PER CURIAM.
Meridian Creative Alliance, LLC ("Meridian") and O'Reilly Automotive Stores, Inc. ("O'Reilly") entered into a series of both verbal and written contracts, culminating in a 2007 written contract for the provision of services for radio and print advertising. O'Reilly terminated the contract in 2008; Meridian sued. Meridian claimed that it was to be the "exclusive" agency for O'Reilly's media advertising, which O'Reilly denied, alternatively claiming that Meridian had breached the contract. O'Reilly also asserted several ancillary counter and third-party claims that were tried in the same trial: the counterclaim was against Meridian and its three principals for a breach of the contract; the third-party claim was against Ron Byerly, O'Reilly's former employee who had negotiated the contract, for a breach of fiduciary
Meridian appeals, claiming the trial court erred in failing to award prejudgment interest on the judgment. O'Reilly cross-appeals, raising six points: the first claims error in allowing a total of nine peremptory challenges; then two points charge instructional error; two points complain of failure to grant JNOV; and a final point charges juror misconduct by injecting extrinsic evidence into the jury's deliberations.
For ease of discussion and because it effectively disposes of two of O'Reilly's complaints, we first address O'Reilly's Point II claim of error in submitting Instruction No. 7, Meridian's verdict director for breach of contract. At trial, the parties were in sharp disagreement whether the contract required O'Reilly to employ Meridian — and only Meridian — to procure radio and print advertising. The 2007 written contract at issue stated, in pertinent part, "O'Reilly agrees to use [Meridian] as its agency for radio and print advertising during the term of this agreement." (Emphasis added.) The trial court ruled, prior to the trial, that the language in the contract, "its agency," was ambiguous as to whether it meant "exclusive" and, thus, was an issue for the trier of fact after hearing all the evidence. Despite that determination that the language was ambiguous and the disagreement of the parties as to what the language meant, the trial court submitted as a verdict director Instruction No. 7, which incorporated the ambiguous contract term ("its agency") without any definition or guidance in defining that term.
O'Reilly claims this was error; that Instruction No. 7 did not require the jury to resolve the central issue — whether the 2007 contract was "exclusive" — a finding necessary to sustain Meridian's theory of liability for breach of the contract. We agree.
Instruction No. 7 was based on MAI 26.06. "MAI 26.06 was adopted by the Supreme Court as appropriate for the submission of the two-element dispute of 1) what agreement was made and 2) whether that agreement was breached."
Instruction No. 7 provided:
(Emphasis added.)
Initially, the verdict director refers to the parties entering into "an" agreement. The parties had a long history of oral and written contracts. The details of all of the oral and written contracts were discussed for days throughout the trial. The jury instruction did not instruct the jury that the only contract at issue in the lawsuit was the 2007 written contract, which encompassed the years 2008-2013. The jury could have found that the hand-shake deal of the early 2000's or the contract of 2005 that actually used the words "exclusive" still applied to this claim for damages by Meridian.
Although Meridian claims that there was no doubt that the jury knew which contract was at issue, we cannot be sure that is accurate. The transcript was approximately 4,000 pages. The parties spent hours delving into the prior oral and written contracts. Many of the objections and rulings involved evidence that would not have been relevant to the 2007 written contract dispute but may have been relevant on some of the counterclaims and third-party claims. There are many ways the jury could have been misled after hearing all of the evidence of the parties' dealings. The jury must rely upon the court to give it the correct law in the matter by way of the formal instructions. In this case, the jury was not instructed by the court that the 2007 written contract was the contract at issue in Instruction No. 7.
The confusion about which contract was at issue is compounded by other language in the verdict director. The first paragraph continues that Meridian agreed to perform "certain" radio and print advertising services for O'Reilly and O'Reilly agreed that it was "required" to use Meridian as "its agency" for radio and print advertising. The jury could have found that the choice was Meridian's whether to perform certain radio and print advertising. There certainly was ample testimony that Meridian was actually under no obligation to purchase any advertising for O'Reilly if it could not meet O'Reilly's "price point."
Further, and most importantly, the jury instruction does not instruct the jury that O'Reilly had to use Meridian as its exclusive agency for all radio and print advertising, nor does it use the word "sole" agency. Thus, the court instructed the jury that they must find for Meridian if O'Reilly entered into a contract, which O'Reilly admittedly entered, when the real issue was the legal effect of the words in the contract. Did "its agency" mean exclusive or sole agency, or one of multiple agencies engaged by O'Reilly?
Because the contract used the words "its agency," the jury could have found that O'Reilly was obligated to pay Meridian without determining whether "its agency" in the contract meant that the contract was exclusive. There is no question that a business may hire an agency as "its" agency but that agency is not an exclusive agency. In this case, O'Reilly could have
The failure to hypothesize the critical issue is prejudicial.
Meridian counters in its argument that the word "exclusive" was mentioned in the three and one-half week trial 694 times — that is, over eleven days of evidence presentation at trial, once every six minutes — to support its claim that the jury understood that exclusivity was the issue. That argument favors the necessity of giving the jury the correct factual determination. As noted above, the jury instructions are the sole source of law given to the jury by the court. The jury is told that they must be guided by the instructions of the court. To then present to the jury the law which does not mention the word "exclusive" or instruct the jury that the law is that Meridian can only recover if the 2007 contract gave them the right to be the exclusive or sole agency of O'Reilly potentially misled or confused the jury.
To reiterate, the trial judge determined that the 2007 contract was ambiguous as to exclusivity, raising a fact issue to be submitted to the jury.
Point III must also be granted on the same basis. Instruction No. 8
We now address O'Reilly's first point that the trial court erred in allowing nine rather than six peremptory challenges to potential jurors. At common law, there was no right of peremptory challenge in civil actions.
Although Meridian, the Meridian principals, and Byerly claim that, in essence, the trial judge was "forced to try two separate lawsuits at once," neither party claims error that there was one trial combining the claims. The trial court had the prerogative to separate the trials or to exercise its discretion in following section 494.480 in the allocation of six peremptory challenges between the litigants. Thus, allowing more than six peremptory challenges was error.
The determination that it was error to allow more than six peremptory challenges does not end our inquiry, however. The question that must be answered is whether prejudice must be shown in order to prevail. In a case in which the allocation of the six peremptory strikes was challenged, our Supreme Court posited, "a judgment will not be reversed unless the error in awarding peremptory challenges to a litigant, or to multiple litigants having the same interest, is shown to be prejudicial."
In
We are confronted with a different factual situation. Nine peremptory challenges were split between the parties. Under these unique facts, if all of the other parties shared only three peremptory strikes and, if O'Reilly had been given and taken three peremptory strikes of jurors for a total of six peremptory challenges, nine jurors signed the verdict without the
O'Reilly's sixth point, which expressly posits that juror misconduct "is undisputed" and treats prejudice as the sole issue, is wrong in both respects and fails for that reason alone. Further, what O'Reilly cites as misconduct evidence was only an offer of proof, and even further was hearsay, which O'Reilly does not deny, and to which opposing counsel made proper and timely objections below. The trial court did not abuse its discretion in denying a new trial on this issue. Point VI is denied.
Finally, we address O'Reilly's complaints that the trial court erred in not granting JNOV on each of Meridian's claims. In Point IV, as to Meridian's breach of contract claim, O'Reilly argues that there was no substantial evidence that O'Reilly agreed to use Meridian as its exclusive agency for radio and print advertising under the 2007 contract. In Point V, as to Meridian's good faith/fair dealing claim, O'Reilly claims there was no proof that it breached the agreement or that Meridian complied with cost-per-point limitation in the contract or was entitled to any compensation. In reviewing each of these claims, we view the evidence in the light most favorable to the result reached by the jury, and we give the plaintiff the benefit of all reasonable inferences and disregard evidence and inferences that conflict with the jury verdict and only reverse if there is a "complete absence of probative fact to support the jury's conclusion."
Given this standard of review, and mindful that O'Reilly has not made any challenges to the evidence that was admitted at trial, neither of O'Reilly's submissibility challenges is persuasive. We deny O'Reilly's Points IV and V.
The judgments of Meridian on its claims against O'Reilly are reversed and remanded; the judgments against O'Reilly on its claims in favor of Meridian, Bryant, Lewis, and Dillon are affirmed; the judgments in favor of Byerly are affirmed.