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Barkley, Inc. v. Gabriel Brothers, Inc.

United States Court of Appeals, Eighth Circuit

July 25, 2016

Barkley, Inc. Plaintiff- Appellant
v.
Gabriel Brothers, Inc.; Rugged Wearhouse, Inc. Defendants-Appellees Barkley, Inc. Plaintiff- Appellee
v.
Gabriel Brothers, Inc.; Rugged Wearhouse, Inc. Defendants-Appellants

          Submitted: January 13, 2016

         Appeals from United States District Court for the Western District of Missouri - Kansas City

          Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE.

         Gabriel Brothers, Inc. and Rugged Wearhouse, Inc. (Gabriel Brothers), two commonly owned discount clothing and apparel chains that are headquartered in West Virginia, entered into a master services agreement (the Agreement) with Barkley, Inc. (Barkley), a marketing company located in Missouri, for marketing and advertising services. The Agreement provided the general terms governing the companies' relationship, while the specific services and fees were to be negotiated later as project-specific contracts, called statements of work. The Agreement permitted either party to terminate the contract after providing 90 days' notice. Gabriel Brothers terminated the Agreement before a written 2013 statement of work had been executed, but after Barkley had begun work on 2013 projects.

         Barkley sued, claiming that Gabriel Brothers breached the Agreement or, in the alternative, that Gabriel Brothers breached a subsequent agreement to pay "actual costs" and that Gabriel Brothers was unjustly enriched. Gabriel Brothers filed counterclaims, alleging that Barkley breached the Agreement and that Barkley was unjustly enriched by Gabriel Brothers's partial payment of the amount for which Barkley had submitted invoices. The district court granted summary judgment in favor of Gabriel Brothers on Barkley's claim that Gabriel Brothers breached the Agreement, and a jury awarded damages to Barkley on its actual-costs claim. As relevant here, the district court denied Barkley's post-trial motion for prejudgment interest and Gabriel Brothers's motions for judgment as a matter of law or, in the alternative, a new trial, and for attorney's fees.

         Barkley appeals from the district court's grant of summary judgment to Gabriel Brothers on Barkley's breach-of-the-Agreement claim, as well as from the court's denial of prejudgment interest on the jury award. Gabriel Brothers cross-appeals from the district court's alleged sua sponte grant of partial summary judgment to Barkley, in which it concluded that the parties had formed a separation-agreement contract. Gabriel Brothers also appeals from the district court's evidentiary rulings and jury instructions, the district court's denial of Gabriel Brothers's post-trial motions for judgment as a matter of law or for a new trial, and the district court's order denying attorney's fees. We reverse the district court's order denying prejudgment interest and affirm in all other respects.

         I. Background

         Gabriel Brothers hired Barkley in September 2012 to be its advertising agent for a term of eighteen months. Gabriel Brothers and Barkley entered into the Agreement in October 2012 and made its terms retroactive to September. The Agreement provided the general terms for the relationship between the two companies, and subsequent statements of work would specify the projects that Barkley would complete and the fees that Gabriel Brothers would pay. The Agreement contained an incorporation clause, which stated:

Barkley shall perform for [Gabriel Brothers] certain services which shall be agreed to by the parties on a project-by-project basis . . . . The Services agreed to for each Project shall be designated in a written Statement of Work ("Statement of Work"). Each Statement of Work shall contain the following provision:
"This Statement of Work is incorporated into, and made a part of, that certain Master Services Agreement . . . between the parties dated [October 5, ] 2012, which Agreement governs the relationship of the parties. All terms and conditions provided in the Agreement shall apply to this Statement of Work."

         The Agreement also contained the following termination clause: "Either party may terminate this Agreement at any time and without cause with ninety (90) days written notice to the other party. Termination in this manner shall not affect any Projects then in effect." Finally, the Agreement entitled the prevailing party in any future lawsuit to recover attorney's fees, if the litigation was initiated "to construe or enforce this Agreement."

         In November 2012, Barkley and Gabriel Brothers executed a statement of work (2012 statement) that covered the time period of September 2012 through December 25, 2012. In December 2012, Barkley began working on projects that were not included in the 2012 statement, but were undertaken at Gabriel Brothers's request while the companies negotiated a statement of work for 2013.

         On January 31, 2013, representatives from the companies discussed a statement of work for 2013. Barkley presented its proposed budget, and Gabriel Brothers described its marketing plans for 2013, explaining that its "budgets [were] very tight." Barkley agreed to submit a "revised staffing plan."

         On February 13, 2013, Dan Fromm, Barkley's President and Chief Operations Officer, sent an email to Richard Pesce, Gabriel Brothers's Senior Vice President, Operations, with the subject "Follow Up" and a document attached that was titled "2013 Gabes SOW (1).pdf" (draft 2013 statement of work). In the email, Fromm referred to a conversation that he had had with Pesce one week earlier and explained that the attachment was a "revised budget proposal" based on that conversation. The email stated that under the revised proposal, "the fee will drop to $58, 333.33 per month (Feb-Dec), " and that "[w]e have tightened our fees to work with your budget, and feel we can accomplish this with a disciplined approach to the pre-scheduled events."

         The draft 2013 statement of work included three tiers of services. The first tier (Tier 1) listed the services that Barkley would provide for Gabriel Brothers's planned marketing events under the $58, 333.33 monthly fee. The list of services was not complete on February 13, 2013, however, and indicated that the Tier 1 services Barkley would provide later in the year were yet to be determined. The second tier (Tier 2) listed services that were not covered by the monthly fee but which Barkley would provide at Gabriel Brothers's request. The fees associated with each Tier 2 service were set forth in the draft 2013 statement of work. The third tier (Tier 3) included services that were to be negotiated on a project-by-project basis because they were of a "greater scale" than the Tier 2 services. Fromm's email concluded, "We would like to set up a call to walk through the attachment together and get our agreement finalized."

         Pesce responded later that day, writing, "Thank you for providing this proposal, this is more in-line with our needs. As I mentioned last week we were able to put fabric on the skeleton for the second half and we're now finished (attached)." Pesce's email included an attached document tit led "2013 Marketing_MediaStrategy_Updated 2 12 13.xlsx, " which outlined Gabriel Brothers's schedule of planned marketing events for the second half of 2013. Pesce indicated that the companies were nearing a final agreement, and a February 21, 2013, conference call was scheduled so that the companies could discuss Gabriel Brothers's updated schedule and Barkley's draft 2013 statement of work.

         Jerrod Mitchell, Barkley's Account Supervisor for the Gabriel Brothers account, sent a pre-call email with a revised draft 2013 statement of work that included the projects listed in Gabriel Brothers's marketing schedule to Fromm, Pesce, and others involved with the negotiations. The email stated that the "[updated] budget now includes all of the latest information that has been provided to [Barkley] on upcoming work for the year."

         Following the conference call, Mitchell sent an email expressing his "excite[ment] about the progress that was made and . . . [his] confiden[ce that] this will set us up for a successful partnership in 2013." Mitchell outlined the "next steps" that the companies planned to take, as he understood them from the information shared during the call. Those steps included verifying the accuracy of the list of projects set forth under Tier 1, updating the prices and services set forth under Tier 2, and adding more information about the services that would be included under Tier 3.

         On March 1, 2013, Barkley sent an email to Gabriel Brothers with the subject "Updated 2013 Gabes SOW." Attached to the email was a revised draft 2013 statement of work that reflected the changes Mitchell had outlined. That draft included changes to Tiers 2 and 3, while Tier 1 remained unchanged and listed the same $58, 333.33 monthly fee that Fromm had proposed in the first draft 2013 statement of work. The email concluded, "If you feel good ...


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