D.Yannacopoulos v. General Dynamics ( 1996 )

_____________
No. 95-1177EM
_____________
Dimitri Yannacopoulos, *
*
Appellant, * On Appeal from the United
* States District Court
v. * for the Eastern District
* of Missouri.
General Dynamics Corporation, *
*
Appellee. *
___________
Submitted: November 16, 1995
Filed: February 9, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit
Judge, and FAGG, Circuit Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
General Dynamics Corp. (GD) and Dimitri Yannacopoulos, a Greek
citizen, entered into a consulting agreement under which
Yannacopoulos worked as a consultant on the sale of defense and
non-defense GD products outside the United States. A dispute
regarding the amount and type of payment due Yannacopoulos arose,
and he filed this six-count lawsuit in the United States District
Court for the Eastern District of Missouri.1 GD filed a three-
count counterclaim alleging, inter alia, that Yannacopoulos had
broken his contract. The jury returned a verdict in favor of GD on
1
The Hon. Donald J. Stohr, United States District Judge for
the Eastern District of Missouri.
each of Yannacopoulos's six claims, and on GD's breach of contract
claim. (The jury, however, awarded no damages to GD on this last
claim.) On appeal, Yannacopoulos challenges numerous evidentiary
rulings, the instructions given to the jury, and the failure of the
Court to investigate alleged juror misconduct. We affirm.
I.
Yannacopoulos's relationship with GD spanned several years
beginning in June of 1977. Initially, Yannacopoulos helped GD's
telecommunications subsidiary, Stromberg-Carlson, market its
commercial telephone equipment in Greece. In return, Stromberg-
Carlson agreed to pay Yannacopoulos a monthly consulting fee and
commissions based on the sale of equipment.
In 1979, Yannacopoulos expanded his consulting services to
include the shipbuilding division of GD. As a result, GD and
Yannacopoulos executed a written contract effective from November
1, 1979, through October 31, 1981. Under the terms of this
contract, GD would pay Yannacopoulos $10,000 per month, and
Yannacopoulos would provide consulting services relating to
telecommunications and shipbuilding. Beginning in October of 1981,
GD began to extend Yannacopoulos's contract on a month-to-month
basis. This practice continued until March of 1982, when GD
extended Yannacopoulos' contract to October of 1983 with a $4000.00
per month pay increase.
In June of 1992, GD found its F-16 fighter plane on a short
list of military equipment being considered for purchase by the
Greek government. Greece eventually agreed to purchase 40 F-16's
from GD for $616,497,013. The Greek government also purchased the
Stinger and Phalanx from the United States in 1986 and 1987. Based
on these military sales, Yannacopoulos asserted a right to over
$39,000,000 in commissions. GD refused to pay.
-2-
The amount and form of payment GD agreed to pay Yannacopoulos
for his expanded duties as a consultant are the subject of this
litigation. Yannacopoulos contends that GD, through a series of
oral and written promises, agreed to pay him commissions for his
services. He also contends that he was active in the marketing of
the F-16, Phalanx, and Stinger to the Greek government; and that
his contract extended beyond October of 1983. GD, on the other
hand, contends that Yannacopoulos was never promised commissions
for his work as a consultant beyond those associated with his
Stromberg-Carlson contract; that he was not a member of the F-16,
Phalanx, or Stinger marketing teams; and that his contract expired
in October of 1983.
The dispute led Yannacopoulos to file this action against GD
in December of 1989. He claimed that GD was liable for: 1) breach
of contract; 2) unjust enrichment; 3) promissory estoppel; 4)
fraud; and 5) tortious interference. GD counterclaimed alleging:
1) breach of contract; 2) fraud; and 3) violations of the Racketeer
Influenced & Corrupt Organizations Act, 18 U.S.C. §§ 1961-68
(RICO). After a six-week trial, the jury returned a verdict
against Yannacopoulos on each of his claims, and in favor of GD on
its breach-of-contract claim. Yannacopoulos appeals and requests
that the judgment be reversed and a new trial granted due to errors
made by the Court.
II.
First, Yannacopoulos argues that the District Court committed
numerous evidentiary errors, including the exclusion of certain
evidence offered by him in support of his claims. We review a
district court's decision to exclude evidence for abuse of
discretion. Banghart v. Origoverken, A.B., 49 F.3d 1302, 1304 (8th
Cir. 1995). We will reverse only if the abuse is clear, and if the
parties' substantive rights are affected. Ibid.
-3-
A.
Yannacopoulos alleges that two pieces of evidence critical to
his tortious-interference claim were erroneously excluded. First,
he cites the Court's failure to admit the 1982 legal opinion2 of a
Greek lawyer, Gregory Mourgelas, who was employed by GD. He
alleges that a letter from Mourgelas to Veliotis, a GD executive,
demonstrates that GD "repudiated its promises to pay [him]
commissions or commission-equivalents knowing full well that it was
legally obligated to do so."
We do not see how the exclusion of this evidence could be
considered an abuse of discretion given the posture of this case.
The key issue during the trial was whether or not a contract,
express or implied, existed between Yannacopoulos and GD which
required GD to pay Yannacopoulos commissions or commission
equivalents. Contrary to Yannacopoulos's claims, the letter which
was excluded was not evidence that a contract for commissions
existed. Rather, the letter was a conclusory statement of a legal
opinion by Mourgelas.
It was the role of the jury to consider the evidence presented
and draw its own conclusions regarding the existence of a contract
2
In May of 1982, P.T. "Taki" Veliotis obtained a legal opinion
from a Greek lawyer, Gregory Mourgelas. Yannacopoulos points to
the following language in Mourgelas's letter to Veliotis:
6. Indeed, . . . a side agreement
exists . . . and has been concluded by two
telexes . . . these two telexes exchanged in
the form of an agreement stipulated that a
commission should be paid to [DIMITRI] in any
case, as long as one of its active projects
would be finalized; the commission schedules
however would be negotiated on a step by step
basis with the competent Divisions of GD.
Appellant's brief at 40-41.
-4-
for commission. The letter, which addressed the ultimate issue
regarding Yannacopoulos's compensation, would have served only to
usurp the jury's role as factfinder. Given these circumstances,
the letter was properly excluded.
Second, Yannacopoulos argues that it was error for the Court
to exclude evidence of an alleged "bait-and-switch" scheme employed
by GD.3 To establish the existence of this scheme, Yannacopoulos
sought to introduce evidence regarding the make-up of an offset
plan which was essential to the sale of F-16's to the Greek
government. ("Offset," in this context, means a reciprocal
obligation assumed by GD - for example, to do a certain amount of
business in Greece.) He also sought to introduce evidence
demonstrating that an investment plan was later substituted for the
original offset plan; and that the substitute plan was of de
minimis value when compared with the original plan. This evidence,
he claims, would have established that his discharge was necessary
for the scheme's success.
It is unlikely that the admission of this evidence would have
had a substantial positive effect on Yannacopoulos's case. In
order to succeed on his tortious interference claim, Yannacopoulos
had to demonstrate that he had a contract for commissions or a
business expectancy of the same. See Rolscreen Co. v. Pella
Products of St. Louis, Inc., 64 F.3d 1202, 1207 (8th Cir. 1995)
3
The bait, Yannacopoulos alleges, was a multi-billion dollar
offset package which he helped to negotiate designed to induce the
Greek government to purchase F-16's from GD. The switch,
Yannacopoulos claims, was the substitution of a valueless plan for
an "offset development company" instead of the original offset
plan. According to Yannacopoulos, in order for the bait-and-switch
scheme to succeed, it was necessary for GD to remove him from the
negotiation. Yannacopoulos cites his knowledge that the offset
development company was valueless to the Greek government and his
commitment, as a Greek patriot, to a plan that would help the Greek
people as the basis for GD's desire to exclude him from
negotiations.
-5-
(noting that a contract or valid business expectancy is an
essential element of a tortious-interference claim under Missouri
law). Evidence related to the bait-and-switch scheme allegedly
employed by GD does not support Yannacopoulos's claim that a
contract for commissions existed, or that he had an expectation of
receiving commissions.
Establishing that a bait-and-switch scheme was employed could
suggest only that, if a contract existed, GD needed to break its
contract with Yannacopoulos in order to carry out its scheme. The
jury, however, concluded that no contract for commissions existed,
making evidence of attempts to break a contract irrelevant.
Exclusion of evidence which is substantively irrelevant is not an
abuse of discretion. Fleming v. Harris, 39 F.3d 905, 908 (8th Cir.
1994).
III.
Yannacopoulos also argues that the District Court's denial of
his motion for judgment as a matter of law on GD's contract, RICO,
and fraud counterclaims was error. A motion for judgment as a
matter of law is a challenge to the sufficiency of the evidence.
Commercial Property Invs., Inc. v. Quality Inns Intern., Inc., 61
F.3d 639, 644 (8th Cir. 1995). On appeal, we review the the
evidence in the light most favorable to the prevailing party.
Ibid. After a careful review of the record, we are persuaded that
sufficient evidence was presented by GD on each of its
counterclaims to sustain the District Court's denial of
Yannacopoulos's motion for judgment as a matter of law. And in any
event the jury ruled for Yannacopoulos on GD's RICO and fraud
claims.
IV.
Next, Yannacopoulos claims that the District Court erred by
-6-
failing to instruct the jury properly in two instances. First, he
argues that the Court erred by refusing to instruct the jury that
no United States law barred GD from paying him commissions.4
Yannacopoulos claims that this instruction was necessary to prevent
the jury from being misled by GD into thinking that payment of
commissions was illegal. The District Court chose not to give the
proposed instruction, stating that it was "confusing," and that
"the plaintiff has done a pretty good job of establishing" that
payment of commissions was not illegal. We believe the District
Court committed no error in this respect.
Second, Yannacopoulos claims it was error for the District
Court to refuse to instruct the jury on the definition of
4
Yannacopoulos proposed the following instruction:
You have heard testimony and other
evidence with respect to various provisions of
United States law that deal with the payment
of commissions on sales of military products
by United States companies to foreign
companies.
There is no provision of United States
law, nor has there been any such law at any
time relevant to this case, that prohibits the
payment of such commissions. Instead, United
States law requires only that commission
payments be disclosed to the United States
Government and that no payment in excess of
$50,000 be made out of funds provided by the
United States Government under its "Foreign
Military Sales" program.
Thus, General Dynamics was free to agree
to pay Mr. Yannacopoulos out of its own funds
any commission it saw fit, and no United
States law bars, or has ever barred, the
enforcement of such an agreement.
D.Y. App. at Ex. 114.
-7-
"procuring cause."5 According to Yannacopoulos, this instruction
was necessary to establish that he was entitled to commissions
despite the fact that he "did not sell anything in Greece" while
working as a consultant for GD. He argues that although he was not
the seller, he was the procuring cause of later sales by GD in
Greece.
We reverse a district court's decision not to give a
particular instruction only in cases where "``the requested
instruction is correct, not adequately covered by the charge given,
and involves a point so important that failure to give the
instruction seriously impaired the party's ability to present an
effective case.'" Thomlison v. City of Omaha, 63 F.3d 786, 791
(8th Cir. 1995) (quoting Wood v. President & Trustees of Spring
Hill College, 978 F.2d 1214, 1221 (11th Cir. 1992)). This is not
such a case.
The instruction proffered by Yannacopoulos was not a correct
statement of Missouri law. Under Missouri's law, a party is a
procuring cause if that party's efforts of bringing together
purchasers "``have set in motion a series of events which, without
break in the continuity and without interruption in negotiations,
eventually culminates in the sale.'" Williams v. Enochs, 742
5
Yannacopoulos proposed the following instruction:
Absent a written agreement to the contrary, a party
may be entitled to commissions on sales even if made
after the termination of a contract, if that party
procured the sales through its activities prior to
termination, notwithstanding the fact that the sale was
consummated by the principal personally or through
another agent.
A party is the procuring cause of a sale if he
brings a seller together with a buyer under circumstances
conducive to a sale, and the sale actually occurs.
D.Y. App. at Ex. 45.
-8-
S.W.2d 165, 167 (Mo. 1987) (en banc) (quoting Staubus v. Reid, 652
S.W.2d 293, 296 (Mo. App. 1983)). The instruction proffered by
Yannacopoulos simply stated that "[a] party is a procuring cause of
a sale if he brings a seller together with a buyer under
circumstances conducive to a sale, and the sale actually occurs."
Because this is a misstatement of the law, the instruction was
properly refused.
V.
In his final argument, Yannacopoulos maintains that the
District Court erred by refusing to allow him to investigate
alleged juror misconduct. This claim stems from the jury's written
request for a dictionary during deliberation. In response to the
request, the jurors were returned to the jury box and instructed
that the Court could not provide a dictionary.
As the judge spoke with the jury, however, the court reporter
overheard and recorded a juror stating: "I'll look up that word in
the dictionary tonight." GD App. at 841. Following this statement
by the juror, the judge admonished the jury as follows:
The other thing that I want you to be sure, be
careful and remember my earlier instructions,
and that is not to do any investigation on
your own, not to do any independent research
or anything like that because that could
basically cause a problem with the whole jury.
Just what you're confined to, basically, is
what you have in front of you and your own
common sense.
Id. at 842. The jury was then excused until the following morning
and the judge informed the attorneys of the statement made by the
juror. Yannacopoulos made no objection.
The next morning, the Court again admonished the jurors
-9-
against the use of extrinsic reference materials:
With respect, as I explained to you about
the dictionary thing yesterday, I probably
should have expanded a little bit on that.
The reason that the Court doesn't allow
dictionaries and so forth in jury rooms is
because frequently the terms that appear in a
regular dictionary have different definitions
from the legal terms. It's kind of like, you
know, lawyers have a way of defining certain
things, just like the government does and it's
usually a lot longer and a lot more
complicated than what appears in the standard
dictionary and the lawyers, unfortunately,
it's the Court's law that you must be bound by
as opposed to whatever but you can use your
common sense as to words, so that's the
reason, . . ..
Id. at 844-45. Again, Yannacopoulos made no objection, and the
jury was allowed to deliberate until reaching a verdict.
It was not until several days later that Yannacopoulos moved
the Court, pursuant to Local Rule 16(D) of the Local Rules of the
Eastern District of Missouri,6 for leave to interview the jurors in
order to determine whether or not a dictionary had been consulted.
D.Y. App. at Ex. 119. The District Court denied the motion.
Yannacopoulos now claims that the Court was required, under Local
Rule 16(D), to hold a hearing to unearth alleged juror misconduct.
6
Local Rule 16(D)(2) provides in relevant part:
In any case where misconduct of one or more
petit jurors is suspected and supported by
evidence obtained by a lawyer or a party, the
Court shall grant leave to the lawyer, after
such fact is communicated to the Court, to
make such investigation as the Court deems
appropriate to establish the truth or lack of
truth of the suspected misconduct of such
petit juror or jurors.
-10-
As an initial matter, we note that Yannacopoulos failed to
object to the admonitions given by the Court, or to the
continuation of jury deliberation. He made no request to voir dire
the jury panel, or to question the juror who made the statement.
Instead, Yannacopoulos waited until after the verdict was returned
to raise this issue.
When a party waits until the end of a case to complain of
juror misconduct, as Yannacopoulos did, the objection is waived,
Rowe Intern., Inc. v. J-B Enters., Inc., 647 F.2d 830, 836 (8th
Cir. 1981), and we will reverse the District Court only if it has
committed plain error. First Nat. Bank and Trust Co. v.
Hollingsworth, 931 F.2d 1295, 1305 (8th Cir. 1991). Plain error is
error which has a serious effect on the fairness of the
proceedings. Ibid.
This is not the first time we have been confronted by the
issue of jurors consulting a dictionary. In previous cases, we
have held that prejudice to a party could not be presumed from the
use of a dictionary by the jury. Harold v. Corwin, 846 F.2d 1148,
1151 (8th Cir. 1988) (trial judge read requested definition to jury
from dictionary); United States v. Cheyenne, 855 F.2d 566, 568 (8th
Cir. 1988). We then focused our review in each case on the facts
surrounding the incidents to determine whether or not the use was
prejudicial, and whether or not the incident was properly handled
by the District Court. See e.g., Fink v. Foley-Belsaw Co., 983
F.2d 111, 113 (8th Cir. 1993); Cheyenne, 855 F.3d at 568. We think
the same approach is appropriate here.
In this case, the Court admonished the jury twice regarding
the use of extrinsic reference materials, giving specific attention
to the impending infraction of consulting a dictionary.
Yannacopoulos adduced no evidence that the juror actually ignored
the judge's instruction and consulted a dictionary. Given these
facts, we do not view the Court's use of preemptive admonitions as
-11-
plain error. It is certainly reasonable to believe, absent
evidence to the contrary, that the jury adhered to the judge's
instructions. See Hrzenak v. White-Westinghouse Appliance Co., 682
F.2d 714, 720 (8th Cir. 1982).
Further, we cannot agree with Yannacopoulos's claim that a
hearing was required under Local Rule 16(D). We note that "the
``application of local rules is a matter peculiarly within the
district court's province.'" Chrysler Credit Corp. v. Cathey, 977
F.2d 447, 449 (8th Cir. 1992) (per curiam) (quoting Reyher v.
Champion Int'l. Corp., 975 F.2d 483, 489 (8th Cir. 1992)). That is
particularly true in cases involving juror misconduct, since every
allegation of juror misconduct does not require an evidentiary
hearing, see Robinson v. Monsanto Co., 758 F.2d 331, 334-35 (8th
Cir. 1985), and the district court is in the best position to
determine when a hearing is necessary. In this case, the District
Court concluded - on the basis of the evidence presented by
Yannacopoulos and the nature of the alleged misconduct - that it
was not necessary to unsettle the verdict by conducting a hearing.
This decision was not plain error.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-12-