Gemini Investors Inc. v. AmeriPark, Inc.

United States Court of Appeals
For the First Circuit

No. 10-1312

GEMINI INVESTORS INC.,

Plaintiff, Appellant,

v.

AMERIPARK, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Victor H. Polk, Jr., with whom Zachary C. Kleinsasser and
Greenberg Traurig, LLP were on brief, for appellant.
Rocco E. Testani, with whom Jamala S. McFadden, Donna M.
Brewer, Douglas K. Mansfield, Sutherland Asbill & Brennan LLP and
Casner & Edwards LLP were on brief, for appellee.

June 23, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Gemini Investors Inc. ("Gemini")

sued AmeriPark, Inc. ("AmeriPark")1 alleging breach of contract and

breach of the covenant of good faith and fair dealing. Gemini,

having lost at trial, asserts that the district court erred in

instructing the jury. We affirm.

I. Facts & Background

AmeriPark owns and runs valet service operations at

restaurants, hotels, and shopping centers across the country. It

was founded by Robert K. Patterson, who led the company until 2008.

At the time relevant to this litigation, Greenfield Partners,

L.L.C. ("Greenfield") owned 24.9 percent of AmeriPark.2 James S.

Nix was Greenfield's Vice President and AmeriPark's primary contact

at Greenfield.

On January 31, 2007, AmeriPark and Mile Hi Valet

Services, Inc. ("Mile Hi"), a competing valet services company,

executed a letter of intent indicating that AmeriPark would acquire

Mile Hi for sixteen million dollars. Although much of the letter

of intent was non-binding, the parties agreed to be bound by an

1
AmeriPark's name has since been changed to "E & B Parking
Services, Inc." Consistent with the record below, we refer to the
company as AmeriPark.
2
AmeriPark's brief suggests that these shares were held by two
related companies ("GreenPark Investment, L.L.C. and Greenfield
Parking PL, L.L.C."), but at least some documents in the record
refer to the shareholder as simply "Greenfield Partners, L.L.C."
The name or names of the shareholder(s) does not impact our
analysis.

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exclusivity clause prohibiting Mile Hi from negotiating for its

sale with anyone other than AmeriPark for a seventy-five day

period.

To facilitate its purchase of Mile Hi, AmeriPark sought

financing from Gemini, a private equity firm. Gemini's Managing

Director, James Rich, took the lead in negotiations with AmeriPark.

On March 15, 2007, AmeriPark and Gemini executed an "Outline of Key

Transaction Terms" ("Outline"), which specified the terms pursuant

to which Gemini would finance the Mile Hi acquisition, as well as

some conditions for completion of the deal. Because the Outline

contemplated a recapitalization of AmeriPark and a redemption of

Greenfield's shares, AmeriPark needed Greenfield's approval to move

forward with the financing as specified in the Outline.

Among other terms, the Outline included the following

language: "This Outline does not constitute a commitment by Gemini

to complete the financing and, other than the Section [sic]

entitled 'Exclusivity' and 'Confidentiality', is non-binding on

either party hereto." That is, the only terms of the Outline that

bound Gemini and AmeriPark were the exclusivity and confidentiality

provisions.

The exclusivity provision read:

In consideration of Gemini's commitment to
expend significant time, effort and expense to
evaluate the possible investment, AmeriPark
(and any officers, directors or
representatives of AmeriPark) agrees not to
discuss this opportunity or reach any

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 agreement with any person or entity regarding
financing for this Transaction or the pursuit
of any sale or major other financing until
April 16, 2007, provided that the exclusivity
shall be automatically extended to the date
that Mile Hi extends their exclusivity with
[AmeriPark] either verbally or in writing.

(Emphasis added). The confidentiality provision read:

This Outline is delivered to you with the
understanding that neither it nor its
substance shall be disclosed by you to any
third party except those in a confidential
relationship with [AmeriPark] such as
directors, senior executive officers, legal
counsel and accountants. Disclosure to
investment banking firms, mezzanine, venture
capital or private equity funds or any other
individual investors is strictly prohibited.

(Emphasis in original).

Importantly, as indicated in the above-quoted language,

the Outline's exclusivity period was essentially coterminous with

the exclusivity period created by the AmeriPark-Mile Hi letter of

intent. Consequently, when Mile Hi later agreed to an extension of

the letter of intent's exclusivity period, the Outline's

exclusivity automatically extended as well.

In April 2007, after the parties signed the Outline but

before the exclusivity provision expired, Patterson asked Nix if

Greenfield would be interested in financing the Mile Hi acquisition

in lieu of the Gemini-led financing.3 Also during this period,

3
As work on the Mile Hi acquisition progressed, Patterson
began to distrust Rich and Gemini, and he therefore sought
alternative financing sources.

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Patterson approached Robert Stroup, the Chief Executive Officer and

sole shareholder of Mile Hi, about the possibility of seller

financing. After some negotiation, Stroup agreed to finance the

acquisition and, on May 4, 2007, AmeriPark purchased Mile Hi using

this seller financing.

On June 25, 2007, Gemini sued AmeriPark in Massachusetts

Superior Court alleging that AmeriPark breached the Outline's

exclusivity provision by pursuing financing for the Mile Hi

acquisition from both Greenfield and Stroup. The suit was removed

to federal court, and eventually went to trial.4

At trial, the parties had competing views about the

meaning of the exclusivity provision. AmeriPark argued that the

phrase "any person or entity" referred to the persons or entities

expressly set forth in the confidentiality provision — investment

banks, private equity funds, etc. — and therefore AmeriPark's

financing-related discussions with Greenfield and Stroup did not

constitute a breach of AmeriPark's contractual obligations.

Gemini, on the other hand, contended that the exclusivity provision

was unambiguous and prohibited discussions with "any person or

entity," including Greenfield and Stroup. Accordingly, Gemini

requested the following jury instruction: "Under the Exclusivity

agreement, AmeriPark agreed not to discuss with any person or

4
AmeriPark unsuccessfully counterclaimed against Gemini.
Neither party raises any issues relating to those counterclaims.

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entity the proposed transaction with Mile Hi or to reach any

agreement with any person or entity regarding any major financing

until the exclusivity period expired."

Over Gemini's objection, the district court concluded

that the exclusivity provision was ambiguous and instructed the

jury about its meaning in part as follows:

[Y]ou've got to look at the language of
the exclusivity provision. . . . [Y]ou've got
to figure out what does that private law
require each party . . . to do. . . .

You use the plain and ordinary meaning
of the words that the parties used, having in
mind the commercial context. . . . Having in
mind what the parties, what their commercial
goals were, what did they have in mind when
they entered into this deal, so that you can
understand what the language they put down in
that exclusivity agreement means. . . .

I'm telling you that the law is that if
the plain and ordinary meaning of the words
that they used tell [sic] us how they should
have behaved, you follow that. . . . That's
what they put down in a contract. What they
say about it afterwards doesn't count.

Now, if you are not clear on the point,
if you think that there's any ambiguity in
those words, start with this. What were they
trying to do. . . . And while what they think
later may bear on that, its not what they
think later, it bears only to tell you what
they thought they were doing when they agreed.

Later in the instructions, the district court further clarified:

"you're going to interpret the contract, which means you're going

to decide what it requires[.]"

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 As for causation and damages, Gemini argued that the Mile

Hi acquisition would have occurred with Gemini's financing but for

AmeriPark's breach of the exclusivity provision, and therefore

Gemini was entitled to expectation damages for the profits it would

have realized had the deal been completed. As an alternative

theory of causation and damages, Gemini, citing Air Technology

Corp. v. General Electric Co., 199 N.E.2d 538 (Mass. 1964), urged

the district court to instruct the jury on what Gemini called a

"lost opportunity" theory. Specifically, Gemini argued that, even

if it could not prove by a preponderance that AmeriPark's breach

was the but for cause of the Gemini-financed deal falling through,

the jury could still award damages for Gemini's "lost . . .

opportunity to negotiate" with AmeriPark to finance the deal. This

"lost opportunity," Gemini claimed, could be calculated by

assessing the value of the transaction to Gemini had it gone

forward, and then decreasing that value based on the possibility

that the deal would have fallen through for some reason other than

AmeriPark's breach.

The district court refused to issue Gemini's "lost

opportunity" instructions.5 Instead, it instructed the jury on

causation and expectation damages in part as follows:

Gemini, since they [sic] want the
benefit of the bargain, they've [sic] got to

5
Gemini did not request reliance damages for the expenditures
it made in reliance on the exclusivity clause.

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 prove that but for the breach this deal would
in fact have gone through and they would have
made money. . . .

A reasonable approximation [of damages]
will suffice, but its got to be proved by a
fair preponderance of the evidence.

This is largely a matter of judgment
committed to the jury taking into account
relevant factors, including what you conclude
would have been the approximate net amount
realized by Gemini from the deal going
through.

After closing, the district court gave the jury a general

verdict form, despite AmeriPark's previous request for a special

verdict. During deliberations, the jury asked the following

question: "Please redefine Question No. 4. Did breach cause Gemini

losses? Do we assume [sic] contract would have gone through if it

was not breached?" The district court responded by essentially

reiterating its causation instruction and stressing that it was for

the jury to determine if the breach caused the deal to collapse.

Later that same day, the jury returned a verdict in favor of

AmeriPark.

II. Discussion

Gemini essentially raises two issues on appeal.6 First,

did the district court err by refusing to instruct the jury on

6
Gemini's brief lists four issues, but the first three all go
to the propriety of the district court's failure to instruct on
Gemini's lost opportunity theory.

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Gemini's "lost opportunity"7 theory of causation and damages?

Second, did the district court err in its instruction to the jury

about the meaning of the exclusivity provision?

This court reviews jury instructions de novo. SEC v.

Happ, 392 F.3d 12, 28 (1st Cir. 2004). Where an objection is

properly registered below,8 jury instructions are "reviewed to see

whether there was error and, if so, whether [that error] was

harmless." Sheek v. Asia Badger, Inc., 235 F.3d 687, 697 (1st Cir.

2000). "We reverse the giving of an instruction 'if it (1) was

misleading, unduly complicating, or incorrect as a matter of law,

and (2) adversely affected the objecting party's substantial

rights.'" Happ, 392 F.3d at 28 (quoting Sheek, 235 F.3d at 697).

Similarly, "'refusal to give a particular instruction constitutes

reversible error only if the requested instruction was (1) correct

as a matter of substantive law, (2) not substantially incorporated

into the charge as rendered, and (3) integral to an important point

7
Throughout our analysis, we refer to the "lost opportunity
theory" and "lost opportunity damages." Courts have used similar
language to describe various concepts. We use these phrases to
refer only to the lost opportunity approach that Gemini urges this
court to apply in the case at hand.
8
AmeriPark argues that because Gemini requested a but for
instruction, it "invited any alleged error" in the causation
instructions and at the least Gemini's challenge to the causation
instructions should be subject to plain error review. Because we
find no error in the instructions, see infra, we need not address
these arguments.

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in the case.'"9 Seahorse Marine Supplies, Inc. v. P.R. Sun Oil

Co., 295 F.3d 68, 76 (1st Cir. 2003).

1. The District Court's Failure to Instruct on Gemini's "Lost
Opportunity" Theory

Under Massachusetts law,10 to recover expectation damages

for breach of contract the plaintiff must prove by a preponderance

that an agreement existed, the agreement was breached, and the

breach caused the plaintiff to suffer damages. See St. Charles v.

Kender, 646 N.E.2d 411, 413 (Mass. App. Ct. 1995); see also Salvas

v. Wal-Mart Stores, Inc., 893 N.E.2d 1187, 1216 (Mass. 2008)

("'Contract damages are ordinarily based on the injured party's

expectation interest and are intended to give him the benefit of

his bargain by awarding him a sum of money that will, to the extent

possible, put him in as good a position as he would have been in

had the contract been performed[.]'" (quoting Restatement (Second)

of Contracts § 347, cmt. a (1981))); Abrams v. Reynolds Metals Co.,

166 N.E.2d 204, 207 (Mass. 1960) ("Damages may be awarded for a

9
At oral argument, we asked the parties to submit supplemental
briefing about the effect of a general verdict on Gemini's
challenge to the jury instructions. AmeriPark and Gemini seem to
agree that the fact that a general verdict was entered will not
prevent an improper instruction from resulting in a new trial
unless this court can be reasonably sure that the jury relied on an
alternative, permissible basis in reaching its verdict. See
Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29-31 (1st Cir.
2004); Davis v. Rennie, 264 F.3d 86, 105-06 (1st Cir. 2001).
Because we reject Gemini's contention that the instructions were
flawed, we need not delve into this issue.
10
Both parties agree that Massachusetts law applies to this
diversity action.

-10-
breach of contract for the net amount of the losses caused and

gains prevented by the defendant's breach." (internal citations

omitted)); Schwartz v. Travelers Indem. Co., 740 N.E.2d 1039, 1047

(Mass. App. Ct. 2001) (noting that a claim of breach of an implied

contract will not go to the jury without "any evidence supporting

an inference that the harm which befell [plaintiff] followed as a

natural consequence of the breach." (internal marks omitted)).

The causation element generally requires the plaintiff to

prove that but for the defendant's breach the plaintiff would have

realized some gain or avoided some loss.11 See Taylor v. Int'l

Indus., Inc., 398 N.E.2d 501, 503 (Mass. App. Ct. 1979).

Gemini does not dispute the fact that but for causation

is usually a prerequisite to recovering expectation damages.

Nonetheless, Gemini appeals the district court's failure to

instruct the jury on its alternative "lost opportunity" approach to

causation and damages. Specifically, Gemini asserts that, pursuant

to the Massachusetts Supreme Judicial Court's ("SJC") holding in

Air Technology, "[t]he district court should have instructed the

jury that Gemini could show that it was harmed by proving that

AmeriPark's breach caused it to lose the exclusive opportunity to

11
AmeriPark suggests that the breach of a binding exclusivity
agreement in a non-binding letter of intent can never result in
lost profit damages because it is not reasonably foreseeable that
such a breach could cause a deal to fall through. Because we
reject Gemini's challenge to the district court's instructions, we
need not address this argument.

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negotiate a final contract with AmeriPark." Under this approach,

Gemini contends that "the jury should have been instructed that it

could determine the value of Gemini's lost opportunity by

discounting [Gemini's] expected profit from the potential

transaction with AmeriPark by the uncertainty that a final

agreement would have been reached."12

Air Technology's holding and facts are confusing, but we

recount them here as clearly and succinctly as possible.13 In the

early 1960s, the General Electric Company ("GE") sought a contract

from the Air Force to assist with the "establish[ment] [of]

installations in North America for detecting and determining the

direction and yield of nuclear detonations by methods including the

use of electromagnetic (EM) sensors." Air Tech., 199 N.E.2d at

540. To bolster its efforts, GE considered assistance from Air

Technology Corporation ("AT"). Id. at 541. In a meeting between

representatives of the two companies, AT proposed a system "for the

EM sensor portion of the [Air Force project]." Id. Eventually, GE

12
It is unclear whether Gemini seeks to apply this lost
opportunity approach to its claim for breach of the covenant of
good faith and fair dealing in addition to its breach of contract
claim. Regardless, even if Gemini's appeal is understood as
arguing for the theory's application to both claims, it would not
materially change our analysis.
13
Although the agreement in Air Technology was governed by New
York law, the SJC cited to Massachusetts case law throughout the
opinion and noted that "[i]t is not argued that the Massachusetts
law and the New York law differ substantially in relevant
respects." 199 N.E.2d at 546 n.13.

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and AT agreed that AT would become a "team member" on GE's bid.

Id. at 547. "Team membership," the SJC concluded, "was intended to

mean more to AT than opportunity to bid in the program"; rather,

"if [GE] received a prime contract AT[,] subject to Air Force

approval[,] would receive a subcontract for the EM sensor[.]" Id.

(internal marks omitted). Thereafter, AT personnel helped GE

prepare and present its proposal to the Air Force. Id. at 541-43.

The Air Force subsequently awarded the prime contract to

GE. Id. at 543. Among other things, this contract required that

all GE subcontracts receive Air Force approval. Id. at 544. To

AT's dismay, GE refused to acknowledge its obligation to award a

subcontract to AT for the design and manufacture of the EM sensor,

and instead sought competitive bids for the job. Id. at 544-45.

The SJC held that "GE, by failing to press for AT's

continuing participation in the program and by competing for the EM

sensor work, committed total breaches of its duties to AT." Id. at

548-49. As for damages, the SJC remanded for a determination of

the value of AT's lost opportunity, id. at 548-50, explaining:

[T]he detailed terms of AT's subcontract were
never determined beyond the expectation that
the subcontract would cover the EM sensor and
enable AT to recover its costs and a
reasonable profit. Whatever uncertainty may
have existed about the subcontract does not
preclude recovery by AT. What AT lost by GE's
breaches of contract was a business
opportunity. The problem is to determine the
value of that opportunity . . . .

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Id. at 548 (internal citations omitted). The SJC rejected the

master's decision to use AT's subcontract proposals to measure

damages in part because

the master's computation of damages seems to
have been made by allowing to AT the whole of
what it would have received . . . on the basis
of its bids, less the cost to AT of performing
such a subcontract. That computation did not
in any degree reflect the potential
effect . . . of bargaining or the possibility
that the Air Force would not have approved
such a subcontract without competition.

Id. at 549 (internal citation omitted).

The court therefore concluded:

The master or a judge . . . must appraise the
fair value of AT's lost opportunity in the
light of the uncertainties. This will be
largely a matter of judgment, taking into
account relevant factors, including what the
trier of the fact concludes would have been
(1) the approximate net amount realized by AT
from a subcontract, if one had been
negotiated, and (2) the probability of
successful negotiations and Air Force
approval.

Id. (internal citation omitted); see also Miller v. Allstate Ins.

Co., 573 So. 2d 24, 29 (Fla. Dist. Ct. App. 1990) (in approving a

similar damages theory, concluding "that recovery will be allowed

where a plaintiff has been deprived of an opportunity or chance to

gain an award or profit even where damages are uncertain"); Wachtel

v. Nat'l Alfalfa Journal Co., 176 N.W. 801, 802-05 (Iowa 1920)

(where defendant breached contract by restricting plaintiff's

ability to compete in contest in which she was likely to win a

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prize, holding that defendant could be held liable for the

plaintiff's lost chance of winning a prize). But see Wright v. St.

Mary's Med. Ctr. of Evansville, Inc., 59 F. Supp. 2d 794, 799 (S.D.

Ind. 1999) (rejecting loss of chance theory because, among other

reasons, Indiana had rejected a similar doctrine in medical

malpractice cases and "[t]here is less basis for denying recovery

for loss of a chance in tort cases [as compared to contract

cases]")14; Phillips v. Pantages Theatre Co., 300 P. 1048, 1049-50

(Wash. 1931) (where court assumed that defendant breached

contractual duty to allow plaintiff to enter final round of

contest, affirming dismissal because "[w]ithout either the winning

. . . or substantial proof that she would have won had she been

permitted to enter, no recovery can be had").

In Sampson v. Eaton Corp., 809 F.2d 156 (1st Cir. 1987),

the defendant and Sampson had agreed that Sampson would serve as

the defendant's exclusive real estate agent as the defendant sought

to purchase property in Massachusetts. Id. at 159. Although

industry norms dictated that the seller was to pay the agent's

brokerage fee, the agreement obligated the defendant to inform the

seller of Sampson's position if the defendant ended up acquiring a

property that Sampson had showed. See id. The defendant was under

14
In medical malpractice cases, Indiana now appears to have
embraced an approach similar to, if not the same as, the loss of
chance doctrine. See Cahoon v. Cummings, 734 N.E.2d 535 (Ind.
2000).

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no obligation, however, to ensure that the seller actually paid

Sampson the fee. Id. The defendant ended up purchasing a

property, but never informed the seller about Sampson, and the

seller paid the fee to a different agent. Id. at 157-58. Because

the contract lacked a guarantee that Sampson would receive any

payment, Sampson "went to the jury not for a brokerage fee, but for

the found value of the promised, and lost, opportunity to obtain

one." Id. at 160. The jury awarded Sampson one-half the value of

the fee, id. at 157, and this court concluded that those damages

were not too speculative. Id. at 160. Citing Air Technology, the

court observed, "the jury had specific evidence on the amount of

brokerage fees awarded generally and on the [specific sale at

issue], and the additional findings required to assess plaintiff's

chances are not demonstrably more speculative than those required

in many contract or tort actions." Id.

We do not think the lost opportunity theory of causation

and damages urged by Gemini is applicable to the case before us.

First, the Gemini-AmeriPark contractual agreement is

distinguishable from the agreement in Air Technology. In Air

Technology, GE was obliged to award AT a subcontract if GE secured

the prime contract, provided that the parties were able to agree on

specific terms and obtain Air Force approval for the subcontract.

In the case at hand, AmeriPark lacked any analogous contractual

duty; rather, at best, AmeriPark's obligation was merely to refrain

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from discussing, negotiating for, or obtaining financing from third

parties. To be sure, this exclusivity provision was presumably

drafted to pressure AmeriPark into accepting financing from Gemini

if it moved forward with the Mile Hi acquisition. But there is a

meaningful difference between a duty to award a subcontract, albeit

subject to certain conditions, and a duty to refrain from dealing

with third parties. Even if Air Technology holds that a breach of

the former duty can cause the type of lost opportunity injury

asserted by Gemini, it does not necessarily follow that a breach of

the latter duty does as well. Put differently, in Air Technology

the plaintiff actually lost a contractually guaranteed right to a

subcontract (subject to certain conditions); in the case at bar,

Gemini was at best deprived of a contractually guaranteed right to

exclude others from negotiating with AmeriPark.

Nor do we see any indication that Massachusetts has

extended the interpretation of Air Technology urged by Gemini

beyond the circumstances of that case. Massachusetts is of course

free to do so, but we are not in a position to take that step for

it. See Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009)

(acknowledging this court's obligation to provide its "best guess"

as to open questions of state law, but "recogniz[ing] that . . . we

must tread lightly in offering interpretations of state law where

controlling precedent is scarce"); Gill v. Gulfstream Park Racing

Ass'n, 399 F.3d 391, 402 (1st Cir. 2005) ("A federal court sitting

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in diversity cannot be expected to create new doctrines expanding

state law.").

Because we conclude that Gemini's lost opportunity theory

of causation and damages does not apply in this case, the district

court did not err in refusing to issue the corresponding jury

instruction.

2. The District Court's Instruction Regarding the Meaning of the
Exclusivity Provision

Gemini contends that the district court erred in

concluding that the exclusivity provision was ambiguous and in

instructing the jury accordingly. This objection goes to the

logically prior question of whether the jury was correctly

instructed on the core question of whether there was a breach of

contract at all.15 Specifically, Gemini argues that the phrase "any

person or entity" is unambiguous, and that the jurors should not

have been given instructions that allowed them to conclude that

Stroup and Greenfield did not fit the definition of "any person or

entity."

"Ordinarily, in Massachusetts 'contract interpretation is

for the court, unless disputed issues of fact bear upon the

interpretation of ambiguous language.'" Kunelius v. Town of Stow,

588 F.3d 1, 10 (1st Cir. 2009) (quoting Liberty Mut. Ins. Co. v.

15
It is possible the jury found there was no breach and did not
reach the causation and damages question. Because there was a
general verdict, we do not know.

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Greenwich Ins. Co., 417 F.3d 193, 197 (1st Cir. 2005)). "A term is

ambiguous only if it is susceptible of more than one meaning and

reasonably intelligent persons would differ as to which meaning is

the proper one." Citation Ins. Co. v. Gomez, 688 N.E.2d 951, 953

(Mass. 1998); see also Lanier Prof'l Servs., Inc. v. Ricci, 192

F.3d 1, 4 (1st Cir. 1999). Even if the meaning of a term is clear

by itself, it "may be ambiguous when read in the context of the

entire . . . contract, or as applied to the subject matter."

Jefferson Ins. Co. of N.Y. v. City of Holyoke, 503 N.E.2d 474, 477

(Mass. App. Ct. 1987).

The district court did not err in concluding that the

exclusivity provision was ambiguous. The relevant language read as

follows: "AmeriPark (and any officers, directors or representatives

of AmeriPark) agrees not to discuss this opportunity or reach any

agreement with any person or entity regarding financing for this

Transaction or the pursuit of any sale or major financing . . . ."

As AmeriPark points out, a literal reading of this language

precludes AmeriPark from "discuss[ing] this opportunity . . . with

any person or entity regarding financing for this Transaction."

The Outline did not define "person or entity," however, and it

implicitly contemplated that AmeriPark would in fact "discuss" the

acquisition's financing with other "person[s] or entit[ies]."16

16
For example, the confidentiality provision permitted
AmeriPark to disclose the contents of the Outline to "those in a
confidential relationship with [AmeriPark] such as directors,

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Consequently, "reasonably intelligent persons" could disagree about

what or who qualified as a "person or entity." The district court

therefore correctly concluded that the terms were ambiguous, and it

did not err in instructing the jury accordingly.

III. Conclusion

For the reasons explained above, we affirm.

senior executive officers, legal counsel and accountants."
Moreover, the non-binding provisions of the Outline contemplated
that part of the financing would be used to repurchase Greenfield's
equity position in AmeriPark, which presumably would require some
discussion of the financing with Greenfield.

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