MERIDIAN CREATIVE ALLIANCE, LLC, Plaintiff-Appellant/Respondent,
O'REILLY AUTOMOTIVE STORES, INC., Defendant/Counterclaim Plaintiff-Respondent/Cross-Appellant,
MERIDIAN CREATIVE ALLIANCE, LLC, BOB BRYANT, JAMES LEWIS, JOHN DILLON and RON BYERLY, Counterclaim Defendants-Respondents.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable C. David
Darnold, Senior Judge
Rahmeyer, J., Scott, J., and Francis, Jr., J.
Creative Alliance, LLC ("Meridian") and
O'Reilly Automotive Stores, Inc.
("O'Reilly") entered into a series of both
verbal and written contracts, culminating in a 2007 written
contract for the provision of services for radio and print
advertising. O'Reilly terminated the contract in 2008;
Meridian sued. Meridian claimed that it was to be the
"exclusive" agency for O'Reilly's media
advertising, which O'Reilly denied, alternatively
claiming that Meridian had breached the contract.
O'Reilly also asserted several ancillary counter and
third-party claims that were tried in the same trial: the
counterclaim was against Meridian and its three principals
for a breach of the contract; the third-party claim was
against Ron Byerly, O'Reilly's former employee who
had negotiated the contract, for a breach of fiduciary
duty. After seventeen days of trial,
the jury returned verdicts in Meridian's favor on its
claims against O'Reilly, and against O'Reilly on its
counter and third-party claims.
appeals, claiming the trial court erred in failing to award
prejudgment interest on the judgment. O'Reilly
cross-appeals, raising six points: the first claims error in
allowing a total of nine peremptory challenges; then two
points charge instructional error; two points complain of
failure to grant JNOV; and a final point charges juror
misconduct by injecting extrinsic evidence into the
ease of discussion and because it effectively disposes of two
of O'Reilly's complaints, we first address
O'Reilly's Point II claim of error in submitting
Instruction No. 7, Meridian's verdict director for breach
of contract. At trial, the parties were in sharp disagreement
whether the contract required O'Reilly to employ Meridian
- and only Meridian - to procure radio and print advertising.
The 2007 written contract at issue stated, in pertinent part,
"O'Reilly agrees to use [Meridian] as its
agency for radio and print advertising during the term
of this agreement." (Emphasis added.) The trial court
ruled, prior to the trial, that the language in the contract,
"its agency, " was ambiguous as to whether it meant
"exclusive" and, thus, was an issue for the trier
of fact after hearing all the evidence. Despite that
determination that the language was ambiguous and the
disagreement of the parties as to what the language meant,
the trial court submitted as a verdict director Instruction
No. 7, which incorporated the ambiguous contract term
("its agency") without any definition or guidance
in defining that term.
claims this was error; that Instruction No. 7 did not require
the jury to resolve the central issue - whether the 2007
contract was "exclusive" - a finding necessary to
sustain Meridian's theory of liability for breach of the
contract. We agree.
No. 7 was based on MAI 26.06. "MAI 26.06 was adopted by
the Supreme Court as appropriate for the submission of the
two-element dispute of 1) what agreement was made and 2)
whether that agreement was breached." Penberthy v.
Nancy Transp., Inc., 804 S.W.2d 404, 407 (Mo.App. E.D.
1991). "Where a dispute exists as to one or more of the
terms of the agreement relied on by the claimant to support
recovery, that issue must be hypothesized in the verdict
directing instruction." Id. (internal
quotations and citation omitted). "Failure to do so is
prejudicial error." Id.
No. 7 provided:
Your verdict must be for Plaintiff Meridian and against
defendant O'Reilly if you believe:
First, Meridian entered into an agreement whereby
Meridian agreed to perform certain radio and print
advertising services and O'Reilly agreed that it was
required to use plaintiff Meridian as its agency for
radio and print advertising during the term of the agreement,
Second, plaintiff Meridian performed its agreement, and
Third, defendant O'Reilly failed to perform its
Fourth, plaintiff Meridian was thereby damaged.
the verdict director refers to the parties entering into
"an" agreement. The parties had a long history of
oral and written contracts. The details of all of the oral
and written contracts were discussed for days throughout the
trial. The jury instruction did not instruct the jury that
the only contract at issue in the lawsuit was the 2007
written contract, which encompassed the years 2008-2013. The
jury could have found that the hand-shake deal of the early
2000's or the contract of 2005 that actually used the
words "exclusive" still applied to this claim for
damages by Meridian.
Meridian claims that there was no doubt that the jury knew
which contract was at issue, we cannot be sure that is
accurate. The transcript was approximately 4, 000 pages. The
parties spent hours delving into the prior oral and written
contracts. Many of the objections and rulings involved
evidence that would not have been relevant to the 2007
written contract dispute but may have been relevant on some
of the counterclaims and third-party claims. There are many
ways the jury could have been misled after hearing all of the
evidence of the parties' dealings. The jury must rely
upon the court to give it the correct law in the matter by
way of the formal instructions. In this case, the jury was
not instructed by the court that the 2007 written contract
was the contract at issue in Instruction No. 7.
confusion about which contract was at issue is compounded by
other language in the verdict director. The first paragraph
continues that Meridian agreed to perform "certain"
radio and print advertising services for O'Reilly and
O'Reilly agreed that it was "required" to use
Meridian as "its agency" for radio and print
advertising. The jury could have found that the choice was
Meridian's whether to perform certain radio and print
advertising. There certainly was ample testimony that
Meridian was actually under no obligation to purchase any
advertising for O'Reilly if it could not meet
O'Reilly's "price point." The word "certain" in the
verdict director implies that Meridian had the choice whether
to perform the contract and, if they chose to do so,
O'Reilly had to pay.
and most importantly, the jury instruction does not instruct
the jury that O'Reilly had to use Meridian as its
exclusive agency for all radio and print advertising, nor
does it use the word "sole" agency. Thus, the court
instructed the jury that they must find for Meridian if
O'Reilly entered into a contract, which O'Reilly
admittedly entered, when the real issue was the legal effect
of the words in the contract. ...