Kaepa, Inc v. Achilles Corporation ( 2000 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-50559
    KAEPA, INC.,
    Plaintiff-Appellant-Cross-Appellee,
    versus
    ACHILLES CORPORATION,
    Defendant-Appellee-Cross-Appellant.
    Appeal from the United States District Court
    for the Western District of Texas, San Antonio
    May 17, 2000
    Before POLITZ, GARWOOD and DAVIS, Circuit Judges.
    GARWOOD, Circuit Judge:*
    Plaintiff-appellant-cross-appellee Kaepa, Inc. (Kaepa), a United
    States shoe manufacturer, brought this action against its Japanese shoe
    distributor, defendant-appellee-cross-appellant Achilles Corporation
    (Achilles), alleging, inter alia, breach of the parties’ distributorship
    agreement–executed April 30, 1993 to be effective June 1, 1993--and
    fraudulent inducement by Achilles to enter into the agreement.       In
    response, Achilles filed several counterclaims, including breach of
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under the
    limited circumstances set forth in 5TH CIR. R. 47.5.4.
    contract and fraud. After the parties presented their evidence, the
    district court entered judgment as a matter of law against Kaepa on its
    fraudulent inducement claim. The jury then found that Achilles had
    breached its distributorship agreement with Kaepa, but that Kaepa had
    waived any breach. Based on the verdict, the district court entered a
    take-nothing judgment and ordered each party to bear its own costs.
    Kaepa moved for a new trial on the ground that the jury’s finding of
    waiver was against the great weight of the evidence and that the
    evidence was legally insufficient to constitute waiver. The district
    court denied this motion. Kaepa now appeals the district court’s grant
    of judgment as a matter of law on its fraudulent inducement claim, as
    well as the denial of its motion for a new trial based on the jury’s
    waiver finding. Achilles appeals the district court’s denial of its
    motion for costs.   We affirm.
    Discussion
    I.   Kaepa’s Fraudulent Inducement Claim
    Kaepa argues that the district court erred in entering judgment as
    a matter of law in favor of Achilles on Kaepa’s fraudulent inducement
    claim. At trial, Kaepa’s theory in support of this claim had been that
    Achilles fraudulently induced it to enter into the distributorship
    agreement by promising to market Kaepa shoes in Japan as a full-line
    product, including men’s and women’s shoes, all the while secretly
    intending to position Kaepa as only a women’s “niche” product. Having
    reviewed the record and briefs, we conclude that the district court did
    2
    not err in granting judgment as a matter of law on this claim.
    We review the grant of judgment as a matter of law de novo. See
    Hidden Oaks Ltd. v. City of Austin, 
    138 F.3d 1036
    , 1042 (5th Cir. 1998).
    Under Boeing Co v. Shipman, 
    411 F.2d 365
     (5th Cir. 1969) (en banc),
    judgment as a matter of law is appropriate “[i]f the facts and
    inferences point so strongly and overwhelmingly in favor of one party
    that the Court believes that reasonable men could not arrive at a
    contrary verdict.” Boeing, 
    411 F.2d at 374
    . “There must be a conflict
    in substantial evidence to create a jury question.” 
    Id. at 375
    . In
    considering the grant of judgment as a matter of law, we will view all
    evidence “in the light and with all reasonable inferences most favorable
    to the party opposed to the motion.”          
    Id. at 374
    .
    The elements of fraudulent inducement under Texas law (which
    the parties and the district court have treated as controlling)
    are: (1) a material representation was made; (2) the representation
    was false when made; (3) the speaker knew it was false, or made it
    recklessly   without   knowledge   of   its    truth   and   as   a   positive
    assertion; (4) the speaker made it with the intent that it should
    be acted upon; (5) the party acted in reliance; and (6) the
    misrepresentation caused injury. See Formosa Plastics Corp. USA v.
    Presidio Engineers and Contractors, Inc., 
    960 S.W.2d 41
    , 47 (Tex.
    1998).   “A promise to do an act in the future is actionable fraud
    when made with the intention, design, and purpose of deceiving, and
    with no intention of performing the act.”          Spoljaric v. Percival
    3
    Tours, Inc., 
    708 S.W.2d 432
    , 434 (Tex. 1986).      In order to survive
    Achilles’s motion, Kaepa had to present evidence that Achilles made
    representations with the intent to deceive and with no intention of
    performing.     Formosa, 960 S.W.2d at 48.      Moreover, the evidence
    presented had to be relevant to Achilles’s intent at the time the
    representations were made.     Id.    The element of intent is crucial
    in distinguishing fraudulent inducement cases “from situations in
    which a party has made a promise with an existent intent to fulfil
    its terms and who then changes his mind and refuses to perform;
    otherwise, every breach of contract would involve fraud.”            Oliver
    v. Rogers, 
    976 S.W.2d 792
    , 804 (Tex. App.–Houston [1st Dist.] 1998,
    pet. denied).
    The evidence that Kaepa relies on to show that Achilles never
    intended to market its shoes as a full line but instead only as a
    women’s niche dissipates in light of the fact that from the
    beginning Kaepa knew very well what Achilles was doing.            In fact,
    Kaepa was affirmatively in favor of focusing its marketing efforts
    in   Japan   primarily,   though   not   exclusively,   on   its   “niche”
    products–cheerleading, volleyball, and tennis–which were largely
    women’s shoes.     Kaepa hoped this strategy would enable it to
    establish a new foundation in Japan for its flagging product line
    and position it for an eventual expansion as a significant player
    in all areas of the Japanese athletic shoe market.           According to
    Kaepa, the following items, individually and collectively, at least
    4
    create a jury issue about whether Achilles ever intended to keep
    its promises that it would not limit Kaepa to being a “niche”
    product in Japan; we will address them seriatim.
    1.    The February 16, 1993 meeting between Kaepa and Achilles
    officials at Achilles’s offices in Tokyo.                During the meeting,
    Achilles Senior Manager Takeshi Yagi (Yagi) drew several diagrams
    to illustrate Achilles’s vision for its marketing and distribution
    of Kaepa shoes in Japan.       In one of these diagrams, Yagi depicted
    Kaepa as Achilles’s women’s brand and Spalding as its men’s brand.
    Kaepa     President   Frank    Legacki       (Legacki)    objected   to   this
    characterization because Kaepa intended to be a full-line product
    in Japan, not merely a niche product.           Yagi corrected the diagram
    accordingly.      Without     more,   this    episode    evidences   merely   a
    preliminary negotiation and does not demonstrate an intent by
    Achilles to undercut Kaepa’s plan for the Japanese athletic shoe
    market.
    2.     The March 16, 1993 letter from Legacki to Achilles
    President Sadao Nakagima (Nakagima), in which Legacki expressed
    concern about Yagi’s initial diagram and the possibility that
    Achilles would position Kaepa as its “female” brand.                  Legacki
    stated that it was Kaepa’s intent to become “a large, dominant top-
    quality, performance brand” and that the only way for Kaepa “to
    develop to its full potential” was to remain flexible to enter all
    segments of the athletic shoe market, including men’s shoes.                  On
    5
    March 17, 1993, Nakagima wrote back and assured Legacki that
    Achilles would be “more than happy to cooperate” with Kaepa’s
    vision for its product line “if Kaepa will be strongly developing
    [sic] in the [men’s] basketball and cross training field.”
    What Kaepa fails to note is that in correspondence a week
    earlier, Legacki outlined for Nakagima his vision for Kaepa’s
    strategy in    Japan    that   was   explicitly      premised    on   a   primary
    emphasis on the women’s brand niche products.                   Kaepa had been
    declining as a brand in Japan before it entered the distributorship
    agreement with Achilles.         In its relationship with its former
    distributor, Diawa Corporation (Diawa), Kaepa had gone from a peak
    of 1.2 million shoes sold to Diawa in 1988 to 566,000 pairs in
    1992, and in the first three months of 1993, orders were down an
    additional seventy percent.          On March 8, 1993, Legacki wrote to
    Nakagima and told him that Kaepa needed to enter a “transition
    period” during which its Japanese strategy would “coordinate more
    closely” with its strategy in the United States.                 In the United
    States, Kaepa had aimed at a stable market niche of cheerleading,
    tennis,   volleyball,    and   aerobics      shoes.     Its     primary   target
    audience had been high school girls and female college students.
    Currently,    Legacki    explained,        Kaepa’s   Japanese    business    was
    “broader” and “more fashion-oriented” than in the United States;
    for 1994, he envisioned Kaepa’s Japanese strategy to come more in
    line with its U.S. strategy, with “more emphasis . . . on Kaepa
    cheerleading and volleyball.”          According to the minutes of the
    6
    March   23,    1993    meeting    between      Achilles      and   Kaepa,    Legacki
    reiterated this strategy, expressing his desire to “excite the
    Japanese market” with cheerleading shoes.
    In light of these statements, it is clear that Kaepa intended
    to move toward more emphasis on its niche brand positioning in
    Japan, while hoping to maintain some presence in the men’s brand
    markets (though its Japanese sales in all product areas had been
    down in recent years). There is no evidence that Achilles intended
    to diverge from this strategy.
    3.     The March 17, 1993 meeting between Kaepa Vice-President
    John Holsinger (Holsinger), who was in charge of Kaepa’s Asian
    operations, and various Achilles officers at Achilles’s offices
    regarding the selection of Kaepa products to be marketed in Japan
    by   Achilles.        According    to    Holsinger,    the    Achilles      officers
    expressed the most interest in marketing women’s shoes; Holsinger
    objected      and    pointed    out     that   Kaepa   had    historically      been
    successful selling men’s tennis and basketball shoes. The Achilles
    officials then assured Holsinger that they would market a broader
    range of products.
    Whatever inference of fraudulent intent on Achilles’s part
    that this episode might suggest evaporates in light of the fact
    that on March 24, 1993, Kaepa and Achilles officials jointly
    selected seventeen models of shoes to be marketed in Japan, twelve
    of   which    were    women’s    models.       Kaepa   and    Achilles   conducted
    extended meetings in Tokyo on March 23-25, 1993.                   This selection
    7
    signaled a clear move away from the strategy Kaepa had employed
    with Diawa, in which sixty-seven percent of its shoes in the
    Japanese market were men’s.         Legacki and Holsinger, among other
    Kaepa executives, attended this meeting and made no objection to
    the selection.    Indeed, on April 6, 1993, Legacki wrote to Yagi to
    discuss the March 23-25 meetings, and noted that “the transition
    plan essentially reflects the model line-up that we agreed upon in
    our meeting.”     To illustrate the transition plan, Legacki included
    replicas of the charts that he presented at the meetings.              The
    “Kaepa Global Strategies Japanese Transition” chart noted that in
    Japan, Kaepa would move away from its “fashion” oriented line
    toward a line with “more emphasis on U.S.A. products,” including
    “cheerleading, volleyball, tennis.” From these charts, it is clear
    that Kaepa wanted to streamline its strategies in both Japan and
    the United States, so that in both markets Kaepa would use its
    predominantly women’s “niche” shoes to obtain a “critical mass” and
    then   expand   into   a   more   full-range   product   line.   The   only
    perceptible difference reflected by these charts between Kaepa’s
    Japanese and Untied States strategies appears to be that in Japan,
    Kaepa would maintain something of a “broad line,” which presumably
    would include some men’s shoes.        Achilles’ actions–selecting some
    men’s shoes and marketing them–is consistent with this strategy.
    4.   Achilles’s representations during the negotiation period
    that it was an experienced company which knew the Japanese athletic
    8
    shoe market well and would achieve better results for Kaepa than
    Diawa.       Achilles’s puffery about its expertise in the Japanese
    market were not misrepresentations of material fact and thus do not
    demonstrate fraudulent intent.     See, e.g., Prudential Ins. Co. v.
    Jefferson Assocs., Ltd., 
    896 S.W.2d 156
    , 163 (Tex. 1995) (finding
    that statements that a building was “superb,” “super fine,” and
    “one of the finest little properties in the City of Austin” were
    not misrepresentations of material fact, but instead expressions of
    opinion that could not constitute fraud); Dyer v. Caldcleugh &
    Powers, 
    392 S.W. 2d 523
    , 530 (Tex. Civ. App.–Corpus Christi 1965,
    writ ref’d n.r.e.).     Statements that are merely predictions, such
    as outselling Diawa, are similarly not actionable.     See Presidio
    Enters., Inc. v. Warner Bros. Distrib. Corp., 
    784 F.2d 674
    , 680
    (5th Cir. 1986) (applying Texas law to hold that a prediction of
    film’s box office success was an opinion only and not actionable as
    a fraudulent misrepresentation).1
    5.    The March 26, 1993 meeting of the Achilles board of
    directors, at which Yagi stated that Achilles would concentrate on
    Kaepa’s “ladies goods for the present.”         As discussed above,
    shifting Kaepa’s focus in Japan to concentrate primarily on the
    1
    We also observe that the distributorship agreement contained
    no requirement that Achilles purchase a set minimum number of shoes
    from Kaepa; Achilles agreed only to work toward projected “target
    purchases.”     In the event that Achilles did not achieve its
    “targeted purchases,” Kaepa would have the option of terminating
    the agreement but could not hold Achilles liable for any damages
    for not achieving these figures.
    9
    women’s niche products was exactly the strategy that Legacki
    outlined at various points during the negotiation process.   Kaepa
    also points to Yagi’s statement at this meeting that Achilles would
    sell 200,000 pairs in the first year as evidence that Achilles
    intended to breach the distribution agreement before ever signing
    it.   Achilles was to purchase 1,440,000 pairs of shoes from Kaepa
    during the first forty-two months.    However, it does not follow
    from projections for the first twelve months that Achilles intended
    not to meet its targeted figure for the first forty-two months.
    Moreover, the fact that Achilles was planning to sell 200,000 in
    the first year, followed by 550,000 “in an early period” (as Yagi
    stated) is not inconsistent with the agreement’s target figures.
    If Achilles had sold 200,000 the first year, and 550,000 per year
    for the following years (assuming that is what the “early period”
    meant), it would have exceeded that figure.2
    6.   The “Yamada Report,” an Achilles marketing report that
    Kaepa believes demonstrates Achilles’s intent to relegate Kaepa to
    a women’s only niche brand by listing Kaepa’s main categories as
    “Cheer, Volleyball, Tennis.”    This “report” does not help Kaepa’s
    cause.     First, it is not shown to be anything more than a mere
    reprint of an independent trade publication journal article, which
    2
    Shoe sales of 200,000 pairs for year one, 496,000 pairs for
    years two and three, 248,000 pairs for the first six months of year
    four would equal the 1,440,000 figure for the first forty-two
    months. If Achilles sold 550,000 pairs in year two, it would be
    54,000 pairs ahead of schedule.
    10
    had been received by an Achilles executive.    Second, the content of
    this report is inconclusive because in another section it lists as
    Kaepa’s main categories of shoes “men’s tennis, lady’s fitness, and
    men’s basketball.”
    7.   The “Asatsu” plan, an unsolicited advertising proposal
    from the Asatsu advertising agency that suggests, among other
    things, a decidedly feminine Kaepa logo.      Like the Yamada report,
    this evidence does not support any possible finding of fraudulent
    intent on the part of Achilles.       First, the proposal was the
    unsolicited work of a third party.     Second, the proposal itself
    contains many possible marketing plans, including running ads in
    men’s magazines.
    8.   The June 2, 1993 press conference in Tokyo announcing the
    formation of the Kaepa-Achilles distribution agreement.     Yagi sent
    to Legacki a copy of Achilles’s proposed press release, which
    discussed launching the “New Kaepa” with a focus on “promising
    categories such as cheerleader and volleyball.”      The release also
    stated that Achilled would “enrich especially [the] ladies[’]
    field” through its marketing of Kaepa.     In response, Legacki did
    not object to this characterization of Achilles’s strategy for
    Kaepa, even though he made a suggestion regarding the release’s
    mention of an air intake system.      In his remarks for the press
    conference, Legacki included a history of Kaepa’s success in the
    United States market, noting its primary focus on tennis and
    cheerleading models. This statement is telling in light of Keapa’s
    11
    stated     plan    to     refocus       its    Japanese   strategy     to     mirror,
    essentially, its U.S. strategy.
    In light of this evidence, it is clear that Achilles’s actions
    were no surprise to Kaepa.                Any disagreement, as evidenced by
    Legacki’s March 16 letter, apparently revolved around Kaepa’s
    concern that Achilles was going to market Kaepa as a women’s brand
    forever,    not    just    in    the    short-term.       However,    there    is   no
    indication that Achilles ever intended to thus relegate Kaepa only
    to a women’s brand niche.              It did order significant quantities of
    men’s shoes and advertised them accordingly.                    While the overall
    focus of their activities for 1993-94 was directed at women’s
    shoes, that strategy comports with the strategy mutually agreed on
    by Kaepa and Achilles. The breakdown in communications between the
    parties appears to have resulted from a disagreement over the
    length of the transition period, or how closely Achilles was to
    mirror in Japan Kaepa’s United States strategy (where Kaepa was a
    niche brand), particularly while both parties were attempting to
    dispose of the residual, heavily discounted inventory from Diawa.
    In sum, we agree with the district court that, considering the
    record as a whole, no reasonable jury could find that Achilles
    fraudulently      induced       Kaepa    to    enter   into   the   distributorship
    agreement.        We therefore affirm the district court’s entry of
    judgment as a matter of law on that claim.
    II.   Kaepa’s Motion for a New Trial
    12
    In its second point on appeal, Kaepa argues that the district
    court erred in denying its motion for a new trial.          In its brief,
    Kaepa asserts that the jury’s finding that Kaepa waived any breach
    of contract by Achilles was “against the great weight of the
    evidence.”    As such, Kaepa urges this Court to find that the
    district court abused its discretion in not granting a new trial
    under FED. R. CIV. P. 59.     Kaepa argues that Achilles’s evidence
    demonstrated only mutual agreement to modify the contract, not any
    waiver by Kaepa of Achilles’s contractual obligations.             According
    to Kaepa, this evidence was thus not “factually sufficient” to
    support the jury’s finding of waiver.         However, a Rule 59 motion
    addresses the weight, not the sufficiency, of the evidence.             See,
    e.g., Conway v. Chemical Leaman Tank Lines, Inc., 
    610 F.2d 360
    , 367
    (5th Cir. 1980) (finding a trial court abused its discretion by
    granting a new trial because the jury’s conclusions were at least
    as likely to be true as any other and were not against any great
    evidentiary weight).      An argument about the sufficiency of the
    evidence is more akin to a Rule 50(a) motion for judgment as a
    matter of law.      A court may grant a Rule 50(a) motion if it
    determines that a reasonable jury could draw inferences from the
    evidence to support a finding in favor of one party only.                See
    Burch v. Coca-Cola Co., 
    119 F.3d 305
    , 313 (5th Cir. 1997), cert.
    denied, 
    118 S.Ct. 871
     (1998).       Kaepa appears to be arguing that
    Achilles   failed   to   adduce   any    evidence   that   would    allow   a
    13
    reasonable   jury   to   conclude   that   Kaepa   waived   the   breach   by
    Achilles.    Having reviewed the briefs and record, we cannot agree
    that there was no evidence to support the jury’s finding of waiver.
    Specifically, we note the numerous instances in which Kaepa acted
    in concert with Achilles’s focus of its initial marketing efforts
    on Kaepa’s women’s niche shoes.
    Achilles argues that since Kaepa was essentially moving for
    judgment as a matter of law, and since Kaepa failed to file a Rule
    50(a) motion before the close of evidence, this Court should
    evaluate the district court’s ruling under the more deferential
    “clear error” standard of review.           See United States ex rel.
    Wallace v. Flintco, 
    143 F.3d 955
    , 963 (5th Cir. 1998).                 Kaepa
    contends that it only wanted a new trial under Rule 59, and this
    Court should instead apply the abuse of discretion standard of
    review.   This point is ultimately irrelevant.        Even if this Court
    construed Kaepa’s motion as a Rule 59 motion, and reviewed the
    district court’s denial for an abuse of discretion, Kaepa has not
    overcome the very high standard that would allow this Court to find
    both the jury and the district court in error on an issue of
    evidentiary weight.       See 12 JAMES WM. MOORE    ET AL.,   MOORE’S FEDERAL
    PRACTICE § 59.54[4][a] (2d ed. & Supp. 1999) (“[W]hen the trial
    court denies a Rule 59 motion based on the claim that the verdict
    is against the clear weight of evidence, that determination is
    virtually unassailable on appeal.”).
    14
    We note that Kaepa has not brought forward any complaint of
    the jury charge or verdict form.
    Kaepa has not demonstrated that the district court erred in
    refusing to grant it’s motion for a new trial.
    III.       Court Costs
    On its cross-appeal, Achilles challenges the district court’s
    determination that each party bear its own costs. Despite the fact
    that it was unsuccessful on its counterclaims, Achilles contends
    that because Kaepa did not prevail on its claims, Achilles was, for
    all intents and purposes, the prevailing party under FED. R. CIV. P.
    54(d)(1)3, and is therefore entitled to its costs.              We review the
    decision to award costs for abuse of discretion.           See Soderstrum v.
    Town of Grand Isle, 
    925 F.2d 135
    , 141 (5th Cir. 1991).
    We    conclude    that   the   district   court   did   not   abuse    its
    discretion in ordering each party to bear its own costs.                     Rule
    54(d) directs that “costs other than attorneys’ fees shall be
    allowed as of course to the prevailing party unless the court
    otherwise directs.”        Under this rule, “the decision to award costs
    turns on whether the party, as a practical matter, has prevailed.”
    Schwartz v. Folloder, 
    767 F.2d 125
    , 130 (5th Cir. 1985).              Achilles
    3
    FED. R. CIV. P. 54(d)(1) provides in relevant part:
    “Except when express provision therefor is made either in a
    statute of the United States or in these rules, costs other
    than attorneys’ fees shall be allowed as of course to the
    prevailing party unless the court otherwise directs.”
    15
    cites   cases   that    support   the    proposition   that   under   certain
    circumstances “successfully avoid[ing] a potentially multi-million
    dollar judgment” can amount to “prevailing” for the purpose of
    awarding costs.        See O.K. Sand & Gravel, Inc. v. Martin Marietta
    Techs., Inc., 
    36 F.3d 565
    , 571-72 (7th Cir. 1994); see also
    Scientific Holding Co., Ltd. v. Plessey Inc., 
    510 F.2d 15
    , 28 (2d
    Cir. 1974). Unlike the present case, however, those cases affirmed
    the district court’s cost awards.               In other words, under our
    deferential standard of review, these reviewing courts simply found
    that there was not such a “clear abuse of discretion” as to require
    overturning the award.      See In re Nissan Antitrust Litig., 
    577 F.2d 910
    , 918 (5th Cir. 1978).         Similarly, this case does not present
    such an egregious abuse of discretion that this Court must overturn
    its cost award.    Achilles failed to obtain a favorable judgment on
    its breach of contract counterclaim.              “A trial judge has wide
    discretion with regard to the costs in a case and may order each
    party to bear his own costs.”        Hall v. State Farm Fire & Cas. Co.,
    
    937 F.2d 210
    , 216 (5th Cir. 1991).           Courts of appeals have found no
    abuse of discretion by district courts that have ordered each party
    to bear its own costs when, as here, the cases end in a “draw.”
    See Allen & O’Hara, Inc. v. Barrett Wrecking, Inc., 
    898 F.2d 512
    ,
    517 (7th Cir. 1990) (finding that “[b]oth Barrett and A&O prevailed
    in part, and therefore we cannot say that the district court abused
    its discretion” in making each party bear its own costs); In re
    16
    Corrugated Container Antitrust Litig., 
    756 F.2d 411
    , 418 (5th Cir.
    1985) (“The jury found for the plaintiffs in part and for the
    defendants in part. The trial court acted within its discretion in
    its assessment of costs.”).        We similarly find that in this case,
    in which both Kaepa and Achilles survived each other’s claims, that
    the district court did not abuse its discretion in ordering each
    side to bear its own costs.
    Conclusion
    AFFIRMED.
    Costs   on   this   appeal    adjudged    as   follows:   three-fourths
    against Kaepa; one-fourth against Achilles.
    17