177 So.3d 843 (Ala. 2013), 1091758, Target Media Partners Operating Co., LLC v. Specialty Mktg. Corp.

Docket Nº:1091758
Citation:177 So.3d 843
Opinion Judge:Per Curiam.
Party Name:Target Media Partners Operating Company, LLC, and Ed Leader v. Specialty Marketing Corporation d/b/a Truck Market News
Attorney:For Appellant: Charles A. Dauphin, Donald R. James, Jr. and Joel E. Dillard, of Baxley, Dillard, Dauphin, McKnight & James, Birmingham. For Appellee: J. Callen Sparrow and Christopher B. Hood of Heninger Garrison Davis, LLC, Birmingham.
Judge Panel:Parker and Wise, JJ., concur. Moore, C.J., and Shaw and Bryan, JJ., concur in the result. Murdock, J., concurs in the rationale in part and concurs in the result. Stuart, Bolin, and Main, JJ., concur in part and dissent in part. Parker and Wise, JJ., concur. Moore, C.J., and Shaw and Bryan, JJ., ...
Case Date:September 06, 2013
Court:Supreme Court of Alabama
 
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Page 843

177 So.3d 843 (Ala. 2013)

Target Media Partners Operating Company, LLC, and Ed Leader

v.

Specialty Marketing Corporation d/b/a Truck Market News

1091758

Supreme Court of Alabama

September 6, 2013

Released for Publication June 10, 2015.

Page 844

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from Calhoun Circuit Court. (CV-07-900201). Trial Judge: Brian P. Howell, Judge.

For Appellant: Charles A. Dauphin, Donald R. James, Jr. and Joel E. Dillard, of Baxley, Dillard, Dauphin, McKnight & James, Birmingham.

For Appellee: J. Callen Sparrow and Christopher B. Hood of Heninger Garrison Davis, LLC, Birmingham.

Parker and Wise, JJ., concur. Moore, C.J., and Shaw and Bryan, JJ., concur in the result. Murdock, J., concurs in the rationale in part and concurs in the result. Stuart, Bolin, and Main, JJ., concur in part and dissent in part.

OPINION

Page 847

On Second Application for Rehearing

Per Curiam.

This Court's no-opinion order of affirmance of April 19, 2013, is withdrawn, and the following is substituted therefor.

Target Media Partners Operating Company, LLC (" Target Media" ), and Specialty Marketing Corporation d/b/a Truck Market News (" Specialty Marketing" ), both publishers of magazines directed to long-haul truck drivers and to the truck-driving industry, have litigated a commercial-contract dispute since 2007 in which each party alleged breach-of-contract claims against the other. Specialty Marketing, a plaintiff in the trial court, also alleged fraudulent-misrepresentation and promissory-fraud claims against Target

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Media and Ed Leader, Target Media's vice president of trucking, and sought punitive damages in addition to compensatory damages. The litigation culminated in a jury trial that lasted several days. The jury returned a verdict in favor of Specialty Marketing on its breach-of-contract and promissory-fraud claims against Target Media, in favor of Leader on the promissory-fraud claim against him, in favor of Specialty Marketing on its fraudulent-misrepresentation claim against Target Media and Leader, and in favor of Target Media on its breach-of-contract counterclaim against Specialty Marketing. Target Media and Leader appeal from that aspect of the judgment entered on the jury verdict in favor of Specialty Marketing on its claims against Target Media and Leader. Specialty Marketing does not appeal the judgment insofar as it found in favor of Target Media on Target Media's counterclaim. We affirm the trial court's order denying Target Media's and Leader's postjudgment motion, but we remand the cause to the trial court to review the punitive-damages award.

I. Factual Background and Procedural History

Target Media, which sometimes does business as " Target Distribution Partners" or " Target Media Partners," publishes a number of magazines that contain advertisements for items of interest to truck drivers and the trucking industry, such as driver recruitment and sales of commercial trucks and products used by truck drivers. It distributes the magazines nationally to truck stops, rest stops, and similar locations frequented by truck drivers. These magazines are free of charge. Target Media has a major distribution hub for these magazines in Oxford.

Specialty Marketing also publishes a free magazine directed to the truck-driving industry called Truck Market News that is published monthly and that contains advertisements for products such as new and used commercial trucks, parts, and trailers. Specialty Marketing distributes Truck Market News to many of the same locations where Target Media distributes its magazines. Specialty Marketing is a family business headquartered in Dallas, Texas, that has been in operation for over 35 years. It is run by Terry W. Davis and his sister, Kathleen Daniels, who have continued the business started by their father and who together own all the stock in Specialty Marketing.

In 2000, Target Media purchased two businesses in Calhoun County, Pollard Publishing and J.B. Scott, that published free magazines for distribution to truck drivers. Target Media then employed Gordon Adams and his brother Wallace Adams, both of whom had formerly worked for Pollard Publishing. After the purchases, Leader relocated to Oxford where, in addition to heading the trucking division of Target Media, he was also in charge of the distribution hub the company operated in Oxford.

In the fall of 2002, Jack Humphreville, Target Media's vice president of acquisitions, contacted Davis to discuss whether Davis and Daniels would be interested in selling Specialty Marketing to Target Media. When Davis and Daniels decided against selling Specialty Marketing, Davis and Humphreville began to discuss a business venture between the companies pursuant to which Target Media would distribute Truck Market News for Specialty Marketing. Davis testified that Humphreville told him he felt that Specialty Marketing could increase its advertising revenue by 20% annually if it used Target Media's distribution services. Humphreville put Davis in touch with Gordon Adams, who was at that time Target Media's distribution manager in Oxford, and

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Davis and Gordon Adams negotiated a contract they executed on November 21, 2002 (" the 2002 distribution contract" ). However, Gordon Adams testified that he had to obtain the approval of Ed Leader, the vice president of trucking, of the terms of the 2002 distribution contract before it could be executed.

The contract stated:

" Target Distribution Partners (TDP) is pleased to bid on delivery of Truck Market News. TDP has carved out a niche in the highly competitive truck stop delivery market because of our High Response Delivery System. As such, TDP can help you maximize your advertising, marketing, and magazine movement needs by:

" Hand Delivery and display nationwide " Documentation that includes proof of delivery, returned (non-picked up) magazines, store stamps and photos upon request " Delivery twice a month " Guaranteed prominent display at each location " Use of Target Media Partners Circulation, Sales and Distribution program (TMPCSD) for hand delivery locations only " We have priced our delivery services of Truck Market News on a per stop basis. This price includes all slotting fees and hand delivery. This price also includes distribution in our racks and four quad boxes. The price does not include any costs associated with shipments of your product to our warehouses. This will also afford you the same cost even when your magazine adds more pages. We believe that this all-inclusive pricing structure is easier to understand than a structure based on price per pound plus various add-ons. " Your price structure is identified on Exhibit A attached hereto. " The above is contingent on your gaining approval, if necessary, from each Truck Stop chain or location. We will be glad to assist you in gaining these approvals. " As a partner with TDP, you will be able to use our proprietary TMPCSD software program to further enhance the benefits of our High Response Delivery System. With the help of the information provided by TMPCSD, you are able to adjust various parameters (such as the number of [magazines] placed at individual locations and the return factor) that influence the draw algorithm, which in turn helps you improve or optimize the number of [magazines] that you print. This can result in savings or better utilization of your printing dollars. This service is unmatched by any other truck stop distribution company. " Truck Market News agrees to supply TDP's warehouses with the magazines in a form and time acceptable to TDP. TDP's delivery cycle begins on the 28th and 15th of each month and all shipments must be in our warehouses by those dates. " Truck Market News agrees to pay for all deliveries and services provided for or paid for by TDP within 10 days upon receipt of invoice. We anticipate a monthly billing cycle. " Truck Market News agrees to endorse TDP as its recommended Delivery Company for Truck Market News and agrees to let TDP advertise Truck Market News as a preferred customer. Truck Market News agrees not to use any misleading statements to customers, that may confuse or misrepresent the actual duties performed for Truck Market News, by TDP. Page 850

" Either party for any reason upon 60 days prior written notice may amend by agreement of both parties or terminate this agreement.

" This contract is subject to periodic review for customer compliance. " We want to be more than a delivery company for you. We want to be a business partner. One that delivers your product, gives you accesses [sic] to thousands of locations and gives you accurate information to help you optimize your printing and distribution costs. " ....

" Exhibit A

# of Pocket Monthly
" Location Locations Rate Cost
" Petro Shopping Centers 27 $55 $1,485
" Travel Centers of 53 $55 $2,915
America
" Williams Travel Centers 41 $45 $1,845
" AMBEST 41 $35 $1,435
" Independent Truck Stops 113 $25 $2,825
" Total 275 $10,505"

The 2002 distribution contract was signed by Gordon Adams as " General Manager" of " Target Distribution Partners" and by Davis as the " Publisher" of " Truck Market News." The parties subsequently agreed to adjust the total paid to Target Media per month by Specialty Marketing from $10,505 to $9,750. The monthly delivery process under the 2002 distribution contract began when Trend Offset Printing (" Trend" ) in Dallas printed the magazines published by Target Media and Specialty Marketing. Trend printed between 36,000 and 42,000 copies of Truck Market...

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