Filed: Aug. 25, 2015
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 14-3360 _ Southland Metals, Inc. lllllllllllllllllllll Plaintiff - Appellee v. American Castings, LLC lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Arkansas - Fayetteville _ Submitted: June 10, 2015 Filed: August 25, 2015 _ Before GRUENDER, MELLOY, and BENTON, Circuit Judges. _ MELLOY, Circuit Judge. American Castings, LLC (American), terminated an exclusive sales cont
Summary: United States Court of Appeals For the Eighth Circuit _ No. 14-3360 _ Southland Metals, Inc. lllllllllllllllllllll Plaintiff - Appellee v. American Castings, LLC lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Arkansas - Fayetteville _ Submitted: June 10, 2015 Filed: August 25, 2015 _ Before GRUENDER, MELLOY, and BENTON, Circuit Judges. _ MELLOY, Circuit Judge. American Castings, LLC (American), terminated an exclusive sales contr..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3360
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Southland Metals, Inc.
lllllllllllllllllllll Plaintiff - Appellee
v.
American Castings, LLC
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: June 10, 2015
Filed: August 25, 2015
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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
American Castings, LLC (American), terminated an exclusive sales contract
with Southland Metals, Inc. (Southland), after Southland allegedly committed an
incurable breach. Southland sued American, claiming American failed to comply with
the termination procedure set out in the contract by not providing it with proper notice
and an opportunity to cure. A jury found American breached the contract and
awarded Southland approximately $3.8 million in damages. American moved for
judgment as a matter of law and for a new trial. The district court1 denied a new trial
and upheld the jury verdict. Because the evidence was sufficient to find American
breached the contract and because the district court did not abuse its discretion by
denying American’s motion for a new trial, we affirm.
I
American is an Oklahoma-based foundry that manufactures iron castings for
various customers, and Southland is an Arkansas-based sales company that sells
castings, including the types American manufactures. After operating under a verbal
agreement for a number of years, American and Southland entered into a written
“Exclusive Representation Agreement” on November 15, 2010. At the time the
parties signed the contract, American was aware Southland represented a number of
other foundries, both domestically and internationally, and had existing business with
those other foundries.
According to the contract, American “desire[d] representation with respect to
the promotion and sale of products manufactured by [American] at Pryor, OK and as
set forth on Schedule ‘A&B’, attached hereto (collectively, the ‘Products’).” And
Southland “desire[d] to represent [American] with respect to the promotion and sale
of the Products to the customers listed on Schedule ‘A&B’ (collectively, the
‘Accounts’).” Attached to the contract were three schedules: Schedule A listed
“Active Accounts,” customers with which American was then doing business;
Schedule B listed “Potential Accounts”; and Schedule C listed “Foundries
Grandfathered,” those foundries with which Southland had existing relationships.
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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Despite the apparent specific definition of “Products” in the contract’s recital
and the recital’s statement that Southland would represent American “with respect to
the promotion and sale of products . . . as set forth on Schedule ‘A&B’, attached
hereto,” neither Schedule A nor B listed any products manufactured by American or
defined “Products.” Only one other schedule was attached, but it referred to other
foundries, not products. Additionally, no section of the contract defined “Products.”
The term was nevertheless frequently used throughout the contract.
Under the contract, Southland had the exclusive right to sell American’s
“Products to the Accounts.” Southland had a duty to devote adequate time and energy
and “use its best efforts to solicit and promote the sale, specification, and use of the
Products to the Accounts,” but it had freedom to “select working hours and . . .
[implement] its own marketing plan or system.” Southland also had a duty to “[a]ct
at all times in the appropriate manner so as not to disparage or injure the reputation
or good standing of [American] or its Products.” In exchange, the contract entitled
Southland “ordinarily” to a 5% commission “on Products sold to Accounts.”2
Southland was also subject to a confidentiality agreement. Southland was
prohibited from “disclos[ing] any Confidential Information to any third party without
the express written consent of [American], except as required to perform obligations
under th[e contract] in furtherance of the business of [American].” Southland also
could not use confidential information “for [Southland’s] own benefit or otherwise
appropriate the same for the use of any other person, firm or entity.”
Due to the exclusive nature of the contract, American and Southland agreed to
various noncompete clauses, set forth in Section 5 of the contract. Under the contract,
Southland could not:
2
Technically, the contract allowed different commissions in some instances,
but the minor technicality is immaterial to the present appeal.
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(a) Conduct, engage in, have an interest in, or aid or assist any person
or entity in engaging in the performance of activities which
compete with services, sales or products of [American] or
represent any product which competes with the Products;
(b) Solicit, divert, take away or interfere with any business,
customers, customs, trade or patronage of [American]; or . . .
(d) Except for foundries that are grandfathered (see Schedule “C”,
attached hereto), represent any foundry that competes with
[American] without written authorization of [American].
The contract also contained termination provisions. Either party could
terminate the contract by giving the other 90 days’ notice. In the event of a breach,
the nonbreaching party could terminate the agreement after giving written notice and
allowing the breaching party 30 days to cure the breach. If terminated at will by
American, American had to pay Southland commissions for two years following
termination. If, however, the contract was terminated due to a breach that was not
cured, Southland would not be entitled to any commissions. Further, the parties
agreed the contract would “immediately terminate in the event either party becomes
the subject of a . . . bankruptcy proceeding, is adjudged insolvent, is the subject of an
assignment for creditors or receivership proceeding, or is subject to a similar
proceeding.”
In operation, Southland would seek out customers to whom American could sell
castings. The customers would indicate their needs, and Southland would send
American a request for quote (RFQ). American would then prepare a quote and have
Southland communicate the quote to the customers. Assuming the quote was for a
Schedule A or Schedule B account, Southland would receive a commission.
In 2011, Southland obtained approximately $32.5 million in new sales for
American—making up approximately 80% of American’s total new sales. In
comparison, the 2010 year showed just $4.2 million total in new sales. But by March
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2012, American CEO Mike Fuller had begun advocating for the replacement of
Southland with an internal sales team because he believed American had “outgrown
the relationship” with Southland.
In May 2012, one of Southland’s sales representatives, Bob Levesque, attended
a meeting at American headquarters and accidentally left a notepad in a conference
room. An American employee gave the notepad to Fuller. Inside, Fuller discovered
quotes from non-Schedule C foundries based in Turkey and Brazil. No one at
Southland had asked for written authorization from American to provide these quotes,
and no one at American had provided authorization.
Fuller considered these quotes to be a breach of the contract, but he did not
mention anything to Southland at that time. Instead, he talked to board members of
American’s parent company, and, together, they decided to move forward with a plan
to organize an internal sales force.
Meanwhile, Southland continued seeking orders on behalf of American.
Between May and October 2012, Southland obtained over $24 million in new
business for American. At no time between the discovery of the allegedly breaching
quotes and October 4, 2012, did American inform Southland of a breach. In fact, the
parties amended their contract in August.
On October 4, 2012, however, the Director of Treasury and Risk for American’s
parent company, Charles Dowling, called Southland’s President, Kenneth Crawford,
to inform him that American considered Southland in breach of the contract. Fuller
also sent Crawford a termination letter, dated October 4. The termination letter stated
simply:
This letter serves as notice of termination of the [November 15, 2010]
agreement in accordance with Section 11 as a result of [Southland’s]
breach of Section 5 of the Agreement. Termination will be effective 30
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days from today’s date. As a result of this termination, [Southland] is
not entitled to any continuing commissions under Section 9 of the
Agreement after termination.
We remind you of your continuing obligations under the Agreement,
including without limitation Section 5[, a continuing duty not to compete
for 24 months]. Please contact the undersigned with any questions.
(emphasis added). In response, Crawford repeatedly called, sent text messages to, and
emailed Dowling and Fuller to learn the reason for the termination. No one from
American responded to these messages.
American paid Southland commissions for another 30 days, until November 3,
2012, at which time American discontinued paying commissions and considered the
contract terminated. Southland sued American in Arkansas state court on January 31,
2013, alleging American breached the contract’s termination provisions by not
providing adequate notice of the breach or the opportunity to cure and by not paying
continuing commissions to Southland. Southland asserted it was entitled to continuing
commissions under the contract. American removed the case to federal court and
alleged Southland had committed an incurable breach such that notice and the
opportunity to cure were not necessary.
During discovery, American came to believe Southland had breached the
agreement on other occasions in addition to the already known alleged breaches
regarding Turkish and Brazilian quotes. Specifically, American believed Southland
had used American quotes to aide Southland in obtaining business from a Chinese
company. Additionally, American discovered Southland had entered into an
agreement with a different domestic foundry that did business with one of American’s
Schedule A customers.
According to Southland, these actions did not constitute breaches under the
contract. Southland explained that the Turkish quote was requested by a customer and
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that Levesque had told the customer international quotes would not be competitive
with American’s quote. Levesque also explained that one of the customer’s
employees needed additional quotes to demonstrate to his manager that he was
exploring all options. Levesque indicated he was operating in American’s best
interests by providing the international quote to show American was a more
economical alternative. Southland also claimed the Brazilian quote found in the
conference room did not constitute competition because the quote was for a part that
American had declined to quote or produce.
With respect to the alleged breaches discovered during pre-trial litigation,
Southland argued the Chinese company was listed in Schedule C, thereby allowing
Southland to represent the company. And, regarding the domestic foundry, Southland
contended the foundry did not “compete” with American due to the two foundries’
differing capabilities.
American moved for summary judgment on Southland’s claim. American
argued that, under the unambiguous language of the contract, Southland breached the
agreement and the breach was so severe that it was incurable. Southland responded
by pointing to the term “Products” in the contract and arguing the term’s interaction
with the noncompete provisions made the contract ambiguous. Southland then argued
a jury could conclude that the contract did not prohibit Southland’s actions.
The district court denied summary judgment, finding the contract ambiguous
and finding jury questions with respect to the meaning of the terms “Products” and
“compete.” The ambiguity, according to the district court, led to factual questions
about whether Southland breached the contract at all. Further factual questions
existed with respect to whether American provided adequate notice and whether
Southland’s alleged breaches were curable.
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Trial took place in July 2014, during which the jury heard the facts described
above. American moved for judgment as a matter of law, which the district court
deferred. The district court instructed the jurors that they would be responsible for
“decid[ing] the meaning of the following terms of the contract: ‘Products’ and
‘compete.’” It gave the jury instructions on how to interpret the contract. The district
court also provided the jury with an instruction on “incurablity.” The district court
explained:
When there is a breach of contract going directly to the essence of the
contract, which is so exceedingly grave as to irreparably damage the trust
between the contracting parties, the non-breaching party may terminate
the contract without notice and right to cure, where the nature of the
breach is such that it cannot be reasonably cured.
The district court also instructed the jury on waiver, telling the jury “[a] party is
relieved of the duty to perform a contract if the other party to the contract by acts or
conduct, indicated an intent not to enforce the contract so that a reasonable person
would think that performance of the contract was no longer required.”
The jury returned a general verdict in which it found “American Castings
breached the contract by terminating it in a manner that did not comply with
paragraph 11[, the termination provisions,] of the Manufacturer’s Representative
Agreement.” The jury found American owed Southland approximately $3.8 million
in damages based on the commissions for sales during the two-year post-termination
period.
American renewed its motion for judgment as a matter of law, and in the
alternative, moved for a new trial. The district court denied the motions. American
timely appealed.
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II
American asserts the district court erred by not granting it judgment as a matter
of law. In the alternative, it argues the district court should have granted it a new trial.
For the reasons stated below, we affirm.
We turn to American’s claims that it was entitled to judgment as a matter of
law. We review the denial of a motion for a judgment as a matter of law de novo, and
we view the evidence in the light most favorable to the jury’s verdict. Am. Bank of
St. Paul v. TD Bank, N.A., 713 F.3d 455, 462 (8th Cir. 2013). Because the parties
agree Oklahoma law governs the contract, we apply substantive Oklahoma law. See
Friedberg v. Chubb & Son, Inc.,
691 F.3d 948, 951 (8th Cir. 2012).
To succeed under Oklahoma law, Southland had to demonstrate the parties
entered into a contract, American breached that contract, and Southland was injured
by American’s breach. Dig. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 843
(Okla. 2001). The parties agreed the contract was valid, and there was no dispute that
Southland was injured by American’s alleged breach. The issue for the jury, then, was
whether American breached the contract. In support of its argument that it is entitled
to judgment as a matter of law, American asserts the contract was unambiguous and
under the unambiguous language of the contract, no reasonable jury could find
American breached the contract. American argues this is true because Southland
committed an incurable breach, so notice and an opportunity to cure was not
necessary.
We first address whether the contract was ambiguous. The determination of
whether a contract is ambiguous is a question of law, which we review de novo.
Winthrop Res. Corp. v. Stanley Works, 259 F.3d 901, 903 (8th Cir. 2001); M.J. Lee
Constr. Co. v. Okla. Transp. Auth.,
125 P.3d 1205, 1210 (Okla. 2005). Under
Oklahoma law, “[a] contract is ambiguous if it is reasonably susceptible to at least two
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different constructions.” Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541,
545–46 (Okla. 2003). To determine whether the contract is ambiguous, we look to the
language of the entire contract and give terms their ordinary and plain meaning, unless
the parties use a term in a technical sense.
Id. at 546.
Here, the contract’s opening recital uses the term “Products,” and claims that
the term is defined in separate schedules attached to the contract. Those schedules,
however, do not contain a list of products or a definition of the term. Nor is
“Products” defined anywhere else in the contract. The contract then uses “Products”
abundantly. Both parties’ responsibilities are tied to the “Products” of the
manufacturer, and commissions are tied to “Products.” The term is open to two
interpretations. American argues it applies to all products that are manufactured for
Schedule A and B customers, regardless of whether American can, or chooses to,
make those products. Southland asserts that “Products” is more limited—although it
applies to products manufactured for Schedule A and B customers, it refers only to
those products American chooses and has the ability to make for those customers.
Both are reasonable interpretations, making the term ambiguous.
American asserts that this ambiguity is immaterial to this case, however,
because it has no bearing upon the noncompete clauses contained within the contract.
We disagree. Upon reviewing the entire contract, “Products” plays a key role
throughout. And, although the noncompete provisions may not specifically reference
“Products,” the agreement also does not define “compete” or any variation thereof.
It is unclear whether Southland was prohibited from competing with the “Products”
specifically or whether it was prohibited from dealing generally with other players in
the industry. The scope of “compete” and the variations thereof is unclear from the
contract. As such, an ambiguity exists.
Because an ambiguity exists, we must turn to extrinsic evidence to determine
the intent and meaning of the parties. See Fowler v. Lincoln Cty. Conservation Dist.,
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15 P.3d 502, 507 (Okla. 2000). And, under Oklahoma law, “[w]here the meaning of
an ambiguous written contract is in dispute, . . . construction of such contract becomes
a mixed question of law and fact, and is for jury determination under proper
instructions.”
Id. The district court did not err by submitting the question to the jury.
Finding that the question of contract interpretation was properly in front of the
jury, we must determine whether sufficient evidence supported the jury verdict. See
Am. Bank of St. Paul, 713 F.3d at 462. Where a contract specifies the manner of
termination, the party terminating the contract must adhere to the contract’s express
terms regarding termination. Osborn v. Commanche Cattle Indus., Inc.,
545 P.2d 827,
830 (Okla. Civ. App. 1975); see also
Pitco, 63 P.3d at 545 (explaining when a contract
is “clear and free of ambiguity,” the mutual intent of the contracting parties controls).
The termination provision at issue here specifically required written notice of a breach
and the opportunity to cure.
There was sufficient evidence that American did not properly comply with the
termination provisions of the contract. Even assuming American’s notice was
adequate—which Southland disputes—the jury could find American did not comply
with the cure provision. In the termination letter, American told Southland simply that
it believed Southland breached “Section 5 of the Agreement.” When a Southland
representative called, emailed, and sent text messages to obtain more information
about the alleged breach or to discuss a cure, American did not respond or provide
Southland an opportunity to cure the alleged breach.
This finding, however, does not end our inquiry. American asserts that it was
free from the notice and cure requirements because Southland breached the agreement
and the breaches went “directly to the essence of the contract” and were “so
exceedingly grave as to irreparably damage the trust between [Southland and
American].” In other words, American argued at trial, and continues to assert,
Southland’s breaches were incurable. Southland argues there was sufficient evidence
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for a jury to find Southland did not breach the contract, and even if Southland
breached the contract, it was not so grievous to make a cure impossible.
We need not decide whether there was sufficient evidence for the jury to
determine Southland did not breach the contract. We find the jury had sufficient
evidence to conclude Southland’s breaches were curable. Southland presented
evidence to demonstrate that even if its actions constituted breaches of the agreement,
the breaches stemmed from mere misunderstandings.
With respect to the Turkish quote, Southland adduced evidence showing the
quote was obtained as a courtesy to make a customer happy and was obtained to
continue marketing American products to the customer. In fact, Levesque obtained
approximately $7 million in business from the customer for American. Regarding the
Brazilian quote, Southland reasonably understood—perhaps incorrectly—American
was not interested in manufacturing the part. Southland also presented testimony that
it did not consider any of the Chinese quotes competition because the Chinese
company was on Schedule C—the listing of grandfathered companies with which
Southland had previously done business. With respect to alleged violations of
confidential information, there was evidence tending to show quotes from various
companies were industry norm. Finally, when dealing with the other domestic
foundry, Southland demonstrated evidence tending to show the foundry was not a
competitor to American because the two foundries produced different products.
Perhaps most telling that cure was possible is the fact that American and
Southland continued to have a fruitful relationship even after American discovered the
alleged breaches in May 2012. Southland continued to deliver RFQs to American for
an additional four and a half months. These RFQs eventually generated tens of
millions of dollars in business for American.
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There was sufficient evidence in the record for a jury to conclude Southland’s
alleged breaches were misunderstandings of the contract, not intentional violations
that necessarily destroyed all trust. To the extent any harm outside of a lack of trust
occurred to American, Southland could have cured the alleged breaches through
monetary means.
American also argues it is entitled to a new trial. We review the denial of a
motion for a new trial for an abuse of discretion. Hiser v. XTO Energy, Inc., 768 F.3d
773, 776 (8th Cir. 2014). American argues the district court inappropriately instructed
the jury on waiver.3 We review jury instructions for an abuse of discretion. Stanely
v. Cottrell, Inc.,
784 F.3d 454, 462 (8th Cir. 2015). We look at the totality of the
instructions to determine whether there was error. See
id. In light of the district
court’s instruction on incurability and in light of the evidence presented at trial, the
district court did not err by instructing the jury on waiver. There was evidence to
show American learned of a breach and decided to ignore the breach. American
argues the instruction was improper because it was not fully informed of all breaches
at the time it supposedly waived performance. However, whether American would
have terminated the contract earlier if it had the benefit of this additional knowledge
was a question for the jury. The jury could have found that American would not have
reacted any differently even if they had known of additional breaches. The district
court did not abuse its discretion by including a waiver instruction.
American also argues it is entitled to a new trial because the district court
allowed parol evidence beyond what was required to define “compete” and
“Products.” American did not object to any such evidence, so we review for only
3
To the extent American asserts the jury instructions were flawed due to
ambiguity-related instructions, we find no error by the district court. For the reasons
described above with reference to American’s motion for judgment as a matter of law,
the contract was ambiguous, and the instructions were proper.
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plain error. See Schaub v. VonWald, 638 F.3d 905, 925 (8th Cir. 2011). Upon review
of the record, we find no plain error.
The district court did not err by denying American judgment as a matter of law,
nor did it abuse its discretion by denying a new trial. The judgment of the district
court is affirmed.
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