Roger Edwards, LLC v. Fiddes & Sons, Ltd.

United States Court of Appeals
For the First Circuit

No. 03-2096
No. 03-2195

ROGER EDWARDS, LLC,

Plaintiff, Appellant/Cross-Appellee,

v.

FIDDES & SONS, LTD.,

Defendant, Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. David M. Cohen, U. S. Magistrate Judge]

Before

Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.

Thomas F. Hallett, for plaintiff-appellant/cross-appellee.

Ronald W. Schneider, with whom David A. Soley, Bernstein,
Shur, Sawyer & Nelson, was on brief, for defendant-appellee/cross-
appellant.

November 1, 2004

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 JOHN R. GIBSON, Senior Circuit Judge. Roger Edwards,

LLC, appeals from a grant of summary judgment against it as to part

of its contract suit against Fiddes & Son, Ltd., and judgment on a

jury verdict against Edwards on the remaining issues. Edwards

contends that the Magistrate Judge1 erred in entering partial

summary judgment based on the Magistrate Judge’s conclusion that

the contract had been terminated by an e-mail from Edwards stating,

"[I]t is over. . . [W]e are done"; Edwards contends that the e-mail

was susceptible of more than one meaning and that there is a

genuine issue of fact as to whether the contract was terminated by

the e-mail. Edwards also contends that the Magistrate Judge should

have allowed Edwards to recover damages based on Fiddes's failure

to give reasonable notice of termination. Edwards further contends

that the district court erred in rejecting Edwards's proposed

anticipatory repudiation jury instruction. We affirm.

Larry Mann is the owner of Roger Edwards, LLC, a Maine

limited liability company. Edwards had been distributing a

furniture wax called "Briwax" since 1988. In June 2000, Mann

entered negotiations with Fiddes, a British wax manufacturer based

in Cardiff, Wales, about becoming a distributor for Fiddes. In e-

mails exchanged from June to August 7, 2000, Mann and Fiddes's

principal, Robert Fiddes Gooding, worked out a trial

1
The suit was submitted to United States Magistrate Judge
David M. Cohen, by the consent of the parties pursuant to 28 U.S.C.
§ 636(c).

-2-
distributorship agreement. The terms were never memorialized in

one contract document, but must be gleaned from the exchange of

lengthy e-mails. Mann asked for certain states as "protected

territory." Gooding responded, "We would grant territorial rights

to the 34 states as requested, with a periodic review rather based

on both quantity sold and efforts extended. I would like to

discuss this in greater detail with you. . . ." Mann urged Gooding

to finalize the agreement, and Gooding responded, "I . . . am

pleased to grant territorial rights to those states requested."

On August 7, Mann e-mailed: "Sounds good–we have a deal." The

parties stipulated that the agreement did not have a specified

termination date and was not for a fixed duration.

Edwards began buying Fiddes products in September 2000.

By November 2001, the relationship was beginning to fray, with Mann

complaining about inadequate promotional literature and Fiddes

complaining about unpaid invoices. Mann and Gooding met in New

York in November, but relations did not improve. Mann wrote Fiddes

that he suspected that Fiddes was not turning over to him "all

Fiddes Supreme business of serious consequence," and Fiddes voiced

its suspicions that Mann was selling his biggest customers Briwax

instead of Fiddes Supreme.

On November 17, 2001, Mann wrote to Gooding asking for

Gooding to give Mann a letter agreement to present to a banker in

connection with Edwards's application for inventory financing.

-3-
(Mann later testified that the "banker" was Mann himself, and that

he had walked back and forth between two chairs during the

"conversation" reported in the e-mails.) Mann wrote to Gooding

that the banker had advised him that "it could be worth a lot more

taking you to court than following through with Fiddes Wood Care."

Gooding did not send the requested "letter agreement," and on

November 19, 2001 at 12:18 a.m., Mann wrote Gooding:

I have to assume that by your refusal to
provide a letter of our agreement, you do
realize it is over. Period. [T]oday for that
matter, we are done. We will be in a mode of
recover our costs through all means we have
including offset, clear out inventory we have
and pursue litigation.

That same day at 9:21 a.m., Gooding responded:

Your clear decision to revoke all official
distribution rights for our range of wood
finishing materials in the agreed 34 states is
indeed disappointing, however not surprising.
It has become evident from your recent
correspondence that you had neither the
financial means nor the intention to develop
our business any further.

Two days later, after further e-mails from Mann requesting the

letter for the "banker," Gooding sent Mann an e-mail that

reproduced the two November 19 e-mails excerpted above and

concluded: "We will not respond to any further requests concerning

the above whilst the balance of your account remains unpaid."

Edwards brought suit in the state court of Maine for

breach of contract and specific performance. The breach alleged

-4-
was stated in one simple paragraph:

The Defendant has breached its agreement with
the Plaintiff by bypassing the Defendant's
distributorship in order to sell directly to
end users within the 34 exclusive territorial
states provided to Plaintiff, and/or by
permitting other distributors to market and
distribute Fiddes products within the
Plaintiff's exclusive territory.

Fiddes removed the case to federal court and counterclaimed for

amounts Edwards owed on unpaid invoices for Fiddes products.

Fiddes moved for summary judgment on the ground that if

there was a contract, Edwards terminated it on November 19, 2001,

and was not entitled to specific performance or to damages accruing

after that date. The Magistrate Judge granted partial summary

judgment based on Edwards's admissions of key facts stated in

Fiddes's summary of undisputed facts. Roger Edwards, LLC v. Fiddes

& Son, Ltd., 245 F. Supp. 2d 251, 261 (D. Me. 2003). Fiddes

stated:

27. Robert Fiddes Gooding wrote to Larry Mann on
November 21, 2001 outlining the two e-mails that
reflected Mann's termination of the parties' relationship
and Robert Fiddes' acceptance of that termination.
(Plaintiff's Admissions, Exhibit AA, attached hereto at
Tab 19, authenticated in Plaintiff's Admissions, at ¶
38).

(Emphasis added.) The statement thus references a November 21 e-

mail that in turn reproduced the two November 19 e-mails that

Fiddes said terminated the contract. The Exhibit AA referred to in

-5-
the statement actually reproduces three e-mails, rather than two,

but Exhibit AA does include two November 19 communications. In the

first of these, at 12:18 a.m., Mann stated, "[I]t is over. Period.

today [sic] for that matter, we're done." Goodings's response at

9:21 a.m. on the same day stated, "Your clear decision to revoke

all official distribution rights. . . is indeed disappointing,

however not surprising." Edwards admitted paragraph 27 of Fiddes's

statement, which characterized the November 19 e-mails as "Mann's

termination" and "Fiddes' acceptance of that termination."

Based on this admission, the Magistrate Judge held that

Edwards terminated the contract on November 19, 2001, and Fiddes

accepted the termination.2 245 F. Supp. 2d at 262. Accordingly,

the Magistrate Judge held that Edwards could not recover damages

that accrued after November 19, 2001, and Edwards was not entitled

to specific performance. Id. at 262-63. However, the Magistrate

Judge held that Edwards was entitled to trial on the issue of

breach and damages before November 19. Id. at 263. The Magistrate

Judge also held that Fiddes was entitled to summary judgment on

Counts I and II of its counterclaim for the price of the Fiddes

products sold to Edwards. Id. at 265.

At trial the jury answered special interrogatories. The

jury found that "a contract existed between the plaintiff and the

2
The Magistrate Judge concluded that the common law of Maine
governed the distributorship contract, and the parties do not
dispute this on appeal.

-6-
defendant granting the plaintiff the protected right to sell the

defendant's products in 323 states" and that the defendant did not

breach the contract. The Magistrate Judge entered judgment for

Fiddes on the jury verdict and also entered judgment for Fiddes in

the amount of $17,286 plus costs and interest on its counterclaim.

Edwards contends that the Magistrate Judge erred in

entering partial summary judgment against it and in denying its

requested anticipatory repudiation instruction. Fiddes cross-

appealed, but its appeal is limited to an argument about what

should happen on remand if we were to reverse.

I.

We review the district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmoving party, giving the nonmoving party the benefit of all

reasonable inferences. Nicolo v. Phillip Morris, Inc., 201 F.3d

29, 33 (1st Cir. 2000). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, admissions and

affidavits on file show that there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). "Conjectural allegations, conclusory

assertions, and inconsequential evidence" do not suffice to

establish a genuine issue of fact. Nicolo, 201 F.3d at 33.

3
The parties' communications often refer to "34 states," but
they miscounted. The correct number was 32.

-7-
 Edwards contends that the Magistrate Judge erred in

holding that Edwards had admitted that Mann terminated the contract

on November 19 and that Fiddes accepted that termination. Edwards

states: "Plaintiff made no such admission." The record shows

Edwards did indeed make such an admission.

Edwards admitted paragraph No. 27 in Fiddes's statement

of undisputed facts, which said that the November 21 e-mail set out

two earlier e-mails "that reflected Mann's termination of the

parties' relationship and Robert Fiddes' acceptance of that

termination." (emphasis added). Paragraph No. 27 referenced

Exhibit AA, which reproduced the Mann to Gooding e-mail of November

19 at 12:18 a.m. ("[I]t is over. Period.") and the Gooding to Mann

e-mail of 9:21 a.m. Edwards does not point to any communication by

it withdrawing the termination before Fiddes accepted it.

Edwards's admissions thus establish that the two e-mails on the

morning of November 19 terminated the contract. See Drinkwater v.

Patten Realty Corp., 563 A.2d 772, 775 (Me. 1989) ("An agreement to

rescind a contract is itself a contract . . . ."); Simpson v.

Emmons, 99 A. 658, 660 (Me. 1917) (where one party to a contract

repudiates it, the other party is authorized to rescind); Listman

Mill Co. v. Dufresne, 88 A. 354, 355 (Me. 1913) (if one party's

renunciation of an executory contract is accepted by the other

party, the contract is rescinded). Edwards’s position on appeal

that Mann's words were "merely expressing frustration" is nothing

-8-
but an attempt to take back its earlier admission without

forthrightly asking for such relief. The Magistrate Judge did not

err in entering summary judgment on the basis of Edwards's

admission. See Fed. R. Civ. P. 56(c) (authorizing entry of summary

judgment based, inter alia, on admissions on file).

II.

Edwards's next argument is that the Magistrate Judge

erred in denying its requested anticipatory repudiation

instruction. Edwards contends that Fiddes committed an

anticipatory repudiation before November 19 by failing to provide

the letter for the imaginary "banker." Edwards contends that by

asking for a letter to give to a banker, Edwards was in effect

asking for assurance of Fiddes's performance to which Edwards was

entitled by law, and that Fiddes's failure to provide the letter

thus amounted to an anticipatory repudiation of the contract.

A district court's refusal to give a particular requested

instruction is reversible error only if the instruction proffered

was a correct statement of the substantive law, which was not

covered in the instructions given and which was integral to an

important point in the case.4 Faigin v. Kelly, 184 F.3d 67, 87

4
Additionally, the party requesting the instruction must
object after the jury has been charged but before it has retired to
deliberate. Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999); Fed.
R. Civ. P. 51(c). The parties dispute whether Edwards preserved
the objection; we need not delve into this question, because even
if preserved, the point has no merit.

-9-
(1st Cir. 1999). A district court may not refuse to instruct on an

area of law central to the case merely because of technical defects

in a proffered instruction, Febres v. Challenger Caribbean Corp.,

214 F.3d 57, 64 n.7 (1st Cir. 2000), but a party that presents its

legal theory to the court only in the form of a substantially

flawed instruction "cannot fault the district court either for

failing to separate wheat from chaff or for refusing to give the

requested instruction," id. at 63.

Edwards proffered an instruction stating:

"Anticipatory repudiation" or
"anticipatory breach" of a contract exists
where one party fails or refuses to comply
with the terms of the contract.
If you determine that the defendant by
its conduct anticipatorily repudiated or
breached the contract, such conduct is in
breach of the terms of the contract, and both
discharges the obligation of the plaintiff,
and allows the plaintiff to receive damages
reasonably caused by the repudiation.

Under Maine law, “an anticipatory repudiation of a

contract is 'a definite and unequivocal manifestation of intention

on the part of the repudiator that he will not render the promised

performance when the time fixed for it in the contract arrives.'"

Wholesale Sand & Gravel, Inc. v. Decker, 630 A.2d 710, 711 (Me.

1993) (quoting 4 Corbin, Corbin on Contracts § 973 (1951)). "The

words or conduct evidencing [the anticipatory repudiation] must be

definite, unequivocal, and absolute." Id. Moreover, the

repudiation must concern obligations or promises going to the whole

-10-
consideration. Martell Bros. v. Donbury, Inc., 577 A.2d 334, 337

n.1 (Me. 1990).

Edwards argues that it was entitled to request and

receive assurance of Fiddes's intent to perform and that failure to

provide the assurance constituted anticipatory repudiation, but

Edwards cites no authority governing when a party is entitled to

assurance or what form the assurance must take. Our own research

shows that Maine has applied the Restatement (Second) of Contracts

rule concerning requests for assurance of performance. Drinkwater

v. Patten Realty Corp., 563 A.2d 772, 776 (Me. 1989) (applying

Restatement (Second) of Contracts § 251).

Fiddes contends it was proper to deny the instruction

because there was no evidence from which a jury could have

concluded that Fiddes repudiated the contract. It would be more

accurate to say that the record includes admissions that

demonstrate that the request for a letter was not a request for

assurance of Fiddes's performance of the June-August 2000 contract.

The trial record is clear that Mann never asked for a letter for

himself, but instead wrote Gooding that the letter was for the

"banker." Mann sent Gooding a detailed e-mail about his

conversation with the banker.5 The e-mail did not reveal that the

5
Mann’s e-mail said the banker asked Mann to call on Monday to
get an appointment to see him, the banker insisted Mann should meet
with him and a legal team who wanted to take his case “for
free,”and the banker mentioned punitive damages and “approximately
1 million in 'Goodwill.'”

-11-
“banker” was Mann himself, when he was sitting in his other chair.

A demand for assurance must be made in accord with the duty of good

faith and fair dealing. Restatement (Second) of Contracts § 251,

cmt. d; see id. § 205, cmt. a (referring to good faith as “honesty

in fact”).

Mann never supplied the terms he was asking Fiddes to

agree to, instead putting the onus on Fiddes to reduce the parties'

voluminous communications to something that would satisfy the

"banker." See Mann to Fiddes, November 17, 2001 ("I was going to

contact you with some of the details the letter must contain, but

basically, it is exactly the same as we have been operating under.

. . . So you know what it needs to say, yes??"). The record also

shows that Gooding interpreted Mann's request as a demand for "a

letter offering you exclusive distribution of our products into 34

states for the next two years." Mann's own trial testimony was

that the letter was supposed to confirm a "new deal" discussed at

a meeting between Gooding and Mann in New York in November 20016

involving making Edwards "the only importer of [Fiddes] wood

finishing products into the United States within two years."

Edwards also filed a Statement of Material Facts in Dispute stating

that Mann's request for a letter "grew" out of the November meeting

in New York. Similarly, in its brief opposing summary judgment,

6
There is some confusion in the record as to whether the
meeting occurred in October or November; the discrepancy is
immaterial.

-12-
Edwards said, "[T]he request for a 'letter' was triggered by a

separate deal under discussion. That deal involved 'spray wax,'

and machinery, which was a huge new and additional undertaking . .

. It is for that reason that a letter was requested subsequent to

the October [sic], 2001 meeting." It is undisputed that the

contract memorialized in the June-August 2000 e-mails did not

include a two-year term or an exclusive distributorship.

Therefore, Edwards has represented to the court that Mann was

asking for something different from assurance that Fiddes would

perform under the June-August 2000 contract.

Moreover, Edwards's theory was only presented to the

court in the form of a proposed instruction with substantial legal

errors. Edwards's complaint pleaded breach of the distributorship

contract by Fiddes selling into the territory, but did not mention

a repudiation theory or a request for assurance of performance.

Neither Mann's affidavit in opposition to summary judgment nor his

summary judgment brief mentioned this theory. Edwards mentioned in

interrogatory answers that Fiddes "withheld" a letter, but Edwards

did not characterize the incident as denial of a request for

assurance or otherwise explain why Fiddes would be obliged to

supply such a letter. Edwards introduced its theory of

repudiation-by-failure-to-provide-assurance in argument during the

trial.

The instruction Edwards presented entirely omitted the

-13-
concepts that the anticipatory repudiation must be definite and

unequivocal, that anticipatory repudiation occurs in advance of the

time fixed for performance, and that the repudiation must go to the

whole of the consideration. The instruction did not discuss the

possibility of repudiation by failure to provide assurance. The

instruction as proffered describes an ordinary breach, not an

anticipatory repudiation. It states tautologically that if the

defendant breached the contract, this conduct was in breach of the

contract. Thus, the instruction proffered was both inaccurate and

misleadingly incomplete.

The court gave another, general instruction concerning

breach of contract, to which Edwards did not object. Having given

a general instruction on breach of contract, the Magistrate Judge

had no further obligation to piece together an unpleaded theory

that Edwards had only hinted at by proposing a defective

instruction. "It is hornbook law that a trial court does not

commit error when it instructs generally about a legal principle

and then declines a party's request for a further instruction that

is misleading, legally incorrect, or incomplete." Febres, 214 F.3d

at 63.

III.

Finally, Edwards argues that the Magistrate Judge erred

in holding that because Edwards contended the contract was

terminated on January 18, 2002, Edwards could not claim lost

-14-
profits after that date. See 245 F. Supp. 2d at 262. This point

is moot, since the Magistrate Judge held immediately afterwards

that Edwards terminated the contract earlier than January 18, 2002

(on November 19, 2001) and Fiddes accepted the termination. Id.

Edwards cannot argue that it is entitled to lost profits on account

of Fiddes's failure to give it reasonable notice of termination,

since Edwards, not Fiddes, terminated the contract. Nor can

Edwards argue that it lost profits after January 18, 2002,

resulting from a breach committed by Fiddes before November 19,

2001, since the jury found Fiddes did not breach the contract.

We therefore put this litigation to a well-deserved rest.

The judgment in No. 03-2096 is affirmed and No. 03-2195

is dismissed as moot. Costs shall be taxed in favor of defendant-

appellee/cross-appellant.

-15-