Motorsports Racing Plus, Inc., Appellant, vs. Arctic Cat Sales, Inc., Respondent, Polaris Sales, Inc., Respondent, Bombardier Motor Corporation of America, a Delaware corporation, Respondent, Yamaha Motor Corporation, a California corporation, Respondent, International Snowmobile Racing, a Wisconsin corporation, Respondent, International Snowmobile Manufacturers Association, a Michigan corporation, Respondent, XYZ Corporation, ABC Partnership, are unknown to Plaintiff.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-530

 

Motorsports Racing Plus, Inc.,

Appellant,

 

vs.

 

Arctic Cat Sales, Inc.,

Respondent,

 

Polaris Sales, Inc.,

Respondent,

 

Bombardier Motor Corporation of America,

a Delaware corporation,

Respondent,

 

Yamaha Motor Corporation,

a California corporation,

Respondent,

 

International Snowmobile Racing,

a Wisconsin corporation,

Respondent,

 

International Snowmobile Manufacturers Association,

a Michigan corporation,

Respondent,

 

XYZ Corporation, ABC Partnership,

are unknown to Plaintiff.

 

Filed October 21, 2003

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. MC00008950

 

Wood R. Foster, Jr., Jordan M. Lewis, Steven J. Weintraut, Vickie L. Loher, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300 Washington Square, 100 Washington Avenue South, Minneapolis, MN 55401 (for appellant)

 

Annamarie A. Daley, Gary L. Wilson, Christopher A. Seidl, Robins, Kaplan, Miller & Ciresi, L.L.P., 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402-2015 (for respondent Arctic Cat Sales, Inc.)

 

George W. Soule, Bowman & Brooke, L.L.P., 150 South Fifth Street, Suite 2600, Minneapolis, MN 55402 (for respondent Polaris Sales, Inc.)

 

Robert A. Schwartzbauer, Paul J. Robbennolt, Scott M. Stearns, Dorsey & Whitney, L.L.P., 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402 (for respondent Bombardier Motor Corporation of America)

 

James L. Volling, Jason K. Walbourn, Jessica R.F. Grassley, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for respondent Yamaha Motor Corporation)

 

Stephen C. Rathke, Kay N. Hunt, Stacy A. DeKalb, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent International Snowmobile Manufacturers Association)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant brought antitrust and civil claims against respondents.  The district court granted respondents' motion for summary judgment on all claims.  Because we see no genuine issue of material fact and no erroneous application of the law, we affirm.

 

FACTS  

            Appellant Motorsports Racing Plus, Inc., (MRP), a Minnesota corporation in the business of promoting snowmobile events, was purchased by Jerome Dillon in 1989.  In 1996, Dillon hired Joe Duncan and Scott O'Malley, who successfully negotiated for television coverage of snowmobile events.  Respondents, the International Snowmobile Manufacturers Association (ISMA), a Michigan corporation, and its members, snowmobile manufacturers Arctic Cat Sales, Inc., Polaris Sales, Inc., Bombardier, Inc., and Yamaha Motor Corporation, participated in MRP events and benefited from the television coverage because it provided worldwide exposure for their products.

            Dillon's relationship with Duncan and O'Malley deteriorated to the point where, after attempting to buy MRP in 1997 and 1998, they left it and formed the World Snowmobile Association (WSA), which then competed with MRP.  WSA obtained television coverage for the 1999 events.  MRP tried to compete with WSA but was unsuccessful because respondents chose to participate in WSA events.  MRP ultimately sold its assets to WSA and left the snowmobile racing business.

            MRP brought this action against respondents in June 2000, alleging both antitrust and civil law claims.  Respondents moved for summary judgment on two grounds: first, that MRP had sold WSA its right to bring an action and so lacked standing; second, that MRP had not established elements of the antitrust and civil law claims.  The district court granted summary judgment, concluding that MRP had standing but that its antitrust and civil law claims failed.[1]

            MRP appealed.  Our decision in Motorsports Racing Plus, Inc., v. Arctic Cat Sales, Inc., 653 N.W.2d 204 (Minn. App. 2002), reversed the district court determination that MRP had standing and did not address the other issues.  MRP then petitioned for review.  In Motorsports Racing Plus, Inc., v. Arctic Cat Sales, Inc., ­­666 N.W.2d 320 (Minn.  2003), the supreme court held that MRP did have standing, reversed this court's opinion, and remanded for this court to address the other issues.[2]

D E C I S I O N

 

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 

1.            Antitrust Injury

            Whether a party has standing to sue under antitrust laws is a question of law.  Midwest Communications, Inc. v. Minn. Twins, Inc. 779 F.2d 444, 449 (8th Cir. 1985).  A plaintiff who cannot show an antitrust injury does not have a claim under the antitrust laws.  Id.

To succeed on an antitrust claim, a plaintiff must prove there has been antitrust injury.  Antitrust injury is defined as injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendant's acts unlawful.  The injury to the private plaintiff must coincide with the public harm, increasing the likelihood that public and private enforcement of the antitrust laws will further the same goal of increased competition. 

 

Minnesota Ass'n of Nurse Anesthetists v. Unity Hosp., 5 F. Supp. 2d 694, 702 (D. Minn. 1998) (quotations and citations omitted), aff'd 208 F.3d 655 (8th Cir. 2000).  "A showing of antitrust injury requires proof that the possibility for the alleged harm to competition actually existed and that competition was diminished by the defendants' actions."  St. Louis Convention & Visitors Comm'n v. Nat'l Football League, 154 F.3d 851, 864 (8th Cir. 1998).   MRP has not shown the antitrust injury necessary to bring an antitrust claim.

            Dillon, MRP's principal, testified that he had no competition when he began MRP and little, if any, competition until Duncan and O'Malley left MRP and formed WSA.  MRP did not welcome competition from WSA:  Dillon testified that he thought it wrong, or "counterproductive to what's best for the industry," for WSA to schedule events on the same weekends and in the same vicinity as MRP events.  Once respondents had WSA as an alternative to MRP, they chose WSA because it gave them increased control over snowmobile racing rules and television coverage.  But MRP cannot show that respondents diminished competition by choosing WSA. 

            Moreover, MRP has not shown that it suffered an actual injury.  Dillon sold MRP to WSA for $128,000; he claims MRP was then worth between $250,000 and $500,000.[3]   But this $250,000 - $500,000 valuation is supported solely by the affidavit of a CPA retained by MRP's attorneys in December 2001, during the lawsuit.  The CPA claimed that respondents "effectively removed the willing seller concept from the negotiations resulting in a forced sale transaction by [Dillon]."  MRP argues that the mere existence of the CPA's affidavit creates a genuine issue of material fact, but "[a] party resisting summary judgment must do more than rest on mere averments."  DHL Inc., 566 N.W.2d 60, 71 (Minn. 1977).  The CPA's only authority for his claim is MRP's descriptions of respondents' actions, which the CPA says he accepted as true. The CPA also said that he had not completed his analysis and report when he assigned the value to MRP.  Thus, his affidavit, lacking support for its conclusions, is a "mere averment."

            The CPA's 2001 estimate of MRP's 1998 value is contradicted by MRP's tax returns, which show that its income after deductions was $7,809 in 1993, $5,868 in 1994, $23,212 in 1995, $5,600 in 1996 (when its assets were listed as $33,938), and $29,017 in 1997.  Dillon also testified that, in 1997, he himself set MRP's sale price at $120,000, that he consulted no one as to MRP's fair market value, and that he offered MRP only to WSA.  After negotiating the $128,000 sale, Dillon's attorney wrote Dillon, "I have to say that I think we got a great deal."  

            Whether MRP was sold for less than its value is unclear, but a decrease in MRP's value, if any, was surely affected by the fact that it no longer had a monopoly.  The purpose of the antitrust laws is not to protect monopolies.  "Antitrust injury is defined as injury of the type the antitrust laws were intended to prevent . . ."  Nurse Anesthetists, 5 F. Supp. 2d at 702.  Moreover, respondents' choice to become MRP's competitor was not unlawful.  Antitrust injury "flows from that which makes defendant's acts unlawful."  Id. MRP cannot allege antitrust injury against respondents.  Respondents were entitled to summary judgment on MRP's antitrust claim.

2.         Civil Law Claims

            MRP brought claims of tortious interference with contractual relations and with prospective business advantage and a claim of civil conspiracy.  MRP failed to provide the necessary supporting evidence for these claims.  "[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which . . . is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions."  DHL, Inc., 566 N.W.2d at 71.  

             A claim for tortious interference with contractual relations requires proof of  (1) the existence of a contract; (2) the defendant's knowledge of the contract; (3) the defendant's intentional procurement of a breach of that contract; (4) lack of justification for that breach, and (5) damages resulting from the breach.  Furlev Sales & Assocs. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982).  MRP alleged in its complaint that respondents interfered with MRP's contracts with ESPN, MSC, event holders, merchandise distributors, advertisers, and sponsors.  But Dillon testified that, when MRP was sold, it had no contracts with ESPN, MSC, merchandise distributors, advertisers, or sponsors.  Therefore, respondents could neither have known about MRP's contracts nor procured their breach.

            MRP also alleges that respondents interfered with its contracts with Duncan and O'Malley.  But any contract MRP had with Duncan and O'Malley was for the 1997-1998 racing season.  MRP produced no evidence showing that respondents approached Duncan and O'Malley prior to the end of that season.  See United Wild Rice, Inc., v. Nelson, 313 N.W.2d 628, 632 (Minn. 1982) (action for tortious interference does not lie when plaintiff cannot show that defendant had approached employees who left plaintiff's employment).  If Duncan and O'Malley had approached respondents while they were still under contractual obligation to MRP, MRP might have an action against them, but not against respondents.

            Tortious interference with prospective business relations requires a showing that respondents "intentionally committed a wrongful act which improperly interfered with the prospective relationship."  Glass Serv. Co. v. State Farm Ins. Co., 530 N.W.2d 867, 871 (Minn. App. 1995), review denied (Minn. 29 June 1995).  The district court found that MRP "showed no specific prospective business deals that fell through because of [respondents'] alleged conduct."  MRP claims it lost everything because of respondents' acts.  The claim fails for two reasons: first, MRP did not lose everything but received $128,000; second, MRP attributes its loss to respondents' choice to do business with WSA instead of MRP, which was not an intentional wrongful act. 

Finally, MPR claims that respondents conspired with Duncan and O'Malley.  But liability for conspiracy requires an underlying tort.  See D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App. 1997) ("conspiracy count fails because it is not supported by an underlying tort").  MRP produced no evidence of an underlying tort.

Respondents were entitled to summary judgment on MRP's civil claims.

Affirmed.  

[1] Respondent ISMA moved separately for summary judgment, arguing that MRP had no basis for any claim against it because respondents' alleged activities had all taken place prior to ISMA's involvement.  The district court did not address ISMA's issue because it was rendered moot by the summary judgment granted to all respondents.  ISMA reiterated its argument on the original appeal and on this appeal.  Our decision again renders ISMA's issue moot, and we do not address it. 

[2] Respondents petitioned for certiorari review of these issues if the supreme court reversed this court on the standing issue; their petition was denied.  Motorsports Racing Plus, Inc., v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 327 (Minn. 2003).

[3] Dillon had purchased MRP for $5,000 ten years earlier.