United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 08-2976/08-3128
___________
Friedman & Friedman, Ltd., an Illinois *
Corporation; Jeanne Enders; Arie S. *
Friedman; Gail Tuler Friedman; *
Eugene F. Friedman, *
*
Plaintiffs–Appellees/ *
Cross-Appellants, *
*
v. *
*
Tim McCandless, Inc., an Iowa * Appeals from the United States
Corporation; Paul Roloff, * District Court for the
* Northern District of Iowa.
Defendants–Appellants/ *
Cross-Appellees, *
*
Swieter Aircraft Services, Inc; Irwin *
Swieter; Richard Baxter, *
*
Defendants, *
*
State of Iowa ex rel. Civil *
Reparations Trust Fund, *
*
Intervenor–Appellee. *
___________
Submitted: October 20, 2009
Filed: May 25, 2010
___________
Before WOLLMAN, MURPHY and BYE, Circuit Judges.
___________
MURPHY, Circuit Judge.
Friedman & Friedman, Ltd.1 (Friedman) brought this action against Tim
McCandless, Inc. (McCandless) which sold it an airplane which allegedly failed to
comport with the contract and with the representations by the seller and its sales
manager Paul Roloff.2 A jury returned a verdict in Friedman’s favor, finding that
McCandless had breached the contract and that McCandless and Roloff had
fraudulently misrepresented the plane's condition. McCandless appeals on the
ground that the district court refused to instruct the jury on Friedman's duty to
provide timely notice of the plane's alleged nonconformity with the contract. We
reverse and remand for a new trial.
I.
We view the facts in the light most favorable to Friedman because the jury
ruled in its favor. Wilson v. City of Des Moines, 442 F.3d 637, 639 (8th Cir.
2006). In May 2002, the law firm of Friedman & Friedman, Ltd. purchased a 1981
Cessna Model P210 airplane from the aircraft dealer Tim McCandless, Inc. Each
side produced a document which was claimed to be the purchase contract: a letter
agreement, which was produced by Friedman, and an aircraft purchase agreement
by McCandless. Both documents required the plane to be airworthy and certified
as such. The letter agreement produced by Friedman made no warranty
1
There were also four individual plaintiffs but each was dismissed with consent
before the case was submitted to the jury (Jeanne Enders and Arie, Gail, and Eugene
Friedman).
2
All claims against defendants Irwin Swieter and Swieter Aircraft Services, Inc.
were dismissed on a motion for directed verdict after the close of Friedman's case in
chief.
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disclaimers and required the plane to be delivered complete with the promised
components and accessories. The aircraft purchase agreement, on the other hand,
offered the plane as is and made no representations about components or
accessories.
Before the plane was delivered, Livingston Aviation, Inc. inspected it and
found it "unairworthy." Shortly thereafter, repairs were performed by defendant
Swieter Aircraft Services, Inc. McCandless then delivered the plane to Friedman
on May 15, 2002. About two months later, on July 12, 2002, Friedman called
McCandless's attorney to report that the plane was not airworthy. Counsel asked
Friedman to provide a list of the plane's defects, but no further communications
took place for nearly ten months. Then on May 8, 2003 Friedman sent a list of
repairs needed and work completed, along with a demand for payment.
McCandless rejected the demand.
Friedman first sued in Illinois state court, but that action was dismissed for
lack of jurisdiction. It then filed this diversity case in federal district court,
charging that McCandless had both breached the letter agreement and, in concert
with its sales manager Roloff, fraudulently misrepresented that the plane was (1)
airworthy and certified as such, (2) safe for flight, and (3) complete with the
promised components and accessories. McCandless responded with its own action
in Iowa state court which was subsequently removed to the federal district court
where the cases were consolidated with the parties' consent.
In addition to Friedman's breach of contract and fraudulent
misrepresentation claims, the consolidated action included claims and
counterclaims which were dismissed before the case was submitted to the jury.
Immediately before trial the court dismissed the following by consent: Friedman's
claims for promissory estoppel and intentional infliction of emotional distress;
Friedman's claims against defendant Richard Baxter; and McCandless's
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counterclaims for breach of contract, fraud, and abuse of process. After the close
of Friedman's case in chief, the defendants successfully moved for directed
verdicts on Friedman's claims for conversion, violation of the Illinois Consumer
Fraud and Deceptive Practices Act, and civil conspiracy to commit fraud and
breach of contract.
Although McCandless did not plead an affirmative defense to the breach of
contract claim in its federal court answer to Friedman's complaint, the final pretrial
order issued by the district court expressly provided that one of the issues at trial
would be its defense that Friedman was barred from recovering on the contract for
failing to provide timely notice of the plane's nonconformity. After the close of
evidence, McCandless offered jury instructions on a buyer's duty under Iowa law
to provide the seller with timely notice of nonconforming goods. The district court
declined to give the requested instructions, however. It overruled McCandless's
objection on the ground that the proposed instructions "would comment on the
evidence and would potentially modify the purported contracts," but it allowed the
parties to discuss their views about the contractual terms in their closing
arguments.
The magistrate judge submitted the case to the jury using a verdict form with
six questions:
1. Did Plaintiff prove by the greater weight or preponderance of the
evidence its claim for breach of contract against Tim McCandless,
Inc.?
2. Did Plaintiff prove by a preponderance of clear, satisfactory, and
convincing evidence its claim for fraudulent misrepresentation against
Defendants?
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3. State the amount of damages Plaintiff sustained as a proximate
result of Defendants' breach of contract or fraudulent
misrepresentation.
4. Do you find by a preponderance of clear, convincing, and
satisfactory evidence that the conduct of Defendants constituted
willful and wanton disregard for the rights or safety of another?
5. What amount of punitive damages, if any, do you award?
6. Was the conduct of Defendants directed specifically at Plaintiff?
The jury was instructed to answer yes or no to questions 1, 2, 4, and 6. It answered
"yes" to questions 1, 2, and 4. Question 3 called for "the amount of damages
Plaintiff sustained as a proximate result of Defendants' breach of contract or
fraudulent misrepresentation." (emphasis added). The jury's answer was
$26,468.36. It also awarded $50,000.00 in punitive damages in response to
question 5 and answered the final question "no."
McCandless and Roloff appeal from the judgment and from the denial of
their motion for a new trial or for amendment of the judgment. McCandless
contends that a new trial is required because the district court abused its discretion
by excluding its requested jury instructions on the timely notice of nonconformity
defense to the breach of contract claim. It also argues, in concert with Roloff, that
a new trial is required because two of the jury findings with respect to fraudulent
misrepresentation were irreconcilably inconsistent. Friedman cross appeals from
the denial of its bill of costs for failure to comply with local rules.
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II.
A.
Friedman argues that McCandless waived its affirmative defense on the
contract claim by failing to plead in its answer that Friedman had not provided
timely notice of the plane's alleged nonconformity.3 McCandless admits that an
affirmative defense not raised in the defendant's responsive pleadings is generally
forfeited, Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir. 1988), but it
argues that inclusion of the defense in the court's final pretrial order as one of the
issues to be tried preserved the issue for trial.
The final pretrial conference and order "measure[] the dimensions of the
lawsuit," including the issues to be tried. United States v. 84,615 in United States
Currency, 379 F.3d 496, 499 (8th Cir. 2004) (internal quotation marks and citation
omitted). The final pretrial conference is critical for "promoting efficiency and
conserving judicial resources by identifying the real issues prior to trial, thereby
saving time and expense for everyone." Fed. R. Civ. P. 16 Advisory Committee
Note (1983 Amendment to subdivision (c)). As a result, "the agreements and
stipulations made at [the] final conference will control the trial." Id. (1983
Amendment to subdivision (d)). The issues identified at the final pretrial
conference and the agreements and stipulations made there are incorporated into
the final pretrial order, which thereafter "controls the course of the action." Fed. R.
Civ. P. 16(d).
3
Friedman also argues that the defense of lack of timely notice of
nonconformity is unavailable to McCandless because (1) it is not a defense to
fraudulent misrepresentation, and (2) even if it were, McCandless waived the defense
by failing to object to any of the jury instructions regarding it. Both arguments are
misplaced. The jury found McCandless liable for both breach of contract and
fraudulent misrepresentation. Failure of timely notice of nonconformity is a defense
to the claim for breach of contract, Iowa Code § 554.2607(3)(a), and McCandless
objected to the district court's failure so to instruct the jury.
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Indeed, because "[its] purpose is to guide the course of the litigation," Fed.
R. Civ. P. 16 Advisory Committee Note (1983 Amendment to subdivision (e)), the
final pretrial order supersedes the pleadings. 84,615 in United States Currency,
379 F.3d at 499. Thus, an issue identified in the pretrial order is properly within
the scope of the trial even though it was not included in the original pleadings. For
example, in American Surety Co. of N.Y. v. Williford, 243 F.2d 494 (8th Cir.
1957), we concluded that the district court did not err by ruling upon the existence
of an unpled oral contract precisely because the pretrial order specified that the
existence of that contract was an issue to be determined at trial. Id. at 496.
An unpled affirmative defense identified in the pretrial order is no exception
to the rule that issues identified in the pretrial order supersede the pleadings. See
84,615 in United States Currency, 379 F.3d at 499. Its absence from the original
pleadings therefore does not work a forfeiture of the right to assert the defense at
trial. See also Vaughn v. King, 167 F.3d 347, 352 (7th Cir. 1999) (concluding that
unpled affirmative defense was preserved by inclusion in pretrial order);
Management Investors v. United Mine Workers, 610 F.2d 384, 390 n.17 (6th Cir.
1979) (rejecting as "clearly meritless" contention that unpled affirmative defense is
not preserved by inclusion in pretrial order). McCandless preserved the defense of
timely notice of nonconformity by expressly including it in the final pretrial order
approved by the court. (Final Pretrial Order 18.) That is especially clear here,
where the pretrial order was jointly drafted by the parties and Friedman failed to
object at the final pretrial conference to the inclusion of McCandless's defense in
the final pretrial order.
B.
We turn next to the substance of McCandless's contention that the district
court abused its discretion when it refused to instruct the jury on Friedman's duty
to provide timely notice of the plane's nonconformity with the contract.
McCandless argues that this error necessitates a new trial because it deprived it of a
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viable defense which was supported by evidence. We review the district court's
jury instructions for an abuse of discretion. Boesing v. Spiess, 540 F.3d 886, 891
(8th Cir. 2008).
A party is entitled to a jury instruction on its theory of the case if the
instruction is both legally accurate and supported by the evidence. Thornton v.
First State Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993). The district court is
afforded broad discretion in choosing the form and substance of the jury
instructions, however. The instructions need be neither technically perfect nor a
model of clarity. Mems v. City of St. Paul, 327 F.3d 771, 781 (8th Cir. 2003).
Appellate review of jury instructions focuses on "whether the instructions,
when taken as a whole and in light of the particular issues presented, fairly and
adequately presented the evidence and the applicable law to a jury." Id. An
erroneous instruction warrants a new trial only if the error "misled the jury or had a
probable effect on the verdict." Slidell, Inc. v. Millennium Inorganic Chemicals,
Inc., 460 F.3d 1047, 1054 (8th Cir. 2006).
Because jurisdiction here is based upon diversity of citizenship, Iowa law
governs the substance of the jury instructions. See Wheeling Pittsburgh Steel
Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001).
McCandless submitted two jury instructions purporting to summarize the Iowa
Uniform Commercial Code (IUCC) provisions which establish a buyer's duties
upon receipt of goods delivered pursuant to a contract. Neither was given by the
court.
Both instructions fairly summarize the applicable state law. See Iowa Code
§§ 554.2513, .2602, .2606–07, .2714. Requested instruction 6 provided that:
A buyer of goods, such as the subject airplane, has the right to inspect
the airplane prior to payment or acceptance of the airplane from the
seller. If, after inspection by the buyers, the airplane was accepted,
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then the buyer must pay the contract price for the plane which was
accepted.
Requested instruction 7 read as follows:
A buyer must pay at the contract rate for any goods which it has
accepted. To recover damages once the plane has been accepted, the
burden is on the buyer to show that, within a reasonable time after the
buyer discovered, or should have discovered, any breach [it] notif[ied]
the seller of the breach, or [the buyer will] be barred from any further
remedy.
The defense incorporated in instruction 7 was an issue at trial. A buyer is
barred from recovering if it fails to provide the seller with timely notice of the
goods' nonconformity with the contract. Both the letter agreement and the aircraft
purchase agreement required that the plane be airworthy and certified as such.
Since the jury found that McCandless breached the contract, it necessarily found
that McCandless delivered a plane that was either not airworthy, not certified as
airworthy, or both. Friedman could not recover for that breach, however, unless
the jury also found that it had seasonably notified McCandless of the plane's
nonconformity. See § 554.2607. The jury was never instructed on Friedman's
duty, for the district court rejected requested instruction 7 and offered no
alternative instruction. If there was evidence supporting the instruction, its
exclusion was error. See Thornton, 4 F.3d at 652.
Considering the facts in the light most favorable to Friedman, Wilson, 442
F.3d at 639, evidence was adduced at trial which would support a finding that
Friedman failed to provide notice of nonconformity within a reasonable period of
time. Friedman first notified McCandless that the plane did not conform with the
contract on July 12, 2002, nearly two months after having taken delivery. It did
not provide a list of specific defects until May 8, 2003, nearly one year after
delivery. Friedman contends that the failure to instruct the jury on its duty to
provide timely notice of nonconformity was of no effect because the notice it gave
was both timely and sufficient to apprise McCandless of the plane's defects.
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The reasonableness of the length of time between delivery and notice is,
however, a factual question reserved for the jury. Tyrrell Cos. v. Tegeler Design
Ctr., 2003 Iowa App. LEXIS 1020, at *4–*5 (Iowa Ct. App. Nov. 26, 2003); see
also Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 421 (Iowa 2005) (listing
numerous contexts in which Iowa courts have held reasonableness to be a jury
question). Even assuming a jury might find that the July 12, 2002 notification was
substantively sufficient, there would still be a jury question as to whether the
nearly two month delay between delivery and notice was a reasonable period of
time.
Friedman also contends that McCandless failed to carry its burden of
production on this affirmative defense because it produced no evidence of what
would have been a reasonable period of time within which to provide notice. This
argument is unavailing since we cannot say that the shortest delay supported by the
evidence (nearly two months) was reasonable as a matter of law. See Tyrrell Cos.,
2003 Iowa App. LEXIS 1020, at *4–*5. The evidence at trial would support either
of two findings: that the notice was provided within a reasonable time or that it
was not. McCandless was therefore entitled to requested instruction 7 or some
alternative because that instruction was both legally accurate and supported by
evidence. See Thornton, 4 F.3d at 652.
Omission of McCandless's requested instruction was a reversible abuse of
discretion if it "misled the jury or had a probable effect on the verdict." Slidell,
460 F.3d at 1054. The district court expressed concern that requested instructions
6 and 7 "would comment on the evidence and would potentially modify the
purported contracts." Nevertheless, the district court’s exclusion of the
instructions, coupled with its failure to provide an alternative, deprived the jury of
the law's guidance on an issue over which reasonable jurors could have differed:
that is, whether Friedman provided notice of nonconformity within a reasonable
time. A negative finding on this question would have provided McCandless a
defense to the breach of contract claim. § 554.2607(3)(a).
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The instructions instead implied that finding McCandless in breach of
contract would impel a finding of liability, irrespective of whether Friedman had
provided timely notice of the plane's nonconformity. That was not only
misleading, it was incorrect and reversible. See Slidell, 460 F.3d at 1054. The
refusal to instruct the jury on a defense that was supported by sufficient evidence
to create a triable issue was an abuse of discretion. Although "[t]he jury may well
return the same verdict . . . after a new trial upon proper instructions, . . . we do not
think the instructional error was harmless, but instead was harmful, prejudicial, and
reversible." Wheeling, 254 F.3d at 714.
III.
McCandless and Roloff contend that a new trial is required. Whether a new
trial is necessary depends on whether or not the judgment can be upheld on the
basis of the fraudulent misrepresentation findings of the jury.
The case was submitted to the jury on what generally amounts to a special
verdict form. Questions 1 and 2 asked if Friedman had proven its liability
theories—first, breach of contract and then, fraudulent misrepresentation.
Questions 4, 5, and 6 asked whether there was a basis for punitive damages, in
what amount if any, and whether defendants' conduct was directed specifically at
Friedman (affecting the division of any punitive damages with the state). Although
the jury instructions did not so indicate, punitive damages could be awarded only
for the tort of fraudulent misrepresentation. Magnusson Agency v. Public Entity
Nat'l Co.–Midwest, 560 N.W.2d 20, 29 (Iowa 1997).
Question 3 was different from the others, however. It was in the nature of a
general verdict question because it asked what amount the jury awarded in
compensatory damages without linking them to either liability theory: "State the
amount of damages Plaintiff sustained as a proximate result of Defendants' breach
of contract or fraudulent misrepresentation." (emphasis added). The wording of
this question thus permitted the jury to fill in the amount of damages it awarded for
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breach of contract or for fraudulent misrepresentation or for some combination of
the two.
If the court had followed the special verdict format it otherwise used, it
would have had one compensatory damage question for breach of contract and a
separate one for fraudulent misrepresentation. Then there would be no question
about what the jury intended. The inability to determine what damages the jury
awarded for fraudulent misrepresentation, as opposed to the reversed liability for
breach of contract, necessitates a new trial on both claims.4
Although Friedman asserted the two claims as alternative theories for
recovering the same amount of damages, the jury instructions allowed the damages
to be different under each theory. Under those instructions, the breach of contract
verdict could have been based on either the letter agreement or the aircraft
purchase agreement. Each agreement had different components. The court
instructed that the fraudulent misrepresentation verdict could be based on one or
more of three alleged misrepresentations: that the plane was (1) airworthy and
certified as such, (2) safe for flight, and (3) complete with the promised
components and accessories. The jury could award damages flowing from only the
4
The dissent suggests that McCandless failed to preserve this error, citing a First
Circuit case which we point out refused to adopt a waiver rule. Davis v. Rennie, 264
F.3d 86, 107 (1st Cir. 2001). In our circuit we have not necessarily required an
objection at trial in order to address problems arising from the way in which the case
was submitted. See, e.g., Robertson v. Norton Co., 148 F.3d 905, 908 (8th Cir. 1998).
It also quotes a statement made by counsel for McCandless in closing: "There
is no difference in damages and you'll be instructed on that." Tr. at 789 (emphasis
added). Under the instructions, however, the jury was able to assess damages in
differing amounts depending on which of the three alleged misrepresentations had
been made. The jury no doubt had the power to find a lesser amount than mentioned
by either counsel. We also note that McCandless argued different amounts in other
parts of its closing. See, e.g., Tr. at 805, 809 (disputing liability for damages claimed
on individual items).
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contract term(s) which it found had been breached and the misrepresentation(s)
which it found had been proven. Thus, if it found at least one misrepresentation
had not been proven, it could not have awarded the full damage amount under that
theory alone. We cannot assume that the jury's answer to Question 3 awarded the
full compensatory damages sought for fraudulent misrepresentation.
Because Friedman's breach of contract claim was not correctly submitted to
the jury and Question 3 of the verdict form did not differentiate between damages
for each of Friedman's two claims, the whole case must be retried. "The rule in
this circuit is clear that when one of two theories has erroneously been submitted to
the jury, a general verdict cannot stand." Dudley v. Dittmer, 795 F.2d 669, 673
(8th Cir. 1986); see also Sunkist Growers, Inc. v. Winckler & Smith Citrus
Products Co., 370 U.S. 19, 29–30 (1962); Maryland v. Baldwin, 112 U.S. 490, 493
(1884); What Cheer Coal Co. v. Johnson, 56 F. 810, 813 (8th Cir. 1893). The
rationale for this rule is that a verdict (here for compensatory damages) which the
jury might have based in whole or in part on an invalidly submitted theory of
liability cannot be affirmed. See Sunkist Growers, 370 U.S. at 29–30.
Although a special verdict was employed in this case except for the
compensatory damage question, the problem remains. As recognized by the Fifth
Circuit in Dougherty v. Continental Oil Co., 579 F.2d 954 (5th Cir. 1978), vacated
on joint stipulation of the parties, 591 F.2d 1206 (5th Cir. 1979), "An interrogatory
containing multiple issues is really no better than a general verdict. Such an
interrogatory presents the same dilemma as a general verdict submitted to the jury
on two theories of law, one of which is incorrect." Id. at 960 (citations omitted).
The Fourth Circuit dealt with a similar problem in Barber v. Whirlpool Corp., 34
F.3d 1268 (4th Cir. 1994), holding that "[w]hile . . . the verdict form made it clear
that the jury found Whirlpool liable for both [the reversed] intentional infliction of
emotional distress [claim] and malicious prosecution, the damages award must be
vacated [because] [t]he jury awarded a global figure without distinguishing the
amount attributable to each claim." Id. at 1278.
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Barber is especially relevant in this case, for here in similar fashion the use
of Question 3 on the verdict form makes it impossible to ascertain how much the
jury awarded for fraudulent misrepresentation. We cannot assume that the jury
awarded the "global figure" of $26,468.36 for fraudulent misrepresentation
"without distinguishing the amount attributable to each claim." Id. It would be
error to affirm the damage award when the jury could have awarded some of it for
the invalidly submitted contract theory.
IV.
The affirmative defense of a buyer’s duty under Iowa law to give seasonable
notice of nonconforming goods was properly within the scope of issues to be tried
because it was included in the jointly stipulated final pretrial order approved by the
court. Omission of the jury instruction on that defense was an abuse of discretion
because it deprived McCandless of a legally viable defense that was supported by
the evidence.
A new trial for both the contract and fraudulent misrepresentation liability
theories is required since the verdict form did not differentiate between damages
for each theory. This conclusion renders moot both Friedman's cross appeal from
the denial of its bill of costs and the appeal by McCandless and Roloff from the
denial of their motion for a new trial or for amendment of the judgment.
For the reasons stated, the judgment of the district court is reversed and the
case is remanded to the district court for a new trial.
BYE, Circuit Judge, dissenting.
I disagree with the decision to reverse and remand for a new trial. The
instructional error on the breach-of-contract claim did not prejudice McCandless
because Friedman also prevailed on the fraudulent misrepresentation claim, and the
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amount of damages on the two alternative theories of recovery was exactly the
same. I therefore respectfully dissent.
This case was submitted on two alternative theories of liability – breach of
contract and fraudulent misrepresentation. Friedman prevailed on both claims.
When a party prevails on both of its alternate theories of recovery, it is axiomatic
that any instructional error on one claim does not affect its success on the other.
Stated another way, a losing party cannot show prejudice due to instructional error
on one of two alternate theories of recovery if it also loses on the correctly-
instructed claim. See Stockmen's Livestock Mkt., Inc. v. Norwest Bank of Sioux
City, 135 F.3d 1236, 1246 (8th Cir. 1998) (rejecting a claimed instructional error
involving "virtually identical" claims for common law fraud and deceit because the
jury's "separate findings . . . against Norwest on both fraud and deceit . . . negate
prejudice"); Stoetzel v. Cont'l Textile Corp. of Am., 768 F.2d 217, 223 n.4 (8th
Cir. 1985) (rejecting a claimed instructional error on a fraud claim where "[t]he
jury chose to rule for Stoetzel on the alternate ground of breach of contract, and
therefore never reached the issue of fraud"); see also Bradshaw v. Freightliner
Corp., 937 F.2d 197, 203 (5th Cir. 1991) (rejecting a claimed instructional error on
a strict products liability claim because "[t]he jury returned a finding of negligence
against [the defendant] which afforded plaintiff an alternate theory of recovery");
Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1315 (9th Cir. 1986) (rejecting
the defendant's claim the district court erred "by refusing to give an instruction on
the doctrine of respondeat superior . . . because the judge instructed the jury on the
alternate theory of direct negligence, and the jury found against Burlington
anyway").
The Court bases its decision to reverse on the special verdict form used in
this case, concluding the interrogatory on damages amounted to a general verdict
which allowed the jury to find different damage amounts for the breach of contract
claim, the fraudulent misrepresentation claim, or some combination of the two
claims. The Court focuses on the verdict form's use of the word "or" when
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instructing the jury as to the amount of damages to award: "State the amount of
damages Plaintiff sustained as a proximate result of Defendant's breach of contract
or fraudulent misrepresentation." (Emphasis added). The Court stated: "We
cannot assume that the jury awarded the 'global figure' of $26,468.36 for fraudulent
misrepresentation 'without distinguishing the amount attributable to each claim.'"
Ante at 13 (quoting Barber v. Whirlpool Corp., 34 F.3d 1268, 1278 (4th Cir.
1994)).
In this case, however, we do not have to assume anything about how much
the jury was attributing to each claim. The district court, the plaintiff, the
defendant, and the jury all knew there was no difference in the amount of damages
involved for either claim. Friedman asked for exactly $26,468.36 on the breach of
contract claim, and exactly $26,468.36 on the fraudulent misrepresentation claim.
The jury knew the amount of damages would be the same amount – $26,468.36 –
whether it found for Friedman on one claim or both claims.
Indeed, McCandless conceded this point during closing argument:
It is a simple case and I'll agree with my counsel to that extent. It's a
contract case submitted to you on two theories. Contract and
fraudulent misrepresentation. The damages are the same under each
theory. There is no difference in damages and you'll be instructed on
that. That $26,000 number I guess that we settle on, that's the
number. Under either – either form of recovery, the damages are the
same.
Trial Transcript at 789 (emphasis added).
To justify its decision, the Court applies the Sunkist Growers rule, which
stands for the proposition that a general verdict cannot stand if alternate theories
are presented to a jury, and a reviewing court cannot determine whether the verdict
is based in whole or in part on an invalidly submitted theory. We do not apply
general propositions in the abstract, however, as if in a vacuum. Sunkist Growers
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simply has no application here, because there is no uncertainty – the amount of
damages was identical for both the contract claim and the fraudulent
misrepresentation claim. The Court's claim that it was impossible to ascertain how
much the jury awarded for fraudulent misrepresentation has no factual basis
whatsoever in this record, evinced by the Court