Children's Broadcasting Corp. v. Walt Disney Co. , 245 F.3d 1008 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1813
___________
Children's Broadcasting Corporation, *
a Minnesota corporation, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
The Walt Disney Company, a Delaware *
corporation; ABC Radio Networks, *
Inc., a Delaware corporation, *
*
Defendants - Appellees. *
___________
Submitted: February 16, 2000
Filed: April 10, 2001
___________
Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Children's Broadcasting Corporation appeals from an order of the district court
that set aside a jury verdict for Children's on its claims for breach of contract and
misappropriation of trade secrets against ABC Radio Networks, Inc. and The Walt
Disney Company. The court concluded that Children's had not presented sufficient
evidence of causation and damages. In addition to granting judgment as a matter of law
for ABC Radio and Disney, the district court granted their alternative motion for a new
trial. We reverse the grant of judgment as a matter of law and affirm the grant of a new
trial limited to the issue of damages. We also affirm the district court's pre-trial grant
of summary judgment against Children's on four claims.
In the early 1990s, Children's created Radio AAHS, a 24-hour radio format
aimed at children age twelve and under and their parents. Also during that time period,
ABC Radio considered starting a children's radio network and approached Disney with
a proposal. At that time, Disney decided not to go forward.
By 1995, Radio AAHS was reaching around thirty percent of the United States
through company-owned and affiliated radio stations. Early that year, Children's
solicited ABC Radio to become its strategic partner, and executives from the two
companies discussed options. ABC Radio's plan to invest in Children's stalled after
Disney announced in July that it was purchasing Capital Cities/ABC, Inc., the parent
corporation of ABC Radio. Bob Callahan, the president of ABC Radio, informed
Christopher Dahl, the president of Children's, that ABC Radio would not be investing
in other companies pending the outcome of the Disney purchase. After waiting a while,
Dahl approached ABC Radio to see if the two companies could work out a deal.
In November 1995, Children's and ABC Radio entered into a letter agreement
under which ABC Radio agreed to provide certain services for Radio AAHS, including
advertising sales, affiliate development, and consulting. Children's agreed to pay ABC
Radio $25,000 per month for services plus commissions on advertising sales.
Children's also gave ABC Radio a warrant to buy Children's stock. Although ABC
Radio agreed that it would not represent any third-party children's radio formats
without Children's consent, the contract specifically provided that ABC Radio could
represent "any format developed by ABC, its parent, subsidiary or affiliated companies,
as constituted now and in the future." Both parties agreed to keep information
developed during the term of the agreement confidential and to use this information
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only for the purposes of the agreement. The agreement was terminable at will upon
ninety days written notice by either party.
Around the same time ABC Radio entered into the agreement, it was considering
entering the children's radio field with Disney. In January 1996, the two companies had
not yet decided to enter the market, but they continued to make plans for a network
called Radio Disney throughout the first half of 1996. Disney acquired Capital
Cities/ABC, Inc. on February 6, 1996.
On June 21, 1996, ABC Radio executives David Kantor and Scott McCarthy
met with executives of Children's in Minneapolis. Kantor informed them that ABC
Radio was considering developing its own children's radio network, and he invited
Children's to become a "superaffiliate," carrying Radio Disney programming instead
of Radio AAHS programming. Dahl rejected this offer.
On June 27, Callahan sent a memo to Michael Eisner and Michael Ovitz
recommending the development of a children's radio network, beginning with a four-
month test period of Radio Disney in three markets. By letter dated July 25, ABC
Radio notified Children's that it was terminating the contract. The ninety-day notice
period expired on October 24, and the Radio Disney test began on November 18.
Children's continued to broadcast Radio AAHS until January 1998.
Children's brought this suit on September 26, 1996, alleging a variety of claims,
among them fraud, breach of contract, misappropriation of trade secrets, breach of
fiduciary duties, and negligent misrepresentation. Children's moved for leave to amend
its complaint to seek punitive damages; the district court denied this motion. After
discovery, ABC Radio and Disney moved for summary judgment, and the district court
granted this motion on all but three claims. These claims (breach of contract for failure
to use reasonable efforts to sell advertising and develop affiliates, breach of the
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contractual duty of confidentiality, and misappropriation of trade secrets) were tried to
a jury in a three-week-long trial.
The jury found that ABC Radio breached the contract with respect to advertising
sales and confidentiality and awarded $20 million to Children's for this breach. The
jury rejected Children's claim that ABC Radio breached the affiliate development
provision of the contract. The jury also found that two of the seven items submitted by
Children's as trade secrets were valid trade secrets: a list of Children's advertisers sold
and proposed and their rates and Children's techniques and processes for Radio AAHS
programming. The jury found that ABC Radio and Disney had misappropriated only
the advertiser list, awarding Children's $10 million from ABC Radio and $10 million
from Disney on this claim. The jury determined that ABC Radio's breach of contract
was not a material breach.1
ABC Radio and Disney moved for judgment as a matter of law or, in the
alternative, a new trial. The district court found that the evidence supported the jury's
finding that ABC Radio breached the contract and that ABC Radio and Disney
misappropriated the advertiser list, but concluded that Children's had not presented
sufficient evidence of causation or damages.
In reaching its conclusion about causation, the district court discussed primarily
the testimony of Stephen Willis, one of Children's experts. It concluded that Willis's
testimony was nothing more than speculation; that it lacked any credible analysis to
support his causation theory; and that no facts supported his conclusions. The court
found that Children's offered no evidence that any particular breach or misappropriation
1
The verdict form included the question of whether ABC Radio's breach was
material because Children's owed $91,000 under the contract. If the jury found the
breach to be material, Children's performance (and thus the payment) would be
excused.
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was the direct cause of a specific amount of damages. In addition, according to the
district court, Willis failed to address other factors that may have limited the success
of Radio AAHS.
The district court further found that Children's failed to present reliable evidence
of damages. It concluded that Willis's testimony that Children's was damaged in the
amount of $177 million was based on unreliable financial projections that were created
with an assumption that Children's would have a long-term relationship with ABC
Radio and that did not take into account the fact that Radio AAHS had to compete with
Radio Disney. Thus, the court found that Willis's damages projections went so far
beyond realistic optimism as to be "fairy-tale-like." The jury had no other evidence on
which to base a damage award, according to the district court, and it was forced to
resort to speculation and conjecture. The court therefore granted judgment as a matter
of law to ABC Radio and Disney.
The district court also granted a conditional new trial on the issues of causation
and damages. The district court stated that the reasoning supporting its grant of
judgment as a matter of law applied to the motion for new trial, that the findings on
causation and damages were unsupported by the evidence, and that the verdict
conflicted with the weight of the evidence. It also stated that it had erred by allowing
Willis's testimony to stand and that this testimony had tainted the trial, thus requiring
a new trial.
I.
We review a grant of judgment as a matter of law de novo, viewing the evidence
in the light most favorable to the nonmoving party while giving that party the benefit
of all reasonable inferences. Van Steenburgh v. Rival Co., 171 F.3d 1155, 1158 (8th
Cir. 1999). Judgment as a matter of law is warranted only when all the evidence points
in one direction and no reasonable interpretations support the jury's verdict. Mears v.
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Nationwide Mut. Ins. Co., 91 F.3d 1118, 1122 (8th Cir. 1996); see also Fed. R. Civ.
P. 50(a)(1).
The district court upheld the jury's findings of breach and misappropriation, and
ABC Radio and Disney do not appeal these determinations. We agree that Children's
presented evidence from which a reasonable jury could conclude that ABC Radio
breached its contractual duties with respect to advertising sales and confidentiality and
that ABC Radio and Disney misappropriated a list of Children's advertisers. We
conclude the district court erred, however, by determining that ABC Radio and Disney
were entitled to judgment as a matter of law on the issues of causation and damages.2
A.
Children's presented evidence that ABC Radio's breach of the contract caused
damage. Dahl testified that Children's was relying on ABC Radio to sell advertising.
Willis testified that ABC Radio's failure to exercise reasonable efforts in advertising
sales led to a decline in Children's revenues. Lynne Gross, an expert who testified on
Children's behalf, concluded that if ABC Radio failed to perform under the contract,
as it related to both affiliate development and advertising sales, Children's would be
damaged.
Gross testified regarding her understanding of the "first mover" advantage: when
a business is the first of its kind and it gets to a certain level, competitors will have a
difficult time unseating it. Her opinion was that Children's had the potential to obtain
such an advantage. A memo written by ABC Radio's Bart Catalane to Callahan and
Kantor supports this idea: "This market will only support one major player--it's not big
2
The verdict form, the district court's order, and the parties' briefs segregate
causation from damages on both the contract claim and the trade secret claim. Our
analysis mirrors this segregation.
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enough to support two--even Disney. The people who get there first and in the biggest
way will win. Radio Aahs has a huge head start." Gross also testified that ABC Radio
and Disney were able to accelerate their entry into the market by using information,
particularly information about advertising and marketing, they obtained from Children's.
ABC Radio documents show that its executives believed that it could use the
deal with Children's to "take control of how we enter or CBC exits the market." An
ABC Radio management review of Radio AAHS/Children's prepared by McCarthy
discussed the following defensive strategy: "Keep someone else from buying or
aligning with CBC. Could be largely accomplished with existing CBC/ABC
agreement."
Children's also presented evidence that the misappropriation of its list of
advertisers and rates caused damage. Gross testified that information about advertising
rates actually charged to a customer was valuable because a competitor could then
undersell by a small amount and get the advertiser. The ABC Radio management
review prepared by McCarthy discussed Radio AAHS's advertisers: "Several accounts
have been developed into significant dollars. However, competing venture could target
same accounts with same pitch." Finally, a planning document for Radio Disney
asserted that "Radio Disney network spots will be priced aggressively versus AAHS
(Radio Disney's spot rates are not projected to reach Radio AAHS'[s] current spot rates
until 1999)."
Viewing this evidence in the light most favorable to Children's, we conclude that
it supports the jury's finding that the breach of contract and the misappropriation of the
advertiser list caused harm to Children's. ABC Radio and Disney were not entitled to
judgment as a matter of law on causation.
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B.
Children's presented evidence that supports the jury's award of damages. Under
Minnesota law, damages for breach of contract must be proved to a reasonable
certainty, and a party cannot recover speculative, remote, or conjectural damages.
Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977); see also Cardinal Consulting
Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 266-67 (Minn. 1980). "Once the fact of
loss has been shown, the difficulty of proving its amount will not preclude recovery so
long as there is proof of a reasonable basis upon which to approximate the amount."
Leoni, 255 N.W.2d at 826. Damages for misappropriation of a trade secret "can
include both the actual loss caused by misappropriation and the unjust enrichment
caused by misappropriation that is not taken into account in computing actual loss."
Minn. Stat. § 325C.03(a) (1998).
The district court found that the only damages evidence offered by Children's
was Willis's testimony. To the contrary, the jury had a variety of evidence to consider.
Willis himself testified that if there were reasons for the decline in Children's value
other than the unlawful conduct of Disney and ABC Radio, adjustments would have
to be made to his $177 million calculation. Dahl testified that the market value of
Children's at one time was close to $100 million and that ABC Radio valued Children's
in the $20 million range. McCarthy stated in the ABC Radio management review that
it would cost between $60 million and $90 million to acquire Children's. There were
dozens of exhibits in the record before the jury that included Children's revenues and
losses (both actual and projected), valuations of Children's assets, and actual and
potential advertising sales. The jury's award does not have to match any particular
figure in the evidence as long as the award "is within the mathematical limitations
established by the various witnesses and is otherwise reasonably supported by the
evidence as a whole." Carroll v. Pratt, 76 N.W.2d 693, 697 (Minn. 1956).
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The Minnesota Court of Appeals upheld a jury award of $7,000 where the only
damages evidence presented placed the amount at $10,500. Fudally v. Ching Johnson
Builders, Inc., 360 N.W.2d 436 (Minn. Ct. App. 1985). The defendant argued that the
verdict was not supported by the evidence because nothing specific supported the jury's
calculation. Id. at 438-39. The court held that the award "was within the parameters
established by the evidence" and that the specificity urged by the defendant was
unnecessary to sustain the award. Id. at 439.
The jury was entitled to sort through the evidence presented at trial and to arrive
at what it considered to be the damages caused by the conduct it found to be wrongful.
In short, there was evidence from which the jury could approximate the amount of
damages sustained by Children's. ABC Radio and Disney were not entitled to
judgment as a matter of law on damages.
II.
We review a conditional grant of a new trial for abuse of discretion. Dominium
Mgmt. Servs., Inc. v. Nationwide Hous. Group, 195 F.3d 358, 366 (8th Cir. 1999). A
motion for a new trial may be
bottomed on the claim that the verdict is against the weight of the
evidence, that the damages are excessive, or that, for other reasons, the
trial was not fair to the party moving; and may raise questions of law
arising out of alleged substantial errors in admission or rejection of
evidence or instructions to the jury.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). The district court
must articulate its reasons for granting a new trial to permit meaningful review of its
decision. Dominium, 195 F.3d at 366; see also Fed. R. Civ. P. 50(c)(1). "When
evidence is erroneously admitted or excluded or where the trial court has erred in the
instructions to the jury, the trial court is considered in a better position to correct a
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manifest injustice in ruling on the motion for new trial." Fireman's Fund Ins. Co. v.
Aalco Wrecking Co., 466 F.2d 179, 186 (8th Cir. 1972).
Here, the district court gave two reasons for granting a new trial. First, it
concluded that "the jury's findings on causation and damages were unsupported by the
evidence presented at trial and the verdict conflicts with the weight of the evidence on
these issues." Second, it determined that it should have excluded or struck Willis's
testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
and that this testimony "tainted" the trial by exposing the jury to an "exaggerated sum"
of damages.3
Had the district court actually excluded Willis's testimony, we would have
reviewed its decision for abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S.
136, 138-39 (1997). "When evaluating the admissibility of expert testimony under
Federal Rule of Evidence 702, the district court must look to both the relevancy and the
reliability of the testimony." Blue Dane Simmental Corp. v. American Simmental
Ass'n, 178 F.3d 1035, 1040 (8th Cir. 1999). Here, the district court found that Willis's
testimony was unreliable, stating that it was "speculative and based solely on
conjecture."
Willis applied an uncontroversial accounting method called discounted cash flow
to determine what the value of Children's would have been in the absence of the alleged
wrongful conduct. He acknowledged, however, that he did not take into account the
announcement of Radio Disney as a competitor when drawing his conclusions. The
3
Before trial, ABC Radio and Disney moved to exclude Willis's testimony under
Daubert, on the ground that it was unreliable speculation. The district court denied this
motion and overruled the majority of the various objections to Willis's testimony that
ABC Radio and Disney made at trial. Only when the district court considered the
motion for a new trial did it conclude that it should not have allowed Willis's testimony.
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agreement between Children's and ABC Radio did not include a non-compete clause,
and the establishment of Radio Disney cannot be considered wrongful conduct. The
existence of Radio Disney was relevant to Children's value, but Willis did not consider
it. Cf. Blue Dane, 178 F.3d at 1040-41 (where economist used typical method of
analysis, but did not consider all independent variables that could affect his conclusion,
district court did not abuse discretion by excluding testimony).
Willis's testimony at trial was that any breach of contract, any use of confidential
information, or any misappropriation of any trade secret caused the exact same amount
of damage to Children's:
But as a result of my studies, it was my judgment that the damage
determination that I made and testified to earlier would be the same
regardless of whether some or all of this information was found to have
been used and, similarly, with respect to the efforts or lack of efforts
regarding the affiliates, the development or lack of development of
affiliates or revenues.
....
[I]f any one of the items we've talked about--the failure to use reasonable
efforts regarding affiliates or the failure to achieve advertising sales or the
use of any piece or all of the confidential information, including the trade
secrets--were or were not a finding of liability, all you need is any one of
them and the damage calculation would be what my determination was.
The assertion that any or all of the alleged wrongful acts would have caused the same
outcome is dubious. Children's argues that, under Daubert, a court can review only the
methodology of the expert, not his or her conclusions. "But nothing in . . . Daubert .
. . requires a district court to admit opinion evidence that is connected to existing data
only by the ipse dixit of the expert. A court may conclude that there is simply too great
an analytical gap between the data and the opinion proffered." Joiner, 522 U.S. at 146.
Furthermore, Willis based his testimony on a report prepared with the assumption that
ABC Radio and Disney had engaged in a variety of wrongful conduct contained in the
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original complaint. Only three counts from the original complaint survived summary
judgment, but Willis's damages theory remained the same.
Willis failed to consider the effect of competition on Children's, his theory of
causation was questionable, and his testimony was based on a report prepared before
Children's claims were narrowed for trial. The district court did not abuse its discretion
by concluding that it should have excluded Willis's testimony.
The court found that a new trial was necessary because Willis's testimony tainted
the trial. When assessing the impact of improperly admitted evidence, the district court
is in the best position to measure the effect on the jury. See Neely v. Martin K. Eby
Constr. Co., 386 U.S. 317, 325 (1967) (trial judge has "first-hand knowledge of
witnesses, testimony, and issues" and a "'feel' for the overall case"); Fireman's Fund,
466 F.2d at 186. Cf. United States v. Wilkins, 139 F.3d 603, 604-05 (8th Cir. 1998)
(in criminal case, district court in best position to judge whether evidence regarding
dismissed charges tainted jury's consideration of another count). Even though the jury
did not award $177 million, the damages amount to which Willis testified, the jury's
award of $20 million to Children's for breach of a contract that was terminable at will
with ninety days notice suggests to us that Willis's testimony gave the jury an
unrealistic idea of the appropriate measure of damages.4 The district court's discussion
of Willis's testimony supports its grant of a new trial on the issue of damages, and we
affirm on that issue.
4
When a breaching party has the power to terminate a contract upon notice, the
general rule is that the calculation of damages is limited to the notice period. See
Western Oil & Fuel Co. v. Kemp, 245 F.2d 633, 638-42 (8th Cir. 1957); Pappas v.
Stark, 142 N.W. 1046, 1048 (Minn. 1913); 3 E. Allan Farnsworth, Farnsworth on
Contracts 150 (2d ed. 1998).
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The district court did not suggest, however, that Willis's testimony tainted the
causation findings. Although the court concluded that "the jury's findings on causation
. . . were unsupported by the evidence presented at trial" when articulating its first
reason for granting a new trial, our discussion in Section I of this opinion demonstrates
that evidence other than Willis's testimony supported a finding that the breach of
contract and the trade secret misappropriation caused some damage to Children's. On
numerous occasions, we have made clear that the district court has a duty to articulate
its reasons for overturning the jury's verdict when it grants a conditional motion for a
new trial on the ground that the verdict is against the weight of the evidence. E.g.,
Dominium, 195 F.3d at 366; White v. Pence, 961 F.2d 776, 781 (8th Cir. 1992). The
district court's summary conclusion that the verdict on causation conflicted with the
weight of the evidence is insufficient to support the grant of a new trial on this issue.
See Stafford v. Neurological Med., Inc., 811 F.2d 470, 474 (8th Cir. 1987).
III.
Children's asks us to reconsider several claims on which the district court granted
summary judgment before trial. We review a grant of summary judgment de novo,
viewing the evidence in the light most favorable to the non-moving party and upholding
summary judgment where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Wayne v. Genesis Med. Ctr., 140 F.3d
1145, 1147 (8th Cir. 1998) (per curiam); Fed. R. Civ. P. 56(c).
A.
Children's argues that the district court erred by granting summary judgment on
its negligent misrepresentation claim. A required element of this claim "is that the
alleged misrepresenter owes a duty of care to the person to whom they are providing
information." Smith v. Woodwind Homes, Inc., 605 N.W.2d 418, 424 (Minn. Ct. App.
2000). Under Minnesota law, no duty of care exists between sophisticated equals
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negotiating a business transaction unless the parties have a special relationship. Id. at
424-25; see also Safeco Ins. Co. of Am. v. Dain Bosworth Inc., 531 N.W.2d 867, 871-
72 (Minn. Ct. App. 1995). Because there is no evidence that ABC Radio and
Children's had a special relationship, ABC Radio owed no duty of care to Children's.
The claim for negligent misrepresentation necessarily fails.
B.
Children's argues that the district court erred by granting summary judgment on
its fraud claim. Under Minnesota law, the elements of fraud are the making of
a false representation of a past or existing material fact, susceptible of
knowledge, knowing it to be false or without knowing whether it was true
or false, with the intention of inducing the person to whom it was made
to act in reliance upon it or under such circumstances that such person
was justified in so acting and was thereby deceived or induced to so act
to his damage.
Berryman v. Riegert, 175 N.W.2d 438, 442 (Minn. 1970).
Children's alleges that ABC Radio represented that it would enter the children's
radio market only with Children's and that Disney had no intention of entering the
market. The evidence cited by Children's to support its claim that someone at ABC
Radio made these representations is scant. At his deposition, Dahl testified that Kantor
said that ABC and Disney would not enter the children's radio market without
Children's. At trial, however, Dahl testified that Kantor never said that ABC and
Disney would not independently pursue children's radio. Dahl also testified that
Callahan said that ABC Radio wanted to try children's radio with Children's, "And if
it doesn't work with you, we're going to probably--not probably. I think he said we're
going to abandon our efforts." Dahl's deposition testimony calls this trial testimony into
question. At his deposition, he stated that he could not remember anyone other than
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Kantor assuring that ABC Radio and Disney would not enter the children's radio
market. Dahl's inconsistent testimony does not create a genuine issue of material fact.
This leaves only the testimony of Lance Riley, the in-house attorney for
Children's. At his deposition, he testified that a person from ABC Radio whom he
believed to be Kantor said that there would be no point in entering into the agreement
with Children's if ABC Radio intended to compete with Children's. Riley clarified that
no one at ABC Radio said that it would not compete after the term of the agreement.
We cannot conclude that this evidence sufficed to create a genuine issue on the first
element of a fraud claim: the making of a false representation.
Furthermore, even if the evidence supported Children's contentions that ABC
Radio represented that neither it nor Disney would enter the children's radio market,
Children's would not have been justified in relying on these representations. Fraud
must be proved with reference to the specific intelligence and experience of the party
alleging it. Murphy v. Country House, Inc., 240 N.W.2d 507, 512 (Minn. 1976). A
memo written by Jim Gilbertson of Children's indicates that Children's was well aware
that ABC Radio and Disney might enter the children's radio market. Also, there is no
indication that Children's actually relied on any such representations. At trial, Dahl was
asked why he considered it unlikely that Disney and ABC Radio would enter the
market without Children's, and he responded, "Well, number one, we had the contract
with ABC. And I regarded that as an extremely important document that would prevent
them from doing that." He did not say that someone represented that ABC Radio and
Disney would not enter the market. The agreement on which Dahl purported to rely
does not contain a non-compete clause. In fact, its language seems to contemplate that
ABC Radio or Disney, its future parent, might develop a children's radio format:
"Nothing herein shall be deemed to prevent ABC from representing or selling national
advertising time in connection with any format developed by ABC, its parent,
subsidiary or affiliated companies, as constituted now and in the future." (emphasis
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added.) Cf. Henvit v. Keller, 15 N.W.2d 780, 782 (Minn. 1944) (element of reliance
lacking where written stipulations of lease contradicted alleged representations).
Children's further claims that ABC Radio's representations that it would keep
information confidential and use reasonable efforts to perform were fraudulent.
"[U]nder Minnesota law, a representation or expectation of future events is not
sufficient to support an action for fraud simply because the represented act or event did
or did not take place." Exeter Bancorporation, Inc. v. Kemper Sec. Group, Inc., 58
F.3d 1306, 1313 (8th Cir. 1995). A misrepresentation of a present intention to do
something in the future could constitute fraud if there is affirmative evidence that the
promisor had no intention of keeping the promise at the time it was made. Id. at 1312.
Because Children's offers no evidence that ABC Radio did not intend to perform when
it entered into the agreement, its allegations do not support a claim for fraud
independent of the breach of contract claim.
Children's also alleges that ABC Radio failed to disclose several facts: its
discussions with Disney about creating a children's radio network, its intention to use
the contract as paid education, and its "self-serving" interpretation of the confidentiality
clause. "The general rule is that one party to a transaction has no duty to disclose
material facts to the other." L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380
(Minn. 1989) (internal quotation omitted). A duty may exist when a fiduciary
relationship exists between the parties, when disclosure is necessary to clarify
information previously disclosed, or when one party has special knowledge of material
facts to which the other does not have access. Id. The third situation is the only one
that may apply here, and the Minnesota Supreme Court has "rarely addressed that
particular theory of fraud." Id.Children's claim that ABC Radio should have disclosed its interpretation of the
confidentiality provision makes little sense. We see no support in Minnesota law for
imposing a duty on sophisticated parties negotiating a contract at arms' length to
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disclose their particular interpretations of its provisions. With regard to the remaining
two alleged nondisclosures, ABC Radio had no "special knowledge" that it should have
imparted to Children's. Children's was aware that ABC Radio and Disney might form
a competing network, and it was also aware that ABC Radio would learn about
children's radio through the agreement.
The district court did not err in granting summary judgment against Children's
on its fraud claim.
C.
Children's alleges that ABC Radio acted as its agent, that it had fiduciary duties
to Children's, and that it breached these duties. Although the existence of an agency
relationship is generally a question of fact, summary judgment may be appropriate if
the evidence is conclusive. Smith, 605 N.W.2d at 423. "[B]efore a court will impose
a legal obligation on a person to act like an agent, the plaintiff must first introduce
factual evidence that he sought this arrangement and that the alleged agent consented
to it." PMH Props. v. Nichols, 263 N.W.2d 799, 803 (Minn. 1978). See also Nerlund
v. Schiavone, 84 N.W.2d 61, 65 (Minn. 1957) ("No one can become the agent of
another without the consent, either express or implied, of the principal."). Neither
Children's nor ABC Radio consented to a principal-agent relationship. In fact, they
expressly disclaimed any such relationship in their contract:
Nothing contained in this Agreement shall create or be deemed to create
any association, partnership, joint venture or the relationship of principal
and agent or employer and employee between the parties hereto, it being
understood that ABC and CBC shall perform all of their obligations
hereunder as fully independent parties.
This disclaimer binds Children's and precludes its claim for breach of fiduciary duties.
Cf. Board of Trade v. Hammond Elevator Co., 198 U.S. 424, 437 (1905) (implying that
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express disclaimer of principal-agent relationship would be decisive between the parties
involved in the disclaimer); Norsul Oil & Mining Co. v. Texaco, Inc., 703 F. Supp.
1520, 1545-46 (S.D. Fla. 1988); Wardley Corp. v. Welsh, 962 P.2d 86, 89 (Utah Ct.
App. 1998). Summary judgment on this claim was appropriate.
D.
Children's argues that the district court erred by granting summary judgment on
its claim that ABC Radio breached the contract's research provision. This provision
provides: "Upon request, ABC shall assist CBC in working with Arbitron, Radar and
other research companies to refine and further develop measurement methodologies for
CBC's audience." William McClenaghan, the person at ABC Radio who was
responsible for responding to Children's research requests, stated in his affidavit: "CBC
never made any requests to me to assist CBC in working with Arbitron, Radar or other
research companies to refine and further develop measurement methodologies for
CBC's audience."
Children's directs us to McClenaghan's deposition testimony, where he stated,
"AAHS wanted to go out and do more audience surveys, and I said that is not the way
to go." Children's also cites Gilbertson's deposition testimony, where he was asked,
"[D]o you know if anybody at CBC ever made a request to ABC to work with any of
the research companies to refine and further develop measurement methodologies for
CBC's audience?" Gilbertson responded, "Again, I just don't recall if we asked in that
context. It's possible. . . . I don't recall. I know I asked Mr. McClenaghan basically
for his aid in research." Gilbertson was then asked, "Did you ask him to assist you to
refine or develop measurement methodologies for CBC's audience?" His response was,
"I don't recall whether we did or not. I just don't recall if we asked that specific
question." This testimony does not raise a genuine issue regarding whether Children's
asked ABC Radio to assist it in the specific way contemplated by the contractual
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provision. Without such a request, there could be no breach. The district court did not
err by granting summary judgment against Children's on this claim.
IV.
Finally, Children's argues that the district court erred by barring it from seeking
punitive damages on its commercial tort claims. In light of our disposition of these
claims in Section III, we need not address this argument. We reverse the district court's
grant of judgment as a matter of law and remand the case for a new trial limited to
damages.5
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
Our opinion should not be read to imply that the conduct that the jury found
wrongful caused any particular type of damage to Children's or that Children's is
entitled to any particular amount of damages.
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