Advance Sign Grp., LLC v. Optec Displays, Inc.

• Decision Date: 31 July 2013
• Docket Number: No. 12–3321.,12–3321.
• Parties: ADVANCE SIGN GROUP, LLC, Plaintiff–Appellee, v. OPTEC DISPLAYS, INC., Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

722 F.3d 778

ADVANCE SIGN GROUP, LLC, Plaintiff–Appellee,

v.OPTEC DISPLAYS, INC., Defendant–Appellant.

No. 12–3321.

United States Court of Appeals,Sixth Circuit.

Argued Jan. 24, 2013.

Decided and Filed July 15, 2013.

Rehearing Denied July 31, 2013.

ARGUED:Charles A. Koenig, Columbus, Ohio, for Appellant. Charles H. Cooper, Jr., Cooper & Elliott, LLC, Columbus, Ohio, for Appellee. ON BRIEF:Charles A. Koenig, Columbus, Ohio, for Appellant. Charles H. Cooper, Jr., Rex H. Elliott, Cooper & Elliott, LLC, Columbus, Ohio, for Appellee.

Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Advance Sign Group, LLC, brought this diversity action against Optec Displays, Inc., for breach of contract, unjust enrichment, and tortious interference after a business arrangement between the two parties went awry. A jury found in favor of Advance Sign on the breach of contract and tortious interference claims, and awarded damages to Advance Sign. Optec filed a post-trial motion for judgment as a matter of law concerning Advance Sign's breach of contract and tortious interference claims. Optec also moved for a new trial, or in the alternative, for a remittitur on damages. The district court denied Optec's motions and Optec appeals the district court's judgment. For the following reasons, we AFFIRM the district court.

I.

Advance Sign manufactures, installs, and services commercial signs. Optec manufactures a type of commercial sign known as an electronic messaging center. Advance Sign alleges that in 2005, James Wasserstrom, the President of Advance Sign, entered into an agreement with Bill McHugh, Optec's then Vice President of Sales, whereby Optec and Advance Sign would partner to sell Optec's electronic messaging signs to Advance Sign's customers in the foodservice industry. As part of the agreement, Optec agreed to sell the signs to Advance Sign at discounted prices, Advance Sign agreed to sell only Optec's signs, and Optec agreed not to sell directly to the foodservice companies introduced to it by Advance Sign.

Darrell Rogers, one of the largest franchisees of Sonic Restaurants, a fast food chain, was a long-standing customer of Advance Sign. In late 2005, after Advance Sign pitched the idea to Rogers and Sonic, Advance Sign and Optec participated in a pilot project to install electronic messaging signs at several Sonic corporate-owned locations and franchise locations owned by Rogers. Optec provided the electronic messaging signs and Advance Sign provided the installation services. The purpose of the project was to determine whether the use of the electronic messaging signs could increase sales for Sonic. The pilot program was successful, and Sonic became interested in purchasing the electronic messaging signs for its corporate locations.

Advance Sign alleges that Optec violated the 2005 agreement when, in the first quarter of 2006, Optec began negotiating with Sonic Restaurants for the direct sale of its electronic messaging signs. In an attempt to salvage the business relationship and after negotiating from March through May of 2006, Advance Sign and Optec came to a second agreement during a telephone conference. Optec agreed to pay Advance Sign twelve percent of the net invoice price on all sales made by Optec to the foodservice customers introduced to it by Advance Sign. Wasserstrom and Roger Wallace, Advance Sign's Chief Operating Officer and Chief Financial Officer, claimed that McHugh orally agreed to the terms during the phone call. On June 1, 2006, Advance Sign sent McHugh a letter memorializing the terms to which the parties allegedly agreed over the phone. McHugh made a minor change to the letter that was unrelated to the twelve percent commission figure, and Advance Sign incorporated the change and sent the letter back to McHugh on June 6, 2006. McHugh never signed the letter.

When McHugh refused to sign, Advance Sign representatives traveled to Optec's offices in California in August of 2006 to have a meeting about the commission agreement. Optec's President, Shu Wu, was present at the meeting. During the meeting, the parties discussed an arrangement that would make Advance Sign the primary sales agent for all of Optec's foodservice industry clients, regardless of whether Optec attained the client with the help of Advance Sign. In exchange for Advance Sign playing a larger role than had been discussed during the call with McHugh, the parties talked about Advance Sign receiving less than a twelve percent commission on Optec's sales to Sonic. The parties never agreed on the appropriate commission rate. Advance Sign put the discussed terms in writing, including a requirement that Optec pay Advance Sign a two percent commission on all sales to Sonic, and sent the agreement to Optec. Optec failed to sign the August agreement, and it failed to pay the commission required under either the June or August iteration of the commission contract.

On November 21, 2006, Wasserstrom sent an email to Wu complaining that Optec had not honored its obligations under the commission agreement. Wasserstrom concluded the email by warning Wu that he would not wait much longer for Optec to keep its promises. Six days later, on November 27, 2006, Shawn Klinger, Optec's National Accounts Manager, sent an email to Steve Reed, Sonic's Vice President. In the email, Klinger explained that Advance Sign was the cause of some of the problems associated with the installation of Optec's signs at various Sonic locations. In particular, he claimed that Advance Sign had used non-preferred installation vendors against Optec's recommendation and that many of Advance Sign's installers were incapable of performing the installations. The email went on to say that the best way to resolve the installation issues would be to allow Sonic to manage all aspects of the project, including installation. Klinger reported directly to McHugh, and he presented McHugh with a draft of the email prior to sending it to Reed. On January 22, 2007, Reed recommended to Optec that Advance Sign be removed from the project and gave Optec the right to perform the installations. Subsequently, Optec signed a two-year agreement with Sonic providing that Optec would be an approved supplier for two years. Optec went on to install signs at approximately 1,400 of Sonic's corporate locations.

Advance Sign sued Optec for breach of the original 2005 agreement as well as for breach of the 2006 agreement to pay Advance Sign a commission on Optec's sales to Sonic. Advance Sign also brought unjust enrichment and tortious interference claims against Optec. Following a jury trial, the jury found in favor of Advance Sign on both of its breach-of-contract claims and its claim for tortious interference. The jury did not award Advance Sign damages for Optec's breach of the original 2005 agreement, but it awarded Advance Sign damages in the amount of $3,444,000 for Optec's breach of the 2006 commission agreement. The jury based its damages calculation on the June iteration of the commission agreement. The jury also awarded Advance Sign $1,029,000 in damages for the tortious interference claim.

Optec filed post-trial motions. Optec moved for judgment as a matter of law regarding Advance Sign's claims for breach of the commission agreement and tortious interference. Optec also moved for a new trial, or in the alternative, for a remittitur on damages. The district court denied both motions. Optec appeals the district court's denial of its motions and, in doing so, makes several challenges to the jury's verdict. Optec claims: 1) that there was no meeting of the minds as to the June commission agreement; 2) that Ohio's Statute of Frauds precludes the enforcement of the commission agreement; 3) that Advance Sign did not establish all of the elements of its tortious interference claim; and 4) that the evidence did not support either of the jury's damages awards.

II.

Optec argues that the district court erred in denying its motion for judgment as a matter of law regarding Advance Sign's claims for breach of the commission agreement and tortious interference.

This Court reviews the District Court's denial of a Rule 50(b) motion de novo. K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996) (citing Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir.1992)). When exercising diversity jurisdiction, we resolve legal questions by applying the federal standard, and we resolve questions regarding the sufficiency of the evidence by using the standard applicable under the law of the forum state, which is Ohio in this case. Id. at 174–76. The evidence and facts must be construed most strongly in favor of the nonmoving party, and when reasonable minds may reach different conclusions, the motion must be denied. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001) (citing K & T Enters., 97 F.3d at 174–76);Aetna Cas. and Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 532 (6th Cir.2000) (quoting Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 344 N.E.2d 334, 338 (1976)). We do not reweigh the evidence or assess the credibility of witnesses. Gray, 263 F.3d at 600 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)); Cardinal v. Family Foot Care Ctrs., Inc., 40 Ohio App.3d 181, 532 N.E.2d 162, 164 (1987). Moreover, the jury verdict is given great deference. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273, 1276 (1984).

A. Breach of the 2006 Commission Agreement

Optec makes two arguments in support of its claim that the district court erred in denying its motion for judgment as a matter of law concerning Advance Sign's claim for breach of the commission agreement. First, it argues that the evidence does not support the jury's finding that there was a meeting of the minds...