Marquez v. Mercedes-Benz USA, LLC

2012 WI 57, 815 N.W.2d 314, 341 Wis. 2d 119, 2012 WL 2016549, 2012 Wisc. LEXIS 351

• Court: Wisconsin Supreme Court
• Decided: May 24, 2012
• Docket: No. 2010AP826
• Status: Published

Opinions

¶ 1. SHIRLEY S. ABRAHAMSQN, C.J.

Marco A. Marquez, the consumer, brought this action against Mercedes-Benz USA, LLC, alleging that his new car was a "lemon," as defined in Wis. Stat. § 218.0171(2) (2005-06);¹ that he requested a refund and provided Mercedes-Benz with the required notice and information; and that Mercedes-Benz failed to provide a refund within the 30-day statutory period as required by Wis. Stat. § 218.0171(2)(c).

¶ 2. The Lemon Law provides that "[i]f a new motor vehicle does not conform to an applicable express warranty"² and the nonconformity is not cured after a "reasonable attempt to repair," then the consumer may return the vehicle to the manufacturer and elect to receive either a comparable replacement vehicle or a refund.³

¶ 3. A manufacturer violates the Lemon Law if it fails to voluntarily provide a refund or replacement vehicle within 30 days after receipt of the consumer's demand.⁴ The penalties a manufacturer incurs for failure to provide a refund to the consumer within the 30-day statutory period are costly. They include "twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate."⁵ The order for judgment in the present case awarded the consumer $117,285.06, (twice his pecuniary loss), $5,833.41 (prejudgment interest), $45,423.68 (statutory interest), $10,216.72 (statutory costs), $2,105.79 (litigation costs), and $301,707.00 (attorney fees).

¶ 4. In the present case, no one disputes that the vehicle at issue is a lemon under the Lemon Law. No one disputes that the consumer gave Mercedes-Benz proper notice and information to start the 30-day statutory period during which Mercedes-Benz was required to provide a refund.⁶ No one disputes that Mercedes-Benz did not provide the required refund within the 30-day statutory period. The basic issue presented is whether Mercedes-Benz has a valid defense to its failure to issue a refund within the 30-day statutory period.

¶ 5. The specific issues presented are as follows:

¶ 6. I. To avoid paying the remedies provided by Wis. Stat. § 218.0171(7) for not issuing a refund within the 30-day statutory period, must a manufacturer prove that the consumer intentionally prevented it from providing a refund within the 30-day statutory period,⁷ or may the manufacturer prove that the consumer's conduct was merely unreasonable?

¶ 7. II. Does the ordinary burden of proof or the middle burden of proof apply to a manufacturer's affirmative defense that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period in a Lemon Law action?⁸

¶ 8. III. Did the circuit court err in directing a verdict in the consumer's favor?

¶ 9. IV Is Mercedes-Benz entitled to a new trial because the circuit court did not grant it an adjournment on the morning of trial to conduct additional discovery relating to the paralegal's testimony or because it was not allowed to call the consumer's counsel as a witness at trial?

¶ 10. For the reasons set forth, we decide the issues as follows:

I. If a manufacturer raises the affirmative defense that the consumer prevented it from providing a refund within the 30-day statutory period under the Lemon Law, it must prove that the consumer did so intentionally.

II. The manufacturer must meet the middle burden of proof in its affirmative defense that a consumer intentionally prevented it from providing a refund within the 30-day statutory period under the Lemon Law.

III. No credible evidence supports the jury's verdict. The circuit court was not clearly wrong in directing the verdict in favor of the consumer.

IV The circuit court did not erroneously exercise its discretion in denying Mercedes-Benz's request for an adjournment on the morning of trial to conduct additional discovery relating to the paralegal's testimony or in denying Mercedes-Benz's request to call the consumer's attorney as a witness at trial.

¶ 11. Thus, we affirm the judgment and order of the circuit court.

¶ 12. We begin with a brief procedural history of the case. We shall then discuss each issue in turn, setting forth the standard of review and the applicable facts relating to that issue. Because the facts and evidence relate predominantly to the last two issues, most of the facts are set forth in our discussion of these latter two issues.

¶ 13. This case originated in the Circuit Court for Waukesha County, Paul F. Reilly, Judge. The circuit court granted summary judgment in favor of the consumer. Mercedes-Benz appealed, alleging that the consumer intentionally thwarted its attempt to provide a refund within the 30-day statutory period by failing to provide necessary information. The court of appeals reversed the summary judgment in favor of the consumer and remanded the matter to the circuit court. It held that a consumer who intentionally thwarts a manufacturer's efforts to provide a refund within the 30-day statutory period cannot recover the Lemon Law's statutory remedies provided in Wis. Stat. § 218.0171(7). The court of appeals further concluded that genuine issues of material fact existed regarding whether the consumer intentionally thwarted Mercedes-Benz's attempt to provide a refund within the 30-day statutory period by failing to provide necessary information. Marquez v. Mercedes-Benz USA, LLC (Marquez I), 2008 WI App 70, ¶ 3, 312 Wis. 2d 210, 751 N.W.2d 859.

¶ 14. On remand in the Circuit Court for Waukesha County, Michael A. Bohren, Judge, the jury found in favor of Mercedes-Benz after a three-day trial. The circuit court entered a directed verdict in favor of the consumer, finding no credible evidence that the consumer intentionally thwarted Mercedes-Benz's efforts to provide a refund. Mercedes-Benz appealed, and the court of appeals certified the appeal to this court.

I

¶ 15. The first issue is whether a manufacturer who raises the affirmative defense that the consumer prevented it from providing a refund within the 30-day statutory period must prove that the consumer did so intentionally. Determining the elements of a defense, here the mens rea, is a question of law that this court decides independently of the court of appeals and circuit court but benefiting from their analyses.⁹

¶ 16. The text of the Wisconsin Lemon Law does not refer to either party's obligation to act in good faith or to refrain from acting in bad faith, and does not refer to the consumer's preventing the manufacturer from providing a refund within the 30-day statutory period.

¶ 17. The court of appeals, however, has introduced the concept of good faith into the Lemon Law, noting that "good faith is implicit in the Lemon Law" and "[i]t should go without saying that the legislature contemplated that all the parties covered by the Lemon Law should act in good faith." Herzberg v. Ford Motor Co., 2001 WI App 65, ¶ 18, 242 Wis. 2d 316, 626 N.W.2d 67.¹⁰

¶ 18. In Herzberg, the manufacturer attempted to require the consumer to sign forms relating to the condition of the vehicle that was being returned. These forms are not required by the Lemon Law. The consumer refused to sign the forms, thereby rejecting the manufacturer's conditional refund offer. The court of appeals held that "the obligations of the consumer who has purchased a 'lemon' are limited to those set out in the Lemon Law,"¹¹ and that the court "cannot logically rule that the [consumer] engaged in bad faith by rejecting the offer" that asked more of the consumer than the Lemon Law requires.¹²

¶ 19. In Marquez I, the court of appeals discussed "good faith," "bad faith," and a consumer "intentionally thwarting" a manufacturer's attempt to make a refund. The court of appeals stressed that it was not invoking the "amorphous and far-reaching" contractual doctrine of good faith and fair dealing. "Good faith" under the Lemon Law is not grounded in common-law contract doctrines; "good faith" is inherent in the statute.¹³ The court of appeals held "that a consumer fails to act in good faith when he or she intentionally prevents the manufacturer from complying with the statute."¹⁴ Compliance with the statute requires the manufacturer to make the refund within the 30-day statutory period. The court of appeals declared that if the consumer "intentionally thwarted [the manufacturer's] attempt to make a refund by failing to provide necessary information .. . [T]he consumer is not entitled to the Lemon Law's statutory remedies."¹⁵

¶ 20. In addition, the court of appeals used the following language, all of which establishes that it was not creating a negligence-based defense for manufacturers: the consumer "intentionally prevented," the consumer "intentionally thwarted," the consumer "intentionally withheld," the consumer's "deliberate obstruction," and the consumer's "deliberate refusal."¹⁶ Under Marquez I, it is not sufficient for a manufacturer to prove that a consumer's careless, unreasonable, or unjustifiable conduct caused the manufacturer to violate the Lemon Law. Rather, the manufacturer must prove that the consumer intentionally prevented it from making a refund within the 30-day statutory period.

¶ 21. Mercedes-Benz asks this court to reexamine the holding of Marquez I.¹⁷ Mercedes-Benz argues that the 30-day statutory period for providing the consumer with a refund should be tolled from the point at which the consumer unjustifiably and unreasonably fails to provide the manufacturer with the needed information, causing the manufacturer to be unable to make the refund until such time as the information is provided.¹⁸ Furthermore, Mercedes-Benz seeks a negligence-type standard of unreasonable or unjustifiable conduct on the part of the consumer rather than the higher standard of intentional conduct.

¶ 22. The consumer, on the other hand, argues that the manufacturer's affirmative defense should be limited to a consumer's intentional conduct preventing the manufacturer from making a refund within the 30-day statutory period. According to the consumer, if a consumer's negligence were sufficient to bar recovery, manufacturers could "dupe" consumers by making onerous requests for information in the hope that the consumer would fail to return a phone call or provide the wrong information. Then, the consumer asserts, the manufacturer could deter the consumer from filing suit with a credible threat that a jury would believe that the consumer's negligence prevented the manufacturer from providing a refund within the 30-day statutory period.

¶ 23. We must determine whether the affirmative defense of a consumer's negligent conduct (as the manufacturer urges) or whether the affirmative defense of a consumer's intentional conduct (as the consumer urges) better achieves the purposes of the Lemon Law." 'Wisconsin's Lemon Law is obviously remedial in nature. As such, we should construe the statute with a view towards the social problem which the legislature was addressing when enacting the law.'"¹⁹

¶ 24. Lemon laws began to appear in the early 1980s, and by 1993 all 50 states had adopted a lemon law.²⁰ Wisconsin's Lemon Law took effect in 1983.

¶ 25. For most purchasers, not only is the vehicle a monumental purchase, but for many it is also a practical necessity. Before the adoption of lemon laws, existing remedies under state and federal law were inadequate to protect people who purchased lemons. Consumers of vehicles are particularly vulnerable if their purchase does not comport with the warranty. They understandably would balk at litigating warranty claims against an experienced and financially powerful manufacturer or dealership and at incurring the costs of any such litigation.²¹ Frequently the consumer's only realistic option was repeated trips to the dealership for repairs.

¶ 26. Legislatures intended the lemon laws to ensure that purchasers stuck with lemons could promptly be put in approximately the same position they were in before purchasing the lemon and that they could reach this position without the hassle, expense, and risk of litigation. "Wisconsin's lemon law was created to be a self-enforcing consumer law that provides 'important rights to motor vehicle owners.'"²² As the court of appeals explained in its certification memorandum, the Lemon Law "was intended to encourage consumers to act as private attorneys general in pursuing claims and to provide attorneys with incentives to represent those consumers."

¶ 27. This court described the underlying purpose of lemon laws as protecting purchasers of defective vehicles who, without the protection of a statute, would have no recourse other than to bring their cars in repeatedly for repair:

For the average person, the purchase of an automobile was one of the most important of all consumer purchases in terms of significance and price. However, for thousands of purchasers each year, this highly significant purchase became a virtual nightmare when the automobile refused to function properly, and the seller was unable, or unwilling to take action to remedy the situation.

Prior to the enactment of lemon laws, the only kinds of remedial relief available to consumers were the statutory remedies of revocation of acceptance and breach of warranty under the Uniform Commercial Code. Federal remedies also existed through the Magnuson-Moss Warranty Act. These state and federal remedies, however, did not adequately protect the interests of consumers in a typical lemon vehicle claim. Purchasers of defective cars had no recourse other than to repeatedly bring their cars in for repairs.²³

¶ 28. Wisconsin's Lemon Law has been praised as particularly attuned to the difficulty of adequately protecting vehicle purchasers.²⁴ Even among lemon laws, all of which are geared toward consumer protection, Wisconsin's Lemon Law is particularly pro-consumer in a number of ways. At the time of its creation, no other lemon law allowed for double damages.²⁵ The Wisconsin Lemon Law also favors consumers by allowing victorious consumers to recover attorneys' fees and costs. Additionally, while some states' lemon laws expressly include affirmative defenses²⁶ or sanctions against consumers who bring claims in bad faith,²⁷ the Wisconsin Lemon Law includes neither.

¶ 29. The principle motivation for the exacting remedies in the Wisconsin Lemon Law, the court has explained, is not to punish the manufacturer because a lemon escaped from the plant.²⁸ Rather, the principle motivation for the remedies is "to provide an incentive to th[e] manufacturer to promptly return those unfortunate consumers back to where they thought they were when they first purchased that new automobile."²⁹

¶ 30. The exacting statutory remedies demonstrate that the Wisconsin legislature has expressed a strong preference for the interests of a consumer who purchased a lemon over the interests of the manufacturer who produced the lemon. The Wisconsin legislature intended to provide a compelling incentive for manufacturers to cooperate with the demands of the purchasers.

¶ 31. When a consumer establishes that he or she is stuck with a lemon and provides notice and an offer of title to the manufacturer, the legislature intends the consumer to receive a refund or replacement promptly, without resorting to litigation. The Wisconsin Lemon Law squarely places the burden on the manufacturer to provide a refund within the 30-day statutory period. By imposing this burden on the manufacturer, by imposing a strict 30-day time limit, and by providing exacting statutory remedies for a violation, the legislature intended to encourage cooperation from manufacturers and to make the prospect of litigation unattractive to manufacturers.

¶ 32. No affirmative defenses for manufacturers are explicitly stated in the Lemon Law. Any affirmative defenses or potential "excuses" for a manufacturer make a consumer's recovery more uncertain and make litigation more likely and more time-consuming. Manufacturers are better equipped to manage uncertainty, delay, and expense surrounding Lemon Law claims and may even prefer uncertainty and delay. A timely remedy for the consumer is a critical component of the Lemon Law. Therefore, any affirmative defenses or "excuses" for a manufacturer should be narrow, in keeping with the statutory purposes of aiding the purchaser. If affirmative defenses or excuses proliferate or are easy to establish, the purpose of the Lemon Law will be undermined.³⁰

¶ 33. We thus reject Mercedes-Benz's invitation to broaden the manufacturer's affirmative defense to encompass a consumer's unintentional conduct. Accordingly, we conclude that a manufacturer may avoid Lemon Law penalties for failing to provide a refund within the 30-day statutory period if it proves that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period. Marquez I used the phrases "good faith" and "bad faith." It limited its definition of good faith to not intentionally preventing the manufacturer from complying with the 30-day statutory period or not intentionally thwarting its efforts to do so. Accordingly, we need not use the phrases "good faith" or "bad faith." We can avoid any confusion about the meaning of the phrases "good faith" and "bad faith" that may come from the use of these phrases in other contexts. In keeping with Marquez I and the jury instructions, we need address only whether the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period.

¶ 34. Our holding gives manufacturers an incentive to gather the information needed to provide refunds within the 30-day statutory period, but it does not unfairly place manufacturers at the mercy of consumers. We recognize that situations might arise in which a consumer does not intentionally prevent a manufacturer from complying with the 30-day statutory period but in which it is nevertheless impossible for a manufacturer to gather the necessary information to make a refund. For example, a consumer provides adequate notice to the manufacturer, thereby starting the 30-day period, but then falls into a coma or gets lost in the wilderness and the manufacturer, without needed information from the consumer, cannot comply with the statutory refund requirements within 30 days. In such unlikely scenarios, a manufacturer might very well have to take creative steps to protect against the exacting penalties. The present case does not, however, pose a situation in which the manufacturer tried to comply with great diligence and unlikely events outside of its control or outside of the control of a consumer made the manufacturer's compliance impossible. We need not, and do not, address such scenario here.

II

¶ 35. The second issue requires us to determine whether the lowest, ordinary burden of proof or the middle burden of proof applies to the manufacturer's affirmative defense described above. Determining the burden of proof is essentially a question of statutory interpretation, a question of law that this court decides independently of the court of appeals and circuit court but benefiting from their analyses.³¹

¶ 36. There are three burdens of proof. The highest burden of proof applies in criminal cases, where the state has the burden of convincing the jury beyond a reasonable doubt of the defendant's guilt.³² In certain civil cases, a middle burden of proof is used, which is commonly described as requiring "clear and convincing" evidence. To meet the middle burden in Wisconsin, a party must convince the jury to a reasonable certainty by evidence that is clear, satisfactory, and convincing.³³

¶ 37. In most civil cases, the lowest, ordinary burden of proof applies, requiring what is commonly referred to as a "preponderance of the evidence." In Wisconsin, the jury must be satisfied to a reasonable certainty by the greater weight of the credible evidence."³⁴

¶ 38. Because the text and history of the statute are silent on this specific question, the parties devote substantial energy to surveying cases in which the middle or lowest burden of proof applies and arguing about the extent to which these cases either are analogous to or diverge from the present case.³⁵

¶ 39. We do not find an examination of other cases arising in different contexts particularly enlightening. Our determination of the appropriate burden of proof is influenced by the purposes and policies of the statute rather than by abstract analogies.³⁶

¶ 40. In Carlson & Erickson Builders, Inc., v. Lampert Yards, Inc., 190 Wis. 2d 650, 529 N.W.2d 905 (1995), this court was asked to determine whether to apply the lowest or middle burden to private, civil antitrust actions for treble damages. The defendant urged the court to require the plaintiff to meet the middle burden because the defendant faced damages that clearly had a punitive element and because the alleged conduct could also expose the defendant to criminal penalties.³⁷ Despite the aptness of the defendant's analogies, the court determined that imposing the ordinary burden of proof on the plaintiff would appropriately further the legislative goal of encouraging plaintiffs' " 'vigorous private enforcement of antitrust laws.'"³⁸ Imposing a heightened burden of proof on the plaintiff, on the other hand, would "express [] a preference for the defendant's interests" and "impede the private litigant."³⁹

¶ 41. Applying the teachings of Carlson & Erickson, we strive to interpret the Lemon Law to advance, rather than hinder, its purposes.

¶ 42. This case is the mirror image of Carlson & Erickson.40 In that case, we held that requiring a plaintiff-consumer to prove antitrust violations by a heightened burden "would impede the private litigant and might undermine the enforcement of the antitrust laws by private litigants."⁴¹ In the present case, we address whether a defendant-manufacturer may prove an affirmative defense by the lowest burden.

¶ 43. Imposing the lowest burden of proof on the manufacturer would be contrary to the remedial, consumer-friendly purpose of the Lemon Law. If the manufacturer's affirmative defense were governed by the ordinary burden, the parties would " 'share the risk of error roughly in equal fashion.'"⁴² Making it easier for manufacturers to assert and prove the affirmative defense makes it more tempting for manufacturers to circumvent the 30-day requirement. The lowest burden of proof would undermine the statute's purpose of protecting consumers, encouraging manufacturers to provide refunds within the 30-day statutory period, and discouraging litigation.

¶ 44. Requiring manufacturers to prove the affirmative defense by the middle burden of proof expresses a preference for the consumer's interests and acknowledges the imbalanced playing field on which Lemon Law disputes unfold. Although the prospect of resorting to litigation is unpleasant to a manufacturer, it is feasible. Litigation may be impossible for many consumers.⁴³

¶ 45. Manufacturers might argue that our two holdings will allow savvy consumers to use the Lemon Law as a get-rich-quick scheme. We see no such risk. As this court observed in Dieter v. Chrysler Corp., 2000 WI 45, ¶ 26, 234 Wis. 2d 670, 610 N.W.2d 832, the Lemon Law "is hardly fertile territory for fortune hunters." The road to double damages and attorneys' fees is an arduous one. A consumer must establish that his or her car is a lemon, which requires four or more failed repair attempts or 30 or more days of lost use. Remedies beyond a refund or a replacement are still not available unless the manufacturer fails to comply with the Lemon Law within the 30-day statutory period after receiving proper notice from the consumer. Our holdings today encourage manufacturers to use their resources, as the legislature intended, to respond diligently to Lemon Law claims by providing a refund or a replacement within the 30-day statutory period rather than search for excuses to avoid responding to consumers.

Ill

¶ 46. We shift gears at this point and address the particular facts of the instant case to determine whether the circuit court erred in directing a verdict in the consumer's favor. The circuit court granted the consumer's post-verdict motion for a directed verdict, overturning the jury verdict in favor of Mercedes-Benz.

A

¶ 47. A motion for a directed verdict challenges the sufficiency of the evidence. A circuit court may grant the motion if the "court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party."⁴⁴ The court has stated that "[w]hen there is any credible evidence to support a jury's verdict, 'even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict. . . must stand.' "⁴⁵

¶ 48. An appellate court conducts the same search for credible evidence to sustain the jury's verdict.⁴⁶ Thus, the circuit court's decision to grant the consumer's motion for a directed verdict will be upheld if the appellate court agrees that there was no credible evidence to support the jury's verdict in favor of Mercedes-Benz.

¶ 49. An appellate court should not "overturn a circuit court's decision to dismiss for insufficient evidence unless the record reveals that the circuit court was 'clearly wrong.'"⁴⁷ A circuit court's decision to change the jury's answer is "clearly wrong" if the jury's verdict is supported by "any credible evidence."⁴⁸

¶ 50. We conclude that no credible evidence was presented at trial that supported a finding of intentional conduct and that there was no credible evidence from which a jury reasonably could have inferred that the consumer acted intentionally.

¶ 51. Because we conclude that the circuit court did not err in finding that no credible evidence supports Mercedes-Benz's affirmative defense under the ordinary burden of proof, it necessarily follows that no credible evidence supported Mercedes-Benz's affirmative defense under the middle burden of proof. Stated another way, because the circuit court correctly found that Mercedes-Benz did not establish its affirmative defense by a mere preponderance of evidence, clearly Mercedes-Benz did not establish its affirmative defense by clear and convincing evidence. Therefore, although the circuit court mistakenly applied the lowest burden of proof to the affirmative defense instead of the middle burden of proof, remand is unnecessary.

B

¶ 52. A review of a directed verdict depends heavily on the facts of the particular case. The trial lasted three days. We search for credible evidence from which the jury may have reasonably inferred that the consumer or his attorney intentionally prevented Mercedes-Benz from providing a refund within the 30-day statutory period. We view the credible evidence and reasonable inferences therefrom in the light most favorable to Mercedes-Benz, the party against whom the motion for a directed verdict was made. We also explain why those facts are insufficient to support the inference that the consumer or his attorney intentionally prevented Mercedes-Benz from providing a refund within the 30-day statutory period.

¶ 53. On April 30, 2005, the consumer purchased a new 2005 Mercedes-Benz E320. He financed the purchase with a loan from Waukesha State Bank (the Bank). The consumer experienced various problems with the vehicle that were not satisfactorily resolved, and he decided to seek relief under the Lemon Law.⁴⁹

¶ 54. The consumer retained Attorney Vincent E Megna, a Lemon Law specialist at the law firm of Jastroch & LaBarge, S.C. On October 25, 2005, the consumer met with Attorney Megna, and Attorney Megna drafted a "Motor Vehicle Lemon Law Notice," which he sent to Mercedes-Benz that same day.

¶ 55. The consumer had previously discussed the possibility of obtaining a replacement vehicle with Mercedes-Benz representatives, but in this notice, the consumer checked a box indicating he would like a refund, not a comparable new vehicle. The consumer provided the name of the bank that financed his vehicle and provided the loan account number. The notice stated, "By providing this information, I authorize the manufacturer to contact this financial institution for financing information needed to calculate a refund." The consumer attached a consumer note that included the terms of his loan and the name of his loan officer, John Gray.

¶ 56. The notice also stated that the consumer was represented by counsel and stated that "the manufacturer should communicate with the consumer only through Jastroch & LaBarge, S.C." It was signed by Attorney Megna.

¶ 57. Mercedes-Benz received the notice on October 28, 2005. That same day, Wade Messing, a Mercedes-Benz representative, contacted the consumer directly to discuss the possibility of the consumer exchanging his lemon for a different vehicle. The consumer testified that Messing also asked him to drop his suit and fire his attorney so that they could "fix this amongst men."

¶ 58. The special verdict question asked the jury only whether the consumer failed to act in good faith on November 28. As explained in the jury instructions, the jury was being asked whether, on November 28, the consumer intentionally prevented the manufacturer from making the refund within the 30-day period, which the manufacturer must do to comply with the Lemon Law. Conduct on dates earlier than November 28 may be relevant to the extent it allows the jury to draw reasonable inferences about conduct on November 28. We therefore examine the communications between Messing and the consumer on November 23 and between the consumer and the Bank on November 23. The directed verdict centers on three telephone calls Messing made on November 28: to the Bank, to the consumer, and to Attorney Megna.

¶ 59. Messing communicated with the consumer on November 23, 2005. During this conversation, the consumer explained that he was not interested in another vehicle and preferred a refund. Messing told the consumer that he would call again the "week of the 28th" to arrange the refund.⁵⁰

¶ 60. Also on November 23, the consumer called the Bank and authorized John Gray to release to Mercedes-Benz any financial information it requested relevant to his Lemon Law claim. The consumer also authorized John Gray to release the information to his attorneys. That day, the consumer's attorneys requested the loan information from John Gray and John Gray provided it.

¶ 61. From the first notice through the communications on November 23, Mercedes-Benz was given full information upon which to fulfill its responsibilities under the Lemon Law. No credible evidence supports an inference that on or before November 23, the consumer intentionally prevented Mercedes-Benz from providing a refund within the 30-day statutory period.

¶ 62. According to the jury instruction, the consumer's cooperation was required to the extent that it was "necessary for the manufacturer to fulfill its obligations to provide a refund." By November 28, the consumer had cooperated with and assisted Mercedes-Benz to allow Mercedes-Benz to provide a refund within the 30-day statutory period.

¶ 63. The special verdict question thus focuses on occurrences on November 28, the only date subsequent to November 23 on which Mercedes-Benz communicated with the consumer, the Bank, and the consumer's lawyer.

¶ 64. Monday, November 28 was the first day on which Messing attempted to obtain financial information from the Waukesha State Bank. (The information was needed to calculate how Mercedes-Benz would divide the refund between the consumer and the Bank.) It was the final day of the 30-day statutory period in which Mercedes-Benz could provide a timely refund to the consumer.⁵¹

¶ 65. On November 28, Messing spoke to a representative in the Bank's call center in the morning and was told that the information could not be released without the consumer's verbal authorization. Messing did not ask to speak to the consumer's loan officer, John Gray, the loan officer listed on documents in Mercedes-Benz's possession as the consumer's loan officer.

¶ 66. Messing's second call on November 28 was around noon to the consumer, who was driving to work. Messing testified that he told the consumer to provide authorization to the Bank and that the consumer told Messing he would do so and call Messing back later that day to confirm that the authorization had been provided. The consumer, on the other hand, testified that Messing did not ask him to contact the Bank, and that the consumer directed Messing to contact his attorney. The consumer and Messing agree that they did not speak again on November 28.

¶ 67. Messing's third call on November 28 was at around 2:30 EM. to the consumer's attorneys. Messing spoke to a paralegal, Nancy Haselwood. The paralegal's notes from the conversation state that Messing called on behalf of Mercedes-Benz and wanted to speak to Attorney Megna. The paralegal informed Messing that Attorney Megna was not available, offered to take a message, and also suggested that it would be best if he put any requests for Attorney Megna in a letter and fax it to the office. The notes indicate that Messing did not leave a message and said he would rather "chat" with Attorney Megna. The paralegal testified that Messing did not leave a phone number at which he could be reached.

¶ 68. Messing testified that the paralegal told him that he had to put any request to Attorney Megna in writing. Messing never wrote or faxed anything to Attorney Megna or attempted to call the consumer or Attorney Megna or the Bank again. Messing did not make any additional efforts to provide the consumer with a refund on the afternoon of November 28.

¶ 69. The complaint against Mercedes-Benz was signed by the consumer's counsel on November 28. The consumer's attorneys filed the complaint against Mercedes-Benz and the dealership, Concours Motors, Inc.,⁵² on November 29.

C

¶ 70. The only issue presented for the circuit court and this court is whether there was any credible evidence from which the jury could reasonably infer that on November 28 the consumer or his attorney intentionally prevented Mercedes-Benz from complying with the statute by providing a refund to the consumer within the 30-day statutory period.

¶ 71. The jury was instructed that the consumer acted intentionally to prevent the manufacturer from complying with the Lemon Law if the consumer "had the mental purpose to cause the result of his action or was aware that such conduct was practically certain to cause the result of the action," namely preventing Mercedes-Benz from providing a refund within the 30-day statutory period.

¶ 72. The jury was instructed as follows:

A consumer has a duty to act in good faith in pursuing a Lemon Law refund. A consumer fails to act in good faith when he or she intentionally prevents the manufacturer from complying with the statute. If the consumer's cooperation is necessary for the manufacturer to .. . fulfill its obligations to provide a refund, the duty of good faith requires the consumer to give the necessary cooperation.

The requirement that a party act intentionally means that the party had the mental purpose to cause the result of his action or was aware that such conduct was practically certain to cause the result of his action.

You may determine intent directly or indirectly from all the facts in evidence. You may also consider any of the party's statements or conduct, which indicate state of mind (emphasis added).

¶ 73. The jury was asked a single special verdict question: "On November 28, 2005 did [the consumer] fail to act in good faith in his dealings with Mercedes-Benz?" A failure to act in good faith, for purposes of the Lemon Law, was explicitly defined by Marquez I and the jury instructions to mean the consumer "intentionally prevents the manufacturer from complying with the statute."⁵³ Thus, the concept of good faith, in the context of the Lemon Law, "is not imported from contract law."⁵⁴ With two dissents, the jury answered "yes."

¶ 74. To answer the question "yes," that on November 28 the consumer failed to act in good faith, and to adhere to the jury instructions defining good faith, the jury had to find that the consumer had the mental purpose on November 28 to prevent Mercedes-Benz from complying with the Lemon Law by making a refund within the 30-day statutory period or was aware that his conduct on November 28 was practically certain to cause this result. For the consumer to have the mental purpose or to be aware that his conduct on November 28 was practically certain to prevent Mercedes-Benz from complying with the statute, as the jury instruction commands, the jury had to find that the consumer knew that November 28 was the last day upon which Mercedes-Benz could act. If the consumer was unaware that November 28 was the final day of the 30-day statutory period, the jury could not reasonably infer from the consumer's conduct on November 28 that the consumer intended — had the mental purpose — to prevent Mercedes-Benz from making a timely refund within the 30-day statutory period.⁵⁵

¶ 75. The parties appear to agree that the jury had to conclude that the consumer knew that November 28 was the final day for a refund.⁵⁶ Mercedes-Benz argues that the jury could properly infer from the evidence that the consumer knew that November 28 was the date Mercedes-Benz was required to make the refund. Mercedes-Benz argues that a jury could reasonably infer that the consumer had this knowledge because the consumer's attorney would have informed the consumer when his refund was due and would have informed the consumer about the potential financial benefit if Mercedes-Benz failed to make a refund within the 30-day period, and because it is "undisputed that [the consumer] offered no reasonable justification for not immediately providing Messing" with information on November 28.⁵⁷ Mercedes-Benz also urges that a jury could infer from the evidence that the consumer's failure to inform Mercedes-Benz that the needed information was available from John Gray or from the consumer's attorneys, as well as the consumer's failure to call Messing back, was intended to prevent Mercedes-Benz from complying with the statute within the 30-day statutory period.

¶ 76. Declaring it a close case and viewing the evidence "most favorable to the verdict and most favorable to Mercedes-Benz," the circuit court concluded that there was no credible evidence from which to establish that the consumer was aware that November 28, 2005 was the date Mercedes-Benz was required to make the refund and that absent such evidence or inferences, the jury could not reasonably find that the consumer intended to prevent Mercedes-Benz from complying with the Lemon Law by providing a refund within the 30-day statutory period.

¶ 77. The circuit court found "a gap" between the facts presented and the inferences that Mercedes-Benz argues the jury drew, "that is, that there was . . . knowledge, intent on the part of the [consumer] through his attorney to subvert the system and to thwart Mercedes-Benz."

¶ 78. Although a jury is allowed to draw reasonable inferences and determine intent "indirectly," the circuit court determined that the facts presented did not support the inferences drawn by Mercedes-Benz and the jury that the consumer intentionally prevented Mercedes-Benz from complying with the 30-day statutory period.

¶ 79. The circuit court explained that there was no evidence of "communications or environment" between the consumer and Attorney Megna demonstrating "the decision to intentionally thwart Mercedes. That evidence is lacking in the case." The circuit court reasoned that had Messing told Attorney Megna's office that he needed the payoff numbers in a few hours, that would have presented a different case. The circuit court emphasized that Messing failed to state any urgency in any of his November 28 conversations. To the circuit court, "[t]hat's the gap."

¶ 80. This gap, declared the circuit court, "removes the foundation or the underlying premises permitting the jury to make the claim that — or draw the conclusions or inferences that Mercedes-Benz contends that they should and that perhaps they did and . . . that this was a deal between the attorney and client to obstruct and thwart. . . that there was a concept in [the consumer's] mind and in [Attorney] Megna's mind that we are going to drag this out and get past the 30-day limit, lay in the weeds, hide in the water, whatever it is, and not participate with the intent to undermine Mercedes effort to comply with the law."

¶ 81. According to the circuit court, a "nexus did not exist for a reasonable jury to draw the conclusion, to draw the reasonable inference that [the consumer]/ attorney intentionally thwarted and intentionally prevented [Mercedes-Benz] from complying with the law."

¶ 82. The circuit court observed that no reasonable inference regarding the consumer's or attorney's intent to prevent Mercedes-Benz from providing a refund within the 30-day statutory period could be drawn from the responses of the consumer or Attorney Megna's paralegal on November 28 or from the consumer's failure on November 28 to call Messing or to call the Bank. The consumer was working that day, had already communicated his authorization to the Bank, and had given information about the bank loan and loan officer to Mercedes-Benz in the written notice that Mercedes-Benz had received.

¶ 83. After reviewing the record in the light most favorable to Mercedes-Benz, we conclude, as did the circuit court, that there is no credible evidence from which reasonable inferences can be drawn to support Mercedes-Benz's affirmative defense. Thus, the circuit court was not "clearly wrong."

¶ 84. The concurrence/dissent asserts that "[a]ll that was needed was a jury finding that Marquez intentionally did not call the bank and that without his call, he knew that Mercedes-Benz could not make a refund that day." Concurrence/dissent, ¶ 154. The concurrence/dissent misunderstands the legal significance of the word "intentional." "[Intentional conduct] is one of the most basic, organizing concepts of legal thinking. 'Intent' is also one of the most often misunderstood legal concepts."⁵⁸

¶ 85. Even if the consumer "intentionally" did not call the bank in the sense that his conduct was volitional, the voluntary act or the failure to act does not amount to intentional conduct in a legal sense. In understanding the legal concept of intentional conduct, "[a]n act is to be distinguished from its consequences."⁵⁹ Intentional conduct means the actor intends the consequences.

¶ 86. "The three most basic elements of th[e] most common usage of 'intent' are that (1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act."⁶⁰

¶ 87. Unless the consumer knew that November 28 was the final day on which Mercedes-Benz could comply with the statute, the jury could not reasonably conclude that the consumer's failure to return a phone call amounts to intentionally preventing the manufacturer from complying with the statute.

¶ 88. No evidence in the record supports a reasonable inference that the consumer knew, either from counsel or from Messing, that November 28 was the last day for a refund. Mercedes-Benz fills this gap with speculation that the consumer knew the significance of the date and the urgency of Messing's request for information. The jury would be speculating about what information passed between counsel and client, and Messing gave no clue to the consumer that November 28 had any special significance.

¶ 89. With regard to the consumer's attorney, the only call Messing ever made to Attorney Megna was on the afternoon of November 28. The undisputed evidence was that Messing did not leave his telephone number for a return call, Messing did not write or fax Attorney Megna requesting the needed information, and Messing expressed no urgency. Attorney Megna did not return a 2:30 EM. phone call by the end of the business day when the message had no return number and was simply a request "to chat." The evidence is undisputed that one of the consumer's lawyers signed a Lemon Law complaint by the consumer against Mercedes-Benz on November 28.

¶ 90. Viewing the telephone call of November 28 to Attorney Megna in the context of the other evidence and in the light most favorable to Mercedes-Benz, we conclude that the conduct of Attorney Megna on November 28 does not support a reasonable inference that Attorney Megna intentionally prevented Mercedes-Benz from complying with the Lemon Law by issuing a refund within the 30-day statutory period. It would require unsubstantiated speculation by the jury to infer from such seemingly innocuous conduct that Megna had a devious plan.

¶ 91. The evidence viewed as a whole in a light favorable to Mercedes-Benz does not support a reasonable inference that on November 28 the consumer failed to act in good faith by intentionally preventing Mercedes-Benz from complying with the Lemon Law by intentionally preventing Mercedes-Benz from making the refund within the 30-day statutory period.

¶ 92. For the reasons set forth, we conclude that the circuit court was not "clearly wrong" in determining that there was no credible evidence to support the jury's answer to the special verdict question. We conclude, as did the circuit court, that the jury's verdict impermissibly rests on "conjecture and speculation."⁶¹

¶ 93. We further point out that the jury could not have considered evidence that was not admissible to find intentional conduct on the part of the consumer.

¶ 94. First, the jury might have been aware that the consumer stood to receive double damages and Attorney Megna stood to recover substantial attorneys' fees if Mercedes-Benz failed to comply with the 30-day deadline. However, prior to trial, the circuit court "preclude[d] . . . discussion or presentation of the statutory damage formula" because there was no "hint as to the connection between . . . double damages and allegations of bad faith." Absent some direct evidence of intent, the circuit court declined to allow the jury "to speculate what the plaintiffs position was" based on the statutory remedies that were available.

¶ 95. Second, the juiy might have been aware that Attorney Megna was an experienced, successful Lemon Law specialist and might have inferred intent based on his history of winning Lemon Law suits. Again, this inference was prohibited by the circuit court before trial. The court proclaimed that "how the attorney practices ... is not probative of issues in the lawsuit.... There are attorneys that focus on Lemon Law litigation. ... That type of testimony and that type of historical background is not apparently probative in this case."

¶ 96. Third, the jury might have inferred intent from the fact that the complaint was dated November 28, the final day of the 30-day statutory refund period, and was filed the very next day. The complaint was signed by one of the consumer's counsel, not by the consumer. An inference about intent would be improper for two reasons.

¶ 97. That the complaint was dated November 28 cannot reasonably support an inference of intent. The consumer's or the attorneys' readiness and willingness to file a complaint immediately cannot support an inference that the consumer or attorney intentionally prevented Mercedes-Benz from providing a timely refund. As counsel for the consumer argued before trial, "the plaintiff had a right and his lawyers had a right to file [the complaint] the minute that deadline was blown."

¶ 98. The filing of the complaint on November 29 cannot reasonably support an inference of intent. The circuit court ruled before trial that testimony regarding "communications or conduct that occurred. . . after November 28, 2005" was barred because it was not probative of the consumer's intent during the 30-day refund period. Thus, the filing of the complaint on November 29 was not properly considered by the jury.⁶²

¶ 99. Fourth, perhaps the jury inferred the consumer's intent from evidence that the consumer initially entertained Mercedes-Benz's suggestion that he select a replacement vehicle before firmly requesting a refund on November 23. Allowing an inference that a consumer intentionally prevented the manufacturer from complying with the Lemon Law based on a consumer's negotiations would undermine the statute. The courts have held that manufacturers are required to comply with the 30-day refund period "regardless of the status of negotiations."⁶³

¶ 100. The 30-day period is rigidly enforced even when a consumer's negotiations "undoubtedly complicate[] the process," despite the fact that it puts the manufacturer "in a difficult position with attendant risk."⁶⁴ The consumer could have negotiated up until the deadline without sacrificing his right to recover statutory remedies. In fact, he ceased negotiations and made a clear request for a refund on November 23. The consumer's earlier negotiations cannot support a finding that the consumer, on November 28, intentionally prevented Mercedes-Benz from providing a refund within the 30-day statutory period.

¶ 101. The jury's finding that on November 28 the consumer intentionally prevented Mercedes-Benz from complying with the Lemon Law was impermissibly speculative. The record in the present case contains no credible evidence of any such intentional conduct by the consumer or his lawyer to bar a manufacturer from the Lemon Law's remedies. We agree with the circuit court that there was a gap between the facts presented and the jury's verdict.⁶⁵ The jury cannot fill that gap with speculative inferences.

IV

¶ 102. Finally, we must address whether Mercedes-Benz is entitled to a new trial because either (1) it was not granted an adjournment on the morning of trial to collect non-privileged documents relating to the testimony of the paralegal, one of the consumer's witnesses; or (2) it was not permitted to call Attorney Megna as a witness.

¶ 103. For the circuit court's error to warrant reversal and a new trial, the error must be prejudicial. Wis. Stat. § 805.18 (2009-10).

¶ 104. With regard to each of these issues we set forth the standard of review, the relevant facts, and our decision.

(1)

¶ 105. Whether to grant an adjournment is within the discretion of the circuit court.⁶⁶ We will set aside a circuit court's denial of an adjournment only if the circuit court erroneously exercised its discretion. An erroneous exercise of discretion exists " 'if the trial court failed to exercise its discretion or if there was no reasonable basis for its decision.'"⁶⁷

¶ 106. Here are the facts relating to the adjournment and the testimony of the paralegal.

¶ 107. On July 27, 2006, Mercedes-Benz served a subpoena duces tecum on Jastroch & LaBarge, S.C., requesting access to any and all documents related to the matter at issue. The consumer moved to quash the subpoena on the ground that the requested materials were subject to the work product doctrine and the attorney-client privilege. The first circuit court granted the consumer's motion for a protective order foreclosing the deposition of Jastroch & LaBarge, S.C., the attorneys of record, and foreclosing discovery of documents in the law firm's possession that would be protected by the attorney-client privilege or the work product doctrine.⁶⁸

¶ 108. The case then proceeded as outlined above: the circuit court granted summary judgment in favor of the consumer, the court of appeals reversed and remanded for trial on the issue of the affirmative defense, and the case was tried before a different circuit court judge than the judge who quashed the subpoena.

¶ 109. The circuit court conducted a pretrial conference on October 27, 2008, and scheduled trial for March 17, 2009. On January 29, 2009, the consumer submitted a two-page affidavit of the paralegal, Nancy Haselwood, describing the November 28 conversation she had with Messing.

¶ 110. On the first morning of trial, the circuit court decided a number of motions in limine, including Mercedes-Benz's argument that allowing the consumer to call the paralegal to testify would constitute "trial by ambush" because Mercedes-Benz had not conducted discovery relevant to her testimony or deposed her.

¶ 111. The circuit court outlined the history of the litigation and found that Mercedes-Benz should have moved to reopen discovery at some point during the 11 months between the remand from the court of appeals and the first day of trial. The circuit court explained that the affidavit, which was provided more than one month before trial, provided notice to Mercedes-Benz of the limited content of her testimony. The circuit court also observed that the paralegal's testimony would not involve any privileged matters and that allowing her to testify would not conflict with the earlier circuit court's decision to quash Mercedes-Benz's subpoena. The circuit court determined that there was no surprise and that "trial by ambush" was "an overstatement and an exaggeration" of what had occurred.

¶ 112. Mercedes-Benz's brief argues that its hands were tied by the circuit court's initial decision to quash its subpoena. We note, however, that the circuit court's order did not restrict all discovery. It quashed the overly broad subpoena. The circuit court advised Mercedes-Benz that there were other routes to get the non-privileged information and that it could have attempted to obtain more tailored discovery. Indeed the consumer offered documents before trial, which Mercedes-Benz refused.⁶⁹

¶ 113. The circuit court's denial of Mercedes-Benz's request for an adjournment was not an erroneous exercise of discretion. The circuit court carefully considered the history of the litigation. It found that Mercedes-Benz had opportunities between the time when the case was remanded and the morning of trial to file a motion asking the court "to modify the scheduling order or pretrial order or to permit further discovery." The circuit court reasonably determined that an adjournment was not warranted on the basis of the facts on record. There was no erroneous exercise of discretion.

(2)

¶ 114. The circuit court concluded that "there is not probative value to calling Attorney Megna or other attorneys from the office of Jastroch & LaBarge relative to the merits of the issues in this case."

¶ 115. With regard to the circuit court's ruling denying Mercedes-Benz permission to call Attorney Megna as a witness, the standard for review of this ruling is whether the circuit court erroneously exercised its discretion. "A circuit court has broad discretion in determining the relevance and admissibility of proffered evidence."⁷⁰ We will sustain this exercise of discretion if we conclude that "the circuit court examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach."⁷¹

¶ 116. Counsel's arguments at the hearing on the day of trial on Mercedes-Benz's motion regarding Attorney Megna were very brief. Mercedes-Benz did not make a clear argument regarding the probative value of Attorney Megna's potential testimony. Instead, Mercedes-Benz argued that the first circuit court's protective order had prevented it from doing any discovery on Attorney Megna. The consumer appeared to argue that Attorney Megna's testimony about the November 28 telephone call is of no import because it is undisputed that Messing left no return number and indicated no urgency.

¶ 117. In its brief to this court, Mercedes-Benz argues that there was probative value to Attorney Megna's testimony regarding whether he actually received Messing's message on November 28 and whether he was actually too busy to return the phone call. Mercedes-Benz asserts that Attorney Megna's conduct is relevant to proving intentional obstruction. Mercedes-Benz reasons that if Attorney Megna was available on November 28 to talk with Messing but did not do so because the standard office procedure was to demand a faxed written request from the manufacturer, the jury could infer intentional obstruction from these facts coupled with Attorney Megna's knowledge that November 28 was the last day for the refund. Mercedes-Benz did not make this kind of statement about the potential probative value of Attorney Megna's testimony to the circuit court.

¶ 118. The consumer's brief argues that it was undisputed that Attorney Megna could not return the call because Messing left no return number; that Messing left no message with Attorney Megna's office seeking information about the consumer; and that Messing expressed no urgency that his call be returned and said that he merely sought to "chat."

¶ 119. The circuit court explained that the record reflected no "communications done pertinently between the attorney and Mercedes-Benz." Thus, the circuit court concluded that "that there is not probative value to calling Attorney Megna." With regard to Attorney Megna's conversations with the consumer, these conversations would be privileged.

¶ 120. Based on the arguments at trial, the circuit court's decision denying Mercedes-Benz request to call Attorney Megna as a witness was not an erroneous exercise of discretion. The circuit court examined the relevant facts and applied a proper standard of law, which was to assess whether Attorney Megna's testimony would have probative value.⁷² Considering that Mercedes-Benz did not present the circuit court with a clear argument why Attorney Megna's testimony would have probative value, we conclude that the circuit court's decision that Attorney Megna's testimony would not be probative because he had no conversations with the consumer or Mercedes-Benz on November 28 was one that a reasonable circuit court could reach.⁷³

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¶ 121. In conclusion, we hold that a manufacturer has an affirmative defense to avoid Lemon Law penalties if it proves that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period. It is not sufficient to argue that a consumer was unreasonable or careless in responding to a manufacturer's requests for additional information. We also hold that a manufacturer must prove its affirmative defense by the middle burden of proof. Our first two holdings are strongly motivated by the purpose of the Lemon Law, which is to encourage manufacturers to provide prompt, hassle-free refunds to consumers whose vehicles turn out to be lemons. The imbalance of power between manufacturers and consumers makes consumers particularly vulnerable, and we interpret the Lemon Law in a manner that counteracts rather than exacerbates this legislative concern.

¶ 122. We uphold the circuit court's decision to grant the consumer's motion for a directed verdict. There was no credible evidence to support the jury's verdict, even under the ordinary burden of proof that was incorrectly applied at trial. We also hold that the circuit court did not erroneously exercise its discretion by denying Mercedes-Benz's request for an adjournment on the morning of trial or by denying Mercedes-Benz the opportunity to call Attorney Megna to testify.

¶ 123. For the reasons stated, we affirm the circuit court's judgment and order.

By the Court. The judgment and order of the circuit court are affirmed.

1 All subsequent references to the Wisconsin Statutes are to the 2005-06 version, unless otherwise indicated.

We will refer to Wis. Stat. § 218.0171 in its entirety as the "Lemon Law."

2 Wis. Stat. § 218.0171(2)(a).

3 Wis. Stat. § 218.0171(2)(b).

4 Wis. Stat. § 218.0171(2)(c) ("To receive a comparable new motor vehicle or a refund due under par.(b)l. or 2., a consumer described under sub.(1)(b)1., 2. or 3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund . . . .").

5 Wis. Stat. § 218.0171(7).

6 The Department of Transportation is charged with putting the policies of the Lemon Law into practice. It produces a Lemon Law notice form, which helps ensure that consumers comply with the requirements for making a proper request under the Lemon Law and that manufacturers have the information they need to assess the claim and provide a refund. See Stephen J. Nicks, Lemon Law Practice Pointers, Wis. Law., Nov. 2003, at 21, 22.

7 We will use some form of the phrase "prevent the manufacturer from providing a refund within the 30-day statutory period" to encompass the various ways in which the intentional consumer conduct at issue was described and could be described (e.g., thwart, block, obstruct, undermine, etc.).

8 Marquez raised this issue in his cross-appeal. It is the issue that was certified to this court by the court of appeals. Issues I, III, and IV were raised in Mercedes-Benz's appeal.

9 Cf. State v. Smith, 2005 WI 104, ¶ 13, 283 Wis. 2d 57, 699 N.W.2d 508 ("Because determination of the statutory elements of a crime is a question of law, our review is de novo.").

10 The court of appeals discussed good and bad faith even though it had noted in Chariton v. Saturn Corp., 2000 WI App 148, ¶ 5, 238 Wis. 2d 27, 615 N.W.2d 209, that "there are no excuses" for a manufacturer who violates the 30-day time period.

11 Herzberg v. Ford Motor Co., 2001 WI App 65, ¶ 17, 242 Wis. 2d 316, 626 N.W.2d 67.

12 Herzberg, 242 Wis. 2d 316, ¶ 19.

13 See Marquez I, 312 Wis. 2d 210, ¶ 18; Herzberg, 242 Wis. 2d 316, ¶ 18.

14 Marquez I, 312 Wis. 2d 210, ¶ 22.

15 Id., ¶ 3.

16 Id., ¶¶ 2, 3, 12, 20, 23.

17 Mercedes-Benz first argued for a negligence-based defense when the case reached the court of appeals for the second time. The consumer does not argue that Mercedes-Benz forfeited its right to raise this issue on review. Both parties have briefed the issue and we address it.

18 According to Mercedes-Benz, a consumer's conduct would be unreasonable when (1) the manufacturer cannot make a proper refund without the consumer's cooperation; (2) the consumer is informed of this fact; (3) the consumer fails to provide that cooperation in sufficient time to permit the manufacturer to make a timely refund; and (4) the consumer has no legitimate excuse for his or her failure.

19 Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 983, 542 N.W.2d 148 (1996) (quoting Hartlaub v. Coachmen Indus., Inc., 143 Wis. 2d 791, 801, 422 N.W.2d 869 (Ct. App. 1988)); see also Hughes, 197 Wis. 2d at 979 (holding that remedial statutes should be liberally construed to advance the remedy the legislature intended to provide).

20 Clifford P Block, Note, Arkansas's New Motor Vehicle Quality Assurance Act—A Branch of Hope for Lemon Owners, 16 U. Ark. Little Rock L.J. 493, 493-94 & n.2 (1994).

21 See Stephen J. Nicks, Lemon Law II, Wis. Bar Bull., July 1987, at 48:

Automobile manufacturers include some of the largest and most powerful corporations in the world. The Legislature clearly recognized that it was necessary to make the potential recovery large enough to give vehicle owners the incentive to bring suit against them. These corporations not only have the wealth and will to exhaust an individual litigant, but also control vast amounts of technical expertise on the very mechanical aspects the consumer is challenging. Without the sweetener of double damages in a sufficient amount and reasonable attorneys' fees, few consumers would bring such actions.

22 Hughes, 197 Wis. 2d at 982-83 (citing Memorandum from Bronson C. La Follette, Attorney General, to Members of the Legislature, Re: AB 434, Auto "Lemon Law" Changes, Oct. 14, 1985, Wis. Act 205).

23 See Hughes, 197 Wis. 2d at 980-81 (citations omitted).

24 See Joan Vogel, Squeezing Consumers: Lemon Laws, Consumer Warranties, and a Proposal for Reform, 1985 Ariz. St. , 662-63; Julie A. Vergeront, Note, A Sour Note: A Look at the Minnesota Lemon Law, 68 Minn. L. Rev. 846, 879-80 (1984).

25 See Vogel, supra note 24, at 662.

26 See, e.g., 815 Ill. Comp. Stat. 380/3(d) (2008).

27 See, e.g., Fla. Stat. § 681.106 (2010).

28 Hughes, 197 Wis. 2d at 986-87.

29 Hughes, 197 Wis. 2d at 987; see also Dieter v. Chrysler Corp., 2000 WI 45, ¶ 23 (explaining the intent of the Lemon Law and quoting Hughes with approval); Vergeront, supra note 24, at 880 ("The lemon law attempts to encourage efficient and low cost settlement of disputes over defective automobiles by defining more clearly when a consumer is entitled to a refund or replacement. Only by raising the costs of ignoring these guidelines can the goals of the lemon law be realized.").

30 Cf. Vogel, supra note 24, at 664 ("Bad faith provisions mainly give manufacturers a club to wield against a consumer who tries to litigate a claim.").

31 See Carlson & Erickson Builders, Inc., v. Lampert Yards, Inc., 190 Wis. 2d 650, 658, 529 N.W.2d 905 (1995) ("Determination of the appropriate burden of proof in this case presents a question of statutory interpretation, a question of law which this court determines independently of other courts, benefitting from their analyses."). Cf. Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983) ("Where Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, we must prescribe one.").

32 Wis JI — Criminal 140 (2000) ("The burden of establishing every fact necessary to constitute guilt is upon the State. Before you can return a verdict of guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant is guilty.").

33 Wis JI — Civil 205 (2004) ("The burden is to convince you by evidence that is clear, satisfactory, and convincing, to a reasonable certainty, that 'yes' should be the answer to (that) (those) question(s).").

34 Wis JI — Civil 200 (2003) ("Th[e] burden is to satisfy you by the greater weight of the credible evidence, to a reasonable certainty, that 'yes' should be your answer to the verdict questions.").

35 The consumer, arguing for the middle burden of proof, points to (1) an affirmative defense of arson in the insurance context; (2) intentional bad faith in the insurance context; and (3) estoppel.

Mercedes-Benz, arguing for the lowest burden of proof, points to (1) general contractual duties of good faith; and (2) actions for property damage caused by crime under Wis. Stat. § 895.446 (2009-10).

36 Carlson & Erickson, 190 Wis. 2d at 661-62.

37 Id. at 660-61.

38 Id. at 664 (quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 745 (1977)).

39 Carlson & Erickson, 190 Wis. 2d at 664.

40 The circuit court relied on Carlson & Erickson to reach the opposite result, namely that Mercedes-Benz had to meet only the lowest burden in proving its affirmative defense. The circuit court reasoned that Carlson & Erickson involved treble damages and the ordinary burden was applied, so the ordinary burden of proof should apply in this case involving double damages. The circuit court did not expressly consider that Carlson & Erickson addressed the burden of proof for a plaintiffs claim and this case addresses the burden of proof for a defendant's affirmative defense.

⁴¹

42 Id. (quoting Addington v. Texas, 441 U.S. 418, 423 (1979).

43 Vogel, supra note 24, at 663 ("Unlike the consumer, the manufacturer is not so readily deterred by the costs of defending claims.").

44 Wis. Stat. § 805.14(1).

45 Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389-90, 541 N.W.2d 753 (1995) (citations omitted).

46 Id. at 388, 398.

47 Id. at 389 (citing Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 110, 362 N.W.2d 118 (1985); see also Trogun v. Fruchtman, 58 Wis. 2d 569, 585, 207 N.W.2d 297 (1973) (quoting Slam v. Lake Superior Terminal & Transfer Ry. Co., 152 Wis. 426, 432, 140 N.W. 30 (1913)) ("'[W]hen the trial judge rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a given question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial judge is wrong.'").

48 Haase v. Badger Mining Corp., 2004 WI 97, ¶ 17, 274 Wis. 2d 143, 682 N.W.2d 389.

49 The parties stipulated that there was at least one "nonconformity" that was not resolved after a "reasonable attempt to repair," making the vehicle a lemon. See Wis. Stat. § 281.0171(1)-(2).

50 On November 21, another Mercedes representative, Joe Tolfa, spoke with the consumer about replacement vehicles, but the parties focus primarily on the interactions between the consumer and Messing.

51 The 30th day after the consumer's notice fell on a Sunday and the parties agree that Mercedes-Benz had until the next day.

52 The parties later stipulated that the consumer would drop his claims against the dealership and proceed only against Mercedes-Benz.

53 See Marquez I, 312 Wis. 2d 210, ¶ 22.

The jury instructions explained that "[a] consumer fails to act in good faith when he or she intentionally prevents a manufacturer from complying with the statute" (emphasis added). The jury instruction further explained that "the requirement that a party act intentionally means that the party had the mental purpose to cause the result of his action or was aware that such conduct is practically certain to cause the result of his action."

Thus, when the jury was asked whether the consumer failed to act in good faith on November 28, it was asked to determine whether, on November 28, the consumer intentionally prevented the manufacturer from complying with the Lemon Law. In other words, it was asked whether the consumer had the mental purpose on November 28 to prevent Mercedes-Benz from providing a refund within the 30-day statutory period or was aware that his conduct was practically certain to cause the intended result that the manufacturer not make a refund within the 30-day statutory period.

Contrary to the concurrence/dissent's assertions, see, e.g., concurrence/dissent, ¶ 152, the special verdict question asking whether the consumer failed to act in good faith, the jury instructions defining a failure to act in good faith as the intentional prevention of the manufacturer's compliance with the statute, and Part III of this opinion are all consistent with the court of appeals' holding in Marquez I and our holding in Part I of this opinion. See Marquez I, 312 Wis. 2d 210, ¶ 22 ("We hold only that a consumer fails to act in good faith when he or she intentionally prevents the manufacturer from complying with the statute."). The concurrence/dissent's belief that this opinion inserts additional factual requirements that Mercedes-Benz should not have to prove is based on a misunderstanding of the meaning of "intentional," as we describe below. See infra ¶¶ 84-86.

⁵⁴

55 The concurrence/dissent argues that the jury did not need to find that the consumer knew that November 28 was the final day in order to conclude that the consumer intentionally prevented the manufacturer from complying. See, e.g., concurrence/ dissent, ¶¶ 149-151. We disagree with the dissent. If the consumer was unaware that November 28 was the final day, the jury could not reasonably infer from the consumer's failure to return a phone call on November 28 that the consumer had the mental purpose of preventing the manufacturer from complying with the Lemon Law within the 30-day statutory period or knew that his conduct was practically certain to cause that result.

56 The concurrence/dissent takes issue with this statement that Mercedes-Benz agrees that the jury needed to find that the consumer knew November 28 was the final day. Concurrence/dissent, ¶ 159. One of Mercedes-Benz's arguments was that it could prevail merely hy proving that the consumer acted unreasonably. Under that lower bar, which we rejected in Part I of this opinion, Mercedes-Benz believed that it was not necessary for the jury to infer that the consumer knew November 28 was the final day.

However, Mercedes-Benz accepts that if it was required to prove that the consumer intentionally prevented it from complying, then the jury had to have inferred that the consumer knew November 28 was the final day in which to make a refund under the statute. See Brief and Appendix of Defendant-Appellant-Cross-Respondent Mercedes-Benz USA, LLC at 10-11, 32, 34-36.

57 Brief and Appendix of Defendant-Appellant-Cross-Respondent Mercedes-Benz USA, LLC at 28, 29. The consumer did explain his conduct, and the reasonableness of his conduct was disputed.

58 Dan B. Dobbs et al., Prosser and Keeton on Torts § 8, at 33 (5th ed. 1984).

59 Id., § 8, at 34.

60 Id. Prosser and Keeton's definition of "intentional" is drawn from the Restatement (Second) of Torts. Wisconsin's criminal statutes define "intentionally" as follows: " 'Intentionally' means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." Wis. Stat. § 939.23(3).

61 See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 791, 541 N.W.2d 203 (Ct. App. 1995) (quoting Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 N.W.2d 391 (1978)).

62 Counsel for the consumer objected to counsel for Mercedes-Benz referring to the November 29 filing in his closing statement; the objection was sustained.

63 Chariton, 238 Wis. 2d at 32.

64 Church v. Chrysler Corp., 221 Wis. 2d 460, 468-69, 585 N.W.2d 685 (Ct. App. 1998).

65 As explained above, the same result would necessarily follow if the appropriate middle burden had been applied to Mercedes's defense. Thus, remand is unnecessary despite the application of the incorrect burden.

66 Rechsteiner v. Hazelden, 2008 WI 97, ¶ 92, 313 Wis. 2d 542, 753 N.W.2d 496 (citing Robertson-Ryan & Assocs., Inc. v. Pohlhammer, 112 Wis. 2d 583, 586-87, 334 N.W.2d 246 (1983)).

67 Rechsteiner, 313 Wis. 2d 542, ¶ 92 (quoting Robertson-Ryan, 112 Wis. 2d at 587).

68 During the hearing before the first circuit court, the circuit court stated that Mercedes-Benz could obtain more limited discovery from Attorney Megna without violating the work product doctrine or the attorney-client privilege. It suggested the possibility of a written interrogatory.

69 Attorney Megna wrote a letter dated January 28, 2009, to Attorney Wells (counsel for Mercedes-Benz) offering to provide documents that related to the paralegal's testimony, but Attorney Wells declined the offer, declaring it to be self-serving and strategic. In response to Attorney Megna's motions in limine, Attorney Wells argued that Attorney Megna should either waive the attorney-client privilege and work product doctrine entirely or be precluded from presenting evidence that the consumer and Attorney Megna acted in good faith. In his reply to the defendant's response, Attorney Megna argued that there was no legal support for Attorney Wells's argument.

70 State v. Brecht, 143 Wis. 2d 297, 320, 421 N.W.2d 96 (1988).

71 State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30 (1998).

72 See Wis. Stat. § 904.01 (2009-10) (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").

This court has noted that "[t]he determination of relevancy can never be an exact science because it necessarily involves the trial court's considered judgment whether a particular piece of evidence tends to establish a fact of consequence in a given set of circumstances. The issue of relevancy 'must be determined by the trial judge in view of his or her experience, judgment and knowledge of human motivation and conduct.'" State v. Pharr, 115 Wis. 2d 334, 344, 340 N.W.2d 498 (1983) (quoting United States v. Williams, 545 F.2d 47, 50 (8th Cir. 1976)).

73 As we have explained, Mercedes-Benz made no specific argument to the circuit court on the morning of trial regarding the potential probative value of Attorney Megna's testimony. Although Mercedes-Benz argued that it could not make a proper offer of proof because it had been denied discovery regarding Attorney Megna, Mercedes-Benz could have provided a more thorough explanation to the circuit court of the potential probative value of Attorney Megna's testimony.

Regarding the importance of such offers of proof, Professor Daniel Blinka notes: "[T]he offer serves to educate the trial judge about what the evidence is, what it is being used to show, and why it is admissible under the rules of evidence. Trial judges have neither time nor opportunity to immerse themselves as deeply into a case as the trial lawyers who are responsible for presenting it. The offer, then, may provide the judge with the perspective and background necessary to make an informed decision on admissibility." Daniel D. Blinka, 7 Wisconsin Practice Series: Wisconsin Evidence § 103.4 (3d ed. 2008).