concurring in part; dissenting in part. The majority opinion affirms the trial court based on Miller’s violation of the “good faith” provision contained in the Franchise Act. In doing so, the majority affirms the trial court’s award of damages for $1.6 million. It can be assumed that this amount represents Roleson’s lost profits that he would have earned had he successfully purchased Campbell’s entire business, including his Coors distributorship.1
The Franchise Act defines “franchise” as follows:
[A] written or oral agreement for a definite or indefinite period, in which a person grants to another a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory, at wholesale, retail, by lease agreement , or otherwise.
Ark. Code Ann. § 4-72-202(1) (Repl. 2001). According to the statute, the definition of franchise is expressly limited to the terms of the “written or oral agreement.” Ark. Code Ann. § 4-72-202(1) (Repl. 2001). In other words, the Franchise Act only governs what is contained within the franchise agreement. It is undisputed that Roleson did not have a right to acquire Campbell’s Coors brands under the franchise agreement. Consequently, Roleson cannot collect full damages based on a violation of the Franchise Act alone.
In conclusion, it is my view that Roleson is limited to lost profits from the acquired brands, and is not entitled to damages stemming from Coors brands.2 If Roleson is entitled to the $1.6 million in damages, it must be based on either the tortious interference or civil conspiracy cause of action.
Campbell’s business was approximately 96% Coors and 4% acquired brands.
The opinion is incorrect when it states that, “The parties have agreed that if we affirm on any one of the jury’s three verdicts, the court’s judgment must be affirmed.”