No. 92-139 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

ROBERTVAN RIPER, JEANVAN 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, TheHonorable ThomasM. McKittrick,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Keith Strong (argued)and CreightonMagid, 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 21, 1993 

# SZd'4 UPfiSia~: COURT STATEOF MONTANAJustice 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 FordNew 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 55 30-11-802 and

# - 803, MCA, to theVersatile Agreement? 2. Did the District Court err in concluding that Ford New Holland violated 55 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 JeanVan Riper (theVan Ripers)

### ,ownedand operated Vant 

### s Tractor, Inc. (Vant s Tractor)

### , in Havre, Montana. Van's Tractor soldnew andused tractors and other farmequipment. 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 thatVan's Tractor would not be its full-linedealer inHavre. Ford New Holland did not notify Van's Tractor of this decision. Inthe fall of 1987,FordNew Holland designatedVan's Tractor for attrition as a Versatile dealer. The designationmeant Van's Tractor could not transfer its FordNew Holland dealership and had

no future as a Ford New Holland dealer. Ford New Holland did not notifyVan's Tractor of this designation. From 1987 to 1988, the net worth of Van's Tractor declined. Intheyear endingApril 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 thenasked thatVan's Tractor resign its dealership because it had attempted to sell the franchise. Van's Tractor refused. InApril 1988,FordNewHollanddecided toterminatetheVan's Tractor dealership based on the refusal by Van's Tractor topay 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 responsibilityto fulfill the obligations ofVersatile 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 thatVan's Tractor pay the bill within ten days or be terminated as a dealer. Termination proceedings began onMay 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. Despitepayment, FordNew Hollanddidnot removeVan'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 inHavre. Van's Tractorwasunable to obtain anyparts until August 23, 1988. Van's Tractor resigned itsdealership 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 JeanVan Riper and all claims against FordMotor Credit. The court found in favor of Van's Tractor on its claimsagainst Ford NewHolland andawarded$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 IiL 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 retroactiveapplication 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 responsibilitiesof Versatilewith 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 VanlsTractor 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 assetsbut not the liabilitiesof theVersatileAgreement is itself sufficient evidence of a change in the duties and obligations under theVersatile Agreement to create a newagreement towhich therequirementsof

### 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 statuteapplies to contracts originally entered before the statutewas 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 creditingVans s Tractor for returnsof Noble parts for which Ford New Holland was, at the same time, attempting to collectpayment. As Robert Van Riper testified, during themonths of delay before Van's Tractor received payment fromVicon for the $11,000 in returned Noble parts, Van's Tractorwasplaced, 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 applicationexceeded the scope of periodic financial reporting allowed under the Versatile agreement. It was, in fact, akin to making a freshdecision whether to continue the contractual relationship between Ford New Holland and Van's Tractor. (FordNew Holland, however, never approved the new dealership application.) We conclude that the 1987 sale of assetsby Versatile to Ford New Holland and others significantly altered the dealership relationship and contract, Wehold thatthe District Court did not

err in applying SS 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 35 30-11-802 and -803, MCA? The District Court concluded that actions taken by Ford New Holland violated 55 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 theVersatile 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'sTractor without good cause and in violation of 5 30-11-802, MCA, in seven separateways: 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 theVersatile dealership to a qualified buyer; requesting the resignation of Van's Tractor and threatening terminationof the franchiseon theerroneous 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 storewithout notice; and continuing adverse credit terms against Van's Tractor (requiringthat all purchases be C.O.D.). The court also concluded that ''the conduct of Ford New Holland indirectly terminated Van's Tractor, Inc. as a Ford New Holland dealer without good cause." The record supports the conclusionsof the District Court as to the violations by Ford New Holland of 5 30-11-802, MCA. Section 30-11-803, MCA, provides in releventpart:

(1) Except as provided in subsections (2) and (3), a grantor shall provide a dealer at least 90 days' prior written notice by certified mail of termination, cancellation, nonrenewal, or substantial change incompetitivecircumstances. Thenoticemust stateall the reasons for termination, cancellation, nonrenewal, or substantialchange in competitivecircumstancesandmust provide that the dealer has 60days from receipt of the notice in which to rectify any claimed deficiency. If thedeficiency is rectified within 60days, thenotice 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 writtennoticeby certifiedmail. Ifthedealerdoesnot 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 terminatingVanTractor's franchise withoutnotice, failing tonotifyVan's Tractorof itsoriginal attritionplan, and leaving Van's Tractor on "stop shipv'status after Van's Tractor paid the disputedparts account. The record supports these conclusions. We hold that theDistrict Courtdid not err inconcluding that Ford New Holland violated §§ 30-11-802 and -803, MCA.

I11 Did FordNewHolland breach the implied covenantof good faith and fair dealing? Theparties 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 findingthat the statutory violations occurred, weneednot address whetherFordNewHolland alsobreached the implied covenantof good faith and fair dealing. 

### IVDid 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 futurebecause the evidence supporting that awardwas 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 assertsthat thedamagesawarded for tenyears into the futurewere 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 profitswith apresent value of $698,040. FordNewHolland's ownexpertprojected lostprofitwith

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 Tractorwas not entitled to attorney fees under contract or statute, isnegatedby ourholdings under IssuesI and 11. Section30-11-811, MCA, provides that reasonable attorney fees may be awarded forviolation of 55 30-11-801 through -811, MCA. Ford New Holland also argues that the District Court miscalculated attorney fees. Itpoints out that the claims of the individual plaintiffs, Robert and Jean Van Riper, and several theories of recoverywere abandoned prior to trial and states that theattorney feesawarded exceed thosecalled for inthe 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 questionof interpretation of statutes whichhad notbeen previously construed. It acknowledged that the case involved a series of complicated factual issues. It noted the substantial commitmentof timemade by the lawyers forVan'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 ofbusiness 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 recoveryobtained,or forty percent of recovery in the event of any appeal, and that, under that agreement, counsel risked thepossibility of no recovery. The court also stated its intent todo

as little harm as possible to the completeness of the damages awarded toVan's Tractor as a result of the attorney fees it must pay its counsel. We conclude that theDistrict Court acted properly inapplying the statute allowing an award of attorney feesand 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. Affinned.

We Concur:

Chief Justice Justice 

# /7

JusticesJustice Fred J. Weber dissents as follows:

I dissent from the majority opinion which awards damages, costsand feesagainst FordNewHolland forviolations of 55 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

(hereinVersatile) andVan's Tractor, Inc. (hereinVan's Tractor). The non-exclusive right to sell products of Versatile granted to Van's Tractor is contained in the followingparagraph: 1.1 The Company hereby grants to the Dealer the non-exclusive right to sell the products of the Company as hereinafter defined. 

# . . .All transactionsbetween the Company and the Dealer shall be governed by this Agreementunlesstheparties specificallyagree 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 DealerAgreement. 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 

### timetogether with all attachments and accessories thereto 

# .

. .Each successiveMachinery 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 determinedbyVersatile fromtime to time as it issued current price lists. Under the agreement Versatile was given the right to eliminate any portion of its equipment lineswithout the right to object on thepart of Van's Tractor. As a result Versatilehad the power to eliminate the Noble line of equipment if it chose. Such elimination is a factor relied upon in themajority opinionwithout

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 salesor deliveries upon such terms. Versatile was given the right to refuse to sell products to Van's Tractorwhen in its opinionthe condition of the current account or financial standing of Van's Tractor did not warrant further sales. In addition the Dealer Agreement contains extensive terminationprovisions inpart 21,which inpertinent partprovide: 21.1 This Agreement shall continue in effect until terminated as hereinafterprovided. This Agreement maybe terminated immediately,at the Company's [Versatile] option, by giving notice by hand, verified telex or telecopierorby registeredmail, postage prepaid to the last known address of the Dealer [Van's Tractor] at any timeafter theoccurrenceof any of the followingevents:



# .

# . . (d) default of any indebtedness of the Dealer to the Company

# . .

# .

... (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 inthe Dealer Agreementwere transferredby Versatile to Ford New Holland under the Assignment and Assumption Agreement dated July 10, 1987 (hereincalled ~ssignment), which in pertinent part provided: 2. Assianment. 

### (a) VFEC [Versatile] hereby irrevocably assigns, transfers,sellsand conveystoNH [FordNew Holland] all of VFEC's right, title and interest in and to the U.S. Dealer Agreements [specifically includingtheVersatileVan's Tractor Agreement] to the extent the same relates to the Business [allbusiness carried onby 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 clarityand 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 theirrespectivetermsto the extent that the same shall arise or accrueat any timeafter the date hereof and relate to periods commencing after the date hereof.The ~ssignment irrevocably transferred fromVersatile to Ford New Holland all of Versatile's right, title and interest in the Dealer Agreement withVan's Tractor as it related toVersatile 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 theAssignment. It is critical to note that there are no terms of the Dealer Agreement or of the ~ssignment, or of any other instrument 

### in writing which requires 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 the 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 59 30-11-802 and 803, MCA, is a prohibited retroactive applicationbecause the statuteswere 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,failtorenew, or substantiallychange the competitive circumstances of a dealership agreementwithout good cause. The burden of proving good cause is on the grantor. 30-11-803. Notice of 

### termination or change 

### in dealership. (1)

# .. .agrantor shall provide adealer at least 90days1prior written notice by certifiedmail 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 ofthe 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 thatunder 

### S 803,notice of termination 

### or change in dealership is required, and if a deficiency specified in a notice 

### is corrected inaccordancewith the statute,thenthenotice 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 Iof the majority opinion, the statement ismade that the Assignment was more than just a product change as Ford New Hollandwould have usbelieve. Themajority refers to the District Court finding and then states: "This refers to FordNew 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'sTractor Agreement,to the extent that the contract related to the business carried on by Versatile in thedistributionand sale of equipment "butexcludinq 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 thatVersatile transferred all of its interest in the Dealer Agreements regarding the Noble plow line to a different entity. Again, 

### I find that such divisionbyVersatile of its interest in the Versatile-Van's Tractor Agreement so that it transferred one portion to Ford New Holland and the other portionto 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,themajority relies on Kealey Pharmacy & Home Care Serv. v. Walareen Co., a decision of a federalcourt inthewestern district ofWisconsin, which concluded that anon-retroactive statute applies to contracts whichhavebeen significantly altered after the effective date of the statute. That isvery limitedcase authority for theguidance of thisCourt. As previously pointed out, the record contains nothing which demonstrates that Van's Tractor was required to execute an agreement of any kindas a result of the Assignmentby Versatile to FordNew Holland. Apparently themajority concludesthat something in the nature of a #'newcontractff was executed between Ford New Holland and Van's Tractor so that subsequently enacted statutes apply. No Ifnewcontractff of any typewas executed between FordNew Holland and Van's Tractor. The record contains nothing which establishes something in the nature of a ''new contract." 

### As 

### a result Ido 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 returnedNoble parts, that is an issue which required determination under the existing contract. There isnothing in that transactionwhich requires a conclusion that a Ifnew contractg1 was executed, T can find no legal basis upon which to conclude that 59 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 ~istrictCourt 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 irrevocableprivileges. No expost facto lawnor 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 interpretationhas impaired the obligation of contracts under theAssignment and the DealerAgreement. Iwould reverse on Issue 11. In Issue I11 the majority opinion concludes that 

### it is not necessary to determine if Ford New Holland breached the impliedcovenant of good faith and fair dealing. I would conclude that this is the only issue which should be considered on retrial. Iwould reverse and remand for new trial on the issue of the breach of the implied covenant of good faith and fair deal'

we Chief Justice J.A. Turnage and JusticeKarla M. Gray concur in the foregoing dissent.