Walter Int'l Productions Inc. v. Salinas, 09–15971.

• Citation: 80 Fed.R.Serv.3d 1166,23 Fla. L. Weekly Fed. C 297,650 F.3d 1402
• Decision Date: 23 August 2011
• Docket Number: No. 09–15971.,09–15971.
• Parties: WALTER INTERNATIONAL PRODUCTIONS, INC., a Florida Corporation, Watervision, Inc., a Florida Corporation, Waltervision Productions, Inc., a Florida Corporation, Walter Mercado Radio Productions, Inc., a Florida Corporation, Bart Enterprises International, Ltd., a Bahamas Corporation, Walter Mercado Enterprises Corp., a Florida Corporation, Plaintiffs–Counter–Defendants–Appellants,v.Walter Mercado SALINAS, a natural person, Astromundo, Inc., a Puerto Rico Corporation, Defendants–Counter–Claimants–Appellees,Guillermo Bakula, ABC Insurance Company, Maritza Carvajal, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

650 F.3d 1402
80 Fed.R.Serv.3d 1166
23 Fla. L. Weekly Fed. C 297

WALTER INTERNATIONAL PRODUCTIONS, INC., a Florida Corporation, Watervision, Inc., a Florida Corporation, Waltervision Productions, Inc., a Florida Corporation, Walter Mercado Radio Productions, Inc., a Florida Corporation, Bart Enterprises International, Ltd., a Bahamas Corporation, Walter Mercado Enterprises Corp., a Florida Corporation, Plaintiffs–Counter–Defendants–Appellants,
v.
Walter Mercado SALINAS, a natural person, Astromundo, Inc., a Puerto Rico Corporation, Defendants–Counter–Claimants–Appellees,Guillermo Bakula, ABC Insurance Company, Maritza Carvajal, et al., Defendants–Appellees.

No. 09–15971.

United States Court of Appeals, Eleventh Circuit.

Aug. 23, 2011.

[650 F.3d 1404]

Scott Alan Orth, Law Offices of Scott A. Orth, P.A., Hollywood, FL, Laura Belendez–Ferrero, Ferraiuoli Torres Marchand Rovira PSC, San Juan, PR, for Plaintiffs–Counter–Defendants–Appellants.Carlos A. Velasquez, Carmen J. Cuetos, Velasquez Cuetos & Waters Romero, P.A., Plantation, FL, Mara Shlackman, Law Office of Mara Shlackman, P.L., Ft. Lauderdale, FL, for Defendants–Counter–Claimants–Appellees.Appeal from the United States District Court for the Southern District of Florida.Before CARNES, KRAVITCH and SILER,^* Circuit Judges.CARNES, Circuit Judge:

This appeal involves a contract dispute between Bart Enterprises International, Ltd., and Walter Mercado Salinas. The contract describes Bart Enterprises as being “in the business of producing and distributing entertainment programming,” and it describes Mercado as “a well-known psychic and astrologer who provides psychic and astrological counseling to the public.” It may be true, as the song lyrics say, that “When the moon is in the Seventh House / And Jupiter aligns with Mars / Then peace will guide the planets / And love will steer the stars,” ¹ but there was no peace and love between these parties after their contractual dispute arose.

[650 F.3d 1405]

Had Mercado's psychic powers been greater he might have foreseen that the parties' relationship was star-crossed and his dealings with the entertainment company would end in a way that was anything but entertaining. Or maybe the problem was that Mercado could see only so far into the future, because things went pretty well for about eleven years. Then trouble began.

I.

In the contract, which they entered into in June of 1995, Mercado assigned the rights in the “Walter Mercado” trademark to Bart Enterprises, giving it the right to produce, market, and distribute his trademarked materials in exchange for regular payments to him. The contract also allowed Bart Enterprises to re-assign its contractual rights, which it did to some extent.² (We'll refer to Bart Enterprises and its assignees collectively as “the Bart Group” unless context requires otherwise.)

The parties amicably did business together under the contract for about eleven years. Mercado's story is that trouble began when the Bart Group fell behind on its payments to him, and as a result he attempted to formally terminate the contract in a letter dated November 22, 2006. The Bart Group's story is that it was not in arrears, and Mercado was the one who breached the agreement in November 2006 by failing to attend scheduled appearances, failing to provide required materials, and improperly attempting to terminate the contract.

In January of 2007 the Bart Group filed a lawsuit against Mercado and his company, Astromundo, Inc., which had sent the November 22, 2006 letter to the Bart Group attempting to terminate the parties' contract. (We will refer to Mercado and Astromundo, Inc. collectively as “Mercado.”) The Bart Group's complaint concedes that “[f]rom June 1995 through the beginning of November 2006, Mercado performed his obligations and complied with all the requirements pursuant to the Agreement without interruption,” but it claims that in mid-November 2006 he breached the contract.

The complaint asserted in six counts that Mercado had breached his contract with the Bart Group—one claim for Bart Enterprises and one claim each for its five assignees (Counts I & IV–VIII). It also claimed that Mercado tortiously interfered with the contracts that two of the Bart Group had with two television stations, Televisa (Count II) and Univision (Count III), by directly entering into contracts with those stations.

Mercado filed an answer denying liability on all of the claims and asserting a number of counterclaims. These are the only counterclaims that are relevant to the procedural history of this appeal: Mercado's claims against the Bart Group for breach of contract (Counts I and II) and his claims against Bart Enterprises for breach of fiduciary duty (Count IV) and for a declaratory judgment (Count III). In his declaratory judgment count Mercado asked the district court to find either that the contract was void or that he had properly terminated it. He also asked for a ruling that Bart Enterprises owed him fees and commissions and that he had the right to inspect “all of the accounting books and supporting documentation” to determine the amounts that he was owed.

In June 2008, these star-crossed parties filed cross-motions for summary judgment,

[650 F.3d 1406]

which the district court granted in part and denied in part. The only claims of the Bart Group that survived summary judgment were the breach of contract and tortious interference claims. The only counterclaims of Mercado that survived summary judgment or dismissal were those for breach of contract and breach of fiduciary duty. The court did grant one part of the declaratory judgment that Mercado had requested, declaring that he did have a right under the contract to inspect the Bart Group's accounting books.

The claims and counterclaims that remained went to trial, which was divided into two phases. In phase I, which lasted for eight days, the jury considered the Bart Group's breach of contract claim and Mercado's breach of contract and breach of fiduciary duty counterclaims. Answering questions on the verdict form, the jury found that the Bart Group had not breached the parties' contract but that Mercado had breached it by: (1) improperly terminating it; (2) hiring another exclusive agent while the parties' contract was still in force; and (3) failing to perform after November 22, 2006. The jury also found that the Bart Group owed Mercado a fiduciary duty separate and apart from the parties' contract but that it had not breached that duty to Mercado.

In phase II of the trial the jury heard evidence on and decided the Bart Group's tortious interference with contract claims against Mercado and the question of damages for his breach of contract.³ Two days after its first verdict, the jury returned a second verdict, which also included answers to questions on the verdict form. The jury found that, although Mercado had interfered with two of the Bart Group's existing contracts with third parties, the interference was not with the intent to injure or destroy existing business relationships, so Mercado was not liable to the Bart Group for tortious interference with its contracts. On the question of whether Mercado owed any of the Bart Group damages, the jury found that neither Bart Enterprises nor any of its five assignees had been damaged by Mercado's breach of the contract. The jury had been instructed that it could award nominal damages, but it chose not to do so. The Bart Group did not object to the verdict on inconsistency grounds, or on any other grounds, before the jury was dismissed.

The district court entered a final judgment on February 4, 2009, and the parties filed post-judgment motions. The Bart Group filed motions asking the court to: (1) amend or “correct” the judgment to clarify the parties' intellectual property rights and to add nominal damages for the Bart Group; (2) grant it a judgment including nominal damages or amend or clarify the form of the final judgment to include nominal damages; or (3) grant a new trial on the issue of nominal and actual damages; and (4) conduct a status conference. Mercado filed a renewed motion for judgment as a matter of law on the Bart Group's breach of contract claim against him and on his breach of contract and breach of fiduciary duty counterclaims. He also filed a motion to alter or amend the judgment, which had indicated that the Bart Group had prevailed “on all claims.” As Mercado's motion pointed out, he had prevailed on the Bart Group's tortious interference claims. The court granted that aspect of Mercado's motion to

[650 F.3d 1407]

alter or amend, but it denied the remainder of his motions.

Mercado appealed the final judgment, including the summary judgment rulings against his counterclaims, but later voluntarily dismissed his appeal. Unhappy that it was not awarded any damages for Mercado's breach, the Bart Group appealed and has continued to pursue its appeal.

II.

The Bart Group contends, on a variety of grounds, that the district court erred by denying its motion for a new trial on the issue of damages. We review the denial of a motion for a new trial only for an abuse of discretion. St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1201 n. 16 (11th Cir.2009). Deference “ ‘is particularly appropriate where a new trial is denied and the jury's verdict is left undisturbed.’ ” Id. (quoting Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir.1987)).

A.

The Bart Group first contends that the district court abused its discretion by imposing time constraints on the trial. Before trial began the court limited each side to 25 hours for the presentation of witnesses and other evidence at trial.⁴ The Bart Group did not object or suggest that it was not being given enough time. During phase I of the trial, however, the Bart Group exceeded its 25 hour total time limit for both phases. Before phase II began, the district court told counsel for the Bart Group that he...