McGuire v. Tarmac Environmental Co. , 293 F.3d 437 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3057
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Tony McGuire, *
*
Appellee, *
*
v. *
*
Tarmac Environmental Co., Inc.; *
Ronald E. Heap, *
* Appeal from the United States
Defendants, * District Court for the
* Western District of Missouri.
Johnson Olowokere, *
*
Appellant, *
*
Ganco Environmental Construction, *
Inc.; Patrick Garrett; Oil Recovery and *
Environmental Services (Nigeria) *
Limited; Tarmac Systems, Inc., *
*
Defendants, *
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Submitted: February 14, 2002
Filed: June 7, 2002
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Before BYE, HEANEY and RICHARD S. ARNOLD, Circuit Judges.
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HEANEY, Circuit Judge.
Appellee Tony McGuire brought a cause of action against Appellant Johnson
Olowokere for tortious interference with contract. A jury found in favor of McGuire
and awarded punitive damages against Olowokere in the amount of $100,000.
Olowokere appeals, and we affirm.
I. Facts
We review the facts in the light most favorable to the jury verdict. Fogelbach
v. Wal-Mart Stores, Inc., 270 F.3d 696, 698 (8th Cir. 2001). McGuire and Olowokere
became business acquaintances in 1996. They originally worked together on a
business venture involving t-shirts, but the project was unsuccessful. Olowokere, a
Nigerian citizen, later informed McGuire that he was working on a contract for Shell
Nigeria. He told McGuire that he wanted to find some thermal soil remediation
equipment for Oil Recovery and Environmental Services (Nigeria) Limited
(“ORES”). He asked McGuire to contact potential suppliers and gave him a list of
companies that handled that type of equipment. Olowokere enlisted McGuire’s help
because he believed American companies would respond better to an American than
to a Nigerian. McGuire and Olowokere never entered into an agreement regarding
McGuire’s compensation, but McGuire testified that he believed that he might be paid
by a party other than Olowokere.
McGuire contacted and solicited quotes from various companies. On or about
April 9, 1998, McGuire contacted Tarmac Environmental Co., Inc. and received price
quotes on new and used soil remediation plants. McGuire established a relationship
with Ron Heap, the President of Tarmac Environmental, and they entered into a
written contract by which Tarmac Environmental would give McGuire a brokerage
fee, commission and/or finder’s fee if McGuire located a buyer for the portable soil
remediation plant quoted by the company. The fee discussed was $250,000.
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The day after the contract was signed, Heap sent Olowokere a proposal that
quoted prices for a new and a used portable soil remediation plant. The used plant
was located in Bridgeport, Connecticut and the prices quoted were identical to those
negotiated by McGuire. On June 23, 1998, Olowokere confirmed his interest in
purchasing the Bridgeport plant from Tarmac Environmental and also inquired about
entering into an Operations & Maintenance Agreement with Tarmac for technical
support of equipment in Nigeria.
On June 24, 1998, McGuire and Olowokere attended a meeting with Heap and
Pat Garrett, an employee or officer of Ganco Environmental Construction, Inc.,
which could provide technical support for the equipment. Although no final
agreement was reached at this meeting, McGuire testified that the meeting and
subsequent correspondence with Olowokere indicated that the deal would go forward.
On June 29, 1998, Olowokere sent a letter to Tarmac accepting its offer to sell the
used plant in Bridgeport for the offered price of $1,275,000.00, plus an additional
$200,000 consulting fee, which Olowokere requested to pay to someone in Nigeria.
This acceptance letter also confirmed Olowokere’s desire to enter into an Operating
and Maintenance Agreement with Tarmac and Ganco.
In late June or early July of 1998, Olowokere discovered that McGuire would
earn a commission on the deal and became angry. On July 2, 1998, Olowokere sent
a letter to Heap and Tarmac Environmental stating that McGuire was not an
employee, officer, agent or partner in ORES, and had no authority to act on its behalf.
Olowokere further stated that because he had gotten to know Heap personally, there
was no reason to continue to use McGuire as an intermediary. Olowokere also sent
a copy of this letter to McGuire, and after receiving it, McGuire called Heap. Heap
informed him that he would not receive a commission on the deal, and thereafter,
McGuire was excluded from further involvement in the sale of the remediation plant.
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On September 17, 1998, Tarmac Systems, Inc., a sister corporation to Tarmac
Environmental that had not previously been involved in the sale of the plant, entered
into an agreement to buy the Bridgeport plant for $ 1,175,000.00. Later, Olowokere
was involved in the indirect sale of the plant from Tarmac Systems to ORES.
McGuire brought causes of action for breach of contract against Tarmac
Environmental and for tortious interference with contract against Olowokere, Tarmac
Systems, and Ganco. At trial, the jury returned a verdict in favor of McGuire,
finding that Tarmac Environmental breached its contract with him, and that Johnson
Olowokere and Tarmac Systems tortiously interfered with McGuire’s contract to
receive a commission. The jury awarded McGuire $250,000 in actual damages and
awarded $100,000 in punitive damages against Olowokere. After the verdict,
Olowokere filed a Motion for Judgment as a Matter of Law or, in the Alternative, a
Motion for a New Trial. The district court1 denied the motions.
Olowokere now appeals, claiming that the district court erred in refusing to
grant Olowokere’s motion for judgment as a matter of law because: (1) the evidence
was insufficient to support the jury’s verdict in favor of McGuire on his claim for
tortious interference with contract and (2) the evidence was insufficient to support the
jury’s verdict assessing punitive damages against Olowokere. Olowokere also argues
that the district court erred in overruling his objection to McGuire’s counsel’s
mention of punitive damages in his rebuttal closing argument.
II. Discussion
We first review Olowokere’s argument that there was insufficient evidence as
a matter of law to support the jury’s verdict on McGuire’s tortious interference with
1
The Honorable Nanette K. Laughrey, United States District Court for the
Western District of Missouri.
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contract claim against Olowokere. We review de novo a district court’s denial of a
motion for judgment as a matter of law. Stockmen’s Livestock Mkt. v. Norwest
Bank, 135 F.3d 1236, 1240 (8th Cir. 1998) (citation omitted). The jury verdict,
however, must be affirmed “‘unless, viewing the evidence in the light most favorable
to the prevailing party, we conclude that a reasonable jury could have not found for
that party.’” Id. at 1240-41 (quoting Chicago Title Ins. Co. v. Resolution Trust Corp.,
53 F.3d 899, 904 (8th Cir. 1995)). “Judgment as a matter of law is appropriate only
when all of the evidence points one way, and is susceptible of no reasonable inference
sustaining the jury’s verdict.” Kipp v. Missouri Highway and Transp. Comm'n., 280
F.3d 893, 896 (8th Cir. 2002) (citation omitted).
In Missouri, a plaintiff must prove five elements to prevail upon a tortious
interference with contract claim: (1) the existence of a contract or valid business
expectancy; (2) defendant’s knowledge of the contract or relationship; (3) a breach
induced or caused by defendant’s intentional interference; (4) the absence of
justification; and (5) damages. St. Louis Convention and Visitor’s Comm’n v.
National Football League, 154 F.3d 851, 865 (8th Cir. 1998) (citing Rice v. Hodapp,
919 S.W.2d 240, 245 (Mo. 1996) (en banc)). The Missouri courts essentially apply
a “but-for” test of causation, asking two questions: “(1) did plaintiffs actively and
affirmatively take steps to induce the breach; and if so, (2) would the contracts have
been performed absent plaintiffs’ interference?” Mueller v. Abdnor, 972 F.2d 931,
938 (8th Cir. 1992) (quoting Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d
210, 216 (Mo. Ct. App.1976)).
Upon review of the record, we find that there was sufficient evidence for a
reasonable jury to find that Olowokere knew about the contract between McGuire and
Tarmac Environmental, and that Olowokere intended to induce Tarmac
Environmental to breach the contract. There was also evidence that Olowokere’s
inducement was not justified and that the breach damaged McGuire. The evidence
indicated that Olowokere was angry to learn about McGuire’s contract with Tarmac
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Environmental, and that after Olowokere learned about McGuire’s commission, he
wrote to Tarmac Environmental stating that there was no longer a need for Tarmac
Environmental to have contact with McGuire. There was also evidence that
Olowokere participated in the business deal in which Tarmac Environmental
indirectly sold the remediation plant to ORES through Tarmac Systems, Inc., thereby
avoiding the obligation to pay McGuire his commission. Furthermore, there is
sufficient evidence to show that but for Olowokere’s interference, Tarmac Systems
would not have breached its contract with McGuire. Viewing all the facts in the light
most favorable to McGuire, the district court did not err in refusing to grant
Olowokere’s motion for judgment as a matter of law.
Next we examine Olowokere’s argument that the district court erred in refusing
to grant judgment as a matter of law on the issue of punitive damages. Olowokere
argues that McGuire did not present clear and convincing evidence that his conduct
was outrageous. Under Missouri law, “‘punitive damages may be awarded for
conduct that is outrageous, because of the defendant’s evil motive or reckless
indifference to the rights of others.’” Denesha v. Farmer’s Ins. Exch., 161 F.3d 491,
503 (8th Cir. 1998) (quoting Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. 1989) (en
banc)). The district court held that the evidence presented supported a reasonable
inference that Olowokere and Tarmac Environmental planned to deprive McGuire of
his commission and was sufficient for a reasonable jury to determine that Olowokere
acted with reckless indifference to McGuire’s contractual rights. We agree. Under
Missouri law, once a plaintiff has made a submissible case on the issue of intentional
interference with a contract, they have also made a submissible case on the issue of
punitive damages. See Ross v. Holton, 640 S.W.2d 166, 174 (Mo. Ct. App. 1982)
(“In the area of intentional torts a submissible punitive damages question is made for
the jury once the plaintiff has presented sufficient evidence of legal malice – the
intentional doing of a wrongful act without just cause or excuse . . . . This is an
element of intentional interference with contract”); see also Mills v. Murray, 472
S.W.2d 6, 17-18 (Mo. Ct. App. 1971) (noting that intentional interference with a
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contract is malicious in law and will support an award of punitive damages). We
therefore affirm the district court’s denial of Olowokere’s judgment as a matter of law
on the issue of punitive damages.
Finally, we consider Olowokere’s argument that the district court erred in
overruling his objection to McGuire’s counsel’s mention of punitive damages in his
rebuttal closing argument. Trial courts are invested with broad discretion to control
closing arguments, and this court will reverse only for an abuse of discretion. United
States v. Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997). Although the bulk of
McGuire’s attorney’s argument for damages was a part of his rebuttal closing
argument, damages were briefly mentioned in his initial closing, and the specific
amounts he mentioned on rebuttal were also addressed in the initial argument.
Furthermore, even if the district court did err, there was no prejudice because the
$100,000 awarded against Olowokere is significantly less than the $300,000 profit
that McGuire’s attorney claimed that Olowokere made on the sale of the remediation
plant and the $3 million involved in financing the sale. We do not believe the district
court abused its discretion in this matter.
III. Conclusion
For the reasons stated above, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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