Cooney Industrial Trucks, Inc. v. Toyota Motor Sales (978 F. Supp. 391, 1997)

Citations

978 F. Supp. 391

Full opinion text

Opinion

KEETON, District Judge.

After judgment for the defendant on a jury verdict in the form of answers to special questions under Rule 49(a) of the Federal Rules of Civil Procedure, plaintiff filed the following post-judgment motions:

(1) Plaintiffs Motion to Amend Judgment (Docket No. 124, filed July 16, 1997), with Memorandum in Support (Docket No. 125);

(2) Plaintiffs Motion for Judgment on Affirmative Defense and for New Trial (Docket No. 126, filed July 16, 1997), with Memorandum in Support (Docket No. 127).

Defendant has filed submissions in opposition to both motions (Docket Nos. 133, 134, 135,136, and 137, filed July 30,1997).

For the reasons summarized in this opinion, and in some instances stated more fully on the record at the time of rulings made during pretrial proceedings and trial, plaintiffs motions are denied.

Plaintiffs complaint in this case was complex, even as amended after case management conferences during which the court required clarification of ambiguities with respect to: (1) how many different claims plaintiff was asserting, (2) under precisely what statutory or decisional law, and (3) on what precise contentions with respect to the legally defined elements of each asserted claim (including both primary and alternative contentions). More complexity was added by defendant’s assertion of an array of primary and alternative contentions for judgment as a matter of law on statutory and decisional substantive state-law grounds, state and federal procedural grounds, and, finally, for judgment based on key factual findings of the jury in their answers to special questions.

As background for understanding the legal issues presented by the motions now pending, this opinion begins with a recitation of undisputed facts, followed by findings of the jury and related rulings of .the court, made while fashioning the verdict form (with the benefit of consultation with counsel), instructing the jury on the meaning of words and phrases appearing in the verdict form, and responding, after consultation with counsel, to questions the jury submitted to the court in writing during deliberations.

The disputes in this case developed from relationships between the parties and related entities, over a period of more than two decades, with respect to marketing of forklifts and other commercial vehicles. As stated in a part of the court’s charge to the jury:

[After Reading Excerpts from Part I of Verdict Form]

Plaintiff is making some claims in this case for breach of contract.... [Instructions on elements of a claim for breach of contract omitted here].

[After Reading Excerpts from Part II of Verdict Form]

An applicable state law requires you to determine whether Toyota had “good cause” for taking the actions it did in connection with Cooney Industrial in 1994. Under that law, a manufacturer, such as Toyota, acts with “good cause” whenever it has genuine and legally permissible business reasons for its actions. To be “legally permissible,” a party’s business reasons must be not in conflict with that party’s obligations and the other party’s rights under contract law, as I have explained them to you in the Verdict form and my Charge to the Jury. In deciding whether the alleged reasons were genuine and legally permissible, you may consider all of the factors listed in the Verdict form as bearing upon the particular question you are answering.

In the court’s Verdict form, you will be asked to consider various factors bearing upon your finding about “good cause.” These factors will, depending upon the weight that you give them, have a bearing on whether Toyota had genuine and legally permissible business reasons and, therefore, “good cause” for taking certain actions.

In weighing these factors, you are free to give as little or as much weight to any factor as you choose. Each factor need not be weighed equally by you. The determination of how much weight to give any factor is to be made solely by you. For example, you may find that all factors but one weigh in favor of one party, but that, even standing alone, the remaining factor outweighs all of the others in your assessment of “good cause.”

[After Reading Excerpts from Part III of Verdict Form]

You will notice that the purpose for which “good cause” must exist differs with the different framing of different questions.

To help you focus your thinking on the particular purpose you are to think about in relation to a particular question, the general subject matter of questions within a Part of the Verdict form is indicated in the title for that part. Thus, the title to Part III differs, you will notice, from the title to Part II. And the questions in Part III have a different focus from those in Part II.

Your findings on “good cause” in one part of the Verdict form thus may be different, or the same, as your findings on “good cause” in another part, all depending on your evaluation of the evidence and the factors in each instance, separately.

Because of the complexity of interlocking legal and factual issues, the court chose to submit the case to the jury in a special verdict form, fashioned with the cooperation and participation of counsel and with the objective of obtaining jury answers to all factual and evaluative issues that might be determined, in the trial court or on appeal, to be material to the outcome under any of the plausible alternatives argued by each party as to' applicable law. Reproduced below is the entire verdict form, with jury answers shown for those questions they answered (others having been skipped, in accordance with instructions in the verdict form, in view of their answers to earlier questions).

Verdict

Part I. Breach of Contract

1(a). Was Toyota’s removal of New Hampshire from, Cooney Industrial’s area of primary responsibility (“APR”) on February 1, 1994, a cause in fact of a measurable decline in Cooney Industrial’s net income?

_ YES X NO

If you answer 1(a) YES, go to 1(b). If you answer 1(a) NO, skip to 2.

1(b). To what extent was Toyota’s removal of New Hampshire from Cooney Industrial’s APR a cause in fact of a measurable decline in Cooney Industrial’s net income? (Check only one of the following).

(1) __Not substantial

(2) _Substantial

(3) _Very substantial

2. Did Ken Cooney, on February 1, 1994, indicate to Jack Sprouts, by words or conduct, that Cooney consented to the removal of New Hampshire from Cooney Industrial’s APR?

_ YES X NO

3. Did Cooney Industrial, by December 31, 1993, equal or exceed, and thereafter maintain, Toyota National Retail Order Market Share in its APR?

_ YES X NO

4■ Was any agreement by Cooney Industrial to equal or exceed, and thereafter maintain, Toyota National Retail Order Market Share (National ROMS) in its APR a material feature of the 1992 Dealer Agreement?

X YES_ NO

5(a). Did Toyota’s conduct during the period of the 1992 Dealer Agreement have an effect on Cooney Industrial’s ability to perform Cooney Industrial’s obligations under the 1992 Dealer Agreement ?

X YES_ NO

If you answer 5(a) YES, go to 5(b). If you answer 5(a) NO, skip 5(b).

5(b). To what extent did Toyota’s conduct have an effect on Cooney Industrial’s ability to perform? (Check only one of the following).

_ Toyota’s conduct prevented Cooney Industrial from performing

X Toyota’s conduct made it materially more difficult for Cooney Industrial to perform

_ Toyota’s conduct had an effect to some extent but not enough to make it materially more difficult for Cooney Industrial to perform

Part II. Good Cause for Allowing the 1992 Dealer Agreement to Come to an End on November 30, 1994

A number of the questions submitted to you in Part II and later parts of the verdict form concern whether one party or another had “good cause” for identified conduct or actions. The standard for good cause that applies in each of these questions may be different in some respect from the standard for good cause in another context. The court will give you additional instructions about the standards.

The subquestions below in this Part II concern your evaluation of various ones among the “factors” that may have a bearing upon a “good cause” determination as “good cause” is defined for questions in Pari II.

II.l. With respect to whether Toyota had good cause for allowing the 1992 Dealer Agreement to come to an end on November 30, 1994, for each of the factors identified below, what is your finding as to whether the evidence before you regarding this factor weighs more heavily in favor of one party than the other, and how strongly? Answer as instructed as to each of the subquestions below.

(a) The amount of business transacted by Cooney Industrial during the period covered by the 1992 Dealer Agreement in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _ YES (ii) X NO

(Hi) _We unanimously find no preponderance of the evidence either way.

If your answer to 1(a)(1) is NO, go to 1(a)(2). If your answer to 1(a)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1(b).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) X Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(Hi) X Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(b) The amount of business transacted by Cooney Industrial under the dealer agreements in effect between August 15, 1991 and September SO, 1992 in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) X YES (ii) _NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(b)(1) is NO, go to 1(b)(2). If your answer to 1(b)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1(c).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(Hi) _We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(Hi) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(c) The amount of business transacted by Cooney Industrial under the dealer agreements in effect before August 15, 1991 in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) _NO

(Hi) _We unanimously find no preponderance of the evidence either way.

If your answer to 1(c)(1) is NO, go to 1(c)(2). If your answer to 1(c)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1(d).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) X Toyota

(Hi) _We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _X_Slightly

(ii) _Moderately

(iii) __Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(d)Whether Cooney Industrial complied with time requirements for the establishment of a new facility under the 1990 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)___ YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(d)(1) is NO, go to 1(d)(2). If your answer to 1(d)(1) is YES or “We unanimously find no preponderance ...” skip to 1(e).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) X Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) X Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(e) The amount Cooney Industrial committed (including financial obligations incurred), during the period covered by the 1992 Dealer Agreement, to investment for the purpose of enabling Cooney Industrial to meet its obligations under the 1992 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)_YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(e)(1) is NO, go to 1(e)(2). If your answer to 1(e)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1(f).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Coney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) X Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(f) The extent to which any of the investment commitment by Cooney Industrial was for permanent capital investment.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(f)(1) is NO, go to 1(f)(2). If your answer to 1(f)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1(g).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) X Slightly

(ii) _Moderately

(Hi) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(g)The extent to which, during the period covered by the 1992 Dealer Agreement, Cooney Industrial’s services to the public were or were not adequate to meet the needs of the public in the dealership area.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(g)(1) is NO, go to 1(g)(2). If your answer to 1(g)(1) is YES or We unanimously find no preponderance ... ”, skip to 1(h).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(Hi) _.Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(h)The extent to which, during the period covered by the 1992 Dealer Agreement, Cooney Industrial had or failed to have facilities, equipment, vehicle parts, and qualified sales and service personnel sufficient to provide reasonably for the needs of the public.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)_YES (ii) X NO

(in) __ We unanimously find no preponderance of the evidence either way.

If your answer to 1(h)(1) is NO, go to 1(h)(2). If your answer to 1(h)(1) is YES or We unanimously find no preponderance ...” skip to l(i).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) X Slightly

(ii) _Moderately

(Hi) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii)

(i) The nature and extent of any breaches, defaults, or violations by Cooney Industrial of the terms and provisions of the 1992 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parlies?

(Check in only one blank)

(i) _YES (ii) X NO

(in) _ We unanimously find no preponderance of the evidence either way.

If your answer to l(i)(l) is NO, go to l(i)(2). If your answer to l(i)(l) is YES or ‘We unanimously find no preponderance skip to 1 (j).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _ Cooney Industrial (ii) X Toyota

(in) .____ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(in) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(j) The offer by Toyota to Cooney Industrial in September 1991 of a replacement dealer agreement to commence on October 1, 199f and Cooney Industrial’s non-acceptance of that offer.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) __YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

If your answer to l(j)(l) is NO, go to l(j)(2). If your answer to 10) (1) is YES or We unanimously find no preponderance ... ”, skip to l(k).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(Hi) X Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(rii).

(k)Whether, on the basis of the evidence before you, and reasoning from that evidence and not upon the basis of any matters not in evidence, you find that it would be injurious or beneficial to the public welfare that a dealership agreement exactly like that of the 1992 Dealer Agreement between Cooney Industrial and Toyota come to an end on November SO, 1991.

(1)Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)_YES (ii) _NO

(iii) X We unanimously find no preponderance of the evidence either way.

If your answer to 1(h)(1) is NO, go to 1(h)(2). If your answer to 1(h)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 11.2(a).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _ Cooney Industrial (ii) _ Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Chech in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

11.2(a). Taking into account only factors 11.1(a) through 11.1(f), and your findings mth respect to those factors in Question II. 1 immediately above, do you find that Toyota had good cause for allowing the 1992 Dealer Agreement to come to an end on November SO, 199k? (Check in only one blank.)

(i) X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way

11.2(b). Taking into account all of the factors 11.1(a) through 11.1(h), and your findings mth respect to those factors in Question II.1 immediately above, do you find that Toyota had good cause for allowing the 1992 Dealer Agreement to come to an end on November SO, 199k? (Check in only one blank.)

(i) X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way

Part III. Good Cause with Respect to Change in Term from 2 Years to 4 Months Commencing on October 1, 1994

The subguestions below in this Part III concern your evaluation of various ones among the “factors” that may have a bearing upon a “good cause” determination as “good cause” is defined for questions in Part III.

III. 1. With respect to whether Toyota had good cause for changing the 1992 Dealer Agreement terms from 2 years to k months in the 199k Dealer Agreement commencing on October 1, 199k, for each of the factors identified below, what is your finding as to whether the evidence before you regarding this factor weighs more heavily in favor of one party than the other, and how strongly. Answer YES or NO as to each of the subquestions below.

(a) The amount of business transacted by Cooney Industrial during the period covered by the 1992 Dealer Agreement in comparison mth the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(a)(1) is NO, go to 1(a)(2). If your answer to 1(a)(1) is YES or ‘We unanimously find no preponderance ...” skip to 1(b).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(b)The amount of business transacted by Cooney Industrial under the dealer agreements in effect between August 15, 1991 and September SO, 1992 in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(b)(1) is NO, go to 1(b)(2). If your answer to 1(b)(1) is YES or “We unanimously find no preponderance ...” skip to 1(c).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(in) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii)_ We unanimously find no preponderance of the evidence either way.

If your answer to 1(c)(1) is NO, go to 1(c)(2). If your answer to skip to 1(d).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(d) Whether Cooney Industrial complied with time requirements for the establish- merit of a new facility under the 1990 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(d)(1) is NO, go to 1(d)(2). If your answer to 1(d)(1) is YES or ‘We unanimously find no preponderance ...” skip to 1(e).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Coney Industrial

(ii) _Toyota

(iv) _We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(e)(1) is NO, go to 1(e)(2). If your answer to 1(e)(1) is YES or We unanimously find no preponderance ... ”, skip to 1(f).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(f) The extent to which any of the investment commitment by Cooney Industrial was for permanent capital investment.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(f)(1) is NO, go to 1(f)(2). If your answer to 1(f)(1) is ‘YES or We unanimously find no preponderance ... ”, skip to 1(g).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(iii) __ We unanimously find no preponderance of the evidence either way.

(B) How strongly ?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) __.Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers ft)-(Hi).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank) ft)._YES (ii) X NO

(Hi) _We unanimously find no preponderance of the evidence either way.

If your answer to 1(g)(1) is NO, go to 1(g)(2). If your answer to 1(g)(1) is YES or “We unanimously find no preponderance ... ”, skip to 1(h).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

ft) X Cooney Industrial

(ii) _Toyota

(iii) - We unanimously find no ' preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

ft) _Slightly

(ii) X Moderately

(Hi) ___.Heavily

(iv)_We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank) ft) _YES (ii) X NO

(iii) __ We unanimously find no preponderance of the evidence either way.

If your answer to 1(h)(1) is NO, go to 1(h)(2). If your answer to 1(h)(1) is YES or “We unanimously find no preponderance ... ”, skip to lft).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) __ Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

ft) _Slightly

(ii) X Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

ft) The nature and extent of any breaches, defaults, or violations by Cooney Industrial of the terms and provisions of the 1992 Dealer Agreement.

(1) Is this factor neutral in its weight as ■ between the parties?

(Check in only one blank)

(i) X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to l(i)(l) is NO, go to l(i)(2). If your answer to l(i)(l) is YES or “We unanimously find no preponderance ... ”, skip to 1(h).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) —y— Toyota

(Hi)__We unanimously find no ^ preponderance of the evidence either way.

(B) How^strongly?

(Check in qnly one blank)

(i)_Slightly

(i)_Moderately

(iii) _Tleavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(j) [No factor (j) for Part III.]

(k) Whether, on the basis of the evidence before you, and reasoning from that evidence and not upon the basis of any matters not in evidence, you find that it would be injurious or beneficial to the public welfare that a dealership agreement exactly like that of the 1992 Dealer Agreement between Cooney Industrial and Toyota come to an end on November SO, 199A.

(1)Is this factor neutral in its weight as between the parties? (Check in only one blank)

(i) _YES (ii) _NO

(iii) X We unanimously find no preponderance of the evidence either way.

If your answer to 1(h)(1) is NO, go to 1(h)(2). If your answer to 1(h)(1) is YES or “We unanimously find no preponderance ... ”, skip to 111.2(a).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor? (Check in only one blank)

(i) _Cooney Industrial

(ii) __Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

111.2(a). Taking into account only factors III. 1(a) through III.l(i), and your findings with respect to those factors in Question III. 1 immediately above, do you find that Toyota had good cause for changing the 1992 Dealer Agreement terms from 2 years to A months in the 199A Dealer Agreement commencing on October 1, 199A? (Check in only one blank.)

(i) _YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way

111.2(b). Taking into account all of the factors III. 1(a) through III.l(i) and III.(k), and your findings with respect to those factors in Question III.l immediately above, do you find that Toyota had good cause for changing the 1992 Dealer Agreement terms from 2 years to A months in the 199A Dealer Agreement commencing on October 1, 199A? (Check in only one blank.)

(i) _YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way

Part IV. Good Cause with Respect to Not Including the Provision for a 6-Year Term if Cooney Industrial Meets the Market Share Requirement

The subquestions below in this Part IV concern your evaluation of various ones among the “factors” that may have a bearing upon a “good cause” determination as “good cause” is defined for questions in Part TV.

IV.l. With respect to whether Toyota had good cause for not including the provision for a 6^year term if Cooney Industrial met the market share requirement, what is your finding as to whether the evidence before you regarding this factor weighs more heavily in favor of one party than the other, and how strongly. Answer YES or NO as to each of the subquestions below.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)_YES (ii) X NO

(iii) - We unanimously find no preponderance of the evidence either way.

If your answer to 1(a)(1) is NO, go to 1(a)(2). If your answer to 1(a)(1) is YES or “We unanimously find no preponderance ... ”, skip to 1(b).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i)X Cooney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) X Slightly

(ii) _Moderately

(iii) _Heavily

(iv) __ We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(b) The amount of business transacted by Cooney Industrial under the dealer agreements in effect between August 15, 1991 and September 30, 1992 in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) - We unanimously find no preponderance of the evidence either way.

If your answer to 1(b)(1) is NO, go to 1(b)(2). If your answer to 1(b)(1) is YES or “We unanimously find no preponderance ... ”, skip to 1(c).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(iii) - We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) -Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(c) The amount of business transacted by Cooney Industrial uvider the dealer agreements in effect before August 15, 1991 in comparison with the amount of business available to Cooney Industrial in the market conditions prevailing at that time.

(1) Is this factor neutral in its weight as between the parties ?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(c)(1) is NO, go to 1(c)(2). If your answer to 1(c)(1) is YES or “We unanimously find no preponderance ... ”, skip to 1(d).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(iii) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(d) Whether Cooney Industrial complied with time requirements for the establishment of a new facility under the 1990 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(d)(1) is NO, go to 1(d)(2). If your answer to 1(d)(1) is YES or ‘We unanimously find no preponderance ...” skip to 1(e).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(e)The amount Cooney Industrial committed (including financial obligations incurred), during the period covered by the 1992 Dealer Agreement, to investment for the purpose of enabling Cooney industrial to meet its obligations under the 1992 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) X YES (ii) _NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(e)(1) is NO, go to 1(e)(2). If your answer to 1(e)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1 (f).

(2) In which party’s favor does this factor weigh and how strongly ?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(Hi) - We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) _Moderately

(Hi) _Heavily

(iv) -We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(f)The extent to which any of the investment commitment by Cooney Industrial was for pemanent capital investment.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(Hi) - We unanimously find no preponderance of the evidence either way.

If your answer to 1(f)(1) is NO, go to 1(f)(2). If your answer to 1(f)(1) is YES or ‘We unanimously find no preponderance ... ”, skip to 1 (g).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _'Toyota

(Hi) - We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(Hi) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(g)(1) is NO, go to 1(g)(2). If your answer to 1(g)(1) is YES or We unanimously find no preponderance ... ”, skip to 1(h).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Coney Industrial

(ii) _Toyota

(iv) - We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) -Slightly

(ii) X Moderately

(Hi) -Heavily

(iv) -We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i)_YES (ii) X NO

(iii) _ We unanimously find no preponderance of the evidence either way.

If your answer to 1(h)(1) is NO, go to 1(h)(2). If your answer to 1(h)(1) is YES or “We unanimously find no preponderance ... ”, skip to l(i).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) __ Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i)__Slightly

(ii) X Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(i)The nature and extent of any breaches, defaults, or violations by Cooney Industrial of the terms and provisions of the 1992 Dealer Agreement.

(1) Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) __ YES (ii) X NO

(iii)_ We unanimously find no preponderance of the evidence either way.

If your answer to l(i)(l) is NO, go to l(i)(2). If your answer to l(i)(l) is YES or ‘We unanimously find no preponderance ... ”, skip to l(k).

(2) In which party’s favor does this factor weigh and how strongly?

(A) In which party’s favor?

(Check in only one blank)

(i) X Cooney Industrial

(ii) _Toyota

(iv) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(iii) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

(j) [No factor (j) for Part TV.]

(k) Whether, on the basis of the evidence before you, and reasoning from that evidence and not upon the basis of any matters not in evidence, you find that it would be injurious or beneficial to the public welfare that a dealership agreement exactly like that of the 1992 Dealer Agreement between Cooney Industrial and Toyota come to an end on November SO, 199j.

(1)Is this factor neutral in its weight as between the parties?

(Check in only one blank)

(i) _YES (ii) X NO

(iii)_We unanimously find no preponderance of the evidence either way.

If your answer to l(k)(l) is NO, go to l(k)(2). If your answer to 1(h)(1) is YES or We unanimously find no preponderance ... ”, skip to TV. 2(a).

(2) In which party’s favor does this factor weigh and how strongly ?

(A) In which party’s favor?

(Check in only one blank)

(i) _Cooney Industrial

(ii) _Toyota

(Hi) _ We unanimously find no preponderance of the evidence either way.

(B) How strongly?

(Check in only one blank)

(i) _Slightly

(ii) X Moderately

(Hi) _Heavily

(iv) _We unanimously find no preponderance of the evidence for any of answers (i)-(iii).

IV.2(a). Taking into account only factors IV. 1(a) through IV.l(i), and your findings with respect to those factors in Question IV. 1 immediately above, do you find that Toyota had good cause for not including in the 1994 Dealer Agreement the provision for a 6-year term if Cooney Industrial met the market share requirement? (Check in only one blank.)

(i) _YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

TV.2(b). Taking into account all of the factors IV. 1(a) through IV.l(i) and TV.(k), and your findings with respect to those factors in Question IV. 1 immediately above, do you find that Toyota had good cause for not including the 1994 Dealer Agreement the provision for a 6m¡ear term if Cooney Industrial met the market share requirement? (Check in only one blank.)

(i) _YES (ii) X NO

(Hi) _ We unanimously find no preponderance of the evidence either way.

Part V. Notice and Terms Different

1. Was Toyota’s letter of August 15, 1994 a written notice with a detailed statement of Toyota’s reasons for changing the length of the term of the 1994 Dealer Agreement from 2 years (as it was in the 1992 Dealer Agreement) to 4 months (as Toyota proposed for the 1994 Dealer Agreement) ?

X YES_ NO

2(a). Did Toyota, in the letter of August 15, 1994, give notice of its intent to allow the Dealer Agreement between Toyota and Cooney Industrial to come to an end unless Cooney Industrial accepted Toyota’s offer of a 1994 Dealer Agreement on different terms?

_ YES X NO

2(b)(1). Did Toyota offer in the 1994 Dealer Agreement only terms different from those contained in the 1992 Dealer Agreement?

_ YES X NO

2(b)(2). Did Toyota, in addition to any oral notice, give written notice, in the letter of August 15, 1994, stating Toyota’s reasons for offering terms different from those contained in the 1992 Dealer Agreement.

X YES_ NO

Part VI. Causation and Damages

If you answer 1.1(a) YES, go to VI. 1. Otherwise skip VI.1.

VI. 1. What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial decline in net income that you find Cooney Industrial sustained as a direct result of Toyota’s removal of New Hampshire from Cooney Industrial’s APR on February 1, 1994? Answer in DOLLARS or NONE.

If you answer NO to 11.2(a) or 11.2(b), answer VI.2(a). Otherwise, skip VI.2.

VI.2(a). What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial loss that you find Cooney Industrial

sustained as a direct result

of Toyota’s allowing the 1992 Dealer Agreement to come to an end on November 30, 1991? Answer in DOLLARS or NONE.

Answer VI.2(b) if you answer VI.2(a) in DOLLARS and also answer VI. 1 in DOLLARS. Otherwise, skip VI.2(b).

(The reason for including VI.2(b) in the verdict form is that your answer to it may be needed to help the court determine the amount of the judgment without awarding damages twice (or more) for one loss that had two (or more) legally responsible causes.)

VI.2(b). What part, if any, of the DOLLAR amount you find in answering VI.2(a) is duplicative of the award you have made in answering VI. 1? Answer in DOLLARS or NONE.

If you answer NO to 111.2(a) or 111.2(b), answer VI.3(a). Otherwise, skip VI.3.

VI.3 (a). What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial loss that you find Cooney Industrial

sustained as a direct result

of Toyota’s changing the 1992 Dealer Agreement terms from 2 years to J) months in the 199U Dealer Agreement commencing on October 1, 199U? Answer in DOLLARS or NONE.

$ None

If you answer VI.3(a) in DOLLARS and also answer in DOLLARS in one or both of VI. 1 and VI.2(a), answer VI.3(b). Otherwise, skip VI. 3(b).

VI.3(b). What part, if any, of the DOLLAR amount you find in answering VI.3(a) is duplicative?

If your answer is NONE, check here__ Otherwise, answer DOLLARS or NONE on each blank below.

(1) What part, if any, of the DOLLAR amount you find in answering VI. 3 (a) is duplicative of the award you have made in answering VI.I? Answer in DOLLARS or NONE.

(2) What part, if any, of the DOLLAR amount you find in answering VI. 3 (a) is duplicative of the award you have made in answering VI.2(a)? Answer in DOLLARS or NONE.

If you answer NO to IV.2(a) or TV.2(b), answer VI.1(a). Otherwise, skip VIA.

VIMa). What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial loss that you find Cooney Industrial sustained as a direct result

of Toyota’s not including in the 199j. Dealer Agreement the provision for a 6-year term if Cooney Industrial met the market share requirement? Answer in DOLLARS or NONE.

$ None

If you answer VI4(q) in DOLLARS and also answer in DOLLARS one or more of VI. 1, and VI.2(a), and VI.3(a), answer VI4(b). Otherwise, skip VI.U(b).

VIMb). What part, if any, of the DOLLAR amount you find in answering VIMa) is duplicative?

If your answer is NONE, check here__

Otherwise, answer DOLLARS or NONE on each blank below.

(1) What part, if any, of the DOLLAR amount you find in answering VIMa) is duplicative of the award you have made in answering VI. 1? Answer in DOLLARS or NONE.

(2) What part, if any, of the DOLLAR amount you find in answering VIMa) is duplicative of the award you have made in answering VI.2(a)? Answer in DOLLARS or NONE.

(3) What part, if any, of the DOLLAR amount you find in answering Vl4(a) is duplicative of the award you have made in answering VI.3(a)? Answer in DOLLARS or NONE.

If you answer V.l NO, answer VI.5(a). Otherwise skip VI. 5.

VI. 5(a). What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial loss that you find Cooney Industrial

sustained as a direct result

of Toyota’s failure to give notice of changing the length of the term of the 1991 Dealer Agreement from 2 years to I months? Answer in DOLLARS or NONE.

Answer VI.5(b) if you answer VI.5(a) in DOLLARS and also answer in DOLLARS one or more of VI. 1, and VI.2(a), and VI.3(a), and VI4(a). Otherwise skip VI.5(b).

VI. 5(b). What part, if any, of the DOLLAR amount you find in answering VI.5(a) is duplicative?

If your answer is NONE, check here__ Otherwise, answer DOLLARS or NONE on each blank below.

(1) What part, if any, of the DOLLAR amount you find in answering VI. 5 (a) is duplicative of the award you have made in answering VI. 1? Answer in DOLLARS or NONE.

(2) What part, if any, of the DOLLAR amount you find in answering VI. 5 (a) is duplicative of the award you have made in answering VI.2(a)? Answer in DOLLARS or NONE.

(3) What part, if any, of the DOLLAR amount you find in answering VI. 5(a) is duplicative of the award you have made in answering VI.3(a)? Answer in DOLLARS or NONE.

(If) What part, if any, of the DOLLAR amount you find in answering VI. 5(a) is duplicative of the award you have made in answering Vl4(a)? Answer in DOLLARS or NONE.

If you answer V.2(a) NO, or V.2(b)(l) YES, or V.2(b)(2) NO, go to VI.6(a). Otherwise skip VI. 6.

VI. 6(a). What amount, if any, do you find to be necessary to compensate Cooney Industrial fairly and reasonably

for any Cooney Industrial decline in net income that you find Cooney Industrial

sustained as a direct result

of Toyota’s failure to give notice, in the letter of August 15, 1991, of its intent to allow the Dealer Agreement between Toyota and Cooney Industrial to come to an end unless Cooney Industrial accepted Toyota’s offer of a 199f Dealer Agreement on different terms? Answer in DOLLARS or NONE.

$ None

Answer VI.6(b) if you answer VI.6(a) in DOLLARS and also answer in DOLLARS one or more of VI. 1, and VI.2(a), and VI.3(a), and Vl4(a), and VI.5(a). Otherwise, skip VI.6(b).

VI.6(b). What part, if any, of the DOLLAR amount you find in answering VI.6(a) is duplicative?

If your answer is NONE, check here._

Otherwise, answer DOLLARS or NONE on each blank below.

(1) What part, if any, of the DOLLAR amount you find in answering VI.6(a) is duplicative of the award you have made in answering VI. 1? Answer in DOLLARS or NONE.

(2) What part, if any, of the DOLLAR amount you find in answering VI. 6(a) is duplicative of the award you have made in answering VI.2(a) ? Answer in DOLLARS or NONE.

(3) What part, if any, of the DOLLAR amount you find in answering VI. 6 (a) is duplicative of the award you have made in answering VI.3(a)? Answer in DOLLARS or NONE.

(I) What part, if any, of the DOLLAR amount you find in answering VI. 6 (a) is duplicative of the award you have made in answering VI.k(a)l Answer in DOLLARS or NONE.

(5) What part, if any, of the DOLLAR amount you find in answering VI. 6(a) is duplicative of the award you have made in answering VI.5(a)? Answer in DOLLARS or NONE.

July 2 1997_ _/

s[_

Date

Foreperson

During deliberations, the jury sent several written questions to the court to which the court responded in writing after consultation with counsel. The following additional instructions were included in the court’s written responses on the dates indicated.

Question:

June 30, 1997

It would be helpful if you could provide us with the legal definition of “material” as used in Question 4. Please excuse us if “material” was included in your charge and we have overlooked it.

Thank you.

/s/

Answer:

June 30, 1997

MEMBERS OF THE JURY:

The following explanation is the response to your question about the meaning of “material” in Question 1.4.

A “material” fact, circumstance, or contractual provision is one of sufficient importance in the relationship between the parties that it would lead a reasonable person to change his or her mind about whether to enter into a contract or make some other significant decision about the relationship or a potential relationship between the parties. Thus, to serve as a basis for a claim in court, an alleged fact, circumstance, or contractual provision must be material in the sense that it relates to a matter of importance to the parties.

Question:

July 2, 1997

In Part V on page 40, we have questions for you on the “spirit of intent” of Question 2(a).

2(a) The word “unless” is troublesome. If “unless” is really important we must answer one way and if not we answer the other, but, in one of the two cases our conscience is not clear.

Can we interpret the intent of the question or must we go by the strict wording?

Thank you.

/s/

Answer:

July 2, 1997

MEMBERS OF THE JURY:

This is a response to your question about the meaning of Question 2(a) in Part V of the Verdict form.

The word “unless” and the phrase it introduces are, in the phrase used in your question, “really important.”

The meaning of the question I have asked you to answer would be very different if it did not include the “unless” phrase. This is the “manifested intent” of the question (using “manifested intent” in the way I have defined it for you in contract law). This is also the “spirit” and purpose of the question.

Thus, you must interpret the question in accordance with the intent manifested by the “wording” of the question. I have not used the phrase “strict wording” because I do not understand what you mean by “strict wording” as distinguished from “wording” alone. In any event, please interpret the question in accordance with the ordinary meaning of the words it uses to manifest its meaning to you.

In determining whether the notice specified in Question 2(a) of Part V was provided by Toyota, you should consider what a reasonable person in the position of Cooney Industrial (the recipient of the August 15, 1994 letter) would reasonably understand from reading the August 15, 1994 letter.

After receiving the verdict of the jury, and taking into account plaintiffs withdrawal of some claims and the court’s ruling on others as a matter of law, the court ordered judgment for defendant based on answers of the jury that were, in the court’s view, decisive against plaintiff as to all remaining claims.

II.

The jury’s findings have mooted numerous legal contentions plausibly asserted by one party or the other during the pretrial proceedings and trial. An analysis of the jury findings will help to focus remaining issues of law that are potentially material to the outcome of this case.

Part A, immediately below, considers the meaning of findings with respect to damage or harm, and their conclusiveness with respect to plaintiffs claims for breach of contract. Part B considers the jury’s manifested overall view of the case and various contentions of the parties bearing on all other claims of plaintiff.

Defendant had maintained, throughout pretrial proceedings and trial, that it was entitled to judgment as a matter of law on plaintiffs breach of contract claims. Plaintiff was not seeking, and could not plausibly seek, reinstatement of a dealer relationship with defendant Toyota. Reinstatement was impossible; before commencing this civil action, plaintiff had accepted a Caterpillar dealership under terms incompatible with a simultaneous dealership for marketing Toyota’s commercial vehicles. Along with other grounds for denial of damages, defendant contended that plaintiff was not entitled to any relief on a breach of contract claim without proof of harm or damage as defined in some applicable measure of recovery for breach of contract and that plaintiff had not, and could not proffer any admissible evidence to show any legally recognized basis for any finding of harm or damage. In pretrial proceedings the court had rejected this defense contention primarily because, in the court’s view, the testimony of Ken Cooney, if fully credited by the jury in respects in which it clashed sharply with documentary and testimonial evidence offered by defendant, would support a finding of at least some dollar amount of damages for harm, even though far short of the amount plaintiff claimed.

The jury answered NONE to each of the damages questions it reached — VI.3(a), VI.4(a), and VI.6(a> — and did not reach other damages questions — VI.l, VL2(a), and VI.5(a) — because of its answers against plaintiff on predicate questions regarding those alleged grounds for claims of entitlement to damages.

Plaintiff now asks the court to interpret the jury’s several separate findings of no damage as falling short of an overall finding that plaintiff has proved no harm. This contention depends fundamentally on premises that are contrary to the structure of the verdict form itself and the court’s instructions to the jury in explanation of the verdict form. Although some statements made in plaintiffs Memorandum in Support might be interpreted as making a more sweeping argument, I interpret this argument as confined to a challenge also made as an objection to the verdict form and charge after the charge was completed and before the jury commenced deliberations. (The court and counsel had an explicit understanding on the record, in accordance with Rules 49(a) and 51 of the Federal Rules of Civil Procedure, that no challenge to the verdict form or charge would be appropriate for later consideration unless made after the charge was given and before the jury commenced deliberating.)

Plaintiff objected to the court’s refusal of plaintiffs request that the court include in the verdict form a generalized question on damages that would have allowed the jury to find some dollar amount without identification of any legally authorized measure of damages they were applying in making that finding. The court continues to hold the view that this ruling was appropriate. Plaintiff had a full opportunity to identify any other measure of harm or damage that could plausibly be claimed. The court invited plaintiff to propose an additional question for inclusion in the verdict form if plaintiff could identify an authorized measure of harm or damage and call attention to evidence supporting its submission to the jury. Even now, except for the attorneys’ fees claim (rejected in Part III of this opinion), plaintiff has not identified any additional proposed measure of recoverable harm.

In summary, I hold that under the common law of contract generally, and the law of Massachusetts in particular, a plaintiff is not entitled to have a breach of contract claim submitted to a jury on a generalized allegation that some unspecified contractual obligation was violated and in some unspecified way caused some kind of harm or damage for which the jury may in its unfettered discretion make an award of a specific dollar amount. Legal recognition of a generalized claim of this kind would be in violation of the procedural provisions of Rule 49 of the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 49(a) (“If in so doing [submitting on questions only] the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury.”). Also, the effect would be to transfer, from authorized lawmakers to a jury, the authority to make fundamental public policy decisions (1) about whether contractual obligations enforceable in law arise out of the distinctive circumstances of a particular relationship between parties, and (2) about the characteristics of the relationship that determine the measure of damages and scope of liability when liability does exist.

No statute or precedent supports the adoption of a legal test that confers on a jury the authority to exercise this kind of policy choice that is fundamentally a lawmaking choice and is neither a finding of fact nor an evaluation of the kind ordinarily committed to juries.

Analogies point to the conclusion that when this kind of choice has not been made by constitutional or legislative mandate and must be made to determine the outcome of a case on a court’s docket, that court must decide the issue, subject of course to plenary review on appeal. An issue of this kind was before the Supreme Judicial Court of Massachusetts, in a case involving the scope of legal duties of a landowner to an uninvited person on the land. By a 4-3 majority, the Supreme Judicial Court declined to accept plaintiffs request that it “abolish the trespasser rule,” explaining:

Because there is no community consensus, the jury would first consider whether the ordinarily prudent landowner recognizes any responsibility at all to care for the safety of an adult trespasser. The