other than the reasons
set forth in defendant’s February 1, 1979 letter. Upon con-
sideration and in accordance with the Court’s rulings from
the bench, it is
ORDERED that defendant’s motion to exclude parol
evidence as to the January 31, 1972, December 15, 1975
and January 11, 1979 contracts between Peterbilt of Flo-
rida and Paccar be and is hereby granted as to Counts 1 »
and 2, but denied as to the fraud count. It is further
ORDERED that plaintiff's motion in limine to prohibit
evidence of other reasons for non-renewal of plaintiff's
franchise other than the reasons set forth in defendant’s
February 1, 1979 letter be and is hereby denied as to any
12a
reasons known to the defendant prior to February 1, 1979
and upon which the defendant relied in part on its decision
of non-renewal.
SO ORDERED in Chambers at Orlando, Florida, this
21st day of September, 1982.
/s/ George C. Young
SENIOR UNITED STATES
DISTRICT JUDGE
Copies hand delivered to:
John DeVault, Esquire
Eli Subin, Esquire
13a
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 79-598-Orl-Civ-Y
JAMES E. DEAS and PETERBILT OF
FLORIDA, INC., a Florida corporation,
Plaintiffs,
)
)
)
)
)
vs. )
)
PACCAR, INC., a Delaware corporation, )
)
)
Defendant.
MOTION FOR RELIEF FROM ORDER
Plaintiffs, pursuant to Rule 60(b), Federal Rules of
Civil Procedure, move this Court to correct this Court’s
Order of December 23, 1982, by entering a judgment not-
withstanding the verdict for defendant, upon the follow-
ing grounds:
1. The reasoning and grounds upon which this Court
based its Order are inconsistent with the denial of the mo-
tion for judgment notwithstanding the verdict.
2. Plaintiffs are satisfied with the proof presented at the
first trial and consider a new trial unnecessary, undesirable —
and, because of their financial condition, financially im-
possible. If plaintiffs were in a financial position to under-
take a retrial of the case, plaintiffs would present the same
evidence presented at the first trial in support of their
claims, including the expert testimony of Dr. Westbrook,
which this Court has held to be speculative and insuffi-
cient to support the jury’s verdict.
Eee ee
l4a
3. The Court’s Order presently is not subject to appeal.
Accordingly, because the parties and the Court would
be best served by an immediate appellate ruling on the
legal sufficiency of the evidence presented to support the
jury’s verdict in favor of plaintiffs, plaintiffs respectfully
urge the Court to correct the Order and enter a judgment
notwithstanding the verdict upon defendant’s prior mo-
tion, in order to permit an immediate appeal and final
disposition of this case.
BEDELL, BEDELL, DITTMAR & ZEHMER
Professional Association
By: /s/ John A. DeVault, Ii
John A. DeVault, III
By: /s/ Peter D. Webster
Peter D. Webster
1500 Barnett Bank Building
Jacksonville, Florida 32202
(904) 353-0211
Attorneys for Plaintiffs
I DO HEREBY CERTIFY that a copy of the foregoing
has been furnished to Eli H. Subin, Esquire, Post Office
Box 285, Orlando, Florida 32802, by mail, this 28th day of
December, 1982.
/s/ John A. DeVault
Attorney
1Sa
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 79-598-Orl-Civ-Y
JAMES E. DEAS and PETERBILT OF
FLORIDA, INC., a Florida corporation,
Plaintiffs,
VS.
PACCAR, INC., a Delaware corporation,
a a a a a ee a a
Defendant.
MEMORANDUM IN SUPPORT OF
MOTION FOR RELIEF FROM ORDER
Plaintiffs have moved, pursuant to the provisions of
Rule 60(b), Fed.R.Civ.P., to have this Court “correct” its
Order entered on December 23, 1982, by entering a judg-
ment notwithstanding the verdict for defendant, as re-
quested by defendant after entry of judgment in favor of
plaintiffs. This request attempts to follow a procedure ap-
proved in similar circumstances by the Sixth Circuit in Na-
tional Polymer Products, Inc. v. Borg-Warner Corp., 660
F.2d 171 (6th Cir. 1981).
In National Polymer Products, after a seven-week trial
in a products liability case, a jury verdict in favor of
Polymer was returned, assessing damages of almost $1
million. Defendant Borg-Warner filed a motion for judg-
ment notwithstanding the verdict and, in the alternative, a
motion for new trial. Considering “the motion for JNOV
16a
to present a ‘close question’ ” (660 F.2d at 172-73), the dis-
trict court denied that motion, but granted the motion for
new trial. Satisfied with the evidence presented at the first
trial, and left with a bankrupt client and without a final
decision which could be appealed, Polymer’s lawyers filed
a motion under Rule 60 to “correct” the district court’s
order by entry of a judgment notwithstanding the verdict,
as requested by the defendant. The district court granted
the motion. On appeal from the judgment notwithstand-
ing the verdict, the court of appeals rejected defendant’s
motion to dismiss the appeal, holding that Polymer had
not “consented to the entry of a final judgment against it”
(660 F.2d at 176) but, rather, had simply attempted to
“align the court’s ultimate disposition of the case with the
reasoning in its opinion” (660 F.2d at 177).
“The dismissal, though perhaps indirectly and in
a very loose sense solicited by National Polymer,
was not voluntary. It was a calculated reaction to
the inconsistency between the court’s ruling and
reasoning on the substantive issues.
“The Supreme Court has considered and re-
jected Borg-Warner’s argument in a related con-
text. In Thomsen v. Cayser, 243 U.S. 66, 37
S.Ct. 353, 61 L.Ed. 597 (1917), the losing party
persuaded the appellate court to dismiss the case
rather than remand it for a new trial. . . . ‘The
plaintiffs did not consent to a judgment against
them, but only that, if there was to be such a
judgment, it should be final in form instead of
interlocutory, so that they might come to this
court without further delay.’ 243 U.S. at 83, 37
S.Ct. at 358.
“Here, the lower court order granting a new
trial was interlocutory and unappealable. Na-
17a
tional Polymer persuaded the trial court to
change its verdict to reflect its reasoning. That
alteration produced a final judgment, a dismis-
sal, allowing this appeal to be maintained. Cf.
Raceway Properties, Inc. v. Emprise Corp., 613
F.2d 656 (6th Cir. 1980) (plaintiffs solicited for-
mal dismissal of their civil anti-trust suit after an
adverse trial court decision on the relevant mar-
ket which rendered them unable to proceed; ap-
peal allowed since request for dismissal was de-
signed only to expedite review of the order
which, in effect dismissed the lawsuit).” 660 F.2d
at 177.
The appellate court then proceeded to consider on its me-
rits the propriety of entry of the judgment notwithstand-
ing the verdict.
In the instant case, this Court based its Order granting a
new trial on the ground that the admission of the testi-
mony of plaintiffs’ expert, Dr. Westbrook, “was in error
in that it was completely speculative” and that “[w]ith-
out such evidence the plaintiff could not have prevailed.”
Plaintiffs respectfully contend that Dr. Westbrook’s
testimony was not speculative in nature, that it was pro-
perly admitted at trial, and that it was legally sufficient to
support the jury’s verdict. If, however, this Court has cor-
rectly concluded that Dr. Westbrook’s testimony should
not have been admitted and that plaintiffs could not have
prevailed without such testimony, then there was insuffi-
cient evidence to present the case to the jury and the defen-
dant’s motions for directed verdict or for judgment not-
withstanding the verdict should have been granted. See,
e.g., R.S.E., Inc. v. Pennsy Supply, Inc., 523 F.Supp. 954
(M.D.Pa. 1981); ILC Peripherals Leasing Corp. v. Inter-
national Business Machines Corp., 458 F.Supp. 423,
18a
434-36 (N.D.Cal. 1978), aff'd, 636 F.2d 1188 (9th Cir.
1980), cert. denied, 452 U.S. 972 (1981). Cf, Boeing Co.
v. Shipman, 411 F.2d 365, 374-75 (Sth Cir. 1969) (en
banc); Copper Liquor, Inc. v. Adolph Coors Co., 624
F.2d 575, 580 (Sth Cir. 1980), citing Bigelow v. RKO
Radio Pictures, Inc., 327 U.S. 251, 264 (1946).
From the evidence adduced at trial, the Court is aware
of plaintiffs’ current financial condition, and from the af-
fidavit submitted in support of plaintiffs’ motion for
award of attorneys’ fees, the Court is familiar with the ex-
penses paid and time devoted to date in this matter by
plaintiffs and their attorneys. In their motion, plaintiffs
have represented to this Court that they are satisfied with
the proof presented at the initial trial, and that if required
to retry the case they would present the same evidence, in-
cluding that of their expert witness, Dr. Westbrook, thus
requiring this Court, based upon its determination that the
plaintiffs’ proof was legally insufficient, to grant a di-
rected verdict. Plaintiffs’ motion seeks to avoid such an
unnecessary expenditure of additional time and money
and to permit a prompt and final disposition of this case.
Accordingly, this Court should enter a judgment not-
withstanding the verdict, pursuant to Rule 60(b), and in
accordance with defendant’s prior motion.
Respectfully submitted,
BEDELL, BEDELL, DITTMAR & ZEHMER
Professional Association
By: /s/ John A. DeVault, III
John A. DeVault, III
By: /s/ Peter D. Webster
Peter D. Webster
1500 Barnett Bank Building
Jacksonville, Florida 32202
(904) 353-0211
Attorneys for Plaintiffs
19a
Certificate of Service
I DO HEREBY CERTIFY that a copy of the foregoing
has been furnished to Eli H. Subin, Esquire, Post Office
Box 285, Orlando, Florida 32802, by mail, this 28th day of
December, 1982.
/s/ John A. DeVault
Attorney
|
20a
[Transcript of Hearing on Motion for Relief from
Order (Rule 60(b) Motion)]
PROCEEDINGS
THE COURT: All right. We’re here in the case of Deas
versus Paccar, 79-598-Orl-Civ.
And Mr. DeVault, you and Mr. Webster are here repre-
senting the Plaintiff?
MR. DeVAULT: Yes, Your Honor.
THE COURT: Mr. Subin, you’re representing the De-
fendant?
MR. SUBIN: Yes, Your Honor.
THE COURT: And we're here on an unusual Motion; a
Motion filed by Mr. DeVault and Mr. Webster asking the
Court to grant a Judgment NOV; is that right?
MR. DeVAULT: That’s correct, Your Honor.
THE COURT: All right. Well, I thought I ought to hear
what you had to say in addition to, either in addition to or
to expand, if you wanted to, or to stress whatever you
wanted to in connection with your Brief, which, of
course, I read.
MR. DeVAULT: Yes, Your Honor.
May I state it from here, Your Honor?
THE COURT: Wherever you please.
MR. DeVAULT: Thank you.
John DeVault on behalf of the Plaintiffs.
Your Honor, it is a little bit unusual. In fact, we found
only one case, which I cited in the Brief, which I know
Your Honor is familiar with.
THE COURT: What is that; the 9th Circuit?
MR. DeVAULT: The 6th Circuit.
2la
THE COURT: The 6th Circuit.
MR. DeVAULT: The 6th Circuit with the National
Palimer (ph) [sic] case in which this procedure has been
utilized. And I thought that case particularly apt not only
because it utilized Rule 60B on that Procedure, but also
because what happened below in the trial seemed very
similar to this.
I apologize for my voice, Your Honor. I’ve got a cold.
In that case, as in this one, the substantial Jury verdict
was entered on behalf of Plaintiff. And in that case, as in
this one, the Jury answered Interrogatories directed to it
by the Court; found in favor of the Plaintiffs in all re-
spects.
It was apparent from the trial Judge’s Order in that case
that he aggrandized to a considerable extent as to the two
motions that were presented subsequent to trial; that is,
the Judgment NOV presented by the Plaintiff and the
Alternative Motion for a New Trial.
In fact, in his Order he said that he was quite tempted to
grant the Judgment NOV, but decided to grant the New
Trial Motion and denied the Judgment NOV.
Implicit, I think, in that District Judge’s Order was the
fact that because it presented such a close question, he
wanted to give the Plaintiff the opportunity at another
trial to present additional evidence at a new trial. Like-
wise, in the instant case, Your Honor, there, of course,
was a lengthy trial presenting some difficult questions of
law. In fact, it proceeded over a period of several weeks.
There were considerable factual disputes in the case as well
as legal disputes. It was presented to the Jury and argued
completely to the Jury and the Jury returned the verdict.
And the Defendant likewise presented the Judgment NOV.
The Judge granted the Alternative Motion for New Trial.
22a
Following the hearing that we had in this case in
December, I think it was December 3rd, in Your Honor’s
Hearing Room, the Court set forth its reasons. And I
won't go into those as to why the Court was taking the ac-
tion it was. And you indicated at Page 13 of this transcript
that you’d been tempted to grant a Judgment NOV, but
after all the circumstances you said, “I’m not going to do
so and will grant a new trial.”
We, like the Plaintiffs in National Palimer [sic] case,
come to the Court and say to the Court that if the reason-
ing of the Court is set out at the hearing and in the Court’s
Order of December 23rd be correct — And we don’t con-
cede that it is, Your Honor. We feel we presented evidence
sufficient to make the Jury question and that the evidence
supports the Jury verdict. But we’re not here to argue that
point, of course, and we respect the Court’s ruling on that.
And I want to make clear to the court and Mr. Subin it’s
not my purpose to argue with the Court's ruling.
THE COURT: I understand.
MR. DeVAULT: I simply say that if the Court is correct
and if the liability and the damage testimony presented by
our expert witness, upon which we concedingly base much
of our case, should not have been presented to the Jury,
then we didn’t have a case. We didn’t have a case and the
Court should have entered a Directed Verdict either at the
close of our case, at the close of all the evidence or now on
a Judgment notwithstanding the verdict.
Now, we ask that because we think it’s consistent. It’s
wholly consistent with the Court’s ruling. We also ask it as
a matter of fairness and a matter of judicial policy.
We have represented in our Motion that we’re satisfied
with the Brief we’ve presented. That because of the cir-
cumstances of these Plaintiffs, we’re unable to go forward
Sn i
23a
with the expense of a new trial. We further stated that if
we were to go on with a new trial, we would present the
same testimony upon which we relied at the initial case and
including that of Dr. Westbrook, which if this Court’s rul-
ing was correct and this Court or any other Court is con-
sistent with the Court’s ruling, would be required to grant
a directed verdict.
We submit then, Your Honor, that in the proper admin-
istration of justice, it is far better for this Court and for
the parties to have this matter finally and conclusively as
determined by the Court of Appeals on now a full Record,
after a full hearing, argument and a Jury verdict.
THE COURT: Well, let me ask you several questions,
not intended to indicate any opinion —
MR. DeVAULT: Yes, sir.
THE COURT: — because I’m approaching this with an
open mind.
MR. DeVAULT: Sure.
THE COURT: It is your belief that in this circuit that if
I were to grant a Judgment NOV at your request, that
would not foreclose you from saying that it shouldn’t have
been granted?
MR. DeVAULT: Your Honor, I have to admit to the
Court in all candor, and I’ve told my client, that so far as
we're able to determine, the 6th Circuit case is the only one
that gives us guidance. There is no other decision like this
in the 11th Circuit or the Sth Circuit. That case, I believe,
presents the analysis that the 11th Circuit would follow.
That is, we’re not inviting a Judgment NOV: we're simply
saying if the Court’s Ruling, and if the Court’s Order and
the Court’s Oral Ruling is to be consistent with the whole
then the Court ought to grant the Judgment NOV, and we
24a
would hope that the 11th Circuit will let us take that ap-
peal.
THE COURT: Now, the next thing is that for me to
grant a Judgment NOV is, in effect, finding for the Defen-
dant.
MR. DeVAULT: Yes, sir.
THE COURT: Now, I intended, if I did not do so, to in-
dicate in my Ruling that I can see some merit into some
portion or possible merit to some portions of the Com-
plaint. And to foreclose you by Judgment NOV is some-
what harsh and more harsh than I intended. That’s the
problem as I see it, Mr. DeVault.
MR. DeVAULT: Well, perhaps, your Honor, the an-
swer to that is if the Court were to grant the Judgment
NOV and alternatively the new trial, the Court of Ap-
peals, of course, would have both rulings before it. The
Court of Appeal then has the choice to either reinstate the
verdict, if the Court determined that we were correct. It
would have a choice to affirm the Judgment NOV and say,
“There’s no point to your case. You had your chance and
you didn’t present it,” or it would have a third alternative,
which, incidentally, the 6th Circuit ultimately chose Na-
tional Palimer [sic] and gave —
THE COURT: Gave them a new trial.
MR. DeVAULT: — and gave them a new trial. And so
the Judge was correct in the first instance, so it wouldn’t
foreclose that.
If this were like the State Court where we can take the
appeal for the new trial, we wouldn’t have the problem be-
cause we don’t. I think it would still permit, would not be
as harsh as it might seem to cause you to grant both.
25a
THE COURT: You see, and I’m speaking from memory
now, in this case the evidence that was presented and, I
believe I touched on this in my ruling, there is a big ques-
tion as to this Fort Lauderdale-Miami territory and the ef-
fect that it had, what could be done and what, for exam-
ple, whether or not it could be from Orlando or not or
what effect losing that territory they had, what potential
there was there. And I felt that the Record on both sides
was greatly devoid of evidence that would be developed. I
don’t know. I have no idea what the evidence would show
if it were developed after what the market was in that area.
I can’t, it just seemed to me that it should have been. And
for there to be a verdict, such as we’ve returned in this case
— and I just use that as one example, there are others to
go into — that’s why I felt it wou'd be fair to both sides to
have a new trial and have an opportunity for more evi-
dence to be advised. It’s hard for me to believe that there’s
not more evidence available on both sides on issues that
were, in fact, submitted to the Jury without the Jury hav-
ing the evidence to know what effect, for example, the ter-
ritory of Miami, how it was was affecting Paccar. It seerm-
ed to me there also should be a, discussed some evidence
on that. And what they come forth with, I don’t know.
There was, the evidence seemed lacking on both sides as
to the production of and the causes of quotas that were
imposed in the years that were particularly complained of,
things of that sort that were left devoid for a Jury to have
to specuiate.
Now, that’s the things that bothers me along with many
other points. But I just want to point out that granting a
Judgment NOV would, if sustained, would completely cut
out the Plaintiff when the Plaintiff may have, if the evi-
dence were fully developed, might have a good claim.
| ,
26a
MR. DeVAULT: Well, I recognize that troubles the
Court, Your Honor. I recognized that during the trial and
the argument and the motions. And first, we’ve tried to
relieve that burden from the Court by the representation
we made in the Motion. And we didn’t make it lightly. We
made it with some considerable consideration, so we re-
lieved from the Courts that, we tried to relieve that bur-
den. And, secondly, as Your Honor said in your Order of
the 23rd, referring to Dr. Westbrook’s testimony as to lia-
bility and damage, without putting that in evidence the
Plaintiff could not have prevailed.
Now, we have the burden, obviously, not the Defen-
dant. And if that’s the Court’s view, without that we
couldn’t have prevailed. Then, technically, and as a matter
of law as to the Judgment, the Court ought to enter the
Judgment NOV. But recognizing the problems, we’ve tried
to overcome those problems by telling the Court this is all
we can do, Judge, we’re satisfied with the proof, we’re
satisfied with the verdict, and if the Court’s right, we’re
out of Court.
THE COURT: All right.
MR. DeVAULT: And as I think you said one time dur-
ing trial, it would go up one way or the other and the
Court will decide. And that’s what we’re seeking.
THE COURT: All right. Now, Mr. Subin, I want to ask
you this question: Since you moved for a Judgment NOV,
presumably you felt it had merit.
MR. SUBIN: I do.
THE COURT: So now, why do you object to the Court
granting the request of Mr. DeVault? That was one of the
main reasons I wanted to have this hearing today, so that I
could ask you eyeball to eyeball why you object if you get
27a
what you want or presumably satisfied that you could pre-
vail on appeal?
MR. SUBIN: The answer to your question is when the
matter was first presented, I understood it to be a request
with the Court that Judgment NOV be granted period, not
with an alternative Order for a new trial.
In the Court’s Order from the bench on December 3rd
granting a new trial, listed as grounds, enunciated as
grounds a number of judicial acts, which the Court indi-
cated were erroneous.
Included among them was the reference for the failure
to charge the Jury under the claim as to the Florida’s Deal-
er’s Act in a manner consistent with /nternational Har-
vester Company versus Calvin.
Inasmuch as the claim was the heart of this suit, it ap-
peared to me that the Jury, the Judge was agreeing the
Jury wasn’t properly charged. If the Jury wasn’t properly
charged, he would have been entitled to a new trial.
This matter came to me as novelty as it did to the Court.
And I congratulate Mr. DeVault on his scholarship having
been presented with the argument of why you should just
have a Judgment NOV. I rejected that because really we
didn’t have a fair trial. There were other things that I think
were erroneous. However, this is not to say that today,
having had the benefit of memoranda back and forth, a
little reading and the benefit of the discussion today, that
we couldn’t, between counsel and the Court, find a solu-
tion that is lawful and does substantial justice.
We know in the National Palimer [sic] case, Judge Sar-
ducci (ph) and the Court of Appeals’ decision said, “The
Judgment NOV won’t be affirmed, but the alternative
order for the new trial would be.”
28a
We cited on a number of occasions Cecil Corley Motor
Corporation versus General Motors, a decision of a
United States District Court involving almost identically
the same claims as were involved in our case.
The District Judge wrote an exhaustive opinion in that
case focusing on all of the same issues we had. And I note
for the purposes of this discussion today that in that case
the District Judge granted a Judgment NOV and alterna-
tively a new trial in a manner consistent with Rule 50,
that’s Rule 50 C, something that could be done.
I think that there’s only one problem that I have today
with the posture in which we find ourselves by reason of
the subject motions for relief. It is that, I’m beginning to
read some ambiguity and confusion into the Record by
virtue of Mr. DeVault’s papers. His papers are saying that
this Court granted the new trial solely on considerations of
the evidence; considerations of where the great weight of
the evidence was. And I would like to argue that that’s just
not so, because we all have the transcript of the Ruling
from the bench and there were substantial legal matters,
judicial acts involved. And I’m very concerned about that
because this will go up on appeal — pardon me Judge?
THE COURT: Well, just a minute now. That’s not in
answer to the question I asked you.
In the first place, I think the Record is clear that I
granted a motion for a new trial for a number of reasons
MR. SUBIN: Yes.
THE COURT: — which are in the Record, which part
of which we have stated here today.
Now, my question is, again I repeat, if you want a mo-
tion, or you want a Judgment NOV, why do you oppose
29a
Mr. DeVault’s request that I enter one with the alternative
granting of a Motion for a New Trial?
MR. SUBIN: With the alternatively of the new trial I
will not oppose because this was not something made per-
fectly clear before.
THE COURT: That’s what he sent; isn’t that correct,
Mr. DeVault?
MR. DeVAULT: Yes, that’s correct.
THE COURT: You're not asking — I withdrew my Rul-
ing on that.
MR. DeVAULT: No, Your Honor.
THE COURT: So everything is in accord in this case
that was filed in 1979.
MR. SUBIN: I would add —
MR. DeVAULT: I mean, that might be correct, Your
Honor.
MR. SUBIN: I would add that we, I made an error in
my papers filed on this Motion when I indicated it was my
opinion that the Rule 60 B Motion was the proper proce-
dure. It is not.
In the 5th Circuit and elsewhere, it’s recognized that every-
one knows that the Order to grant a new trial is an inter-
lockatory [sic] one. And the Court has discretion to treat
his interlockatory [sic] orders any way it wants at anytime;
however, a 60 B Moiion is not proper. So that on the basis’
of the 5th Circuit’s decisions, which I have, not necessarily
important to cite, this Court would have to treat, I submit,
this Motion not as a Rule 60 B Motion as may have been
the case in National Palimer,{sic] I’m not sure it is really,
but would have to treat it simply as an application for a
modification of the interlockatory [sic] order.
30a
For authority I have Bonaire Hotei versus Time, Inc.,
reported at 426 F.2d, beginning at Page 858, a decision on
the Sth Circuit and a number of other cases.
I think it may be a small procedural thing. So I apo-
logize for what I consider to be an erroneous statement. I
do not think Rule 60 B is the appropriate procedural vehi-
cle for this Court to treat the Motion.
The other point, and I'll sit down, simply that I’m most
anxious, and the Court has to reaffirm the Ruling from
the bench where it has been stated in the Record of De-
cember 3rd that there was, in the Court’s opinion, unlaw-
ful evidence that went to the Jury. And that when speak-
ing of Dr. Westbrook’s testimony, it was, the Court was
referring to it not for its weight, but that it was inadmis-
sible. And on that basis, I would agree with Mr. DeVault.
But as the Court noted on December the 3rd, “But for that
testimony in evidence, there would have been no recov-
ery.”
So if you would withdraw that, if one would consider it
withdrawn because it was not admissible, then a Judgment
Notwithstanding the Verdict would necessarily have to
have been granted. That would have been consistent.
THE COURT: All right. Well, if 60 B in your opinion is
not appropriate veliicle, what do you think is?
MR. SUBIN: I’ve read from the cases that District
Judges have the discretion to treat their interlockatory
{sic] orders at anytime and in any manner they see fit
before they become final. It is so stated in the Bonaire
Hotel case at Page 862, which I’ve cited. And there’s a
pretty good paragraph in Warren’s Federal Practice citing
a number of decisions on the same point.
THE COURT: Well, if you’re in agreement with Mr.
DeVault that it would expedite matters and perhaps save a
3la
new trial if he prevails, why not then for me to go ahead
and grant his request?
MR. SUBIN: Well, it may or may not save anything. It
may result in our incurring the expense of an appeal only
to find that we’re back for a new trial anyhow.
THE COURT: That’s the only extra expense that would
be involved.
MR. SUBIN: And that we are entitled to a fair trial no
matter what. That is the extra expense.
THE COURT: Right.
MR. SUBIN: And upon the motion of a party that says
they don’t have any more money, I think one should take
that with a grain of salt when one considers the expense of
putting together a Record based upon what was almost a
5-week trial. We’re going to be put through a substantial
expense.
But as I say, in answer to your question, if we can have
an alternative order for a new trial, as you have indicated
you would not withdraw your Order, fine.
THE COURT: Well, if the Record is clear that I’m
granting the Judgment NOV solely to permit an appeal
and on the basis that the Defendant moved for it and the
Plaintiff requests that it be answered for that purpose —
MR. SUBIN: Well.
THE COURT: — without withdrawing its objections to
it, then if I am satisfied that it is proper for me to do it, I
would do it.
Now, I’m going to reread this Palimer [sic] case. I’m not
anxious to be criticized by the Court of Appeals for
answering an Order that I at the same time don’t think
should be entered. That’s what’s bothering me.
32a
MR. SUBIN: Your Honor, may I offer the citation on
the authorities cited in Moore, give your Clerk the citation
of that paragraph in Moore on the authority the Court
would have to treat its interlockatory [sic] Order?
Carol, it’s reported in 7 Moore’s Federal Practice,
Paragraph 60.2; a number of different cases, the Bonaire
Hotel was one of them.
THE COURT: Well, I know that as far as in-
terlockatory [sic] Order. We’re not talking about the in-
terlockatory [sic] Order.
MR. SUBIN: I contend there’s no basis under Rule 60 B
for doing what’s been requested; none whatsoever because
its’ not a final Order. I think it’s purely discretionary.
THE COURT: Well, you filed your Motion NOV with-
in the 10-day period, didn’t you?
MR. DeVAULT: I filed my Rule 60 B Motion within 10
days after, yes, sir.
THE COURT: Well, in a sense it’s a Motion for
Rehearing. You could have filed a Motion within the
10-day period, as I see it, asking me to change my mind on
the Motion for Directed or NOV.
MR. SUBIN: But it simply wouldn’t have been a 60 B
Motion.
THE COURT: No, it would not.
MR. SUBIN: No, no.
THE COURT: I don’t know that it has to be a Rule 60
B Motion in order for it to be granted.
MR. SUBIN: Well, that’s what I’m saying.
THE COURT: I think it’s just a little unusual that it be
presented by the winning party to the Motion. But I'll
33a
answer an Order shortly on this and get this thing moving
along one way or the other.
MR. DeVAULT: Your Honor, we’re not to Rule 60B.
That’s just the vehicle I saw. Mr. Subin may be correct. I
didn’t find that avenue, but whatever.
Your Honor knows what we are doing. And it’s on the
Record. And we want to get it up on the —
THE COURT: I don’t see that, since it was timely filed,
I don’t see that the vehicle make SO much difference
myself. 3
MR. DeVAULT: Yes, that’s correct,
Judge Young, I heard you, speaking just a few moments
ago, say that we have, from my client’s side of the case,
agreed to the procedure for the limited purposes that it’s
being offered and reserving objections; is that correct?
THE COURT: No, I said I understood that you were
not objecting to his Motion to the entry of a Judgment
NOV, that he was offering it, that he was asking for it
solely for the purpose of being able to get it to the Ap-
pellate Court, but without withdrawing his objections to
the merits of it.
Now, whether the Court of Appeals will go along with
that sort of procedure is questionable in this Circuit. And
back in the Sth Circuit, they disapproved in criminal cases
where Motions to Suppress were denied and the Plaintiff
would then plead guilty, but with reserving the right to’
bring up on appeal the merits of the Motion to Suppress.
And that’s the procedure that’s permitted in the State
Courts and is not a procedure which is either now or is
soon to be permitted by changing the Rule. But my point is
that the 5th Circuit was technical on those things.
34a
MR. SUBIN: I only wanted to emphasize for the
Record that my statement should not be construed as in
any way conceding that we’re not entitled to a new trial or
that we believe we had an entirely fair trial, so that should
the Court of Appeals accept this procedure we will not be
precluded should they, should the Court of Appeals
reverse the Judgment NOV, we should -not be precluded
from a new trial.
~
That’s my fundamental purpose.
.THE COURT: Well, I would also understand that
your Motion is that you would not be precluded from
arguing that the NOV was properly granted on merits.
MR. SUBIN: Thank you.
THE COURT: You understand that, Mr. DeVault?
MR. DeVAULT: Yes.
MR. SUBIN: Fine, Your Honor.
THE COURT: Well, if I’m satisfied that this is not
some sort of breach of intellectual integrity, I would be in-
clined to grant it. But I'll grant, I’ll enter an Order shortly.
MR. SUBIN: Your Honor, when you do the Order,
would you undertake to consider at that time the ad-
visability of incorporating into that Order the December
3rd Order or the one Order granting the new trial so that,
or at least in your own mind, we'll eliminate any possibility
for confusion by reason of having more than one paper, or
if there is more than one paper, that they so refer to each
other in such a way there is no lack of clarity.
I know that you’re meticulous in all of those and I don’t
mean to imply otherwise.
I 6
35a
THE COURT: All right. If I grant Mr. DeVault’s Mo-
tion, I’ll attempt to do that.
MR. SUBIN: Thank you, Your Honor.
THE COURT: All right. Anything further?
MR. DeVAULT: No, Your Honor.
MR. SUBIN: Not today, Your Honor.
MR. DeVAULT: Thank you for Your Honor’s time to-
day.
THE COURT: As indicated, if this case were to be
retried as some other Judge will try it — I don’t like to
retry cases. I’ve sometimes had to when I was all by
myself. Now that there’s more than one Judge, I don’t like
to try a case but once.
MR. DeVAULT: Yes, sir. Hopefully that won’t be the
case.
THE COURT: Ail right.
MR. DeVAULT: Thank you.
THE COURT: All right.
(Whereupon, the proceedings concluded at 2:15 o’clock
p.m.)
ell
36a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES E. DEAS and PETERBILT
OF FLORIDA, INC., a Florida
corporation,
Plaintiffs,
VS. No. 79-598-Orl-Civ-Y
PACCAR, INC., a Delaware
corporation,
Defendant.
/
ORDER
On December 23, 1983 this Court entered an order de-
nying defendant’s motion for judgment notwithstanding
the verdict and granting defendant’s alternative motion for
a new trial. Pursuant to Rule 60(b), plaintiffs now move
the Court to enter a judgment notwithstanding the verdict
in order to permit an immediate appeal. At the hearing on
this latest motion defendant’s counsel represented that the
defendant would not object to a motion for judgment not-
withstanding the verdict or, in the alternative, a new trial.
In support of this rather unusual procedure, plaintiffs
rely on National Polymer Products, Inc. v. Borg-Warner
Corp., 660 F.2d 171 (6th Cir. 1981). In National Polymer
Products, supra, the Court found the jury verdict for the
plaintiff to be against the clear weight of the evidence and
granted defendant’s motion for new trial. Plaintiff filed a
NM
37a
motion under Rule 60 to “correct” the Court’s order by
entering a judgment notwithstanding the verdict for the
defendant. The Court granted the motion for judgment
notwithstanding the verdict in favor of the defendant and
dismissed the case. On appeal to the Sixth Circuit Court of
Appeal, defendant argued that that court was without
jurisdiction to entertain the appeal because the plaintiff
“consented” to the entry of judgment notwithstanding the
verdict. The Court in that case held:
“The dismissal, though perhaps indirectiy and
in a very loose sense solicited by National
Polymer was not voluntary . . .” 660 F.2d at 177.
Although the Circuit Court found the District Court erred
on the merits in dismissing the case, the procedure was ap-
proved.
The present posture of the proceedings at bar places this
Court in an unusual position: both sides ask for a judg-
ment notwithstanding the verdict but, of course, for dif-
ferent reasons. Furthermore, plaintiffs concede they are in
favor of a judgment notwithstanding the verdict solely for
the purpose of being able to contest such judgment
without the necessity of having a new trial at this time.
In National Polymer Products, supra, the Sixth Circuit
Court of Appeals relied on Thomsen v. Cayser, 243 U.S.
66, 37 S.Ct. 353, 61 L.Ed.2d 597 (1917), for approving the
procedure noted above. In Thomsen v. Cayser, supra, the
Circuit Court of Appeals for the Second Circuit had deter-
mined in that antitrust case that it would be impossible to
hold that the record disclosed a combination in
unreasonable restraint of trade but that it would be unduly
prejudicial to plaintiffs to reverse the judgment with in-
structions to dismiss and that upon another trial the plain-
tiffs might be able to produce additional testimony ten-
38a
ding to make out a case and accordingly, the Court of Ap-
peals remanded the case to the trial court for a new trial.
However, the plaintiffs had a rehearing, waived any right
to a new trial and consented that the case should be dispos-
ed of one way or the other. As a result of the rehearing,
the Court of Appeals recalled its mandate and reversed the
judgment with instructions to enter an order dismissing
the complaint. On appeal to the Supreme Court of the
United States, that Court held:
“The plaintiffs did not consent to a judgment
against them, but only that, if there was to be
such a judgment, it should be final in form in-
stead of interlocutory so that they might come to
this court without further delay.”!
243 U.S. at 83, 37 S.Ct. at 358, 61 L.Ed. at 605.
Adopting the reasoning of Thomsen v. Cayser, supra,
and National Polymer Products, supra, this Court will
grant the motion for judgment notwithstanding the verdict
and grant defendant’s alternative motion for a new trial.
Accordingly, it is
ORDERED that the motion for judgment for the de-
fendant notwithstanding the verdict be and is hereby
granted and this case is dismissed with prejudice, and it is
further
ORDERED that in the alternative the motion for new
trial be and is hereby granted in the event the judgment
notwithstanding the verdict be vacated or reversed.
'The Supreme Court proceeded to adjudicate the case on its merits.
|
i
39a
DONE and ORDERED in Chambers at Orlando,
Florida, this 24th day of February, 1983.
/s/ George C. Young
Senior United States District Judge
Copies mailed to:
John A. DeVault, III, Esquire
Bedell, Bedell, Dittmar & Zehmer
1500 Barnett Bank Building
Jacksonville, Florida 32202
Eli H. Subin, Esquire
Subin, Shams, Rosenbluth & Moran
Post Office Box 285
Orlando, Florida 32802
FILED
ORLANDO, FLA
FEB 24, 1983
CLERK
U.S. DISTRICT COURT
M-FILM ROLL #42
Document #1473
40a
James E. DEAS and Peterbilt of Florida,
Inc., a Florida Corporation,
Plaintiffs-Appellants,
v.
PACCAR, INC., a Delaware Corporation,
Defendant-Appellee.
No. 83-3182
United States Court of Appeals,
Eleventh Circuit.
Nov. 14, 1985
Truck dealer brought action against manufacturer for
violations of the Federal and Florida Dealer Day in Court
Acts when its dealership contract was not renewed. The
United States District Court for the Middle District of
Florida, George C. Young, District Judge, granted
manufacturer’s motion for new trial and, subsequently,
granted dealer’s request to enter judgment notwithstan-
ding verdict to permit immediate apeal. The Court of
Appeals, Ciark, Circuit Judge held that dealer failed to
prove manufacturer violated the Acts.
Affirmed.
1. Federal Courts 596, 765.
Court of Appeals allowed appellant to consent to
grant of judgment notwithstanding verdict as vehicle to
make judgment final and to bring its appeal, but Court
would review only ruling by district court which was in-
itially adverse to appellant, that is, grant of a new trial:
j.n.o.v. standard would not be applied but, rather, less
strict standard of review used in determining whether
;
:
|
4la
district court erred in granting new t‘ial would be applied.
Fed.Rules Civ. Proc. Rule 50(c), 28 U.S.C.A.
2. Federal Courts 825
Standard of review applicable to grant of new trial is
generally said to be that of determination of whether
district court abused its discretion; however, this general
principle is dependent largely upon basis of district court’s
grant of new trial.
3. Federal Civil Procedure 2331
District court was allowed wide discretion in granting
new trial which was not ordered solely because jury verdict
was against clear weight of the evidence; it was a case
where a combination of the factors, which could have
caused jury to reach possible erroneous verdict, led court
to conclude that new trial was necessary. Fed.Rules Civ.
Proc. Rule 50(c), 28 U.S.C.A.
4. Federal Civil Procedure 2336
In truck dealer’s action for violation of the Florida
Dealer Day in Court Act, district court did not abuse its
discretion in granting new trial due to its prejudicial
failure to instruct jury on burden of proof under the Act.
West’s F.S.A. § 320.60 et seq.
5. Trade Regulation 871.3
Truck dealer failed to sustain its burden of proving that |
manufacturer discriminated against it in violation of the
Federal Dealers’ Day in Court Act, 15 U.S.C.A § 1221 et
seq.; evidence regarding method of allocating trucks to
dealers, causes of allocation system, and effect strikes and
similar production delays had on the system was sparse
and, as a result, jury could not determine whether
ci |
42a
manufacturer purposely deviated from its normal alloca-
tion system when it allocated trucks to dealer.
John A. DeVault, III, Jacksonville, Fla., for plaintiffs-
appellants.
- me A tt eh Rl a hl i 21 et
Eli H. Subin, Orlando, Fla., for defendant-appellee.
Appeal from the United States District Court for the |
Middle District of Florida.
Before RONEY and CLARK, Circuit Judges, and SIMP-
SON, Senior Circuit Judge.
CLARK, Circuit Judge:
This is an appeal by James E. Deas (Deas) and Peterbilt
of Florida, Inc. (P.O.F.) from an order granting PAC-
CAR, Inc. (PACCAR) a new trial. Deas is the President
and sole stockholder of P.O.F., formerly an exclusive
Peterbilt truck dealer. PACCAR is the manufacturer of |
Peterbilt Trucks. One of PACCAR’s divisions is Peterbilt
Motors Company (Peterbilt).
Deas and P.O.F. filed this action against PACCAR,
Inc. for: (1) violation of the Federal and Florida Dealer
Day in Court Acts; (2) fraud with respect to the non-
disclosure of facts regarding prospective loans, supplies of
new trucks for resale, and P.O.F.’s status as a dealer; and |
(3) tortiously interfering with P.O.F.’s business relation-
ships. P.O.F.’s claims based on the Federal and Florida
Acts and Deas’ claim of tortious interference with a pro-
spective business relationship were the only claims submit-
ted to the jury. The jury found that PACCAR, through its
Peterbilt Motors Company Division, violated the Florida :
and Federal Acts and tortiously interfered with a prospec-
tive business relationship held by Deas.
43a
PACCAR filed a motion for judgment notwithstanding
the verdict (J.N.O.V.) and an alternative motion for a new
trial. The district court, after a hearing, denied the mo-
tion for J.N.O.V. and granted PACCAR’s alternative mo-
tion for a new trial. In its order, the court stated:
It is this Court’s opinion that the admission of Dr.
Westbrook’s testimony (the expert who testified on
behalf of plaintiff) as support for both liability and
damages was in error in that it was completely specu-
lative. Without such evidence the plaintiff could not
have prevailed. ...
Record, Vol. 13 at 3188.
Deas and P.O.F. requested the court to enter a judg-
ment notwithstanding the verdict so that an immediate ap-
peal could be taken. The plaintiffs stated that they could
not establish any better case on retrial and that they could
not afford a retrial. They thus wanted to win or lose based
on the record made at trial. The court granted the motion
for judgment notwithstanding the verdict and PACCAR’s
alternative motion for a new trial. The procedural aspect
of this appeal is discussed infra in § II.
I. FACTS
Deas and a co-partner purchased a truck dealership in
Orlando in 1966. At that time, the company operated un-
der a different name and was not an exclusive Peterbilt
distributor.
In 1970, Deas became the president and sole stockholder
of the company. With the permission of Peterbilt, Deas
changed the dealership name to Peterbilt of Florida and
thereafter sold Peterbilt Trucks exciusively.' The initial
'The contract did not require Deas to sell Peterbilt Trucks exclusive-
ly. The evidence demonstrated that several Peterbilt dealers sold other
brands.
dta
distributor’s contract between Deas and Peterbilt was sign-
ed in February, 1971 and could be terminated by either
party by giving thirty days notice.
In 1971 and 1972, Peterbilt encouraged Deas to sign a
new distributor contract and to expand to other markets in
Florida. Although Deas objected to certain provisions of
the contract and to the plans for expansion, he eventually
signed the new contract and in 1973 embarked on an ex-
pansion program which his accountant had advised was
not prudent. The contract provided that additional facili-
ties would be necessary when required and did not obligate
Peterbilt to lend any financial support to P.O.F.
Deas testified that he believed that PACCAR would
provide him with all of the trucks he needed and with
financial assistance when he reluctantly agreed to expand.
He related that he discussed the expansion efforts with
PACCAR’s General Manager and General Marketing
Manager. They told him that it was necessary for him to
expand his operation so the company could achieve great-
er market penetration. Deas responded that P.O.F. was
centrally located, that he did not have the money for the
proposed expansion, and that more trucks would be need-
ed. According to Deas, they assured him that he would be
able to obtain all of the trucks he needed and that he
would receive assistance in financing. Record, Vol. 1 at
194. Benny L. Bailey, PACCAR’s Eastern Region Credit
Manager, corroborated Deas’ opinion about obtaining
financial assistance during the expansion. Although he
also indicated that Deas probably misunderstood the
statements of PACCAR’s representatives, he testified that
Deas informed him that Deas had been offered financial
assistance. Record, Vol. 24 at 1238.
?The correspondence between Deas and the Peterbilt managers
demonstrates that financial assistance was discussed frequently. Plain-
tiffs Exhibits 18, 25, 26, 133, 139.
i
45a
Bailey convinced Deas to apply for wholesale financing
from Associates Finance (Associates).? As a result, Deas
and Associates entered into an agreement in which Asso-
ciates extended wholesale financing so that P.O.F. could
obtain its inventory. Record, Vol. 20 at 220-221. Deas did
not receive any direct financial assistance from Peterbilt.
From 1971 to 1974 P.O.F. received outstanding perfor-
mance awards from Peterbilt. However, P.O.F.’s subse-
quent financial performance was not as outstanding. P.O.F.
had a negative net worth from 1975 to 1978.4 Its accoun-
tant, Carson Eddy, testified that P.O.F.’s financial prob-
lems were the result of a lack of operating capital. Eddy
also testified that P.O.F.’s accounting procedures were
deficient; although, he did not feel they affected P.O.F.’s
profits. °*
Eddy rendered his opinion about the causes of P.O.F.’s
financial condition:
In 1974 and 75, I believe they had some problems
with strikes at the factory which caused Mr. Deas not
3Associates had a repurchase agreement with Peterbilt in which
Peterbilt would repurchase any new trucks that had to be repossessed
because of a dealers default on a wholesale financing. The contract
was beneficial to PACCAR and Peterbilt dealers because it induced
Associates to furnish wholesale financing to the dealers. It was
beneficial to Associates because it provided Associates with an oppor-
tunity to provide financing to retail customers. Record, Vol. 24 at
1235.
4PACCAR’s Eastern Region Credit Manager testified that P.O.F.
had not had serious cash flow problems prior to this period. Record,
Vol. 24 at 1244,
‘During this period P.O.F. also wrote several checks to PACCAR
and Associates for which there were insufficient funds in its bank ac-
count. It also collected funds for vehicles sold and did not pay
Associates.
46a
to have enough trucks available for sale. I think that
was during 1970 — I can’t recall the exact date — I
think it was ’73 and ’74 was the strike.
Right after that, they went on allocations, I believe,
and weren’t able — they weren’t able to get enough
trucks to sell and had too much overhead with all the
branches.
[B]y using internal capital at the time for expansion,
at the time that recession hit, they did not have inter-
nal funds available to carry on those operations; and
therefore, had to go to outside short-term lending at
very high interest rates at that time.
Record, Vol. 23 at 941, 943.
PACCAR’s Eastern Region Credit Manager had a simi-
lar observation regarding the cause of P.O.F.’s financial
problems:
QUESTION: Did you investigate the source of the
problem?
ANSWER: Yes.
QUESTION: What did you determine?
ANSWER: That it developed over a period of time
beginning with a shortage of trucks to sell in 1975 and
subsequently carried into 1976, creating the shortage
where he couldn’t pay a parts statement on a monthly
basis. ...
Record, Vol. 24 at 1244.
In January, 1975 Deas contacted Joseph Dunn, the
General Manager of the Peterbilt Division, because
P.O.F.’s distributor’s contract was near the date of expira-
tion. On March 20, 1975, Dunn recommended that the
contract be renewed for a three year term. Record, Vol. 24
47a
at 1208. Dunn left the position of General Manager in
August, 1975 and was replaced by Ug Rohr.
When Rohr became General Manager he apparently
brought with him a change of philosophy with regard to
the renewal of distributor’s contracts in general and
P.O.F.’s contract in particular.’ One employee observed
that Rohr’s policy was to eliminate all dealers who were
not selling an adequate amount of trucks and who were
having financial problems. Record, Vol. 24 at 1251-52.
Under Rohr’s administration, several memos regarding the
Florida market and P.O.F.’s performance were generated.
The memos directed employees to check on getting new
dealers in Florida; suggested that Peterbilt might meed to
develop a plan to terminate amicably its relationship with
P.O.F.; and advised Rohr to seek legal assistance in order
to determine the documentation needed to support a can-
cellation of P.O.F.’s contract.* Deas stated that he was
unaware of Peterbilt’s concerns regarding P.O.F.’s perfor-
mance.
Deas testified that he received the three-year renewal
contract on February 19, 1976, one year after it had been
approved.? However, the renewal contract was dated as
being signed on December 15, 1975.
‘According to Dunn, the only other item to be completed after his
approval was the signing of the formal contract by Deas and himself.
Dunn did not know why the signing of the contract was delayed.
7It appears that Deas was never a “favorite” of Peterbilt. PACCAR
and Peterbilt employees testified that he was a “difficult dealer” to get
along with and that his facilities were not representative of an ex-
clusive Peterbilt dealer with respect to appearance, design, and size.
See, e.g., Record, Vol. 24 at 1188; 1211-12; 1232-33.
*Plaintiff’s Exhibits 71-75.
%Record, Vol. 21 at 306. Deas’ testimony was corroborated by a
Dealer Contact Report, which indicated that contact was made with
the dealer on February 19 and 20, 1976. Tom Root, who was
Southeast Dealer Sales Manager, stated that he delivered the signed
Peterbilt three-year contract to Deas.
48a
The 1975 distributor’s contract provided that the dis-
tributor would “maintain a sales and service organization
which will be adequate to develop the potential of his mar-
ket area. . .” and at “such time as sales show the require-
ment for additional facilities within the market area, the
distributor will be expected to establish outlets in such
locations.” Plaintiff's Exhibit 68 at 1. The contract also re-
quired P.O.F. to invest “working capital and maintain
lines of credit necessary to realize the full potential of [its]
market area.” Jd. Peterbilt agreed to “use its best efforts to
make shipments on or before the dates specified in orders
accepted from the Distributor” but did not agree to be
responsible “for failure to deliver goods on time or to fill
orders where prevented by . . . strike or labor disturbances
... or if the demand for goods [exceeded Peterbilt’s] avail-
able supply. . . .” Jd. at 2.
Presumably, strikes and the increased demand for
trucks caused Peterbilt to allocate trucks to its dealers
from 1975-76 until 1977-78.'° Deas was disturbed with his
truck quotas because he felt they were insufficient to allow
him to operate profitably. Peterbilt’s Southeastern Sales
Manager, however, testified that the allocation of trucks
prevented all of the dealers in his region from obtaining
the number of trucks ordered.'!
Deas testified that in January, 1978 he was forced to
close one of his four facilities because he could not obtain
\0Record, Vol. 24 at 1191, 1199. The record is not entirely clear on
the reasons for the allocation system or the exact date upon which the
allocation system was instituted. However, the issue of the need to
allocate was not in dispute.
'\7d. at 1198.
49a
sufficient equipment to make a profit.'? Rohr responded
to Deas’ action by deleting several South Florida counties
from Deas’ market and by instituting a corresponding re-
duction of Deas’ sales quota.'? As a result of these ac-
tions, P.O.F. sued Peterbilt for the return of its South Flo-
rida territory.
In December, 1977 Associates notified Deas of its inten-
tion to cancel P.O.F.’s new truck wholesale line of credit
because Deas had changed his sales efforts from retail
customers (upon which Associates made the bulk of its
money) to wholesale customers. Associates extended the
date of cancellation to 1978 in order to coincide with the
term of P.O.F.’s distributor contract.
It was during this stormy period that P.O.F.’s distribu-
tor contract was near the date of its expiration. Because
Deas had not obtained alternate financing, Peterbilt con-
ditioned a one-year renewal of the dealership on P.O.F.’s
improving its financial condition and obtaining new finan-
cing. '4
As a last attempt to improve P.O.F.’s financial position,
Deas entered into negotiations with a Peterbilt dealer nam-
ed Wendell Doonan.'* Deas’ proposal, which was subject
to Peterbilt’s approval, was that Doonan would purchase a
piece of Deas’ property for $440,000 and assume P.O.F.’s
Tampa sales territory. Deas informed Rohr of the pro-
posal.
'2Record, Vol. 21 at 319-20.
'3Plaintifffs Exhibit 129.
'4Plaintiff’s Exhibit 171.
'SDeas claims that if its financial position had improved, Associates
would have reinstated its wholesale line of credit. PACCAR points
out that Associates did not cancel the credit because of Deas’ financial
condition, but because P.O.F. stopped selling retail accounts.
50a
The deal between Deas and Doonan was never executed,
primarily because of a call to Doonan from a PACCAR
Vice President advising him not to develop his operations
in Tampa.'® Because P.O.F. did not obtain inventory
financing for the one-year term of its proposed renewal,
PACCAR did not renew P.O.F.’s contract.!’
Il. THE PROCEDURAL BACKGROUND
This case comes to us on appeal with an unusual pro-
cedural history. As mentioned previously, the district
court initially granted PACCAR’s motion for a new trial
and denied its motion for judgment notwithstanding the
verdict. Plaintiffs then filed a Rule 60 motion, asking the
court to enter a judgment notwithstanding the verdict so
they could take an immediate appeal. PACCAR agreed to
the procedure. Although the court recognized that the
judgment notwithstanding the verdict was a harsh remedy
under the circumstances, it granted the motion and the
alternate motion for a new trial.
The procedural history in National Polymer Products,
Inc. v. Borg-Warner Corporation, 660 F.2d 171 (6th
'. Doonan discussed the conversation:
Joe called me one day and told me he wished I’d back off, that
he felt like I had all the eggs in one basket and he felt like I'd bea
lot better off — he called me as a personal friend, not as Joe
Dunn, Manager of Peterbilt/Kenworth.
He said, “Hey, me and you is friends, have been friends for a
long time. I just wish you would back off. You’re a very valuable
man in Great Bend, Kansas, but you could get yourself spread
too thin and get yourself in trouble in Tampa, Florida.” That
probably was my turning point on thinking about going to Tam-
pa.
Record, Vol. 24 at 1409.
'7Plaintiff’s Exhibit 190.
Sla
Cir.1981) is almost identical to this case. In National
Polymer, the defendant moved for a judgment notwith-
standing the verdict, a new trial, or in the alternative a
remittitur. The court considered the motion for judgment
notwithstanding the verdict to present a close question;
however, it ultimately granted the motion for a new trial.
National Polymer subsequently filed a Rule 60 motion
asking the court to correct its memorandum decision by
entering, among other things, a judgment notwithstand-
ing the verdict. National Polymer admitted that its reason
for seeking a judgment notwithstanding the verdict was
that it wanted to obtain immediate appellate review of the
trial court’s decision.
Citing Thomsen v. Cayser, 243 U.S. 66, 83, 37 S.Ct. 353,
358, 61 L.Ed. 597 (1917), the court of appeals found that
the procedure utilized was permissible.
. . . “The plaintiffs did not consent to a judgment
against them, but only that, if there was to be such a
judgment, it should be final in form instead of inter-
locutory, so that they might come to this court with-
out further delay.” ...
Here, the lower court order granting a new trial was
interlocutory and unappealable. National Polymer
persuaded the trial court to change its verdict to re-
flect its reasoning. That alteration produced a final
judgment, a dismissal, allowing this appeal to be
maintained.
Id. at 177 (citations omitted).
We accept jurisdiction in this case since the district court
entered a J.N.O.V. and ordered a new trial, the J.N.O.V.
having been solicited by appellant to secure an appeal. We
do not fully accept the Sixth Circuit’s method of reviewing
the trial record and dispositive orders. In National
52a
Polymer, supra, that Circuit reviewed the case using two
standards of review. When the standard applicable to a
J.N.O.V. was applied, the court found the district court
erred; yet, when it applied the standard applicable to the
grant of a new trial, it found that the district court did not
err and returned the case for another trial. The result was
that the Circuit permitted appellant to confer appellate
jurisdiction upon the court pursuant to its consent that the
district court change its denial of a J.N.O.V. to a grant of
a J.N.O.V.
The scenario is the same here. In their oral argument, in
support of their motion to enter judgment for the defen-
dant on both grounds, counsel stated:
We have represented in our Motion that we’re
satisfied with the Brief we’ve presented. That because
of the circumstances of these Plaintiffs, we’re unable
to go forward with the expense of a new trial. We fur-
ther stated that if we were to go on with a new trial,
we would present the same testimony upon which we
relied at the initial case and including that of Dr.
Westbrook, which if this Court’s ruling was correct
and this Court or any other Court is consistent with
the Court’s ruling, would be required to grant a
directed verdict.
We submit then, Your Honor, that in the proper
administration of justice, it is far better for this Court
and for the parties to have this matter finally and con-
clusively as determined by the Court of Appeals on
now a full Record, after a full hearing, argument and
a Jury verdict.
Record, Vol. 16 at 6-7.
[1] Normally the grant of a new trial is an interlocutory
order, not subject to appellate review unless coupled with
the grant of a J.N.O.V. as provided in Fed.R.Civ.P. 50(c).
a iii
53a
While we accept jurisdiction of this appeal, we refuse to
apply the J.N.O.V. standard but instead apply the less
Strict standard of review used in determining whether the
district court erred in granting the new trial. In other
words, we allow the appellant to consent to the grant of
the J.N.O.V. as a vehicle to make the judgment final and
to reach this court. However, we review only the ruling by
the district court which was initially adverse to the plain-
tiff/appellant below, that is, the grant of a new trial.
Fairness to both parties and the district court dictate this
method of review.
[2] The standard of review applicable to the grant of a
new trial is generally said to be that of a determination of
whether the district court abused its discretion. However,
this general principle is dependent largely upon the basis
of the district court’s grant of the new trial. See Rabun v.
Kimberly-Clark Corp., 678 F.2d 1053, 1060 (11th Cir.
1982), and Williams v. City of Valdosta, 689 F.2d 964,
972 (11th Cir. 1982). Where. the grant is on the ground
that the verdict is against the weight of the evidence, we
exercise close scrutiny out of deference to the right of a
litigant to have a jury determination of the facts. Massey
v. Gulf Oil Corp., 508 F.2d 92, 94-5 (Sth Cir.
1975). We have said that there are some gradations in the
strictness of our review in those instances where the issues
are highly complex, being more strict in our review when
the issues are simple and the outcome largely dependent
upon the credibility of witnesses. See Williams v. City of -
Valdosta, supra, at 974.
Additionally, there is a distinction between a new trial
awarded because the verdict was against the weight of the
evidence and one awarded for other reasons. As adopted in
O’Neil v. W.R. Grace & Co., 410 F.2d 906 (Sth Cir. 1969):
54a
New trials granted because (1) a jury verdict is against
the weight of the evidence may be sharply distinguish-
ed from (2) new trials ordered for other reasons: for
example, evidence improperly admitted, prejudicial
statements by counsel, an improper charge to the jury
or newly discovered evidence. In the first instance
given it is the jury itself which fails properly to per-
form the functions confided to it by law. In the latter
instances something occurred in the course of the trial
which resulted or which may have resulted in the jury
receiving a distorted, incorrect, or an incomplete view
of the operative facts, or some undesirable element
obtruded itself into the proceedings creating a condi-
tion whereby the giving of a just verdict was rendered
difficult or impossible. In the latter instances, (2),
supra, the trial court delivered the jury from a pos-
sibly erroneous verdict arising from circumstances
over which the jury had no control. Under these con-
ditions there is no usurpation by the court of the
prime function of the jury as the trier of the facts and
the trial judge necessarily must be allowed wide dis-
cretion in granting or refusing a new trial.
But where no undesirable or pernicious element has
occurred or been introduced into the trial and the trial
judge nonetheless grants a new trial on the ground
that the verdict was against the weight of the evi-
dence, the trial judge in negating the jury’s verdict
has, to some extent at least, substituted his judgment
of the facts and the credibility of the witnesses for
that of the jury. . . . It then becomes the duty of the
appellate tribunal to exercise a closer degree of scru-
tiny and supervision than is the case where a new trial
is granted because of some undesirable or pernicious
influence obtruding into the trial... .
Id. at 914 (quoting from Lind v. Schenley Industries, Inc.,
278 F.2d 79 (3d Cir. 1960), cert. denied, 364 U.S. 835, 81
S.Ct. 58, 5 L.Ed.2d 60 (1960)).
55a
In this case it is clear that the trial court granted a new
trial for several reasons. In response to a suggestion that
the new trial had been granted solely on evidentiary
grounds the district court responded:
In the first place, I think the record is clear that I
granted a motion for a new trial for a number of rea-
sons —
Record, Vol. 16 at 14-15; see also Record, Vol. 17 at 36-45
(various reasons for grant of new trial); Record, Vol. 13 at
3188 (written order).
The court pointed out that /nternational Harvester
Company v. Calvin, 353 So.2d 144 (Fla.Dist.Ct.App.
1977), required an additional instruction to the effect that
“if there was a good reason for the nonrenewal that then
even if there were other grounds which were not priority
that the valid reason would have precluded recovery under
the Florida Act.” Record, Vol. 17 at 43. The court in-
dicated that it should have given an instruction on the
mitigation of damages requirement. However, it did not
base its ruling on this factor alone.
In addition, the court found that several essential fac-
tors were not clearly shown by either party. Some of these
factors were: (1) the total number of trucks that were pro-
duced and available to P.O.F.; (2) the reasons for the quo-
ta system and whether Peterbilt deliberately allocated less
trucks than it could have allocated under the system; and
(3) the effect that the strikes had o» deliveries and alloca-.
tions. The court was also concerned that neither party had
presented sufficient evidence with respect to the amount of
profits that could have been generated or lost in the Fort
Lauderdale market that was taken from P.O.F.
The court found several deficiencies in both of the ex-
perts’ testimony with respect to discrimination in delivery
56a
both as to the number of trucks allocated and the timing
of deliveries.'* The court was concerned that the ap-
pellant’s expert chose to select comparative dealers based
on whether the expert thought they received “favored
treatment” and that the expert had selected a dealer that
was not in the same region as P.O.F.'9
The court also pointed out that the raw figures indicated
that P.O.F. received trucks faster than other dealers. The
court concluded that when the appellant’s expert added
'8The court stated:
On this point [discrimination] both the evidence of the Plain-
tiff and the evidence of the Defendant were, I think — was con-
siderably deficient. . . . It was never shown by either side on this
discrimination point of how many trucks were being produced
and how many actually were available to come to Peterbilt of
Florida and whether Peterbilt Motor Company was deliberately
allocating 125 trucks when they could have allocated 250, for ex-
ample. The Plaintiff didn’t show that and the Defendant didn’t
show that.
Record, Vol. 17 at 41-42.
The court also criticized PACCAR’s expert based on his past con-
nections with PACCAR. Apparently, some of the divisions of PAC-
CAR, such as Peterbilt, were major customers of the expert witness
and provided the witness with a substantial amount of income.
'9On the method of selecting comparative dealers, the court con-
cluded:
Of all of the numerous dealers instead of picking them at ran-
dom he just picked four that he suspected got favor [sic] treat-
ment which might show that those four got favor [sic] treatment
but by comparing Peterbilt of Florida to them would not neces-
sarily come up with the — could not come up with the conclu-
sion that Peterbilt of Florida was discriminated against as to the
average dealer but only that it was discriminated against as to a
favored dealer. One of these dealers was not in the southeast sec-
tion.
Record, Vol. 17 at 41.
57a
computations there was a difference in delivery that was so
insignificant that it became unimportant.
On the interference with a prospective business rela-
tionship claim, the court found that if the property had
been sold to Doonan, the profits generated would have
been insufficient to pay the debts owed and that there
would not have been any money left to place in the busi-
ness. The court felt it was a distortion of the evidence to
advance a contrary contention.
[3] After reviewing the thrust of the district court’s
order, it is obvious that the new trial was not ordered sole-
ly because the jury verdict was against the clear weight of
the evidence. This is a case where a combination of fac-
tors, which could have caused the jury to reach a possible
erroneous verdict, led the court to conclude that a new
trial was necessary. Under these circumstances, the district
court was allowed wide discretion in granting the new
trial. See O’Neil v. W.R. Grace & Co., 410 F.2d 908, 914
(Sth Cir. 1969).
Ill. THE JURY INSTRUCTIONS UNDER
THE FLORIDA ACT
We now address the district court’s failure to instruct
the jury on the burden of proof under the Florida Act in
accordance with /nternational Harvester Company v. Cal-
vin, 353 So.2d 144 (Fla.Dist.Ct. App.1977). We have re-
cently had the opportunity to examine the Florida Act in -
Dick Winning Chrysler v. Chrysler Motors Corporation,
750 F.2d 895 (11th Cir.1985). In Dick Winning we discuss-
ed International Harvester:
In Jnternational Harvester Co., a truck dealer pro-
tested a manufacturer’s cancellation of its franchise
agreement. On review, the Florida appellate court
58a
held that the dealer had the initial burden of es-
tablishing that the manufacturer’s decision to ter-
minate the franchise agreement was unfair. The court
further stated that the burden, following a prima
facie showing of bad faith, shifts to the manufac-
turer, to show by a preponderance of the evidence
that it would have reached the same decision in the
absence of the alleged bad faith. International
Harvester Co., 353 So.2d at 148 (citing Mount
Healthy City Board of Education v. Doyle, 429 U.S
274, 286, 97 S.Ct. 568 [575], 50 L.Ed.2d 471 (1977)).
After evaluating the substantial uncontroverted ob-
jective data produced by the parties, the Jnternational
Harvester court concluded that any prima facie show-
ing of unfairness by the dealer, Rich Motors, was
clearly rebutted by the objective data submitted by
the manufacturer. The court concluded that Interna-
tional Harvester’s decision to terminate Rich Motors
was in accordance with the parties’ franchise agree-
ment. Likewise, we find that Chrysler Motors’ deci-
sion to terminate Winning Chrysler was in accordance
with the parties’ franchise agreement, and Winning
Chrysler has failed to prove that Chrysler Motors im-
posed any “unfairness” upon the dealership.
Id. at 898-99. An examination of the district court’s in-
struction regarding the Florida Act demonstrates that the
jury was not instructed on PACCAR’s burden of proof as
set forth in International Harvester. See Record, Vol. 29
at 2770-76. Thus, there is no assurance that the jury ap-
plied the appropriate burden of proof. Because PACCAR
did not admit the appellants’ prima facie case and thus
assume the burden of proof, it was entitled to have the
jury charged on this critical aspect of its case.
“The question on appeal is not whether an instruction
was faultless in every respect, but whether the jury, con-
59a
sidering the instruction as a whole was misled. . . . Thus,
only in those cases where the reviewing court has a
substantial doubt whether the jury was fairly guided in its
deliberations, should the judgment be disturbed.” Mid-
Texas Communications Systems, Inc. v. American Tele-
phone and Telegraph Company, 615 F.2d 1372, 1390 n. 16
(Sth Cir.1980), cert. denied, 449 U.S. 912, 101 S.Ct. 286,
66 L.Ed.2d 140 (1980) (citations omitted).
The appellants essentially argue that the failure to in-
struct on the burden of proof was harmless.2° We dis-
agree. The failure to instruct on PACCAR’s burden of
proof was too central to be harmless. To hold otherwise
“would be to abrogate the district court’s duty to instruct
the jury accurately.” /d. at 1391 n. 16.
[4] We have ordered a new trial where “the charge given
on burden of proof was in error and was prejudicial to the
appellant.” Phillips v. State Farm Mutual Automobile In-
surance Company, 437 F.2d 365, 368 (Sth Cir.1971). In
this case, the failure to instruct the jury on the burden of
proof was prejudicial. Moreover, we have substantial
doubts that the jury was completely guided during its
deliberations. Thus, we hold that the district court did not
abuse its discretion when it granted a new trial due to its
failure to instruct the jury on the burden of proof under
the Florida Act as set forth in /nternational Harvester.
20The appellants urge that the failure to instruct was favorable to
PACCAR “given the instruction at the beginning of trial that PAC-
CAR could not be liable if it had “just cause” for ‘failing to renew or
refusing to renew’ POF’s contract . . . [and] the general instruction on
burden of proof. . . .” Appellant’s Reply Brief at 23-24. It is further
contended that the charge did not mislead the jury and that the jury
understood the issues it was to apply in arriving at its decision.
60a
IV. THE FEDERAL DEALERS’ DAY IN
COURT ACT
Our independent examination of the record has led
us to conclude that the evidence before the jury on the
discrimination issue was deficient. One obvious problem
with the evidence was the failure of the appellants’ expert
to present sufficient facts demonstrating that the dealers,
with whom P.O.F.’s deliveries were compared, were
similar to P.O.F.
The appellants’ expert selected dealers whom the expert
thought received “favored treatment” and failed to restrict
his selection to dealers located in the southeastern
region.?' In addition, the expert examined some of the
more profitable Peterbilt dealers. |
21PACCAR’s expert stated that the southeast region consisted of
Alabama, Georgia, Florida, Mississippi, Kentucky, South Carolina
North Carolina, West Virginia, and Virginia. The appellants’ expert
stated that he examined the southeast region as defined by Peterbilt.
However, it is undisputed that one of the dealers was located in
Massachusetts. Record, Vol. 25 at 1594.
?2A cursory examination of the 1977 dealer rankings with respect to
the sales of parts and trucks illustrates that the dealers selected may
not have been sufficiently comparable. Comparative dealers are
underlined on the ranking charts which are reprinted below.
Southeast Region
Performance Review
Trucks
1. Peterbilt of Knoxville 399%
2. Ed Wright 200%
3. Easom Truck Sales 175%
4. Nalley Motor Trucks 149%
5. Peterbilt of Louisiana 129%
5. Peterbilt of Nashville 129%
6. Trucks, Inc. 116%
7. Peterbiit Southern 115%
8. Peterbilt of Misssissipi 114%
9. Peterbilt of Florida 106%
6la
Although evidence of another dealer’s performance is
admissible and helpful in these cases, we cannot hold that
a litigant can select a dealer without regard to the dealer’s
geographic location, size, product mix, and market poten-
tial merely because the dealer is suspected of receiving
“favored treatment.”23 See Randy’s Studebaker Sales, Inc.
v. Nissan Motor Corporation in U.S.A., 533 F.2d 510, 512
(10th Cir. 1976) (dealer who contended that it had been dis-
10. Dunham GMC 89%
11. Tri-State | 82%
12. Fitzgerald 73%
13. Dickerson GMC 32%
14. West Virginia Trucks 13%
REGION TOTAL 158%
Parts
1. Trucks, Inc. 132%
2. Peterbilt of Nashville 129%
3. Peterbilt Southern 119%
4. Peterbilt of Knoxville 116%
5. Nalley 111%
6. Easom 102%
7. Peterbilt of Louisiana 97%
8. Ed Wright Trucks 90%
9. Peterbilt of Florida 73%
10. Dunham GMC 70%
11. Dickerson GMC 50%
12. Peterbilt of Mississippi 43%
13. Key GMC — Mobile 39%
14. Fitzgerald 37%
15. Tri-State 20%
16. West Virginia Trucks 19%
REGION TOTAL 93%
Plaintiff's Exhibit 314 (emphasis added).
23By no means do we hold that all of these factors must be proven
before a dealer can be found to be comparable. However, objective
factors should be utilized when an expert selects comparative dealers.
The factors mentioned help assure that objective measures are present
during the selection process.
62a
criminated against by the distribution and allocation
of automobiles selected comparative dealers that were
geographically close): cf. Jay Edwards, Inc. v. New
England Toyota Distributor, Inc., 708 F.2d 814, 821 n. 8
(1st Cir.1983), cert. denied __._ U.S. ___., 104 S.Ct. 241,
78 L.Ed.2d 231 (1983) (In response to an argument that
there was no showing that the dealerships were sufficiently
similiar for the comparison to be legitimate, the court
noted that it was not specifically contended “that the
dealerships were geographically so distant as to make them
incomparable, a possibility not necessarily apparent.”);
Farmington Dowel Products v. Forster Mfg. Co., Inc.,
421 F.2d 61, 82 n. 48 (1st Cir.1970) (District court in an-
titrust case correctly concluded that two businesses were
not sufficiently comparable based on an examination of
the products manufactured, sales and distribution system,
capitalization, sales and profits, and customer groups.).
[5] We are unable to conclude that the appellants com-
pared P.O.F. to similar dealers. However, there are other
factors that support the district court’s award of a new
trial. Our review of the record demonstrates that the
evidence regarding the method of allocating trucks to
dealers, the causes of the allocation system, and the effect
strikes and similar production delays had on the system
was sparse. Although some of these factors were briefly
discussed by witnesses, the jury could not have had a clear
understanding of how the normal allocation system oper-
ated. As a result, the jury could not determine whether
Peterbilt purposely deviated from its normal allocation
system when it allocated trucks to P.O.F.
One court has established a three-part test for determin-
ing whether a manufacturer has failed to make products
available to a dealer. First, the plaintiff must prove that it
63a
actually ordered more vehicles than it received.?4 Second,
it must be shown “that the particular model vehicles or-
dered, but not supplied, were available for delivery, i.e.,
there was no product shortage at the time, or if there ex-
isted a period of product’shortage such as was customary
in the business during the months of new model introduc-
tion . . . that [the manufacturer] failed to allocate vehicles
in a fair and reasonable manner.” Cecil Corley Motor
Company v. General Motors Corporation, 380 F.Supp.
819, 835 (M.D. Tenn. 1974). Third, it must be demonstrated
that the manufacturer failed to make such vehicles avail-
able for the reasonable requirements of the dealer’s area of
sales responsibility. /d.
It is the second factor of the well reasoned test set forth
in Cecil Corley that has not been developed in this case.
The absence of this critical evidence made it impossible for
the jury to accurately determine whether Peterbilt had
acted in bad faith when it failed to supply P.O.F. with the
trucks it ordered.
As the district court properly pointed out, the fact that
P.O.F. failed to obtain financing, which was a valid con-
tractual requirement, is undisputed. The only evidence re-
garding discrimination was that presented by both of the
experts. If the experts’ evidence were omitted, the remain-
ing evidence that Peterbilt had begun to etablish a file on
P.O.F. in order to amicably terminate P.O.F. would be in-
sufficient to demonstrate a lack of good faith. As stated in
Woodward v. General Motors Corporation, 298 F.2d 121 _
(Sth Cir.1962), the federal act does not “ ‘curtail the
manufacturer’s right to cancel or not to renew an ineffi-
cient or undesirable dealer’s franchise.’” Jd. at 128.
24The fact that P.O.F. did not receive all of the trucks ordered is
clear from the record.
64a
Moreover, we have recently held that a dealer was proper-
ly terminated for failure to abide by the terms of its fran-
chise agreement. See Dick Winning Chrysler-Plymouth v.
Chrysler Motors Corporation, 750 F.2d 895, 899 (11th
Cir. 1985).
V. CONCLUSION
The district court did not abuse its discretion in granting
a new trial. We have tried faithfully to review the facts and
the law in reaching this conclusion. Plaintiffs’ suit was
based essentially on the Florida and Federal Dealer Acts,
which require good faith on the part of 2 motor vehicle
manufacturer in terminating or not renewing a dealership
contract. In this case PACCAR did not renew basically
because P.O.F. could not provide floor plan financing.
P.O.F. attempted to show that it lost its financing because
of PACCAR’s bad faith dealings. P.O.F.’s evidence was
speculative, both substantively and as to causation. While
P.O.F. increased its sales considerably in the early ”70’s, it
was never sufficiently capitalized according to P.O.F.’s
own accountant. P.O.F.’s expert described the 1975-1976
recession as particularly severe in Florida in regard to the
sale of trucks. P.O.F.’s troubles began at that time. The
district court’s assessment of the evidence was correct
when it held that the evidence that PACCAR discri-
minated against P.O.F. was inherently speculative, and
that P.O.F.’s financial difficulties could not be attributed
to this speculative discrimination.
The appellant was entitled to a new trial but waived that
right to obtain an immediate review of the jury’s verdict.
Since we hold that the appellant was not entitled to a judg-
ment on the jury verdict, the district court was correct in
entering a judgment notwithstanding the verdict even
65a
though the court initially denied the defendant’s motion.
The judgment notwithstanding the verdict is AFFIRMED.
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