Appeal from an order of the circuit court for Milwaukee county: Laurence C. Gram, Jr., Judge.
Petition to review granted.
Wedemeyer, P.j., Decker and Moser, JJ.
The opinion of the court was delivered by: Decker
This appeal arises from an alleged violation of ch. 135, The Wisconsin Fair Dealership Law. Les Moise, Inc., (Moise) appeals from an order dismissing its complaint as barred by the statute of limitations. Moise contends that, under sec. 893.93(3)(b), Stats., the statute of limitations should be deemed to begin to run at the actual time of termination of the ski supply agreement rather than at the time of notice of termination. We agree and reverse the order of the trial court and remand for further proceedings.
Moise is a retailer of sports equipment. It carried the skis of respondent Rossignol Ski Co. (Rossignol) for some twenty-five years. On January 16, 1980, Rossignol notified Moise that the written agreement between them would be terminated upon the expiration date of that agreement, May 21, 1980. On April 14, 1981, Moise filed the original summons and complaint in this action. Rossignol filed a motion to dismiss on the ground that the complaint was barred by sec. 893.93(3)(b), Stats., the applicable one-year statute of limitations for an action commenced under ch. 135, Stats., the Wisconsin Fair Dealership Law. The trial court granted the motion, holding that the statute of limitations began to run from January 16, 1980, the date of notice, rather than from May 21, 1980, the effective date of termination. In this case the record reflects that the date of termination was the date of actual injury to Moise.
The question of the starting time for the statute of limitations to run under ch. 135, Stats., is apparently one of first impression in Wisconsin. Both parties on appeal, as well as the trial court in its memorandum decision, rely principally upon two federal cases. We will discuss both.
The case which the trial court held to be controlling is Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (7th Cir. 1956). There, Emich was given notice on April 7, 1936, that General Motors would cancel and terminate the selling agreement "effective three months after the delivery of this notice . . ." Id. at 719. This date was later extended to September 1, 1936. Id. The seventh circuit held that the April 7 date set the statute of limitations running because the notice received on that date terminated Emich's "contract right to receive cars." Id. at 720.
What distinguishes Emich from the case we consider here is a clause in the franchise agreement between Emich and General Motors:
"Any cancellation or termination of this agreement shall also operate as a cancellation of all orders for standard motor vehicles, chassis, parts, accessories or service and other equipment which may not have been shipped prior to receipt of notice of such cancellation or termination by Dealer. . . ." [Emphasis in original.]
This clause, which the seventh circuit noted "as meaning that notice of intention to cancel terminated the dealer's right to receive cars," id., effectively made notice of termination the time of actual injury as well. As such, Emich is different from this case because here, the notice of termination and the effective date of actual injury were two different dates. Emich, therefore, is inapposite. *fn1
We are more persuaded by the decision of the ninth circuit in Marquis v. Chrysler Corp., 577 F.2d 624 (9th Cir. 1978). There, Marquis had a franchise agreement with Chrysler which gave Chrysler the right to terminate the dealership on ninety days' notice upon the dealer's failure to perform various obligations. Id. at 626. On January 5, 1968, Chrysler gave Marquis notice that his dealership was to be terminated in ninety days. Id. at 628. Marquis sued on April 2, 1971, within the applicable three year statute of limitations if the date of actual termination were applied to start the statute running, but beyond it if the date of notice were applied. Id. at 629. Chrysler argued that Emich required that the date of notice started the statute to run; the ninth circuit disagreed:
Emich, however, is distinguishable and does not stand for the general proposition that the Dealers' Act limitations period runs from the date of the termination notice. In Emich the notice canceled the dealer's contract right to receive cars from the manufacturer. It coincided with actual injury to the dealer and, after giving such notice, "General Motors could not ...