No. 92-139
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT VAN RIPER, JEAN VAN RIPER
and VAN'S TRACTOR, INC.,
Plaintiffs and Respondents,
FORD NEW HOLLAND, INC., and
FORD MOTOR CREDIT COMPANY,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keith Strong (argued) and Creighton Magid, Dorsey &
Whitney, Great Falls, Montana
For Respondent:
Turner C. Graybill (argued) and Gregory H. Warner,
Graybill, Ostrem, Warner & Crotty, Great Falls,
Montana
Submitted: January 21, 1993
OCT 2 1 1993 Decided: October 2 1 , 1 9 9 3
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' COURT
UPfiSia~:
STATE OFMONTANA
Justice R. C McDonough delivered the Opinion of the Court.
.
Ford New Holland, Inc. (Ford New Holland), appeals from a
judgment entered by the District Court for the Eighth Judicial
District, Cascade County. The court assessed damages, costs, and
attorney fees against Ford New Holland for violations of §§ 30-11-
802 and -803, MCA, and breach of the covenant of good faith and
fair dealing. Ford New Holland appeals. We affirm.
The issues are:
1. Did the District Court err by applying 5 5 30-11-802 and -
803, MCA, to the Versatile Agreement?
2. Did the District Court err in concluding that Ford New
Holland violated 5 5 30-11-802 and -803, MCA?
3. Did Ford New Holland breach the implied covenant of good
faith and fair dealing?
4. Did the District Court err in awarding damages?
5. Did the District Court err in awarding attorney fees?
Robert and Jean Van Riper (the Van Ripers) , owned and operated
Vant Tractor, Inc. (Vant Tractor) , in Havre, Montana.
s s Van's
Tractor sold new and used tractors and other farm equipment. Van's
Tractor entered a dealership agreement with Versatile Farm
Equipment (Versatile) on November 2, 1983.
In 1987, Versatile, then in bankruptcy, sold certain of its
assets, including the Van's Tractor Versatile franchise, to Ford
New Holland, a subsidiary of Ford Motor Company. Versatile sold
other of its assets, including a Noble plow line, to Vicon Farm
~quipment, Inc., a corporation unrelated to Ford New Holland.
Van's Tractor decided not to continue selling Noble products and
returned its supply of Noble parts to Vicon.
Corporate mergers resulted in Ford New Holland then having
two outlets in Havre, Van's Tractor and an existing "company
store." The goal of Ford New Holland was to have one dealer in
Havre. It sought a dealer who would buy out its interest in the
company store. Van's Tractor was a prospective purchaser.
However, Ford New Holland determined that Van's Tractor would not
be its full-line dealer in Havre. Ford New Holland did not notify
Van's Tractor of this decision.
In the fall of 1987, Ford New Holland designated Van's Tractor
for attrition as a Versatile dealer. The designation meant Van's
Tractor could not transfer its Ford New Holland dealership and had
no future as a Ford New Holland dealer. Ford New Holland did not
notify Van's Tractor of this designation.
From 1987 to 1988, the net worth of Van's Tractor declined.
In the year ending April 1988, Van's Tractor sold only one piece of
Versatile equipment. The Van Ripers attempted to sell Van's
Tractor and received an offer in April of 1988, but Ford New
Holland refused to approve transfer of the dealership. Ford New
Holland then asked that Van's Tractor resign its dealership because
it had attempted to sell the franchise. Van's Tractor refused.
In April 1988, Ford New Holland decided to terminate the Van's
Tractor dealership based on the refusal by Van's Tractor to pay an
$11,000 disputed bill. The position of Van's Tractor as to this
bill was that it would not pay the bill until it was credited for
Noble parts it originally had obtained from Versatile and had
returned to Vicon. The position of Ford New Holland was that
although it had the right to collect the accounts of Versatile, it
had no responsibility to fulfill the obligations of Versatile which
had been assumed by Vicon.
Subsequently, Ford New Holland placed Van's Tractor on "stop
ship1'status and withdrew its credit line. On May 20, 1988, Ford
New Holland drafted a letter demanding that Van's Tractor pay the
bill within ten days or be terminated as a dealer. Termination
proceedings began on May 27, 1988. Van's Tractor did not receive
Ford New Holland's demand letter until June 6, 1988, but it paid
the disputed amount within ten days of that date.
Despite payment, Ford New Holland did not remove Van's Tractor
from "stop ship1'status. As a result, Ford New Holland shipped a
four-wheel drive tractor and a Versatile swather ordered by Van's
Tractor to the competing dealer in Havre. Van's Tractor was unable
to obtain any parts until August 23, 1988. Van's Tractor resigned
its dealership in September of 1988, and then brought this lawsuit.
The case was tried to the court sitting without a jury. The
court dismissed all individual claims of Robert and Jean Van Riper
and all claims against Ford Motor Credit. The court found in favor
of Van's Tractor on its claims against Ford New Holland and awarded
$443,000 in damages, attorney fees of $162,000, and $12,393 in
costs, Ford New Holland appeals.
I
Did the District Court err by applying I i L 30-11-802 and -803,
MCA, to the Versatile Agreement?
The District Court found that Ford New Holland violated both
9 30-11-802, MCA, and 5 30-11-803, MCA* Ford New Holland contends
that application of these statutes in this case is a prohibited
retroactive application because the statutes were enacted in 1985,
two years after the contract was entered between Versatile and
Van's Tractor.
The record demonstrates that in the spring of 1987, Versatile
was insolvent and in receivership. It had ceased manufacturing,
was negotiating liquidation of its assets, and was in bankruptcy,
Ford New Holland assumed and undertook the duties and
responsibilities of Versatile with respect to certain dealerships,
including Van's Tractor. Versatile had no intention of being
responsible any longer under its dealership agreements; it was out
of business. Beginning in the fall of 1987, Ford New Holland
supplied Vanls Tractor with goods and financing. Van's Tractor
consented to this relationship and believed it was a Ford New
Holland dealer.
Furthermore, the assignment was more than just a product
change, which is what Ford New Holland would have us believe. As
the District Court found:
Ford New Holland's position that it was entitled to the
assets but not the liabilities of the Versatile Agreement
is itself sufficient evidence of a change in the duties
and obligations under the Versatile Agreement to create
a new agreement to which the requirements of MCA 5 30-11-
801 et. sea. otherwise apply.
This refers to Ford New Holland's refusal to be bound by any
obligations of Versatile in relation to the Noble plow line.
In support of its ruling the District Court cited Kealey
Pharmacy & Home Care Sen. v. Walgreen Co. (W.D. Wi. 1982), 539
F.Supp. 1357, modified, 761 F.2d 345, damages set, 607 F.Supp 155.
That case supports the view that a non-retroactive statute applies
to contracts originally entered before the statute was enacted and
which have been significantly altered after the effective date of
the statute.
As stated by the District Court, one result of the 1987 sale
of Versatile to Ford New Holland and others was that Vicon was
responsible for crediting Vanss Tractor for returns of Noble parts
for which Ford New Holland was, at the same time, attempting to
collect payment. As Robert Van Riper testified, during the months
of delay before Van's Tractor received payment from Vicon for the
$11,000 in returned Noble parts, Van's Tractor was placed, without
notice, on C O D
... status for parts shipped by Ford New Holland.
Another result of the sale of Versatile was that Ford New
Holland required Van's Tractor to submit a completely new
application for a dealership. Requiring this application exceeded
the scope of periodic financial reporting allowed under the
Versatile agreement. It was, in fact, akin to making a fresh
decision whether to continue the contractual relationship between
Ford New Holland and Van's Tractor. (Ford New Holland, however,
never approved the new dealership application.)
We conclude that the 1987 sale of assets by Versatile to Ford
New Holland and others significantly altered the dealership
relationship and contract, We hold that the District Court did not
err in applying S S 30-11-802 and -803, MCA, to the Versatile
Agreement between Van's Tractor and Ford New Holland.
Did the District Court err in concluding that Ford New Holland
violated 3 5 30-11-802 and -803, MCA?
The District Court concluded that actions taken by Ford New
Holland violated 5 5 30-11-802 and -803, MCA. The argument of Ford
New Holland that these violations did not occur depends on its
position that the terms of the Versatile dealership contract can
negate statutory requirements. Such is not the case, Contracts
which are in violation of the policy of an express law are
unlawful. Section 28-2-701, MCA.
section 30-11-802, MCA, provides:
No grantor may, directly or indirectly, terminate,
cancel, fail to renew, or substantially change the
competitive circumstances of a dealership agreement
without good cause. The burden of proving good cause is
on the grantor.
The District Court concluded that Ford New Holland changed the
competitive circumstances of its dealership agreement with Van's
Tractor without good cause and in violation of 5 30-11-802, MCA, in
seven separate ways:
unilaterally placing Van's Tractor in attrition status
without reasonable notice or the opportunity to avoid
further investment;
without prior notice, depriving Van's Tractor of the
possibility of transferring the Versatile dealership to
a qualified buyer;
requesting the resignation of Van's Tractor and
threatening termination of the franchise on the erroneous
pretext that the Van Ripers had sold the business and
then, upon being advised of the true facts, maintaining
its erroneous position that Van's Tractor had breached
its dealership agreement by attempting to sell the
franchise;
establishing a second Versatile franchise in the Havre
area when it was aware that two such dealers could not
survive;
refusing to remove Van's Tractor from stop ship status
after receiving the payment it had demanded;
diverting the orders of Van's Tractor for goods without
notice and transferring such products to the competing
store without notice; and
continuing adverse credit terms against Van's Tractor
(requiring that all purchases be C O D )
....
The court also concluded that ' t e conduct of Ford New Holland
'h
indirectly terminated Van's Tractor, Inc. as a Ford New Holland
dealer without good cause." The record supports the conclusions of
the District Court as to the violations by Ford New Holland of 5
30-11-802, MCA.
Section 30-11-803, MCA, provides in relevent part:
(1) Except as provided in subsections (2) and (3), a
grantor shall provide a dealer at least 9 0 days' prior
written notice by certified mail of termination,
cancellation, nonrenewal, or substantial change in
competitive circumstances. The notice must state all the
reasons for termination, cancellation, nonrenewal, or
substantial change in competitive circumstances and must
provide that the dealer has 60 days from receipt of the
notice in which to rectify any claimed deficiency. If
the deficiency is rectified within 60 days, the notice is
- -
void.
(2) If the reason for termination, cancellation,
nonrenewal, or substantial change in competitive
circumstances is nonpayment of sums due under the
dealership, the dealer is entitled to 10 days' prior
written notice by certified mail. If the dealer does not
remedy such default within 10 days after receipt of the
notice, the notice is effective according to its terms.
The court concluded that Ford New Holland violated 30-11-803,
MCA, by terminating Van Tractor's franchise without notice, failing
to notify Van's Tractor of its original attrition plan, and leaving
Van's Tractor on "stop shipv'status after Van's Tractor paid the
disputed parts account. The record supports these conclusions.
We hold that the District Court did not err in concluding that
Ford New Holland violated §§ 30-11-802 and -803, MCA.
I11
Did Ford New Holland breach the implied covenant of good faith
and fair dealing?
The parties agree that damages are the same under this theory
and the theory of statutory violations discussed in Issue 11.
Because we have ruled that the District Court did not err in
finding that the statutory violations occurred, we need not address
whether Ford New Holland also breached the implied covenant of good
faith and fair dealing.
IV
Did the District Court err in awarding damages?
Ford New Holland argues that the District Court erred in
awarding damages for lost profits for a period of ten years into
the future because the evidence supporting that award was admitted
erroneously. It asserts that the expert for Van's Tractor, Mr.
Stuart, did not independently evaluate the relevant Havre market
and that he based his figures on a five year evaluation done by
Ford in connection with a different store. Ford New Holland
asserts that the damages awarded for ten years into the future were
purely speculative.
When injury caused by a breach of a contract is certain,
damages for lost profits may be awarded even though the amount of
damage is uncertain. Hostetter v. Donlan (1986), 221 Mont. 380,
382-83, 719 P.2d 1243, 1245. Van's Tractor points out that the
damages it was awarded were half of Mr. Stuart's projection, and
that a five-year profit projection based solely on the Ford New
Holland projections suggested lost profits with a present value of
$698,040. Ford New Holland's own expert projected lost profit with
an upper range of $501,885.
We hold that the damage award of $443,000 was not error.
v
Did the District Court err in awarding attorney fees?
The first argument of Ford New Holland on this issue, that
Van's Tractor was not entitled to attorney fees under contract or
statute, is negated by our holdings under Issues I and 11. Section
30-11-811, MCA, provides that reasonable attorney fees may be
awarded for violation of 5 5 30-11-801 through -811, MCA.
Ford New Holland also argues that the District Court
miscalculated attorney fees. It points out that the claims of the
individual plaintiffs, Robert and Jean Van Riper, and several
theories of recovery were abandoned prior to trial and states that
the attorney fees awarded exceed those called for in the contingent
fee agreement between Van's Tractor and its attorneys.
The District Court cited and applied the eight-part standard
set forth in Stimac v State (1991), 248 Mont. 412, 417, 812 P.2d
.
1246, 1249, for determining the appropriate amount of attorney
fees. The court pointed out that this case involved a novel and
difficult question of interpretation of statutes which had not been
previously construed. It acknowledged that the case involved a
series of complicated factual issues. It noted the substantial
commitment of time made by the lawyers for Van's Tractor and their
support staff and that this case required over three and one-half
years to complete. The court reasoned that this case was an
important one, that the result obtained was favorable to Van's
Tractor, and that counsel for Van's Tractor are experienced and
skilled in the litigation of this type of business case. The court
further pointed out that Van's Tractor entered an agreement with
its attorneys to pay them a contingent fee of one-third of any
recovery obtained, or forty percent of recovery in the event of any
appeal, and that, under that agreement, counsel risked the
possibility of no recovery. The court also stated its intent to do
as little harm as possible to the completeness of the damages
awarded to Van's Tractor as a result of the attorney fees it must
pay its counsel.
We conclude that the District Court acted properly in applying
the statute allowing an award of attorney fees and in setting those
fees according to the criteria set forth in Stimac. We hold that
the District Court did not err in awarding attorney fees of
$162,000.
Af finned.
We Concur:
Justice /7
Chief Justice
Justices
Justice Fred J. Weber dissents as follows:
I dissent from the majority opinion which awards damages,
costs and fees against Ford New Holland for violations of 5 5 30-11-
802 and 803, MCA.
I will set forth the essential terms of the two contracts
which are pivotal to the decision. The first is the Dealer Sales
and services Agreement (herein called Dealer Agreement) dated
November 2, 1983 between Versatile Farm Equipment Corporation
(herein Versatile) and Van's Tractor, Inc. (herein Van's Tractor).
The non-exclusive right to sell products of Versatile granted to
Van's Tractor is contained in the following paragraph:
1.1 The Company hereby grants to the Dealer the
non-exclusive right to sell the products of the Company
as hereinafter defined. ... All transactions between
the Company and the Dealer shall be governed by this
Agreement unless the parties specifically agree otherwise
in writing.
I emphasize that Van's Tractor was given a non-exclusive right to
sell Versatile products and that all transactions between Van's
Tractor and versatile were to be governed by the Dealer Agreement.
While the Dealer Agreement did provide that the parties could
otherwise agree in writins, there is no such agreement in the
record. As a result, the transactions between Van's Tractor and
Versatile were governed by the Dealer Agreement.
The products covered by the Dealer Agreement are as follows:
2.1 Products covered by this Agreement are all
those items of agricultural tractors, machines, and
equipment ... listed in a current price list
issued by the Company fversatile] from time to time
. . .
together with all attachments and accessories thereto .
.. Each successive Machinery Price List and Parts Price
List when issued is deemed to be a part of this
Agreement. ...
Under this paragraph the products covered by the Dealer Agreement
were determined by Versatile from time to time as it issued current
price lists. Under the agreement Versatile was given the right to
eliminate any portion of its equipment lines without the right to
object on the part of Van's Tractor. As a result Versatile had the
power to eliminate the Noble line of equipment if it chose. Such
elimination is a factor relied upon in the majority opinion without
a consideration of the power to eliminate the Noble line of
equipment which Van's Tractor granted to Versatile.
Versatile was given the right to refuse to sell and deliver
products under certain conditions in the following Dealer
Agreement provision:
6.3 The Company [Versatile] may refuse to sell or
deliver Products to the Dealer [Van's Tractor] at any
time under the terms of payment, herein set forth, or in
any purchase order of the Dealer, whether or not
previously accepted or approved, when in its opinion the
conditions of the current account or financial standing
of the Dealer do not warrant further sales or deliveries
upon such terms.
Versatile was given the right to refuse to sell products to Van's
Tractor when in its opinion the condition of the current account or
financial standing of Van's Tractor did not warrant further sales.
In addition the Dealer Agreement contains extensive
termination provisions in part 21, which in pertinent part provide:
21.1 This Agreement shall continue in effect until
terminated as hereinafter provided. This Agreement may
be terminated immediately, at the Company's [Versatile]
option, by giving notice by hand, verified telex or
telecopier or by registered mail, postage prepaid to the
last known address of the Dealer [Van's Tractor] at any
time after the occurrence of any of the following events:
...
...
the Company ...
(d) default of any indebtedness of the Dealer to
(g) if the Company, in good faith, believes that
the prospect of payment or performance
hereunder is impaired or that the Products or
any part thereof are in danger of being lost,
damaged or confiscated.
Substantial rights in the Dealer Agreement were transferred by
Versatile to Ford New Holland under the Assignment and Assumption
Agreement dated July 10, 1987 (herein called ~ssignment),which in
pertinent part provided:
2. Assianment.
(a) VFEC [Versatile] hereby irrevocably assigns,
transfers, sells and conveys to NH [Ford New Holland] all
of VFEC's right, title and interest in and to the U.S.
Dealer Agreements [specifically including the Versatile-
Van's Tractor Agreement] to the extent the same relates
to the Business [all business carried on by Versatile in
the distribution and sale of equipment but excluding the
Noble Business], including all right of action and all
other rights accruing to VFEC thereunder.
(b) For greater clarity and certainty, it is hereby
agreed that VFEC shall retain unto itself all of its
right, title and interest in the U.S. Dealer Agreements
to the extent same relate to the Noble Business.
...
3. Assumption. NH [Ford New Holland] hereby
accepts the assignment of VFECVs [Versatile's] right,
title and interest in and to the U.S. Dealer Agreements
as above provided, and agrees to observe, perform and
discharge the covenants and obligations of VFEC related
to the Business under the U.S. Dealer Agreements in
accordance with their respective terms to the extent that
the same shall arise or accrue at any time after the date
hereof and relate to periods commencing after the date
hereof.
The ~ssignmentirrevocably transferred from Versatile to Ford New
Holland all of Versatile's right, title and interest in the Dealer
Agreement with Van's Tractor as it related to Versatile equipment,
but specifically excluded all Noble Business which was defined as
the business carried on by Versatile Noble Cultivators Company.
Under the Assumption portion of the Assignment, Ford New Holland
accepted the assignment from versatile and agreed to observe,
perform and discharge all of the obligations under the Assignment
in accordance with its terms. I emphasize that no consent on the
part of Van's Tractor or any other dealer was required under the
terms of the Assignment. It is critical to note that there are no
terms of the Dealer Agreement or of the ~ssignment, of any other
or
instrument in w r i t i n g which r e q u i r e s consent by Vants Tractor to
the assignment by Versatile to Ford New Holland. Nothing in the
written record supports a conclusion that the Assignment from
Versatile to Ford New Holland modified the contract relationship
under t h e Dealer Agreement with Van's Tractor so far as all
Versatile equipment was concerned.
The majority points out that Ford New Holland contended that
the application of 5 9 30-11-802 and 803, MCA, is a prohibited
retroactive application because the statutes were enacted in 1985,
two years after the contract between Versatile and Van's Tractor
was executed. These code provisions in pertinent part provide:
30-11-802, Cancellation and alteration of
clealerships. No grantor may, directly or indirectly,
terminate, cancel, fail to renew, or substantially change
the competitive circumstances of a dealership agreement
without good cause. The burden of proving good cause is
on the grantor.
30-11-803. Notice of termination or change in
dealership. (1) . . . a grantor shall provide a dealer at
least 90 days1 prior written notice by certified mail of
termination, cancellation, nonrenewal, or substantial
change in competitive circumstances. The notice must
state all the reasons for termination, cancellation,
nonrenewal, or substantial change in competitive
circumstances and must provide that the dealer has 60
days from the receipt of the notice in which to rectify
any claimed deficiency. If the deficiency is rectified
within 60 days, the notice is void,
Section 802 is construed by the majority opinion as limiting the
power of Ford New Holland to terminate, cancel or substantially
change the competitive circumstances of the Dealer Agreement
without good cause and, placed the burden of proving such good
cause on Ford New Holland. In a similar manner, the majority
opinion concludes that under S 803, notice of termination or change
in dealership is required, and if a deficiency specified in a
notice is corrected in accordance with the statute, then the notice
is void. 1 emphasize the clear contradiction between these code
section provisions and the rights given to the parties under the
terns of the Dealer Agreement itself. The majority opinion has
concluded that the Dealer Agreement provisions may be totally
disregarded because of the controlling effect of the subsequently
enacted statutes. Clearly these code sections directly contradict
the rights given to the parties under the Dealer Agreement.
In Part I of the majority opinion, the key conclusion is
stated as follows:
We conclude that the 1987 sale of assets by
Versatile to Ford New Holland and others significantly
altered the dealership relationship and contract.
I disagree with the foregoing conclusions. The Assignment of the
Dealer Agreement is not prohibited or restricted under such Dealer
Agreement and by its terms does not in any way result in a new
dealership relationship or contract.
In Part I of the majority opinion, the statement is made that
the Assignment was more than just a product change as Ford New
Holland would have us believe. The majority refers to the District
Court finding and then states: "This refers to Ford New Holland's
refusal to be bound by any obligations of Versatile in relation to
the Noble plow line." The record does not support that statement.
As previously quoted, the Assignment from Versatile to Ford New
Holland transferred all title and interest in U.S. dealer
agreements, including the Versatile-Van's Tractor Agreement, to the
extent that the contract related to the business carried on by
Versatile in the distribution and sale of equipment "but excludinq
the Noble business." It is not appropriate to suggest that Ford
New Holland in some manner refused to be bound by the obligations
of Versatile in relation to the Noble plow line. The record
clearly establishes that Versatile transferred all of its interest
in the Dealer Agreements regarding the Noble plow line to a
different entity. Again, I find that such division by Versatile of
its interest in the Versatile-Van's Tractor Agreement so that it
transferred one portion to Ford New Holland and the other portion
to another party is not prohibited under the Dealer Agreement.
The majority concluded that the 1987 sale of assets to Ford
New Holland significantly altered the dealership relationship and
contract. As authority for that conclusion, the majority relies on
Kealey Pharmacy & Home Care Serv. v. Walareen Co., a decision of a
federal court in the western district of Wisconsin, which concluded
that a non-retroactive statute applies to contracts which have been
significantly altered after the effective date of the statute.
That is very limited case authority for the guidance of this Court.
As previously pointed out, the record contains nothing which
demonstrates that Van's Tractor was required to execute an
agreement of any kind as a result of the Assignment by Versatile to
Ford New Holland. Apparently the majority concludes that something
in the nature of a #'new contractffwas executed between Ford New
Holland and Van's Tractor so that subsequently enacted statutes
apply. No Ifnewcontractff any type was executed between Ford New
of
Holland and Van's Tractor. The record contains nothing which
establishes something in the nature of a ''new contract." As a
result I do not know of a proper legal basis for the conclusion of
the majority.
I conclude there was not a significant alteration of the
rights and responsibilities of Van's Tractor as a result of the
Assignment. So far as the questions raised by Van's Tractor
regarding credit for returned Noble parts, that is an issue which
required determination under the existing contract. There is
nothing in that transaction which requires a conclusion that a Ifnew
contractg1
was executed, T can find no legal basis upon which to
conclude that 5 9 30-11-802 and 803, MCA, should be applied to the
Dealer Agreement and Assignment to Ford New Holland. I would
reverse on that issue.
The majority opinion refers to the application for a
dealership submitted by Van's Tractor to Ford New Holland. Again
I believe this to be irrelevant as in fact no new agreement was
executed.
Issue 11 addresses whether the ~istrict Court erred in
concluding that Ford New Holland violated § S 30-11-802 and 803,
MCA. When enacted in 1985, these code sections were made
retroactive. Article 11, Section 31 of the Montana Constitution
provides :
Ex post facto, obligation of contracts, and
irrevocable privileges. No ex post facto law nor any law
impairing the obligation of contracts, or making any
irrevocable grant of special privileges, franchises, or
immunities, shall be passed by the legislature.
The Constitution prohibits the enactment by the legislature of a
law impairing the obligation of contracts. I conclude the
majority's interpretation has impaired the obligation of contracts
under the Assignment and the Dealer Agreement. I would reverse on
Issue 11.
In Issue I11 the majority opinion concludes that it is not
necessary to determine if Ford New Holland breached the implied
covenant of good faith and fair dealing. I would conclude that
this is the only issue which should be considered on retrial.
I would reverse and remand for new trial on the issue of the
breach of the implied covenant of good faith and fair deal'
w e
Chief Justice J.A. Turnage and Justice Karla M. Gray concur in the
foregoing dissent.