Telemundo Network, Inc. v. Spanish Television Services, Inc., 3D00-209.

Decision Date06 March 2002
Docket NumberNo. 3D00-209.,3D00-209.
Citation812 So.2d 461
PartiesTELEMUNDO NETWORK, INC., a Delaware corporation, Appellant, v. SPANISH TELEVISION SERVICES, INC., etc., Appellee.
CourtFlorida District Court of Appeals

Adorno & Zeder and Alan Rosenthal and Raoul G. Cantero, III and Jack R. Reiter, for appellant.

Kendall Coffey; Diaz & O'Naghten and Carlos De Zayas; Sale & Kuehne and Benedict Kuehne and Susan Dmitrovsky, for appellee.

Before SCHWARTZ, C.J., and FLETCHER, and SORONDO, JJ.

FLETCHER, Judge.

In this action for breach of contract, both parties find fault with the trial court's post-trial rulings. The defendant, Telemundo Network, Inc., [Telemundo] claims error in the denial of its motion for judgment in accordance with its motion for directed verdict and for new trial, while the plaintiff, Spanish Television Services, Inc., [STS] contends the trial court erred in granting a remittitur of the jury verdict. We find no merit in either party's arguments and affirm.

In late 1994, Telemundo, a Spanish language television broadcast network, began negotiations with STS, a producer and distributor of Spanish language programming, for the right to broadcast in the United States "Mas Alla Del Horizonte," a serial program. By February of 1995, the parties, who had a prior long-term business relationship, had orally reached an agreement on the general terms of a licensing arrangement whereby Telemundo acquired the right to air 170 episodes for $5,000 each (for a total of $850,000). A problem arose, however, when the parties attempted to put their arrangement into writing. Telemundo was dissatisfied with the original agreement prepared by its counsel because it omitted a fall-back provision to which Telemundo claims the parties agreed and which would have allowed Telemundo to pay a reduced price in the event the program did not achieve acceptable ratings when aired in prime time and had to be moved to a daytime slot. Although STS' principals signed the first draft of the agreement, STS claims the document included a termination clause which the parties had never previously used and which STS had not agreed to. This termination clause provided Telemundo the right to terminate the contract unilaterally by giving written notice within 60 days if it found the program was not in its best interest.

STS never executed the second, revised agreement forwarded to them by Telemundo's counsel, and before the parties could iron out their differences to the point where they could execute a final agreement, Telemundo underwent a change of management. The new management believed the subject program would not appeal to its viewers and instructed its counsel to withdraw its offer to acquire the program. Soon after receiving a letter informing them of this withdrawal, STS initiated the instant action asserting, among other claims, breach of an oral and written contract.

After a ten-day trial, the jury concluded that the parties had entered into an oral contract which Telemundo had breached. The jury awarded $2.6 million in damages to STS. Telemundo moved for relief by way of motions for a directed verdict, a new trial, or a remittitur. The trial court granted the remittitur, reduced the jury's award to $850,000, but denied all other relief.

Telemundo raises two issues on appeal. First, it claims the trial court erred in not granting a directed verdict limiting the damages in accordance with the termination clause contained in the initial written agreement. According to Telemundo, the evidence at trial demonstrated that this provision, which gave Telemundo the right to unilaterally terminate the agreement if the programming was not in its best interests, was part of the oral agreement, and that the 60-days notice period began on the date of the letter withdrawing the offer. However, the record reflects that the evidence as to the actual terms of the parties' oral agreement was in conflict and that there was sufficient evidence to support the conclusion, implicit in the jury's general verdict in favor of STS, either that the termination clause was not a part of the parties' agreement or that Telemundo never properly invoked it. See Stutzke v. Kohl, 576 So.2d 356 (Fla. 4th DCA 1991)

(finding sufficient evidence to support the jury's conclusions regarding the terms of an oral agreement); Lockwood v. Test, 160 So.2d 142 (Fla. 2d DCA 1964) (same).

Telemundo also argues that it was entitled to a new trial because of plaintiff counsel's improper closing argument at trial. Pointing to the $2.6 million verdict as evidence, Telemundo claims the argument was highly inflammatory and appealed to the passions and prejudices of the jury. Telemundo's trial counsel, however, failed to object contemporaneously to any of opposing counsel's closing comments. And, although as Telemundo points out the Florida Supreme Court has recognized an exception to the contemporaneous objection requirement in civil cases where a party raises the issue in a motion for new trial, we do not find the argument herein "to be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury." See Murphy v. International Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla.2000)

.

On STS' cross-appeal, we find no abuse of discretion in the trial court's reduction of the jury verdict. It is clear that the maximum amount STS would have received had the contract been performed as intended by the parties was $850,000. Damages in a breach of contract action are intended to place the injured party in the same position he or she would have been in had the breach not occurred. See, e.g., Sharick v. Southeastern University of Health Sciences, Inc., 780 So.2d 136, 138 (Fla. 3d DCA 2000)

; Koplowitz v. Girard, 658 So.2d 1183 (Fla. 4th DCA 1995); Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33, 35 (Fla. 3d DCA 1979).

For the foregoing reasons, we affirm the final judgment.

SORONDO, J. (specially concurring).

I agree with Judge Fletcher's view that there was sufficient, albeit conflicting, evidence to support the jury verdict below.1 For reasons that differ from those expressed by Judge Fletcher, I also believe that counsel for STS's closing argument, although highly improper, does not require reversal.

Telemundo argues that this Court should reverse for a new trial because of the improper closing argument made by counsel for STS. During his summation, counsel made nationalistic arguments that were improper. Before addressing the specifics of these comments, it is important to know that over Telemundo's objection, STS elicited evidence during trial that it was an American-owned company and that Telemundo was owned by foreigners. STS's final argument, as pertinent to this discussion, began as follows:

This case, this trial, for the last nearly ten days, is all about power and dignity; the power and dignity of a person's word.
Does integrity in business exist in the United States of America in the 1990's? Is a promise a promise in business, as in life?
You, members of the jury, are the promise-keepers for today, for it is your duty, your obligation, yes, your responsibility to hold Telemundo liable and to hold it to its promise; its agreement.
You, jurors in Courtroom 8-1, have the power to tell a large, mega-giant corporation, a television giant, what all America knows, what the law requires, that people, companies, no matter how big or small, must keep their promises in America; ...
This is America, where, in business, an agreement, a deal still means something. This is America, where a handshake is often times more important than all the lawyers, all the businessmen, all the powerful accountants and technicians that Telemundo can muster; where a simple agreement, a simple agreement sealed by a handshake is far more powerful and all-encompassing than any loophole or advantage big corporate giants can try to bring to work to their advantage. This is America, and in the courtrooms of America, money and power and influence mean nothing; where television giants have no power to rob, and steal or mislead good, solid, honest businessmen, and if they do, like Telemundo has attempted to do in this case, you will compel them, force them, require them to honor their bargain, and why is that?2

(Emphasis added). Despite STS's arguments to the contrary before this Court, this nationalistic appeal permeated counsel's summation. Similar comments followed:

He unilaterally determined—without ... so much as taking a single look at [the program], he trashed the program. He disparaged the program. He made false claims about the program, all to get rid of the program.
Why? Shocking, in America.

(Emphasis added). The theme continued:

So, according to Telemundo, a handshake does not mean, "[w]e have a deal or a contract," because they decided— Telemundo decided, "[w]e need to make money."
In our world, in the world in America, we call that bait-and-switch. It's illegal.
* * * *
Spanish Television gave its valuable product. Telemundo took that valuable product and promoted that product; declared it as its own to the world, and when you consider this contract and this agreement, with Judge Dean telling you that an oral contract is just as binding or just as valid, just as good in America as a written contract, you are going to need to look at two—two items for a valid contract to exist.
* * * *
So when you, at the end, are looking at this case, deciding, "[h]ow do we, members of the jury, make Spanish Television,... whole? How do we restore Spanish Television to the place it occupied prior to the malevolence, the bad faith, the greed worked by Telemundo? How do we do that," you have the responsibility to decide.
You have the opportunity to be heard on an issue so crucial to the life of Spanish Television, but more, as to how business is going to be conducted in America involving
...

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