Marquez v. Mercedes-Benz USA, LLC

¶ 124. PATIENCE DRAKE ROGGENSACK, J.

(iconcurring in part; dissenting in part). I concur with the majority opinion's conclusion that it is the middle burden of proof that applies to Mercedes-Benz USA, LLC's affirmative defense that Marco A. Marquez did not act in good faith as Mercedes-Benz attempted to provide a statutory refund to him on November 28, 2005.1 I also concur with the majority opinion's conclusion that the circuit court did not erroneously exercise its discretion in denying adjournment of the trial as Mercedes-Benz had requested.2 However, I write in dissent because there is credible evidence to sustain the jury's finding that Marquez did not act in good faith in his dealings with Mercedes-Benz on November 28, 2005, which is the only question the jury was asked. Therefore, while I would have sustained the jury's verdict had the middle burden of proof been applied, because it was not, I would reverse the circuit court's decision and remand the matter for a new trial where the middle burden of proof would be applied to Mercedes-Benz's affirmative defense.

I. BACKGROUND3

¶ 125. This case arises from Marquez's purchase of a new Mercedes-Benz E-series automobile that *170turned out to be a lemon. When Mercedes-Benz could not fix the problems that the car exhibited, Marquez exercised his rights under Wis. Stat. § 218.0171, commonly known as Wisconsin's Lemon Law. He did so by retaining a lawyer, Vincent E Megna, who sent Mercedes-Benz a document entitled "Motor Vehicle Lemon Law Notice" and "Demand for relief under s. 218.0171(2)(b)" that requested a statutory refund.

¶ 126. Mercedes-Benz received the notice on October 28, 2005. At that time, Mercedes-Benz had acknowledged that the E-series automobile could not be repaired to Marquez's satisfaction, and the sales representative was discussing Marquez's request to be provided another new Mercedes-Benz. As the conversations between the parties continued subsequent to October 28, 2005, Marquez decided that he did not want another E-series automobile. Instead, he asked to be placed in a 2007 S-series Mercedes-Benz. However, because the 2007 S-series automobiles had not yet been released to dealers, there would have been a wait of several months to get the vehicle he wanted.

¶ 127. Mercedes-Benz was willing to do as Marquez asked and obtain a 2007 S-series automobile for him, but on Wednesday, November 23, 2005, Marquez decided that due to the wait for a 2007 S-series vehicle, he preferred to obtain the statutory refund that he had requested in the October 28, 2005, notice his attorney sent. Wade Messing, the Mercedes-Benz representative who was handling this matter, testified that on November 23, 2005, Marquez told him that he had decided on a refund rather than another new Mercedes-Benz. Messing told Marquez that he would be back in touch to finalize payment.

¶ 128. November 23, 2005, was the Wednesday before Thanksgiving. Messing was out of the office on *171Friday, November 24, for the Thanksgiving break, so he called Marquez in the morning on Monday, November 28, 2005. When Messing telephoned Marquez, Messing already had driven to Wisconsin from his Chicago office; retrieved Marquez's file from Concours Motors, Inc., the local dealership from which Marquez purchased his car; made arrangements with Concours Motors to cut checks on November 28 to both Marquez and the Waukesha State Bank, where Marquez had his car loan; and called the bank to attempt to learn what amount was due to it.

¶ 129. Messing testified that when he spoke with a representative of Waukesha State Bank to obtain the auto loan payout figure, the bank's loan department refused to give him the amount needed to pay off Marquez's loan on the E-series Mercedes-Benz. He said that he was told to have Marquez call the bank and authorize release of the necessary information.

¶ 130. Messing also testified that when he called Marquez, he told Marquez that the bank needed to hear from him because it had refused to provide Messing with the loan payout amount that Messing needed in order to finalize payments to the bank and to Marquez. Marquez said that he would contact the bank and call Messing back. However, Marquez did not call the bank to authorize it to release payout information to Messing and he did not call Messing back, as he promised that he would. Also, Marquez did not tell Messing that he had given John Gray, Marquez's loan officer at the bank, permission to release the payout figure for his auto loan.

¶ 131. Later in the day, when Messing had not heard from Marquez, he called Attorney Megna's office to ask Attorney Megna to call Marquez. Messing hoped that Attorney Megna would get Marquez to call the bank so Messing could get the information he needed. Attorney Megna was unavailable. The paralegal who took the *172call did not tell Messing that Attorney Megna's office had the payout number from the bank, although she did note that Messing was calling on behalf of Mercedes-Benz. Instead, she told Messing that if he needed something from Attorney Megna, it was office policy that Messing put his request in writing.

¶ 132. November 28, 2005, was two business days after Marquez decided on November 23, 2005, to elect a refund rather than the replacement vehicle that he had been discussing with the dealer's sales representative. November 28, 2005, also was the last day on which Mercedes-Benz could fulfill its statutory 30-day obligation to pay the bank that held the loan and also pay Marquez the refund to which he was due.

¶ 133. November 28, 2005, was also the date on which Attorney Megna's office signed the summons and complaint that commenced this action. The complaint, which was trial exhibit A-2, alleges that Mercedes-Benz "failed or refused to provide the relief provided for by the Lemon Law."4 Based on the alleged violation, Marquez requested "twice the amount of all pecuniary losses incurred heretofore or hereafter."5 The complaint was prepared by Marquez's lawyers before Mercedes-Benz had failed to comply with its statutory obligation. The complaint was filed on November 29, 2005.

¶ 134. At the conclusion of the trial, the jury returned a verdict favorable to Mercedes-Benz. Marquez had moved for a directed verdict before the case was sent to the jury, and he renewed that motion after the jury verdict. In his motions after verdict, Marquez also requested that the circuit court change the answer to Special Verdict Question 1 from "yes" to "no." Special *173Verdict Question 1 stated: "On November 28, 2005, did Marco Marquez fail to act in good faith in his dealings with Mercedes-Benz?" The circuit court granted both of Marquez's motions after verdict and awarded him $482,661.66.6 Mercedes-Benz appealed and the court of appeals certified the appeal.

II. DISCUSSION

A. Standard of Review

¶ 135. On appeal, we review the record to determine whether there is any credible evidence from which the jury could have answered "yes" when asked, "On November 28, 2005, did Marco Marquez fail to act in good faith in his dealings with Mercedes-Benz?" See D'Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis. 2d 306, 320, 475 N.W.2d 587 (Ct. App. 1991). Whether there is any credible evidence to support a jury's verdict is a question of law subject to our independent review; however, we benefit from the circuit court's discussion. See State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

B. Sufficiency of the Evidence

¶ 136. A motion for a directed verdict and a motion to change the answer to a question in a verdict test the sufficiency of the evidence to support the jury's verdict. D'Huyvetter, 164 Wis. 2d at 320; Wis. Stat. § 805.14(1) & (5)(c). The method for review of the sufficiency of evidence is set out in § 805.14(1):

Test of Sufficiency of Evidence. No motion challenging the sufficiency of the evidence as a matter of law to *174support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.

¶ 137. Accordingly, when a jury is the trier of fact, its determination where facts are disputed is not to be set aside if there is any credible evidence to support the verdict.7 Millonig v. Bakken, 112 Wis. 2d 445, 449, 334 N.W.2d 80 (1983); Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 408, 331 N.W.2d 585 (1983); May v. Skelley Oil Co., 83 Wis. 2d 30, 35, 264 N.W.2d 574 (1978). Stated otherwise, a directed verdict may be granted only when the evidence is so clear and convincing that no reasonable jury could find for the nonmoving party. Millonig, 112 Wis. 2d at 451.

¶ 138. The credibility of witnesses and the weight to be given their testimony are the province of the jury, and when more than one reasonable inference may be drawn from the testimony, inferences that support the *175jury's verdict must be sustained. Roach v. Keane, 73 Wis. 2d 524, 536, 243 N.W.2d 508 (1976). Furthermore, it is long settled law that a circuit court has no authority to change a jury's answer to a special verdict question:

If there is any credible evidence which, under any reasonable view fairly admits of an inference that supports the jury's finding, the trial court has no authority to change the jury's answer. Only if the record is devoid of evidence that would sustain the verdict, or if the evidence were incredible, is it within the prerogative of the trial court to substitute its view of the evidence for that of the jury.

Maichle v. Jonovic, 69 Wis. 2d 622, 626, 230 N.W.2d 789 (1975) (citing Lueck v. Janesville, 57 Wis. 2d 254, 262, 204 N.W.2d 6 (1973); Longville v. Leusman, 48 Wis. 2d 251, 255, 179 N.W.2d 823 (1970); Lehman v. Sentry Ins. Co., 35 Wis. 2d 96, 98, 150 N.W.2d 333 (1967)). Moreover, it is this court's duty to search for credible evidence to sustain the jury's verdict. Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450-51, 280 N.W.2d 156 (1979).

C. Credible Evidence

¶ 139. In order to comply with its statutory obligations under Wis. Stat. § 218.0171, Mercedes-Benz had to provide a refund or a replacement vehicle, at Marquez's choice, within 30 days of its receipt of the Motor Vehicle Lemon Law Notice. Furthermore, because there was an outstanding loan, the loan also had to be paid off with a separate check to Waukesha State Bank within 30 days of Mercedes-Benz's receipt of Marquez's notice. Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, ¶ 10, 312 Wis. 2d 210, 751 N.W.2d *176859.8 Giving Marquez a two-party check made out to him and to the bank would not have satisfied Mercedes-Benz's obligations under § 218.0171. Id.

¶ 140. The court of appeals explained that a person who purchases an automobile that turns out to be a lemon has a duty to act in good faith when the manufacturer attempts to provide a refund. Id., ¶ 3 (concluding that if Marquez "intentionally thwarted [Mercedes-Benz's] attempt to make a refund by failing to provide necessary information about the consumer's auto loan," he did not act in good faith).

¶ 141. At trial, in accord with the court of appeals decision, Mercedes-Benz's affirmative defense was based on the assertion that on November 28, when it attempted to provide a refund to Marquez, Marquez did not act in good faith because he failed to call the bank so that Mercedes-Benz could access bank information that Mercedes-Benz needed to make the refund. Therefore, the testimony regarding Messing's attempts to obtain a payout figure on what Marquez owed to the bank on November 28, 2005, is critical to understanding the jury's verdict.

¶ 142. Messing explained what occurred during his attempts to determine what was needed to pay off Marquez's bank loan on November 28, 2005:

*177Q. And when you contacted the bank, what did you tell the person that you spoke with?
A. I told the person — I identified myself as an employee of Mercedes-Benz USA and that one of their customers had an account with them, a bank loan on a Mercedes-Benz vehicle that had had some mechanical problems and that because of these mechanical problems Mercedes-Benz was being pro-active, wanted to get them out of the car and give him a refund of his money. I needed their financial payment information so I could calculate the refund that was due to them and to pay the loan off to the bank.
Q.....Do you know in what department you— another person you were speaking with was employed?
A. Yes. They were in the loan department.
Q. And the person you spoke with in the loan department, what were you told in response to your request?
A. I was told because of privacy laws they could not give me the financial information. That had to be released specifically by the owner of the account, Mr. Marquez, and I says, well, it was a time sensitive issue and I needed to get it done today. What's the quickest way I can get this done. That person indicated it would just be a phone call, have Mr. Marquez call us and give a verbal permission that a member of Mercedes-Benz yourself can get this information and we will be able to release to you.
Q. And armed with that information, what did you do?
*178A. At that point in time then I called Mr. Marquez, and had a discussion with him and let him know, hey, I'm up here trying to get your pay-off done, to give you your refund. I said I would give you a call back. Last piece of information I need is from the pay-off from the bank, but they will not release that information to me because of the privacy laws. I just need you to give the bank a call and verbally give them a call. They will release the information to me. That will be the last piece of puzzle that I need to get this done and he indicated he would give me a call back with the information.
Q. Did he tell he was too busy working to help you?
A. No, he specifically stated he would call me back with the information.
Q. Now, you asked him to contact the bank?
A. Yes, I did.
Q. Did he say he would not contact the bank?
A. No, he did not.
Q. Did he ever say the name John Gray to you?
A. He did not.
Q. Did he say to you, my lawyers have a pay-off?
A. He did not.
Q. So, the only thing he said was that he would call you back?
*179A. That he would call me back.
Q. And is that put in your notes anywhere?
A. Yes, it is.
Q. And so it's accurate, what exactly did you put in your notes that he said to you?
A. Client stated that he would call back that afternoon with the information, but he did not.
Q. What does that mean, "call back with the information?"
A. I interpreted that to mean he was going to call back, call the bank, I've let them know you need this, I've given them verbal permission for you to get the information.
Q. Did anyone from the bank contact you?
A. No.
Q. Did Marco Marquez ever call you back?
A. No, he did not.
Q. Did you have any reason to believe that he would not follow through with his promise?
A. I did not.
Q. At some point I think your notes indicate you contacted the lawyer, is that right?
A. That is correct.
Q. And why did you contact the attorneys?
A. Well, my intent in contacting his attorney was to get a hold of the attorney who knows how impor*180tant it is that we get this done today and say please give your customer a call and say call me back, you need to call him because he needs to call the bank to give me the release permission so I can get the information on the bank.
Q. A lot has been made of the fact that you didn't ask for a pay-off statement from the law firm. Why didn't you ask the law firm for their pay-off statement?
A. Because nobody indicated to me that they had it. Mr. Marquez in my conversation didn't say they had it, he didn't direct me to get it from them.
Q. You're accused of intentionally dragging your feet in this case. What does Mercedes-Benz have to gain to support these statements that you are intentionally dragging your feet?
A. We have absolutely at this point in time — we have absolutely nothing to gain and everything to lose at this point in time. We've already admitted I wanted to get the guy out of the car. I have nothing to battle about. I freely told him I was willing to get him out of that car. If I delay, drag my feet, it just is going to expose me to further penalties. So, I've got nothing to gain and everything to lose. ...
Q. On November 28th, 2005 when you were at CM, did you stand ready to issue refund checks to Mr. Marquez and the bank had you had the pay-off statement?
A. Yes, I did.
Q. Had you been told that Mr. John Gray had apparently been pre-authorized to give this information to you would you have contacted Mr. Gray?
*181A. Yes, I would.
Q. Whose job was it if you couldn't get the bank to release the information to you without Mr. Marquez' authorization, whose job was it to authorize the bank to release it to you?
A. The only person that could authorize that release was Mr. Marquez as stated by the bank.

¶ 143. From the above testimony, the jury could have found that "On November 28, 2005, [] Marco Marquez fail[ed] to act in good faith in his dealings with Mercedes-Benz" by "failing to provide necessary information about [his] auto loan." Marquez, 312 Wis. 2d 210, ¶ 3.

¶ 144. Marquez knew that Messing had traveled to Wisconsin to make the requested Lemon Law refund to him; Marquez knew that Messing had called the bank and the person in the loan department with whom Messing spoke would not give Messing the information needed to pay off Marquez's car loan without Marquez's call; and Marquez knew that the payout figure from the bank was the last piece of information that Messing needed to complete the refund that Marquez had chosen on his Lemon Law claim. Notwithstanding having been told that the bank would not provide the necessary information without communication from him, Marquez did not cooperate with Mercedes-Benz's attempted refund. He never called the bank as he told Messing he would; he never called Messing back as he promised to do; he never told Messing that he had already authorized John Gray to release the payout information on his car loan; and he never said that his attorneys had a payout figure. Any one of these acts by Marquez would *182have permitted Messing to cut the checks to the bank and to Marquez on November 28, 2005.

¶ 145. Mercedes-Benz satisfied the standard set by the court of appeals because Messing's testimony showed that Marquez "fail[ed] to provide necessary information about [his] auto loan." Id. However, contrary to the majority opinion herein, the jury was never asked to determine whether Mercedes-Benz had proved that Marquez knew that Wis. Stat. § 218.171 would be violated if Mercedes-Benz did not make a payout to him and to the bank on November 28, 2005.

¶ 146. The jury was instructed in relevant part:

A consumer has a duty to act in good faith in pursuing a Lemon Law refund. A consumer fails to act in good faith when he or she intentionally prevents the manufacturer from complying with the statute. If the consumer's cooperation is necessary for the manufacturer to . . . fulfill its obligations to provide a refund, the duty of good faith requires the consumer to give the necessary cooperation.
The requirement that a party act intentionally means that the party had the mental purpose to cause the result of his action or was aware that such conduct was practically certain to cause the result of his action.
You may determine intent directly or indirectly from all the facts in evidence. You may also consider any of the party's statements or conduct, which indicate state of mind.

¶ 147. There is credible evidence that Marquez knew Messing was trying to provide a Lemon Law refund on November 28, 2005, because that is what Marquez requested on November 23, 2005. During their November 23 conversation, Messing said he would be back in touch to finalize payment. As described by *183Messing's testimony, Marquez said that he would call the bank, but he failed to do so when he had been told that Mercedes-Benz could not get the necessary information about his auto loan without his call. There is credible evidence that Marquez had the mental purpose to thwart payment on November 28.9

¶ 148. Accordingly, under the jury instructions and in response to the special verdict question, "On November 28, 2005, did Marco Marquez fail to act in good faith in his dealings with Mercedes-Benz?," the jury answered "yes." Messing's testimony is credible evidence to support the jury's answer because Marquez did not provide necessary information about his auto loan. Therefore, the circuit court was clearly wrong when it set aside the jury's verdict. Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389-90, 541 N.W.2d 753 (1995); see also Millonig, 112 Wis. 2d at 449 (concluding that when there is credible evidence to sustain a jury's verdict, it cannot be set aside); Giese, 111 Wis. 2d at 408 (same); May, 83 Wis. 2d at 35 (same); Roach, 73 Wis. 2d at 536 (same); Maichle, 69 Wis. 2d at 626 (same).

D. Majority Opinion's Fundamental Error

¶ 149. The majority opinion is based on a fundamental error, and it is this error that then permits it to affirm the circuit court's change to the special verdict and the circuit court's grant of a directed verdict to Marquez. To explain, the jury was asked, "On November 28, 2005, did Marco Marquez fail to act in good faith in his dealings with Mercedes-Benz?" The jury an*184swered, "yes," because Marquez promised he would call the bank and he did not make the call. Marquez's intentional failure to act prevented a Lemon Law payment on November 28, 2005, and Marquez had been told no payment could occur that day if he did not call the bank.10

¶ 150. The jury never was asked whether Marquez knew that November 28, 2005, was the last date on which Mercedes-Benz could make payment in compliance with Wisconsin's Lemon Law. Stated otherwise, the jury never was asked whether Marquez knew that Mercedes-Benz was required to "refund within the 30-day statutory period" provided by Wis. Stat. § 218.0171 and that November 28, 2005 was the 30th day, as the majority opinion repeatedly asserts.11

*185¶ 151. Furthermore, the jury instructions did not inform the jury that Marquez's conduct was not intentional unless it caused Mercedes-Benz to fail to make the "refund within the 30-day statutory period." There is no mention of the requirement of thwarting a "refund within the 30-day statutory period" in the jury instructions. A manufacturer can comply with the statute on any of the 30 days in which a refund is due, once a proper request for refund is made.

¶ 152. The majority opinion has added the factual requirement that Marquez had to know that November 28, 2005, was the last day of the "30-day statutory period." This is the fundamental error that underlies its reasoning. This added factual requirement changes the case that was tried and the question that the jury was asked to decide.

¶ 153. In addition, the majority opinion will effectively eliminate the affirmative defense raised in this case from subsequent Lemon Law cases. This is so because under the majority opinion's reasoning, no affirmative defense of thwarting a refund will lie unless the manufacturer can prove that the plaintiff had the requisite knowledge of the legal effect of his conduct on the statutory obligations that the Lemon Law places on the manufacturer. Most auto purchasers do not have law degrees and many do not consult a lawyer until just before a lawsuit is filed. The requisite knowledge of the manufacturer's statutory obligations will be absent for most Lemon Law plaintiffs and therefore, beyond proof at trial.

*186¶ 154. Inserting "refund within the 30-day statutory period" may seem such a small addition to what the jury actually was asked to decide, but by inserting "refund within the 30-day statutory period" into its rationale, the majority assumes that the jury had to find two facts: (1) that Marquez intentionally did not provide necessary information about his auto loan; and (2) that Marquez also knew that if Mercedes-Benz did not make a refund on November 28, Mercedes-Benz would violate the Lemon Law, thereby entitling him to significant damages well beyond the price Marquez paid for his auto. However, knowledge of statutory requirements was not necessary for the jury to find that Marquez did not act in good faith on November 28. All that was needed was a jury finding that Marquez intentionally did not call the bank and that without his call, he knew that Mercedes-Benz could not make a refund that day.

¶ 155. The majority opinion's addition also adds a new requirement to the decision of the court of appeals that said that a lack of good faith is shown when, "the consumer intentionally thwart [s the manufacturer's] attempt to make a refund by failing to provide necessary information about the consumer's auto loan." Marquez, 312 Wis. 2d 210, ¶ 3. The court of appeals overturned a prior summary judgment because it concluded there was a material issue of fact about what the bank required in order to provide the loan information Mercedes-Benz needed to make a refund. Id., ¶ 11 n.4 ("We conclude that on this record it is a question of fact whether and under what circumstances the bank would have released Marquez's loan information to MB.") There is nothing in the court of appeals opinion indicating that Mercedes-Benz was required to prove that *187Marquez knew the legal effect of his conduct on Mercedes-Benz's legal obligations under the Lemon Law.

¶ 156. In addition, Marquez was required to act in good faith with regard to Mercedes-Benz as it attempted to make a Lemon Law refund, no matter whether it was the 30th day, the 29th day or some other day of the statutory 30-day period. The duty of good faith was not limited to the 30th day. As the court of appeals explained in its prior decision, "If MB stood ready to comply on the thirtieth day, and only Marquez's deliberate refusal to provide the necessary information prevented it from doing so, we can see no reason why the fact that it was the thirtieth day should make any difference." Id., ¶ 23 (emphasis added). Therefore, the breach of the duty of good faith was Marquez's deliberate refusal to call the bank to authorize Messing's access to the necessary information, which Marquez had been told would prevent a Lemon Law refund on November 28, 2005.

¶ 157. Notwithstanding the question that was presented to the jury, which the jury answered, the majority opinion asserts:

To answer the question "yes," that on November 28 the consumer failed to act in good faith, and to adhere to the jury instructions defining good faith, the jury had to find that the consumer had the mental purpose on November 28 to prevent Mercedes-Benz from complying with the Lemon Law by making a refund within the 30-day statutory period or was aware that his conduct on November 28 was practically certain to cause this result....12
The parties appear to agree that the jury had to *188conclude that the consumer knew that November 28 was the final day for a refund.13

¶ 158. The majority opinion's major premises are again fundamentally wrong in several respects. First, the jury was never asked whether "on November 28 the . consumer intentionally prevented Mercedes-Benz from providing a "refund within the 30-day statutory period," as the majority opinion asserts. As I have explained above, there was no question put to the jury that required it to find that Marquez knew that November 28, 2005, was the last date on which Mercedes-Benz could make payment and comply with the 30-day statutory period for refunds under the Lemon Law. Marquez's failure to call the bank as he said he would prevented the refund on November 28, 2005, and he had been told that no payment could be made that day without his call. That is the issue that was before the jury.

¶ 159. Second, Mercedes-Benz does not "agree that the jury had to conclude that the consumer knew that November 28 was the final day for a refund," as the majority opinion also asserts. Mercedes-Benz repeatedly has explained that it was not necessary for it to prove Marquez's knowledge about the 30-day window in which to comply with the Lemon Law in order to prove that Marquez did not act in good faith on November 28, 2005.14 Why would Mercedes-Benz "agree" to that fact? It would be agreeing to the existence of a fact that the jury was never asked to find.

¶ 160. In addition, requiring Mercedes-Benz to prove, after the trial is over, that Marquez knew that November 28, 2005, was the last day on which *189Mercedes-Benz could meet its 30-day refund obligation under the Lemon Law, contravenes notions of fairness and ignores the fundamental fact-finding nature of the jury. Marquez made no such request at trial, and if that were a fact he believed Mercedes-Benz was required to prove, he should have requested a jury question on it. He also should have requested a jury instruction that said that preventing the manufacturer from complying with the statute meant that the consumer knew that November 28, 2005, was the last day on which the manufacturer could make a refund without incurring a penalty. He did neither. By slipping in the phrase, "refund within the 30-day statutory period," the majority opinion has constructed a question that the jury was never asked. Without that addition, the majority opinion has no basis upon which it can invalidate the finding of the jury.

III. CONCLUSION

¶ 161. I concur with the majority opinion's conclusion that it is the middle burden of proof that applies to Mercedes-Benz's affirmative defense that Marquez did not act in good faith as Mercedes-Benz attempted to provide a statutory refund to him on November 28, 2005, and I also concur with the majority opinion's conclusion that the circuit court did not erroneously exercise its discretion in denying adjournment of the trial as Mercedes-Benz had requested. However, I write in dissent because there is credible evidence to sustain the jury's finding that Marquez did not act in good faith in his dealings with Mercedes-Benz on November 28, 2005, which is the only question the jury was asked. Therefore, while I would have sustained the jury's verdict had the middle burden of proof been applied, because it was not, I would reverse the circuit court's *190decision and remand the matter for a new trial where the middle burden of proof would be applied to Mercedes-Benz's affirmative defense.

¶ 162. For the foregoing reasons, I concur in part and dissent in part.

Majority op., ¶ 10.

Id.

The facts in this introductory narration are taken from the jury trial testimony of Wade Messing, the Mercedes-Benz representative who dealt with Marquez, on November 28, 2005, and from Marquez's complaint, signed by Marquez's attorneys on November 28, 2005.

Complaint, ¶ 10.

Id., prayer for relief.

Final Judgment.

There are a few cases that opine that because a circuit court is better positioned to decide the weight and relevancy of testimony, we should give "substantial deference to the trial court's better ability to assess the evidence." See, e.g., James v. Heintz, 165 Wis. 2d 572, 577, 478 N.W.2d 31 (Ct. App. 1991); Trogun v. Fruchtman, 58 Wis. 2d 569, 585, 207 N.W.2d 297 (1973). However, those cases in the final analysis rely on the conclusion that there was credible evidence to support the nonmoving party's position, see James, 165 Wis. 2d at 577, or that there was not such credible evidence, see Trogun, 58 Wis. 2d at 589. They do not give the circuit court the option of dismissing a nonmoving party's case when there is any credible evidence to support it. Rather, "[a] great deal of credence is given to the jury's determinations." Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 110, 362 N.W.2d 118 (1985).

This is the second time that the circuit court has declared that Marquez prevailed in his lawsuit against Mercedes-Benz. The first time around, the circuit court granted summary judgment to Marquez on his claim that Mercedes-Benz violated its obligations under Wisconsin's Lemon Law. The summary judgment was reversed by the court of appeals when the court concluded that there were material issues of fact in regard to whether Marquez proceeded in good faith in his dealings with Mercedes-Benz at the time of Mercedes-Benz's attempted payout. Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, ¶ 24, 312 Wis. 2d 210, 751 N.W.2d 859.

The majority opinion emphasizes Marquez's view of the facts, see, e.g., majority op., ¶¶ 55-57, 60-62, however, it is apparent that the jury rejected these facts by its answer to the special verdict.

I agree with the majority opinion's statement that conduct is intentional if it has the purpose to bring about intended consequences. Majority op., ¶ 86. However, the majority opinion misperceives the intended consequences that the jury found in this case. Here, the intended consequences were that no payout would occur on November 28, 2005. That Marquez's intentional conduct also occurred on the last day upon which Mercedes-Benz could make a payment without incurring Lemon Law penalties may well have been an unintended consequence of Marquez's denial of access to loan payout information. Not every consequence of an intentional act is an anticipated consequence. See E-L Enters., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶ 23, 326 Wis. 2d 82, 785 N.W.2d 409 (explaining that the removal of the groundwater was intentionally done, but the effect on the wood pilings was unexpected).

The majority opinion repeatedly inserts the phrase "refund within the 30-day statutory period" into what it says the jury was asked to find. Majority op., ¶¶ 1, 4, 6-7, 10, 13,15-16, 19-20, 22, 31, 33, 52, 61-62, 71, 74, 76, 82, 90-91, 100, 121. As I explain below, this insertion adds a fact to what the special *185verdict and the jury instructions actually asked the jury to determine. However, I understand the majority opinion's need to insert this additional fact. It is the foundation that is necessary for the majority opinion to reach its conclusion.

Id., ¶ 74 (emphasis added).

Id., ¶ 75.

Mercedes-Benz's brief, e.g., pp. 10, 23-24, 27-28.