STEPHEN L. CROCKER, United States Magistrate Judge.
In this civil action for monetary relief, plaintiffs Sid Tilstra and his company, Tilstra Dairy Equipment, Ltd. (collectively "Tilstra") contend that in early 2010, defendant Bou-Matic, LLC breached Bou-Matic's dealership agreement with Tilstra to sell dairy equipment when Bou-Matic threatened to reassign Tilstra's territory and tortiously interfered with Tilstra's sale of its dealership to a neighboring Bou-Matic dealer. Jurisdiction is present under 28 U.S.C. § 1332.
I conclude that Bou-Matic is entitled to summary judgment on Tilstra's claim of tortious interference because it is barred by the statute of limitations for intentional torts and is not subject to statutory tolling. Bou-Matic is not entitled to summary
For the purpose of deciding Bou-Matic's motion, I find the following facts to be material and undisputed:
Plaintiff Sid Tilstra is a citizen of Ontario, Canada. He is the owner and president of plaintiff Tilstra Dairy Equipment Ltd., a dairy equipment dealership headquartered in Ontario. Defendant Bou-Matic LLC is a citizen of Texas with headquarters in Madison, Wisconsin. Bou-Matic manufactures dairy equipment and parts. Bou-Matic sells its equipment and parts through territorial dealers, who also service Bou-Matic products.
Tilstra became a Bou-Matic dealer in 1981 and operated in that capacity for almost 20 years, until March 2, 2010. The parties executed their last written dealership agreement in July 2004. The agreement named Sid Tilstra as the "dealer" and Tilstra Dairy Equipment, Ltd., as the "dealer business name." Although the agreement assigned to Tilstra an exclusive territory in which to sell and service Bou-Matic products, Bou-Matic reserved to itself the right to change Tilstra's assigned territory:
With respect to termination, the agreement provided that:
Id. at ¶ 14.
Dortmans Brothers Barn Equipment, Inc. (Dortmans) is a corporation owned by John and Rita Dortmans and Ben Willemse. Dortmans became a Bou-Matic dealer in the early 1980s. In 2009, Dortmans and Tilstra had adjacent Bou-Matic territories in southwestern Ontario, Canada. The cow population in Tilstra's territory was almost twice that of Dortmans's territory. Between July 2007 and 2010, John Ghey was the district sales manager for Bou-Matic in the territories assigned to Tilstra and Dortmans. Ghey has known Willemse of Dortmans for 10 to 12 years. Prior to joining Bou-Matic, Ghey had worked for Bou-Matic's competitor, DeLaval. Dortmans also is a DeLaval dealer, and Ghey had provided technical assistance to Dortmans while he was at DeLaval.
In late 2006 or early 2007, John Dortmans approached Sid Tilstra about Dortmans buying Tilstra's Bou-Matic dealership.
In August 2008, Ghey and Willemse exchanged emails and had discussions about Dortmans needing more territory. On September 9, 2009, Sid Tilstra sent an email to Ghey and several of his superiors at Bou-Matic, criticizing Ghey for allowing Dortmans to bid on a project in Tilstra's territory and causing the loss of the prospective customer to DeLaval. Shortly after, Ghey began putting together information to build a case for changing Tilstra's territory.
In February 2009, Ghey reviewed Tilstra's performance and determined that the company needed improvement in many areas. By the fall of 2009, Ghey was looking into why Bou-Matic was losing market share, losing projects and doing poorly in Tilstra's territory. Willemse and Dortmans provided Ghey with a list of farms that allegedly had issues with Tilstra.
On October 19, 2009, Ghey emailed a report to his regional sales manager, Mario Gladu, in which Ghey highlighted problems in Tilstra's territory and explaining why changes were necessary. Ghey recommended that Bou-Matic reassign Tilstra's territory to other Bou-Matic dealers, including Dortmans. Ghey reported that Dortmans and "Advanced" (another Bou-Matic dealer in the area) were "actively pursuing leads in Tilstra's territory," and "[b]oth would love to have additional territory with our blessing." It was Ghey's opinion that Sid Tilstra was destroying the territory and that his "focus was about making money on the initial sale":
Ghey also felt that Tilstra's "route man was good at what he did and there's a certain element of service he did at his end, like maintenance, but some of the knowledge and service department capacity was not there to deal with customers' issues." Id. at 118.
Bou-Matic did not then—or at any time in 2009—notify Tilstra in writing or orally that Tilstra was in breach or otherwise was not fulfilling its obligations under its dealership agreement. Bou-Matic did not give Tilstra any notice in 2009 that it was in default of its dealership by failing properly servicing farmers or otherwise failing in the territory. Tilstra claims that prior to January 8, 2010, the dealership consistently increased sales in its territory
On October 26, 2009, Stephane Desjardins, who had replaced Gladu as regional sales manager for Tilstra's territory, sent an e-mail to Ghey stating:
In November 2009, Ghey called Sid Tilstra to request a meeting and hinted strongly that he was going to be changing Tilstra's trade territory. Ghey and Desjardins met with Sid Tilstra and his wife on November 16, 2009. Ghey indicated that Bou-Matic had made higher-level marketing decisions to have larger dealers. Desjardins announced that Bou-Matic was going to remove Tilstra's territory if Tilstra did not agree to sell its assets and dealership to the Dortmans by December 1, 2009. Ghey and Desjardins gave Tilstra a deadline of January 1, 2010 for closing the sale or Ghey and Desjardins "would have to go back to Madison and find out how we can get a change pushed through."
Soon after the November 16, 2009 meeting, John Dortmans telephoned Sid Tilstra and told him that he was aware of the November 16, 2009 meeting between Tilstra and Bou-Matic. Dortmans told Tilstra that he was "supposed to call." The two men agreed to meet later that week.
Meanwhile, between November 16 and 23, 2009, Ghey already was discussing with Willemse at Dortmans the negotiation process and terms of the proposed sale. On December 8, 2009, Ghey and Desjardins met with Willemse and John and Rita Dortmans to discuss the negotiations between Tilstra and Dortmans. Desjardins drafted a summary of the meeting entitled "Tilstra Dairy Equipment Takeover by Dortman Borthers [sic]," in which he stated that benefits to Bou-Matic of the takeover would include "[e]limination of a dealer that is slowly but surely destroying a territory" and "[e]limination of potential litigation because the takeover will be amicable." On December 11, 2009, Ghey sent an email to Dortmans outlining financial incentives and product discounts that Bou-Matic was willing to give Dortmans for taking over the Tilstra territory.
John Dortmans and Sid Tilstra met several times in November and December, 2009. John Dortmans still considered Sid Tilstra's 2007 asking price too high, so he made a counterproposal. During this time, Sid Tilstra did not express any opinions to Dortmans about Bou-Matic or the position his dealership was in.
On December 21, 2009, Desjardins sent Dortmans and Willemse a draft of a letter that Bou-Matic intended to send Tilstra regarding its "inaction" in selling its dealership. The purpose of this letter to Tilstra was to "accelerate the process of the sale happening" and to put pressure on Tilstra "to get this done."
On January 7, 2010, Rita Dortmans emailed Desjardins and Willemse, stating that
The next day, Desjardins sent the following email to Dan Bradbury
On January 8, 2010, Desjardins sent an email to Rita Dortmans (which he copied Ghey and Bradbury) instructing her to get commitments from Tilstra on the following issues: "a noncompete agreement for 5 years preferably 10"; hiring Tilstra's employees, stating that "Sid can't keep them under any circumstances"; and "the date of January 15th is now final otherwise Bou-Matic will proceed with cancellation procedures voiding your commitment."
That same day, January 8, 2010, Bradbury emailed and posted a letter to Sid Tilstra, stating:
Dkt. 20, exh. 1.
Bradbury sent copies of this letter to John and Rita Dortmans, Ben Willemse, John Ghey, Gladu and Desjardins. When Sid Tilstra received this letter, he believed that Bou-Matic was terminating his dealership
John Dortmans did not change the terms of his offer to purchase Tilstra after the January 8, 2010 letter. On January 11, 2010, Rita Dortmans sent an email to Desjardins and Bradbury, informing them that John Dortmans had spoken to Sid Tilstra, was sending Tilstra an adjusted proposal and had agreed to meet with Sid Tilstra on Wednesday, January 13, 2010. Tilstra accepted Dortmans's offer in principle on January 13, 2010, but the offer was not to be considered final until the parties' attorneys and accountants had reviewed it. On January 15, 2010, Tilstra hired a lawyer, Greg Hedley, to negotiate the final terms of the sale.
On February 17, 2010, Tilstra and Dortmans entered into a final written agreement for Tilstra to sell its dealership to Dortmans, who agreed to purchase the entire Tilstra business, including customer lists, customer contracts, inventory, equipment, business records, goodwill, name, distribution rights from Bou-Matic, regulatory licenses and trade secrets for $414,230 in cash. Tilstra also agreed to a five-year management consulting contract under which Dortmans would pay Tilstra a fee of $310,000 over five years. In the final sale agreement, Tilstra represented and warranted that there had been no changes to Tilstra's business since May 2009.
Sid Tilstra believed that if he did not sell to Dortmans, then his assets would be worth less due to the changes Bou-Matic was going to make to his territory. Attorney Hedley never contacted Bou-Matic on behalf of Tilstra. Tilstra carried on as a normal Bou-Matic dealer until March 2, 2010, when Dortmans's and Tilstra's lawyers
Tilstra filed suit in Ontario on November 14, 2011, alleging breach of contract and intentional interference with economic relations with respect to the constructive termination of his Bou-Matic dealership and the negotiations with Dortmans. On May 21, 2013, after this action was commenced, the Canadian court entered an order dismissing Bou-Matic as a party on the ground of improper forum.
Summary judgment is proper where there is no showing of a genuine issue of material fact, and where the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. "`A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.'" Sides v. City of Champaign, 496 F.3d 820, 826 (7th Cir.2007) (quoting Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir.2005)). In determining whether a genuine issue of material facts exists, the court must construe all facts in favor of the nonmoving party. Squibb v. Memorial Medical Center, 497 F.3d 775, 780 (7th Cir.2007). Even so, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Citing recent decisions from the U.S. District Court for the Eastern District of Wisconsin and the Wisconsin Court of Appeals, Bou-Matic contends that Tilstra's claim for intentional interference with contract is barred by the statute of limitations for intentional torts, Wis. Stat. § 893.57. See In re Rinaldi, 487 B.R. 516, 538 (Bankr.E.D.Wis.2013); Mirbeau of Geneva Lake, LLC v. City of Lake Geneva, 746 F.Supp.2d 1000, 1013-14 (E.D.Wis. 2010); Stapel v. Stapel, 2010 WI App 120, ¶ 34 n. 9, 329 Wis.2d 269, 2010 WL 2757237 (Ct.App.2010). The parties agree that Tilstra's interference claim accrued sometime in January or February of 2010. See Pls' Resp. Br., dkt. 31 at 32. At that time, § 893.57 (2007-2008 version) provided that "[a]n action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 2 years after the cause of action accrues." (The limitations period became three years as of February 25, 2010.) Tilstra filed suit in this court on November 15, 2012, nine months after the two-year statute of limitations period had run.
Tilstra argues, however, that it is not § 893.57 but the six-year limitations period set forth in § 893.53 for personal injury that applies to claims of tortious interference with contract. Section 893.53 is the state's residual personal injury statute of limitations that applies unless another statute expressly prescribes a different period for bringing claims. In support of his argument, Tilstra relies on a 29-year-old decision from this court, Elbe v. Wausau Hospital Center, 606 F.Supp. 1491, 1503 (W.D.Wis.1985), in which Judge Crabb applied § 893.53 to an interference with contract claim. However, at the time Elbe was decided, the "issue of which section
Id.
Although the Wisconsin court of appeals subsequently agreed with Judge Crabb in an unpublished decision issued five years later, TSR, Inc. v. Niebling, 144 Wis.2d 949, 425 N.W.2d 39 (Ct.App.1988), courts have changed course in more recent cases.
In 2010, Judge Stadtmueller of the Eastern District of Wisconsin noted that Segall was no longer good law in light of two recent decisions by the Wisconsin Court of Appeals. Mirbeau, 746 F.Supp.2d at 1014 (citing Turner v. Sanoski, 2010 WI App 92, 327 Wis.2d 503, 787 N.W.2d 429 (Ct.App. 2010) and Stapel v. Stapel, 2010 WI App 120, ¶ 34 n. 9, 329 Wis.2d 269, 2010 WL 2757237 (Ct.App.2010)). In Turner, the state court of appeals found that continued reliance on Segall was misplaced for two reasons:
Turner, 2010 WI App 92 at ¶¶ 8-9.
Although Turner left open the question whether there was a specific statute of limitations controlling tortious interference with contract claims, the unpublished opinion in Stapel apparently resolved the issue, applying the two-year statute of limitations in § 893.57. Mirbeau, 746 F.Supp.2d at 1014 (citing Stapel, 2010 WI App 120 at ¶ 34 n. 9).
Tilstra questions the validity of Mirbeau because it relies on an unpublished opinion that completely overlooked the decisions in TSR and Elbe. Tilstra has a point. Wisconsin only allows citations to unpublished opinions if they were issued after July 1, 2009 and are authored by a member of a three-judge panel; a per curiam opinion is not an authored opinion. § 809.23(b). Although Stapel was issued after 2009, it was a per curiam opinion and therefore carries little weight. See Harnischfeger Corp. v. Harbor Insurance Co., 927 F.2d 974, 976 (7th Cir.1991) ("A non-case for Wisconsin's own purposes is a non-case in federal courts under Erie."). However, the court in Mirbeau did not limit its analysis to citing Stapel; the court correctly noted that Turner (a published opinion with precedential value) made clear that Segall no longer was good law in light of the revisions to the statute of limitations for intentional torts.
In a final argument, Tilstra contends that even if § 893.57 applies in this case, his timely filing of a lawsuit in Canada tolled the two-year statute of limitations from the date he filed suit, November 14, 2011, until the Canadian court dismissed Bou-Matic as a party on May 21, 2013. Under § 893.13(2), a statute of limitations is tolled "by the commencement of the action to enforce the cause of action to which the period of limitation applies . . . for the period from the commencement of the action until the final disposition of the action." However, as Bou-Matic points out, it is subsection (3) of § 893.15 that specifically addresses the effect of an action filed in a non-Wisconsin forum:
Section 893.15(1) defines "a non-Wisconsin forum" as "all courts, state and federal, in states other than this state and federal courts in this state." As the Judicial Council Committee's note explains, "state" is defined in § 990.01(40) to include only the District of Columbia, Puerto Rico, and territories of the United States. Accordingly, "Subsection (3) applies the tolling effect of Wisconsin statutes to actions on Wisconsin causes of action brought in federal courts in Wisconsin and to all other courts, state and federal, in the United States." Judicial Council Committee's Note, § 893.15 (emphasis added). Because Tilstra did not file its previous lawsuit in the United States, that suit did not toll the statute of limitations in this case, which means the statute has run.
It is undisputed in this case that Ghey and Desjardins told Mr. and Mrs. Tilstra
As an initial matter, Bou-Matic contends that because Tilstra did not plead the duty of good faith and fair dealing or anticipatory repudiation, those "claims" are waived and must be dismissed. However, Fed. R.Civ.P. 8 requires only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Even though Tilstra's complaint fails to mention the terms "good faith and fair dealing" or "anticipatory breach," those concepts are legal theories related to Tilstra's allegations of breach of contract. See Zeidler v. A & W Restaurants, Inc., 301 F.3d 572, 575 (7th Cir. 2002) (covenant of good faith and fair dealing is only an aid to interpretation and not a source of contractual duties or liability); United Vaccines, Inc. v. Diamond Animal Health, Inc., 2006 WL 6102590, *2 (W.D.Wis. July 26, 2006) (referring to anticipatory breach of contract as legal theory); Hauer v. Union State Bank of Wautoma, 192 Wis.2d 576, 597-98, 532 N.W.2d 456, 464 (Ct.App.1995) (implied covenant "does not support an independent cause of action [from breach of contract] for failure to act in good faith under a contract"). The Court of Appeals for the Seventh Circuit has made clear that a "complaint need not identify a legal theory, and specifying an incorrect theory is not fatal." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992); see also Hatmaker v. Memorial Medical Center, 619 F.3d 741, 743 (7th Cir.2010) ("plaintiffs in federal courts are not required to plead legal theories"). Because Tilstra's complaint properly notified Bou-Matic of all of the material facts underlying its claim of breach of contract, regardless of the legal theory, Tilstra did not waive any arguments related to the implied covenant or anticipatory breach.
Bou-Matic contends that eliminating Tilstra's territory cannot be considered a breach because the dealership agreement gave it the sole discretion to change Tilstra's territory. Tilstra points out, however, that the agreement also provided that Bou-Matic could not terminate or effect a substantial change in the competitive circumstances of the dealership without good cause and 90-days notice. Tilstra contends that completely eliminating a dealer's territory is tantamount to a termination or at least a substantial change in competitive circumstances, and therefore, must be preceded by 90-days notice and predicated on good cause.
Wisconsin law recognizes that every contract imposes an obligation of good faith in its performance. Estate of Chayka, 47 Wis.2d 102, 107, 176 N.W.2d 561, 564 (1970). Although "good faith" is difficult to define, Wisconsin courts have
Foseid v. State Bank of Cross Plains, 197 Wis.2d 772, 541 N.W.2d 203, 213 (Ct.App. 1995) (quoting Restatement (Second) of Contracts § 205 comment d). A party may be liable for breach of the implied duty of good faith even though all the terms of the contract have been fulfilled. Id., 197 Wis.2d at 796, 541 N.W.2d at 212. Under Wisconsin law, to state a claim for breach of the duty of good faith, a plaintiff must allege facts "that can support a conclusion that the party accused of bad faith has actually denied the benefit of the bargain originally intended by the parties." Zenith Insurance Co. v. Employers Insurance, 141 F.3d 300, 308 (7th Cir.1998).
I agree with Tilstra that a jury reasonably could conclude that Bou-Matic evaded the spirit of the termination clause by eliminating all of Tilstra's territory without first providing it with its contractual right to a 90-day notice and a showing of good cause. Bou-Matic counters that it sought these changes in Tilstra's territory for good faith reasons, pointing to Tilstra's alleged poor service, failure to retain customers and lack of growth. However, Bou-Matic's intent and the validity of its reasoning are in dispute.
Bou-Matic argues that an actual breach did not occur because the January 8, 2010 letter referred only to future changes and did not result in the actual removal of Tilstra's territory before Tilstra self-terminated the agreement. In support of its argument, Bou-Matic points out that Tilstra would not have remained as a dealer through March 2010 had his territory been reassigned because he would have risked being terminated a second time.
Although it is technically correct to note that the letter refers to future deadlines and events, it is eminently reasonable to infer from the letter's language and surrounding circumstances that it was not an idle threat, a bluff that Tilstra was obliged to call. The letter confirmed that Bou-Matic had made the decision to remove Tilstra's territory and that the decision was non-negotiable. Bou-Matic also stated that it would proceed with the changes regardless whether Tilstra cooperated by selling to Dortmans. True, Tilstra continued to operate the dealership for a brief time after the deadline while the lawyers finalized the paperwork; while Bou-Matic can tout this as evidence showing lack of actual termination, it certainly is not dispositive of the question. Tilstra stopped functioning as Bou-Matic's dealer as soon as the sale was finalized, and explains that it kept the doors open until then so that Bou-Matic could not accuse Tilstra of abandoning the agreement before the sale was finalized. As a result, it is for the jury to determine whether Bou-Matic's actions rose to the level of termination or a
In the alternative, Tilstra contends that even if Bou-Matic's actions did not actually terminate the agreement, then they at least amounted to an anticipatory or constructive termination. Bou-Matic argues that neither theory applies in this case.
Anticipatory breach is "the disclaimer of a contractual duty . . . even if the time specified in the contract for performing the duty has not yet arrived." Wisconsin Power & Light Co. v. Century Indem. Co., 130 F.3d 787, 793 (7th Cir. 1997). "In other words, anticipatory repudiation (sometimes called anticipatory breach) is conceived of primarily as a trigger of a contract party's right of self-help, like the breach of a condition in a contract." Central States, Southeast & Southwest Areas Pension Fund v. Basic American Indus., Inc., 252 F.3d 911, 915 (7th Cir.2001). In order to constitute an anticipatory repudiation of a contract, there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives. Carnes Co. v. Stone Creek Mech., Inc., 412 F.3d 845, 854 (7th Cir.2005) (citing Wisconsin Dairy Fresh, Inc. v. Steel & Tube Products Co., 20 Wis.2d 415, 122 N.W.2d 361, 367 (1963)). "Doubtful and indefinite statements that performance may or may not take place and statements that, under certain circumstances that in fact do not yet exist, the performance will not take place, are not held to create an immediate right of action." Wisconsin Dairy Fresh, 20 Wis.2d at 427, 122 N.W.2d 361. Finally, Wisconsin also requires that "the non-breaching party must treat the breaching party's conduct as a breach, because if the non-breaching party continues to demand performance, the contract is kept alive for the benefit of both parties." Bank One Milwaukee, N/A v. Williams Bay Trading Co., Ltd., 2000 WI App 256, ¶ 26, 239 Wis.2d 593, 620 N.W.2d 482 (citing Woodman v. Blue Grass Land Co., 125 Wis. 489, 495, 103 N.W. 236 (1905)).
As explained above, one reasonable conclusion that can be drawn from the facts of record is that Bou-Matic had decided to end Tilstra's dealership and would not be providing Tilstra with either a 90-day notice or an explanation of good cause, regardless whether Tilstra worked out a sales agreement with Dortmans. Bou-Matic argues that Tilstra failed to treat the January letter as a breach because Tilstra continued operating under the dealership agreement until March 2010. However, as discussed above, Tilstra did take action: Sid Tilstra says that he sold his business to Dortmans at a lower price than he wanted in order to cut his losses, and he ceased his performance under the agreement upon completion of this sale. Under these circumstances, the fact that Tilstra kept operating as a Bou-Matic dealer for two months after the alleged repudiation—in order, Tilstra claims, to avoid giving Bou-Matic more ammunition to use against it—does not necessarily preclude him from arguing anticipatory breach.
The idea of constructive termination usually arises cases brought under the Wisconsin Fair Dealership Law (WFDL). See Girl Scouts of Manitou Council Inc. v. Girl Scouts of the United States of America Inc., 700 F.Supp.2d 1055, 1079 (E.D.Wis.2010), rev'd in part on other grounds, 646 F.3d 983 (7th Cir.2011); JPM, Inc. v. John Deere Indus. Equip. Co., 934 F.Supp. 1043, 1045 (W.D.Wis. 1995), aff'd, 94 F.3d 270 (7th Cir.1996). State and federal courts also recognize a
Although the WFDL does not apply in this case, both parties have applied the constructive termination doctrine by analogy to Tilstra's common law claim for breach of contract. However, neither Tilstra nor Bou-Matic cites any authority for applying the doctrine to a straight-up breach of contract claim. I have not found a Wisconsin case that is directly on point.
In applying the WFDL, the Seventh Circuit has explained that
Although the parties are not subject to the statutory provision about not "substantially changing the competitive circumstances of the dealership," they included this term in their dealership agreement, which suggests an agreement to protect Tilstra from constructive discharge. If this is the case, then a reasonable jury could conclude that Bou-Matic's unilateral decision to completely remove Tilstra's entire territory all at once could constitute constructive termination because—obviously—it substantially changed Tilstra's competitive circumstances. See Conrad's Sentry, Inc. v. Supervalu, Inc., 357 F.Supp.2d 1086, 1099 (W.D.Wis.2005) (interpreting Remus as requiring plaintiff to show evidence that defendant made change in competitive circumstances that had discriminatory effect on plaintiff or that defendant's actions were intended to eliminate plaintiff as dealer to prove constructive termination); Girl Scouts, 700 F.Supp.2d at 1079 (constructive termination can occur when grantor takes actions that amount to "effective end to the commercially meaningful aspects of the. . . relationship").
Bou-Matic argues, however, that "there is insufficient evidence to sustain a claim of constructive termination" because Tilstra cannot show that he was under economic duress when he sold his business to Dortmans. Dkt. 35 at 27. Most jurisdictions, including Wisconsin, recognize economic duress as a contractual defense or a basis for rescinding a contract. 28 Williston on Contracts, § 71.7 at 447. In Wisconsin, these are the elements of economic duress: (1) the party alleging economic
Economic duress generally serves as a defense to liability, such as when a party claims that a contract was invalid because it was formed under duress. Girl Scouts, 700 F.Supp.2d at 1102 (quoting Colortyme, Inc. v. Are Not, Inc., 2004 WL 848192, at *1 (W.D.Wis. Apr. 13, 2004)); Pope v. Ziegler, 127 Wis.2d 56, 60, 377 N.W.2d 201, 203 (Ct.App.1985). In addition, both this court and the Seventh Circuit have held that economic duress can serve as the basis of a constructive termination claim under the Wisconsin Fair Dealership Law. JPM, 94 F.3d at 272; JPM, 934 F.Supp. at 1045. However, Tilstra has not based his constructive termination claim on economic duress, it has not asserted economic duress as a defense to liability, and it has not claimed that the agreement was invalid because of economic duress. Although Bou-Matic seems to be asserting that economic duress is a necessary element of a constructive termination claim, it cites no authority for such a proposition, and the holdings in Remus and Conrad's Sentry indicate that this is not the case. Without more, I cannot find that Tilstra is precluded from proceeding on a theory of constructive termination. Put the other way, Tilstra's claim of constructive termination survives summary judgment.
Bou-Matic's final argument for summary judgment is that Tilstra is estopped from complaining about termination because Tilstra voluntarily sold its dealership without objection, thus relieving Bou-Matic of its contractual obligation to establish good cause and provide notice.
Equitable estoppel is (1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment. Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis.2d 1, 11-12, 571 N.W.2d 656, 660 (1997). In this case, there are genuine questions whether Bou-Matic already had terminated, had anticipatorily repudiated or had constructively terminated the agreement before Sid Tilstra sold his dealership to Dortmans. If the answer to any of these questions is "Yes," then Bou-Matic would not be entitled to rely on equitable estoppel to bar Tilstra's claim. Security Pacific National Bank v. Ginkowski, 140 Wis.2d 332, 339, 410 N.W.2d 589, 593 (Ct.App.1987) (unclean hands doctrine bars equitable relief when party's own wrongful conduct caused the harm from which party seeks relief).
IT IS ORDERED that defendant Bou-Matic LLC's motion for summary judgment, dkt. 18, is: