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Peterson v. BASF Corp.3/11/2003
led to JNOV as to the jury determination that it violated the New Jersey Consumer Fraud Act?
II. Is BASF entitled to JNOV as to damages awarded for 1992 and 1995 to 1996?
III. Is BASF entitled to a new trial based on errors in jury instructions and improper admission of evidence?
IV. Did the district court improperly certify the class?
V. Were the damages readily ascertainable such that prejudgment interest should be awarded as of the date of their accrual and should prejudgment interest be awarded on the trebled damages?
ANALYSIS
I.
BASF first contends that it is entitled to JNOV because as a matter of law it did not violate the New Jersey Consumer Fraud Act (NJCFA), N.J. Stat. Ann. §á56:8-2 (West 2001). In addressing this claim, we are guided by the standard of review for an order denying JNOV as well as the law-of-the-case doctrine. First, an appellate court will review the evidence in the light most favorable to the verdict. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). If the verdict "can be sustained on any reasonable theory of the evidence" the denial of JNOV will be affirmed; it will be set aside only if "the evidence is practically conclusive against" it. Id. (citation and quotation omitted). The appellate court "may not weigh the evidence or judge the credibility of the witnesses." Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983) (citation omitted). The grant or denial of a motion for JNOV is a question of law reviewable de novo. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979).
The second consideration addresses the fact that this court has already resolved certain issues in an earlier appeal from summary judgment. Peterson v. BASF Corp., 618 N.W.2d 821 (Minn. App. 2000) (Peterson I), review denied (Minn. Jan. 26, 2001). In such an instance, those issues become "the 'law of the case' and may not be relitigated in the trial court or re-examined in a second appeal." Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 503 N.W.2d 793, 795 (Minn. App. 1993) (citations omitted), review denied (Minn. Sept. 30, 1993). Issues not resolved in the first appeal may, of course, be considered in the second appeal. Id.
Finally, we note that we have considered arguments by amici. We note that an amicus may not raise an issue not addressed by the parties. Country Joe, Inc. v. City of Eagan, 560 N.W.2d 681, 687 n.7 (Minn. 1997). To the extent amici do so, we do not consider those arguments.
The NJCFA is aimed "at unlawful sales and advertising practices designed to induce consumers to purchase merchandise or real estate ." Daaleman v. Elizabethtown Gas Co., 390 A.2d 566, 568 (N.J. 1978) (quoted in Peterson I, 618 N.W.2d at 823). It was intended to "give New Jersey one of the strongest consumer protection laws in the nation." Cox v. Sears Roebuck & Co., 647 A.2d 454, 460 (N.J. 1994) (quotation omitted). The law provides for a private cause of action and authorizes treble damages, attorney fees, and costs. N.J. Stat. Ann. § 56:8-19 (West 2001). It is to be construed liberally in favor of the consumer. Cox, 647 A.2d at 461.
"The capacity to mislead is the prime ingredient of all types of consumer fraud." Id. at 462 (citation omitted). To show a violation of the act, there must be evidence that the person committed an unlawful practice within the meaning of the act. Id. There are three general categories of unlawful practices under the act, two of which are relevant here: affirmative acts and knowing omissions. See id. (describing the three categories as affirmative acts, knowing omissions, and regulation violations). Such practices may be unlawful "e
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