BBSERCO v. Green Bay Dressed

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1302
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BBSerCo, Inc., a Colorado *
Corporation, #XX-XXXXXXX *
*
Plaintiff-Appellee, *
*
v. *
*
Metrix Company, * Appeal from the United States
* District Court for the Northern
Defendant, * District of Iowa.
*
Green Bay Dressed Beef, Inc., *
*
Defendant-Appellant, *
*
John Schoen, *
*
Defendant. *
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Submitted: May 13, 2002
Filed: February 3, 2003
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Before BOWMAN and BYE, Circuit Judges, and NANGLE,1 District Judge.
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1
The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
BYE, Circuit Judge.
This dispute arises from a failed joint venture to produce and market fetal
bovine serum. Green Bay Dressed Beef, Inc., (Green Bay) appeals from a final order
of the district court2 denying its motion for judgment as a matter of law (JAML) and
upholding a jury verdict on breach of contract and fraud claims in favor of BBSerCo,
Inc. We affirm.
I
Because BBSerCo prevailed at trial, we must view the factual record in the
light most favorable to and give it the benefit of all reasonable inferences the record
will support. See Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871,
873 (8th Cir. 2000).
Fetal bovine serum is a product used in cell culture research, the production of
pharmaceuticals, and veterinary medicine. Fetal bovine serum comes from the blood
of fetal calves — those calves found in the wombs of the small percentage of
pregnant cows brought to slaughter. Fetal calf blood is largely protected from
infection, and therefore has no antibodies to interfere with cell culture applications.
Fetal calf blood is processed into serum by removing red blood cells. This
"raw" serum is then filtered to remove any bacteria and becomes "sterile" serum, the
finished product. World-wide demand for sterile serum is relatively static, with about
500,000 liters consumed per year. The supply, on the other hand, fluctuates a great
deal. When the beef industry is strong, few pregnant cows are slaughtered and the
supply of fetal blood drops. Consequently, the price for fetal bovine serum rises.
2
The Honorable John A. Jarvey, United States Magistrate Judge for the
Northern District of Iowa, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c).
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When economic or natural pressures cause reductions in herd size (e.g., drought
conditions), more pregnant cows are slaughtered and the supply of fetal blood
increases, driving the price of fetal bovine serum down. Because of these market
dynamics, relatively few companies produce serum. Two companies alone are
responsible for about half of all world-wide sales of sterile serum, Life Technologies
(30%) and HyClone (20%). Similarly, there are relatively few companies which
produce raw serum. The Metrix Company (Metrix), an Illinois corporation doing
business in Dubuque, Iowa, is America's largest producer of raw serum.
Typically, slaughterhouses do not process fetal calf blood into serum. They
merely sell their blood to producers like Metrix. But in 1994, Wendell Leinweber
and George (Skip) Wrape, two individuals with many years of experience in this
field, formed BBSerCo with the idea of partnering with slaughterhouses to process
serum. BBSerCo would charge a fixed fee to produce and sell raw serum on behalf
of a slaughterhouse. That way, BBSerCo would realize a steady income regardless
of the fluctuations in the serum market. Without having to finance inventory by
purchasing blood, BBSerCo could survive as a new and relatively small player in the
market. The slaughterhouse would profit too. It could more easily ride the ups and
downs of the serum market, and increase its overall profit margin by selling serum
instead of blood when the market was good. The idea was that both parties would
win in the long run.
BBSerCo planned to enter joint venture agreements with sixteen
slaughterhouses. It first approached Green Bay, a large Wisconsin slaughterhouse.
In early 1995, the parties struck a deal. BBSerCo would produce and sell raw serum
on Green Bay's behalf for a $28 per liter processing fee. In the beginning, the joint
venture worked well. Raw serum was selling as high as $192 per liter. After
subtracting BBSerCo's processing fee, Green Bay still realized a profit significantly
higher than it would have by selling blood to producers at about $90 per liter.
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The good times quickly dissipated, however. Drought and other factors
affecting the beef industry caused record cattle kills in 1996 and 1997. The price of
serum tumbled, and the joint venture began to unravel. Green Bay eventually
demanded a floor price, $120 per liter, at which BBSerCo had to sell the serum.
When the market would not bear that price, the joint venture's inventory of serum
built up and BBSerCo collected no processing fees. By December 1996, BBSerCo
could no longer service its bank debt. It discontinued processing blood for the joint
venture with over 11,000 liters of serum in inventory.
The two parties met to decide what to do about the inventory. Green Bay
insisted the serum be sold, whether by Green Bay or BBSerCo. In January 1997,
control of the inventory switched from BBSerCo to Green Bay. Although the
inventory remained in the same cold storage facility, it moved from BBSerCo's
account into Green Bay's account. BBSerCo's bank insisted, however, that the
proceeds of all sales, whether made by BBSerCo or Green Bay, continue to go into
BBSerCo's account and applied to outstanding loan obligations. The parties agreed
to have the bank deduct BBSerCo's processing fees from the proceeds of all sales,
then send the remaining proceeds to Green Bay.
On June 13, 1997, Green Bay secretly agreed to sell the entire inventory to
Metrix, without paying BBSerCo's processing fees. But there was a catch. Each
batch of inventory had a corresponding sample that had to be tested before a buyer
could resell the serum. BBSerCo had the samples. Green Bay had no experience in
selling serum, and did not fully realize the importance of the samples. Green Bay
shipped sixteen liters of inventory to Metrix, thinking Metrix could use those for
testing.
On July 30, Metrix called Leinweber at BBSerCo to ask about the BBSerCo-
labeled serum it had just received from Green Bay. Leinweber told Metrix he knew
nothing about the delivery. Leinweber then called Green Bay's implementation
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manager, Wayne Krueger, and asked whether Green Bay knew of any prospective
sales. Even though Krueger knew about the delivery to Metrix, and about Green
Bay's agreement to sell to Metrix, he told Leinweber he was unaware of any interest.
On July 31, Green Bay realized it could not complete the sale without the
samples, so Krueger called Leinweber to find out where the samples were. Leinweber
told him BBSerCo had the samples in Colorado, and asked Krueger again whether
Green Bay knew of any interest in the serum. Krueger again denied Green Bay's
awareness of a possible sale. Since Green Bay did not have access to the samples,
Krueger called Leinweber back later asking him to send all the samples to Metrix.
When Krueger mentioned Metrix, Leinweber asked him about the small amount of
inventory that Green Bay sent to Metrix. Krueger implied he was unaware of the
details of that transaction. Leinweber told Krueger some of the inventory was already
"out on test," meaning other customers were testing the samples for a possible
purchase. It was bad business to send out samples on the same batch to more than
one customer at a time without informing the later customer the product was being
considered by someone else. But since Green Bay wanted all the samples, and
Leinweber did not know Green Bay had already secretly agreed to sell the entire
inventory to Metrix and cut BBSerCo out of the deal, Leinweber agreed to send all
samples to Metrix.
On August 1, Leinweber faxed a letter to Green Bay discussing the small
shipment of inventory to Metrix, his understanding that Metrix wanted to test all the
samples, and expressing BBSerCo's continued faith in Green Bay as its business
partner:
I'm assuming that BBSerCo was taken out of the loop initially as an
oversight. Such oversight was the result of seeing an opportunity to
make a quick sale. . . . Lets work closer together on this [potential sale
to Metrix] to make sure everything that is required by [Metrix] is
addressed. I will remain in contact with them to make sure any
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questions or additional data they required is provided. I will keep you
informed on the progress as it happens.
Leinweber's fax also informed Green Bay that BBSerCo had successfully sold a
portion of the inventory, and was wiring $127,296 to Green Bay's account. An hour
after receiving the fax, Green Bay's COO, Wayne Matzke, called Leinweber to thank
him for the wired money and assured him that BBSerCo was not "being taken out of
the loop."
But on August 15, after all the remaining serum had been shipped to Metrix,
Matzke called Leinweber and told him about the Metrix sale. Matzke also told
Leinweber that Green Bay had no intention of paying BBSerCo's processing fees,
which would have totaled $202,560. Over the next several weeks, BBSerCo
negotiated with both Green Bay and Metrix to get paid its processing fees. On
September 4, 1997, when those attempts failed, Metrix wired its entire payment
directly to Green Bay.
BBSerCo immediately sued Metrix, its principal owner John Schoen, and
Green Bay in Iowa state court. Green Bay removed the case to federal district court.
The case was tried seven days before a jury. At the close of evidence and before
submitting the case to the jury, the district court granted Metrix's and Schoen's
motions for JAML.
The jury considered three of BBSerCo's claims against Green Bay — breach
of contract, fraudulent misrepresentation, and fraudulent nondisclosure — and found
in BBSerCo's favor on the fraudulent nondisclosure and contract claims. The jury
awarded $202,560 in processing fees, $86,522 in lost profits, $33,681 in interest, and
$100,000 in punitive damages. Green Bay brought a post-trial motion for JAML,
which the district court denied.
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Green Bay appeals the denial of its motion for JAML on the fraudulent
nondisclosure claim, contending the district court erred in submitting both breach of
contract and fraud claims to the jury and BBSerCo's relief should be limited to its
contract damages, or $202,560. In the alternative, Green Bay challenges the
sufficiency of the evidence, contending there was insufficient proof of detrimental
reliance on fraud, and insufficient proof of any additional damage being caused by
the fraud.
II
Green Bay first contends the district court erred in submitting both breach of
contract and fraud claims to the jury. Because Green Bay did not object to the jury
instructions given by the district court, and in fact submitted its own suggested
instructions on both the breach of contract and fraud claims, we review this
contention for plain error. Chem-Trend, Inc. v. Newport Indus., Inc., 279 F.3d 625,
629 (8th Cir. 2002). "Plain error review is narrow and confined to the exceptional
case where error has seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. The verdict should be reversed only if the error prejudices
the substantial rights of a party and would result in a miscarriage of justice if left
uncorrected." Id. (internal citations and quotations omitted).
The district court did not plainly err by submitting both the contract and
fraudulent nondisclosure claims to the jury. We start from the premise that
"concealment of or failure to disclose a material fact can constitute fraud in Iowa."
Cornell v. Wunschel, 408 N.W.2d 369, 374 (Iowa 1987).3 Further, such a fraud claim
3
Neither side contends the law of a state other than Iowa applies to this dispute
between a Colorado corporation and a Delaware corporation doing business in
Wisconsin. Thus, because Iowa was the forum state, its laws apply by default. See
Wood v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir. 1991) ("The operative rule is
that when neither party raises a conflict of law issue in a diversity case, the federal
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is not barred simply because the failure to disclose relates directly to a term covered
by a contract. See, e.g., Clark v. McDaniel, 546 N.W.2d 590, 592 (Iowa 1996)
(recognizing a fraudulent nondisclosure claim arising from a contractual
relationship). The key to determining whether contracting parties may be liable to
one another for a fraudulent nondisclosure is whether "special circumstances" exist
which give rise to a duty to disclose. Jones Distrib. Co., Inc. v. White Consol. Indus.,
943 F.Supp. 1445, 1473 (N.D. Iowa 1996).
Green Bay concedes it engaged in a joint venture with BBSerCo. Under Iowa
law, parties engaged in a joint venture have more than a mere contractual relationship,
they owe fiduciary duties to one another. See Hum v. Ulrich, 458 N.W.2d 615, 617
(Iowa Ct. App. 1990) ("A fiduciary relationship exists between joint venturers").
"There is no question but joint venturers like partners owe the duty of finest loyalty
and such loyalty continues throughout the life of the venture and its dissolution."
Greenberg v. Alter Co., 124 N.W.2d 438, 440 (Iowa 1963). The existence of this
fiduciary relationship triggered a duty to disclose that would not otherwise have
existed between these parties by virtue of their contractual relationship. See Sinnard
v. Roach, 414 N.W.2d 100, 104 (Iowa 1987) (holding the special circumstances
triggering a duty to disclose arise from a "relation of trust, from confidence, from
inequity of condition and knowledge or other attendant circumstances") (citations
omitted). Thus, the special circumstances required by Iowa law to support a fraud
claim were present, and the district court properly instructed the jury on both the
contract and fraud claim.
Green Bay next contends there was insufficient evidence to support the
fraudulent nondisclosure claim. "We review the denial of a motion for judgment as
a matter of law de novo, applying the same standard as the district court, to determine
court simply applies the law of the state in which the federal court sits").
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whether sufficient evidence existed to support the jury's verdict." Duty v.
Norton-Alcoa Proppants, 293 F.3d 481, 488 (8th Cir. 2002).
[J]udges must be extremely guarded in granting judgments as a matter
of law after a jury verdict. As this court has often repeated, the standard
to be applied is as follows: [T]he district court must (1) consider the
evidence in the light most favorable to the prevailing party, (2) assume
that all conflicts in the evidence were resolved in favor of the prevailing
party, (3) assume as proved all facts that the prevailing party's evidence
tended to prove, and (4) give the prevailing party the benefit of all
favorable inferences that may reasonably be drawn from the facts
proved. That done, the court must then deny the motion if reasonable
persons could differ as to the conclusions to be drawn from the
evidence.
Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir. 1997) (citations omitted).
Green Bay contends BBSerCo presented insufficient evidence that it relied on
Green Bay's fraud. Since detrimental reliance is one of the elements of a fraudulent
nondisclosure claim under Iowa law, see, e.g., Weber v. State Farm Mut. Auto. Ins.
Co., 873 F.Supp. 201, 208 n.5 (S.D. Iowa 1994), Green Bay claims the district court
erred when it denied the motion for JAML. We disagree.
When viewed in the light most favorable to BBSerCo, the evidence supports
the claim that, as early as June 13, 1997, Green Bay secretly agreed to sell the joint
venture's entire inventory of serum to Metrix without paying BBSerCo's processing
fees. Twice thereafter, on July 30 and 31, Green Bay failed to disclose the existence
of the sale in response to direct inquiries by BBSerCo about prospective or possible
sales. Green Bay also failed to disclose the fact that it had no intention of paying
BBSerCo's processing fees upon the completion of the sale. Unaware that its
business partner and joint venturer had no intention of paying the processing fees,
BBSerCo gave up its only safeguard when it agreed to ship the serum samples to
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Metrix, allowing Green Bay to complete the sale. From this evidence, the jury could
clearly find that BBSerCo relied to its detriment on the fraud when it shipped the
serum samples.
Next, Green Bay challenges the jury's verdict for the noncontractual
consequential damages, that is, lost profits in the amount of $86,522, and interest
damages in the amount of $33,681. Green Bay contends that even if the district court
did not plainly err by instructing the jury on both breach of contract and fraud claims,
and even if BBSerCo offered sufficient evidence of fraud, BBSerCo failed to prove
the fraud caused damage beyond the contract damages of $202,560. Under the
standard for evaluating the denial of a JAML motion, we cannot disturb the jury's
consequential damage awards unless "there is a complete absence of probative facts
to support the conclusion reached." Ryther v. KARE 11, 108 F.3d at 845 (emphasis
in original).
Iowa law allows recovery of lost profits on a fraud claim. E.g., Midwest Home
Distrib., Inc. v. Domco Indus. Ltd., 585 N.W.2d 735, 742 (Iowa 1998). "The Iowa
Supreme Court has rejected the argument that a plaintiff must identify specific lost
sales to recover lost profits damages. Decreased income after the defendant's
damaging conduct is sufficient to support an award for lost profits so long as the
record discloses a reasonable basis from which the amount can be inferred or
approximated." Lundell Mfg. Co., Inc. v. Am. Broad. Cos., Inc., 98 F.3d 351, 365
(8th Cir. 1996) (citing Page County Appliance Ctr., Inc. v. Honeywell, Inc., 347
N.W.2d 171, 178 (Iowa 1984)).
We have previously recognized the somewhat liberal approach Iowa has toward
allowing juries to decide lost profit claims:
If the mind of the court is certain that profits would have been made if
there had been no breach by the defendant, there will be a greater degree
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of liberality in allowing the jury to bring in a verdict for the plaintiff,
even though the amount of profits prevented is scarcely subject to proof
at all. In this respect, at least, doubts will generally be resolved in favor
of the party who has certainly been injured and against the party
committing the breach. The trial court has a large amount of discretion
in determining whether to submit the question of profits to the jury; and
when it is so submitted, the jury will also have a large amount of
discretion in determining the amount of its verdict.
Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519 F.2d 634,
643 (8th Cir. 1975) (quoting 5 Corbin on Contracts § 1022 (1964)) (emphasis added);
see also Employee Benefits Plus, Inc. v. Des Moines Gen. Hosp., 535 N.W.2d 149,
157 (Iowa Ct. App. 1995) (holding lost profits claimant "is only required to present
such evidence as might reasonably be expected to be available under the
circumstances") (internal quotations omitted).
When viewed in the light most favorable to BBSerCo, the evidence supports
the jury's determination that BBSerCo had decreased income after Green Bay's
fraudulent conduct, and lost profits during the two-year period between July 31, 1997
(the final date of the fraud) and June 28, 1999 (the first date of trial). Skip Wrape
introduced BBSerCo's lost profits evidence. He introduced BBSerCo's tax returns
from the years 1995, 1996, and 1997, as well as projections for 1998 and part of 1999
(through the time of trial). Appellee's App. at 101-60. The 1995, 1996, and 1997 tax
returns showed BBSerCo progressed from an initial start-up loss of $142,000 in 1995,
id. at 111, to a smaller loss of $88,000 in 1996, id. at 125, and finally turned a profit
of $71,000 in its third year of operation. Id. at 143. The $71,000 profit was based on
nine months of operation prior to the time Green Bay's failure to pay the processing
fees disrupted BBSerCo's financing with its bank. Trial Trans. at 862, 877.
We believe BBSerCo's historical performance prior to Green Bay's fraud, as
shown by the tax returns, was sufficient to prove BBSerCo suffered lost profits as a
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result of the fraud. "The fact that plaintiff's business was relatively new would not,
in and of itself, require that evidence of lost profits be excluded since such profits
may be awarded where evidence demonstrates its feasibility." Mid-Country Meats,
Inc. v. Woodruff-Evans Const., 334 N.W.2d 332, 337 (Iowa Ct. App. 1983) (holding
lost profits claim should have been submitted to jury in case involving four-month old
company); see also Employee Benefits Plus, 535 N.W.2d at 156-57 (upholding lost
profits claim in favor of three year-old company that had never turned a profit). The
tax return evidence supports the jury's determination that BBSerCo would have
continued to progress if Green Bay's fraud had not disrupted its business plan and
financing obligations. And Green Bay could foresee that its conduct would cause
BBSerCo lost profits, because Green Bay knew BBSerCo had pledged the unpaid
processing fees towards its loan obligations.
Wrape also gave specific testimony about the effect of Green Bay's fraud on
BBSerCo's business plan. When Green Bay's failure to pay the processing fee
disrupted BBSerCo's financing, BBSerCo had to lay off workers in its New York lab,
and sell a company truck and other equipment, in order to meet its loan obligations.
Trial Trans. at 855. The New York lay-off prevented BBSerCo from collecting
newborn calf serum it otherwise would have collected and produced in New York.
Id. BBSerCo also lost the capital needed to develop processing relationships it had
planned with two slaughterhouses in Washington and Colorado. Id. at 857-58.
Wrape provided the jury with specific information about the amount of fetal bovine
serum, newborn calf serum, and calf serum BBSerCo planned to produce and sell in
its New York, Washington, and Colorado operations. Id. at 861-62. He based his
gross profit calculations on realistic market prices for the three types of serum, id.,
and relied on his experience in the industry and BBSerCo's own historical figures to
calculate the costs of production. Id. at 864-74. Based on these detailed calculations,
Wrape projected total lost profits of $160,686. Appellee's App. at 96, 100 ( Plaintiff's
Trial Exhibit 46).
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Wrape had some thirteen years in the serum processing industry when he and
Leinweber formed BBSerCo. Trial Trans. at 830. Based on such experience, the
district court did not abuse its discretion in allowing Wrape's testimony. Cf.
Netteland v. Farm Bureau Life Ins. Co., 510 N.W.2d 162, 167 (Iowa Ct. App. 1983)
(upholding jury's award of lost profits damages in case where company owner
calculated lost profits claim based on his experience in the business). Once the
testimony was admitted, the jury was free to credit or discount it. "It is axiomatic that
'[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.'" Brown
v. Sandals Resorts Int'l, 284 F.3d 949, 954 (8th Cir. 2002) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). We should not disturb
the district court's decision to allow this testimony given the standard of review we
must apply; nor should we disturb the jury's award of $86,522, given the "large
amount of discretion" the jury had "in determining the amount of its verdict." Lakota
Girl Scout Council, 519 F.2d at 643.
Green Bay's challenge to the $33,681 in interest damages fails as well. As a
defrauded party, BBSerCo was entitled to recover any "actual pecuniary loss
sustained as a direct result of the wrong." Lamasters v. Springer, 99 N.W.2d 300, 304
(Iowa 1959). As stated above, BBSerCo had pledged the unpaid processing fees to
its bank for payment of outstanding loan obligations. Green Bay knew that. As a
direct result of Green Bay's failure to pay the $202,560 in processing fees, BBSerCo
incurred an additional $33,681 in interest on its loan obligations, and was therefore
entitled to recover those consequential costs. Cf. Metro. Transfer Station, Inc. v.
Design Structures, Inc., 328 N.W.2d 532, 536 (Iowa Ct. App. 1982)
("[N]ondefaulting party may recover consequential costs, including interest payments
to third persons which are reasonably foreseeable and proximately caused by the
defaulting party's breach").
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Finally, Green Bay challenges the jury's award of $100,000 in punitive
damages. Green Bay's sole contention with respect to punitive damages is that such
damages are unavailable for a breach of contract action unaccompanied by an
intentional tort. See Pogge v. Fullerton Lumber Co., 277 N.W.2d 916, 920 (Iowa
1979). Green Bay argues BBSerCo's fraud claim was invalid, so the punitive damage
award must be reversed. Since we reject Green Bay's challenge to the fraud claim,
this sole challenge to the punitive damage award necessarily fails as well.
The judgment of the district court is affirmed in all respects.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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