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01-1746 Gross and Mall Mart, Inc. v. Woodman's Food Market

By: dmc-admin//November 18, 2002//

01-1746 Gross and Mall Mart, Inc. v. Woodman's Food Market

By: dmc-admin//November 18, 2002//

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And, even though Mall Mart, Inc. was not named in the original complaint, we conclude that the circuit court properly granted the motion of Gross and Mall Mart, Inc. to allow the amendment to relate back to the original complaint where the amendment related to the same transactions and operative facts as those alleged in the original complaint and the failure to name Mall Mart initially did not prejudice defendant’s ability to defend against the claims.

“We conclude that Gross’s submissions establish a prima facie case for summary judgment. They show that Woodman’s sold motor vehicle fuel at below the statutory minimum price on 295 days without filing a notice under Wis. Stat. sec. 100.30(7)(a). This constitutes prima facie evidence of a violation of the statute under sec. 100.30(3) and creates a rebuttable presumption under para. (7)(b) that Woodman’s did not lower prices to meet the competition. …

“Our review leads us to conclude that on all but two of the dates in the circuit court’s addendum – March 9, 1999 and March 12, 1999-there is no notation for at least one grade of fuel that is included on Gross’s chart on that date. Accordingly, we conclude there are 293 dates on which it is undisputed that there was a sale of at least one of Woodman’s products at a price below the statutory minimum price and for which there is no evidence that the exception in sec. 100.30(6)(a)7 applies. …

“Accordingly, we hold that Gross is entitled as a matter of law to summary judgment that on 293 days Woodman’s violated the Act, and to $2,000 for each day of violation for a total of $586,000. Because the circuit court held there were 295 days of violations with a resulting award of $590,000, we affirm in part, reverse in part and remand with instructions to enter a judgment that is modified to conform to this decision. In addition, we reverse the circuit court’s order that trial will be to the court.”

Affirmed in part, reversed in part and remanded with directions.

Recommended for publication in the official reports.

DISSENTING OPINION: Lundsten, J. “I agree with all parts of the majority opinion, except its conclusion that Woodman’s submissions did not create a disputed issue of fact regarding the ‘effect’ of Woodman’s diesel fuel pricing.

Accordingly, I respectfully dissent.”

Dist IV, LaCrosse County, Passell, J., Vergeront, P.J.

Attorneys:

For Appellant: Not given

For Respondent: Not given

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