# Petition — Mason v. Burger King Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1134%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1102 ## Text 83-ijtg7 |" No. In the Supreme Court of the United States October Term, 1983 GERALD A. MASON, et al., Petitioners, vs. BURGER KING CORPORATION, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT J. Ropert Oxran, Ese. (Counsel of Record ) BrITTON, COHEN, CASSEL, KAUFMAN & ScHANTz, P.A. 100 S. Biscayne Boulevard, +800 Miami, Florida 33131 Phone: (305) 371-3100 Attorneys for Petitioners E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 QUESTIONS PRESENTED FOR REVIEW I. Is the Decision of the Eleventh Circuit Court in Conflict With the Decisions of Several Circuits and This Court in Gasoline Products, Inc. v. Champlin Refining, 283 U.S. 494 (1931) Insofar As the Trial Judge Ordered a Partial New Trial on the Amount of Damages, When That Issue Was Clearly Not Distinct and Separable From the Issue of Liability? II. Is the Decision of the Eleventh Circuit in Conflict With This Court’s Decision in Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355 (1962), or a Substantial Deparature From the Law Set Forth Therein Insofar As the Trial Judge Failed to Seek a Resolution of the Jury’s Answers Which Would Make Them Consistent? LIST OF PARTIES Allison Park Corp. +1 B-K Foods, Inc. Burger King Corporation Gerald A. Mason Wesley Hardy 4 Donald Szabo Richard D. Peterson Dauphin Foods Corp. +1 Smithfield Corp. +2 Washington Corp. +1 Elkhart =1 Inc. Southbend +1 Inc. State College, P.A. +1 Inc. Lafayette Corporation +1 Lafayette Corporation +2 Hardy Enterprises, Inc. Ill TABLE OF CONTENTS Questions Presented for Review ...............cccccceccceceesseeeeseeee I Be OE TI i ssisedpnkec acccnccctcisdnsobneiiniacemiidisigadaias nie II Te OE I ocsrscccssccsiniesibccccenles eee IV I I oisicvinccnsiesinisntsicciccinadsiaeciaeeaeaiemiaceiaie 1 OG HOMIE on ccesnisscassnssmenipieinncoucstakicumemmanmadeann 1 Argument— I. The decision of the Eleventh Circuit is in conflict with decisions of several circuits and this Court in Gasoline Products, Inc. v. Champlin Refining, 283 U.S. 494 (1931) in- sofar as the trial judge ordered a partial new trial on the amount of damages, when that issue was clearly not distinct and separable from the issue of liability 00.0000... 7 II. The decision of the Eleventh Circuit is in con- flict with this Court’s decision in Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355 (1962), or a substantial departure from the law set forth therein insofar as the trial judge failed to seek a resolution of the jury’s answers which would make them con- RI ceccivnsntinittinnanitsenisgeeeinbiiiamecmpedh ei MIST Ae MEN SS Sate PATA Heo 15 Cees GE NWN ogcckicoccccscrcsenedeobince Eee oem 15 Appendix— Decision of Eleventh Circuit Court of Appeals Ge Fae 0 TT nccieevincecicintinsacteenntavadtanceias Al Order of U. S. District Court, Southern District of Florida dated October 31, 1980 .0..........c.cccccccesesees A47 IV Order of U. S. District Court, Southern District of Florida, dated February 20, 1981 ......... jtochusmivaansodas A50 Order of U. S. District Court, Southern District of Florida, dated May 20, 1981 00... ceeeeeeeeees A52 Findings of Fact and Conclusions of Law of U. S. District Court, Southern District of Florida, (Ss SS eee A55 Findings of Facts and Conclusions of Law of U. S. District Court, Southern District of Florida, Gated November 25, 1061 .................ccs.ccscsscssssessseees A65 Final Judgment of U. S. District Court, Southern District of Florida, dated December 16, 1981 .... A77 Findings of Fact and Conclusions of Law of U. S. District Court, Southern District of Florida, = — fA ena A102 Final Judgment in Favor of Burger King Corp. and Against Defendants on Attorney’s Fees and Expenses, dated June 3, 1982 0.0.0........ccccccceeees All12 Order of U. S. District Court, Southern District of Florida, dated June 29, 1982 .00..0........ccccccccens. A120 Order of U. S. District Court, Southern District of Florida, dated December 30, 1980 2.0... 000000000... Al2l BE eee en ee A123 TABLE OF AUTHORITIES Cases Ajax Hardware v. Industrial Plants Corp., 569 F.2d 181 RE Ee DNR thereat aio tao BSE Ail MOEA 10 Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ue We I I erent ne rin ne 1, 13 Fury v. Shakespeare, 554 F.2d 1376 (5th Cir.1977) ..... 9 Vv Gasoline Products, Inc. v. Champlin Refining, 283 U.S. SURE NMI caticoosephacintsidiass ionipshisecetadiiaasispseonencmudaaemnti aie deaatnetta 1,8 Hadra v. Herman Blum Consulting Engineers, 632 F.2d SP CUS ID icaciciccasatesitasetndinsecantescountasmeeieaaa: ae Lucas v. American Manufacturing Co., 630 F.2d 291 GUEE: APNE CIUNINDT . cisncscanectsicsincssiciniseninacomnssschgicapenhaamsaaeaaal: 9 Miller v. Royal Netherlands Steamship Co., 508 F.2d Be CE NED Giricctrateinincdetsnntignecdcen 13 Williams v. Slade, 431 F.2d 605, 608 (5th Cir.1970) ....8,9, 11 Other Authorities Sy Ge: GD ac Oe eek ee l i: SRR, PNM "ciccslinn'niscacolcshaniien oubcdogemiionaeaieomaeaane Eee 5 a eee ee Rane SNe oe 6 «tt No. In the Supreme Court of the United States October Term, 1983 GERALD A. MASON, et al., Petitioners, VS. BURGER KING CORPORATION, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BASIS FOR JURISDICTION The judgment sought to be reviewed is dated August 1, 1983, and no time was recorded. Rehearing was denied on October 14, 1983. This petition is brought before this Court pursuant to 28 U.S.C. §1254(1). STATEMENT OF THE CASE The Petitioners, GERALD A. MASON, WES HARDY, RICHARD PETERSON and DONALD SZABO, et al. held varying interests in Burger King franchises and develop- ment agreements. Suit was initiated by BURGER KING containing more than thirty counts whereby BURGER KING sought, inter alia, termination of certain development agreements in Pittsburgh, Pennsylvania and Kansas City, Missouri; cancellation of 26 franchise agreements, and the recovery of certain sums allegedly owed on promissory notes, royalties and the like. Counter¢laims and affirma- tive defenses were set forth by the Petitioners. 2 The case was tried before a jury. The nature of the jury’s findings, however, created certain problems. The The first problem related to findings regarding amounts owed. The claim of BURGER KING which was submitted to the jury in Special Issue +1 was based upon five promis- sory notes, with a principal balance in excess of $900,000 and accounts receivable in excess of $600,000. These amounts were not in dispute. Rather, the Petitioners, MASON, et al., had presented certain defenses which, if successful, would have defeated liability. The jury, however, ruled in favor of BURGER KING as to liability in regard to those items, but ignored the amounts in evidence. Instead of awarding a sum in excess of $900,000 on the promissory notes and $600,000 on the accounts receivable, the jury awarded $1.00 and $100,000. Second, the jury’s answers to certain special inter- rogatories appeared to be potentially inconsistent. In par- ticular, the jury responded to Special Issue +5 as follows: “With respect to BURGER KING CORPORA- TATION’s claims regarding termination of the franchise agreements, we the jury find that: “A. BURGER KING CORPORATION properly terminated all of the franchise agreements................. “or “B. BURGER KING CORPORATION wrongfully terminated all of the franchise agreements................. “or “(C.) BURGER KING CORPORATION properly terminated the franchise agreements covering the restaurants listed in Column 1 and wrongfully terminated the franchise agreements covering the restaurants listed in Column 2. 1 2 Franchise Agreements Franchise Agreements _ Terminated Properly Terminated Improperly TAREE R ERE eRe Renee ee ee EER eee ee eee ene ee ee eewenne eer reer i Peter tr reer eer Pe ee Ow eee n ene eee re een eee ee ene eeteeeeeeeeeeeeeieeeee *The jury’s actual writing, with the crossing out of various numbers, is contained in the Appendix at p. Al23. However, the response typed above is an accurate representation of what the jury did. The double lines indicate a number which was crossed out. 4 Subsequent to the jury verdict, BURGER KING filed a Motion for Clarification of the verdict with regard to Special Issues +1 and +2. It sought the entry of an Order awarding the full principal and interest of the Promissory Notes and an additional award of $1.00, and the full amount of the accounts receivable, plus interest, together with an additional award of $100,000.00. In the alternative, BURGER KING moved for the entry of Judgment Not- withstanding the Verdict seeking the full amount of the Promissory Notes and accounts receivable, together with interest thereon. The Petitioners sought to uphold the jury’s verdict, if at all possible, in accordance with the requirements of the Seventh Amendment. Petitioners proposed to the Court a possible explanation of the jury’s verdict, in light of the entire case, which would have permitted the jury’s verdict to stand in its entirety. The District Court, by an Order dated October 31, 1980. denied BURGER KING’s Motion for Clarification as to Special Issues No. 1 and 2 and further denied the Motion for Judgment Notwithstanding the Verdict as to Special Issues No. 1 and 2. The District Court, on its own motion, determined, however, that the jury’s verdicts on those Special Issues decided the issue of liability against the Petitioners but the award of $1.00 on Promissory Notes in the principal amount of $900,000 (totalling in excess of $1,000,000, including interest), and $100,000 on accounts receivable with a book value of over $500,000 (actually totalling in excess of $600,000, including interest) was contrary to the weight of the evidence. The District Court then ordered that a new trial limited to the issue of dam- ages only on these two claims would be held. BURGER KING’s Motion for Judgment Notwithstanding the Ver- dict as to Special Issue No. 5 was denied. However, the 5 District Judge found that he could not ascertain the jury’s response to Special Issue No. 5 regarding the franchises. Without addressing the meaning of the word “NONE” in the “Properly Terminated” column of Special Issue No. 5, the Court directed that a new trial be held with regard to all of Petitioners’ franchises not specifically listed in the “Improperly Terminated” column. Following the court’s Order of October 31, 1980, the Petitioners moved for a new trial on all issues on the grounds that, given the District Court's rulings regarding Special Issues No. 1 and 2, the jury’s verdict regarding those claims indicated a substantial possibility of juror misconduct or confusion, specifically an improper compro- mise verdict. The court denied the Petitioners’ Motion for a New Trial and directed that the new trial would be limited to the issues set forth in the District Court’s Octo- ber 31, 1980 Order. Following the entry of this Order, the Petitioners moved the District Court to amend its Order to certify the order for Interlocutory Appeal, pur- suant to 28 U.S.C. §1292(b). The District Court, by its Order dated February ?4, 1981, denied this motion. On March 6, 1981, BURGER KING moved for Partial Summary Judgment on the damages issues of its claims on the promissory notes and accounts receivable, which were the subject of Special Issues No. 1 and 2, which motion was supported by an affidavit updating the testimony introduced at the first trial concerning the balances due on these obligations as reflected by BURGER KING’s books and records. The Petitioners opposed the motion on the same grounds as had been advanced in opposition to BURGER KING’s Motion for Judgment Notwithstanding the Verdict on these same claims, incorporating all of the arguments advanced in opposition to that motion and the testimony from the first trial in support of those argu- ments (regarding the existence and amount of offsets and credits). The District Court granted BURGER KING’s motion on these claims, converting the jury’s $1.00 award to $1,052,147.70 and the jury’s $100,000 award to $711,544.77. The second jury trial commenced on August 26, 1981. The second jury's verdict found that BURGER KING had properly terminated six of the seven franchise agreements which the jury had considered. Three of these franchises were terminated on grounds identical to those which the first jury held did not justify termination of several other franchises. A bench trial was held on September 2, 1981 wherein it was held by the court that BURGER KING was not en- titled to rescission of certain franchise agreements. On September 21-22, 1981, another trial was heard before the court wherein the court awarded the Petitioners’ net profits to BURGER KING. Following the entry of a final judgment, attorney's fees and costs, Petitioners filed their Notice of Appeal to the Eleventh Circuit on January 10, 1982, and BURGER KING cross appealed. After submission of briefs and hearing arguments, the Eleventh Circuit vacated the award of net profits, but affirmed the trial judge in all other respects. The result in this case was that by virtue of the whit- tling away of the jury’s province by the trial judge and the Eleventh Circuit,* a judgment highly favorable to the Peti- tioners was changed into a nightmare, a total judgment in excess of $3,000,000, and the loss of many franchises in which the Petitioners had invested for many years. *Jurisdiction was pursuant to 28 U.S.C. § 1291. ARGUMENT A THE DECISION OF THE ELEVENTH CIRCUIT IS IN CONFLICT WITH THE DECISIONS OF SEVERAL CIRCUITS AND THIS COURT IN GASOLINE PROD- UCTS, INC. v. CHAMPLIN REFINING, 283 U.S. 494 (1931) INSOFAR AS THE TRIAL JUDGE ORDERED A PARTIAL NEW TRIAL ON THE AMOUNT OF DAMAGES, WHEN THAT ISSUE WAS CLEARLY NOT DISTINCT AND SEPARABLE FROM THE IS.- SUE OF LIABILITY. The issue created by the factual circumstances cited above wherein the jury found in favor of BURGER KING but awarded minimal damages, was whether the trial judge erred in granting a partial new trial limited solely to the issue of the amount of damages. The position advanced by MASON was that granting a partial new trial was error in view of the jury’s award of negligible sums in the face of findings in favor of BURGER KING on liability. MASON had submitted that the jurors’ conduct was indicative of a compromise verdict, an agreement to rule in favor of BURGER KING but to award nominal damages, especially in view of the undisputed amounts asserted in relation to the claimed liability. The panel which heard this case in the Eleventh Cir- cuit denied MASON’s position. It did so despite an initial restatement of the applicable law as follows: “It is axiomatic, however, that a partial new trial may not be granted if it would infringe upon a litigant’s seventh amendment right to a jury trial. In Gasoline Products v. Champlin Refining Co., 283 U.S. 494, 513, 75 L.Ed. 1188 (1931), the Supreme Court enunciated the standard which governs partial new trial practice: {[w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. “Id. at 500, 51 S.Ct. at 515, 75 L.Ed. at 1191. Apply- ing Champlin Refining the former Fifth Circuit Court of Appeals held that a jury verdict influenced by an improper compromise cannot stand and a complete new trial is required because liability and damages are inseparable. See, e.g., Lucas v. American Manu- facturing Co., 630 F.2d 291, 294 (Sth Cir.1980); Hat- field v. Seaboard Air Line R.R. Co., 396 F.2d 721, 724 (5th Cir.1968). Hence, if there is a compromised finding on liability, a separate trial on damages alone will not suffice—both liability and damages must be litigated in a new trial.” Id. The nature of the decision of the appellate court is such that it meets some of the suggested bases for certiorari jurisdiction. Specifically, it is in direct conflict with deci- sions of this Court, the Fifth Circuit and the Second Circuit. The basic rule regarding granting a partial new trial was set forth in Gasoline Products, Inc. v. Champlin Refin- ing, quoted above. The meaning of that rule has been established by several decisions of the Fifth Circuit. In Williams v. Slade, 431 F.2d 605, 608. (5th Cir.1970), the court stated: “In other words, a court may properly award a par- tial new trial only when the issue affected by the error 9 could have in no way influenced the verdict on those included in the new trial. If the decision on the other issues could in any way have been infected by the error, then a new trial must be had on all issues.” (Emphasis supplied ) The court in Williams v. Slade also quoted with ap- proval the following passage: ‘‘We have power in an appropriate case to remand only for redetermination of the amount of damages, excluding from the scope of a new trial the question of liability, see Washington Gas Light Company v. Connolly, 94 U.S. App.D.C. 156, 214 F.2d 254, and cases there cited. But our power in this regard is to be exercised with caution and not when the error which necessitates a new trial is in respect of a mat- ter which might well have affected the jury’s deter- mination of other issues. Cf. Thompson v. Camp, 6 Cir., 167 F.2d 733. Here it appears from the record as a whole that the interests of justice will be best served by a new trial on all issues. * * *” 244 F.2d at 376. (Emphasis supplied). Likewise, in Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980) the court stated: “Where, as here, the issues of liability and damages were tried together and there are indications that the jury may have rendered a compromise verdict, the Court should grant a new trial on all issues rather than one limited solely to the issues rather than one _limited to solely the issue of damages.” (At 294; Em- phasis added). Furthermore, in Fury v. Shakespeare, 554 F.2d 1376 (5th Cir.1977), the court stated: 10 “We also have decided that a new trial is required on the issue of compensatory damages. Because this issue is so intimately intertwined with issues of li- ability . . . justice requires that a new trial be held on all issues.” The Second Circuit has also stated the governing rule in a similar manner, requiring a new trial on all matters if there was a reasonable possibility of a compromise ver- dict. Ajax Hardware v. Industrial Plants Corp., 569 F.2d 181 (2d Cir.1977). The prevailing rule, as initially stated by this Court and applied by various Circuit Courts is that a new trial on the issues of both liability and the amount of damages should be granted if the apparent error “could have” or “might well have” influenced other findings or where “there are indications” of a compromise verdict. The thrust of the prevailing rule is significant. It is that where a compromise is possible (‘could have,” “might well have influenced,” or “indication”’) a new trial should encompass all issues which could have possibly been affected by the error which is indicative of compromise. The Eleventh Circuit has completely reversed the existing rule. The possibility or indication of compro- mise is no longer the basis for a new trial on the related issues of both liability and damages. The new test moves in the opposite direction. The court looked for, not an in- dication of possible error affecting the entire decision, but for a possible explanation of the jury’s conduct, stat- ing in part: “It is possible that the jury thought BKC would re- ceive payment on the promissory notes and accounts based solely on their finding that BKC was entitled to recover for these items and, therefore, any ad- 11 ditional findings of ‘damages’ would simply amount to a duplication.” The thrust of the new rule is that where a possible explanation can be provided, only a partial new trial should be granted.* This is the direct opposite of the prevailing rule which said that if there was any indication of com- promise, a complete new trial should be granted. Mere speculation as to possible explanations was not sufficient to deny a total new trial in the face of indications of con- duct affecting the entire decision. The possibility of compromise no longer governs, and “indications” of compromise are no longer significant; and the fact that the error (a clearly inappropriate damage award) “might have” or “could have affected other issues” is now subservient to speculation based upon “the totality of the circumstances.” The court attributed this test to Williams v. Slade, supra. Such language does appear in Williams at page 609. However, it is clear that when one reads the pertinent portion of the decision, it is simply an explanatory passage, perhaps not as clear as one would desire, which does not alter the test set forth on lines 30-35, at page 608, quoted above. In other words, the court can examine the totality of circumstances to deter- mine whether the error could have influenced the verdict. A general examination of the totality of circumstances in order to search for any possible explanation is not the ap- propriate test. Restated, a court may properly examine the totality of the circumstances, but toward what end? *The appellate panel cited only Hadra v. Herman Blum Con- sulting Engineers, 632 F.2d 1242 (5th Cir.1980) in support of its holding. In Hadra the Court stated that the issue excluded from the new trial was logically independent of the alleged source of compromise and the appellant conceded that there was no likeli- hood of jury misconduct. 12 The prevailing rule directed the examination toward dis- covering any indication that the error affected other issues such as liability, thereby mandating a complete new trial. The new rule directs an examination toward discovering any possible explanation which will then serve as a basis for denial of a complete new trial. This shift in emphasis is not a mere question of degree. Rather, it directly reverses the old rule, creates conflict with the decisions quoted above, and creates considerable confusion for any trial judge faced with this question. II. THE DECISION OF THE ELEVENTH CIRCUIT IS IN CONFLICT WITH THIS COURT’S DECISION IN ATLANTIC AND GULF STEVEDORES, INC. v. ELLER- MAN LINES, 369 U.S. 355 (1962) OR A SUBSTANTIAL DEPARTURE FROM THE LAW SET FORTH THERE. IN INSOFAR AS THE TRIAL JUDGE FAILED TO SEEK A RESOLUTION OF THE JURY’S ANSWERS WHICH WOULD MAKE THEM CONSISTENT. Another issue decided adversely to MASON by the appellate panel was whether the trial judge could have reconciled the jury’s findings that “NONE” of the MASON franchises were properly terminated with an apparent find- ing that some were improperly terminated. The pertinent special issue was constructed as follows: SPECIAL ISSUE NO. 5 With respect to BURGER KING CORPORATION’s claims regarding termination of the franchise agree- ments, we the jury find that: A. BURGER KING CORPORATION properly termi- nated all of the franchise agreements. 13 or B. BURGER KING CORPORATION wrongfully terminated all of the franchise agreements, or C. BURGER KING CORPORATION properly ter- minated the franchise agreements covering the restau- rants listed in Column 1 and wrongfully terminated the franchise agreements covering the restaurants listed in Column 2. The jury did not check categories A or B. Rather, it turned to category C which had a column for franchises properly terminated and a column for franchises wrong- fully terminated. There was a great deal of listing in each column and subsequent crossing out. (The jury’s work product is contained in the Appendix). Ultimately, after much crossing out, under the column designating proper termination, the jury wrote in the word “None”. However, the jury had apparently not completed the process of crossing out specific numbers under the contrary column. The Eleventh Circu.t disregarded the basic rule of law which governs this type of situation; namely, this Court’s pronouncement in Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355 (1962): “Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury’s findings inconsistent results in a collision with the Seventh Amendment.” (At 364; Emphasis supplied). This principle has been explicitly incorporated in Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103 (5th Cir. 1975). 14 There is a view of the case which explains the apparent inconsistency, and discounts the reasoning of the Eleventh Circuit. It is readily apparent that the jurors initially re- jected alternatives A and B (all yes or all no). Turning to C, they began to enter various franchise numbers under two columns designating proper termination or wrongful termination. Subsequently, they did much crossing out. Then they entered the word “None” under the column for proper termination. At that point, they decided that their position was clear and their work was finished and left the answers in their existing form. The Eleventh Circuit overlooked an extremely prob- able scenario and failed to apply the governing rule, namely that when reconciliation of special interrogatories is pos- sible, the court should do so in order to preserve the right provided by the Seventh Amendment. Therefore, the ruling below constitutes a substantial departure from the law which conflicts with a previous decision of this Court. 15 CONCLUSION Wherefore, based upon the foregoing, this Court should issue a writ of certiorari. Respectfully submitted, BRITTON, COHEN, CASSEL, KAUFMAN & SHANT2Z, P. A. 100 S. Biscayne Blvd., +800 Miami, Florida 33131 Phone: (305) 371-3100 Attorneys for Petitioners By J. Ropert OLIAN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Writ of Certiorari was furnished by mail to ANDREW C. HALL, ESQ,., Hall and O’Brien, P.A., Brickell Concours, +200, 1401 Brickell Avenue, Miami, Florida 33131; and LEE N. ABRAMS, ESQ., Mayer, Brown & Platt, Co-Counsel for Respondent, 231 S. LaSalle St., Chicago, Illinois 60604, this 29th day of December, 1983. J. Ropert OLIAN Al APPENDIX DECISION OF ELEVENTH CIRCUIT COURT OF APPEALS (Dated August 1, 1983) BURGER KING CORPORATION, Plaintiff-Appellee, Cross-Appellant, Vv. Gerald A. MASON, et al., Defendants-Appellants, Cross-Appellees. BURGER KING CORPORATION, a Florida Corporation, Plaintiff-Appellee, Counter-Defendant, Cross-Appellant, Vv. Gerald A. MASON, et al., Defendants-Appellants, Counter-Plaintiffs, Cross-Appellees. Nos. 82-5066, 82,5803. United States Court of Appeals, Eleventh Circuit. Aug. 1, 1983. Franchisor sued franchisee upon various claims, and the franchisee sought on appeal to reverse portions of the final judgment of the United States District Court for the Southern District of Florida at Miami, Edward B. Davis, J. The franchisor filed cross appeals to certain adverse rulings. Franchisee also filed separate appeal from at- torney’s fee award and franchisor cross appealed on such issue. The Court of Appeals, Albert J. Henderson, Circuit Judge, held that: (1) compromise verdict was not in- dicated and district court did not abuse discretion in or- A2 dering new trial only on issue of damages; (2) where jury’s choice of one alternative was inconsistent with its finding that no franchise had been properly terminated and jury’s answer did not resolve disposition of over half of the franchises, trial court properly declined to supply facts submitted for jury’s determination but left un- answered; (3) instruction to jury that franchise could not be revoked absent a “material” breach of the particular agreement comported with substantial Florida case law: (4) where franchisor consented to use of trademark pro- vided that franchisor retained its right to seek damages upon later determination of its right to cancel any or all of remaining franchises, trial court could find that fran- chisee “ratified” such proposal and therefore was estopped from claiming that franchisor had agreed to trademark use; (5) continued trademark use by one whose trade- mark license had been cancelled satisfied likelihood of confusion test and constituted trademark infringement; but (6) record failed to support finding that profits earned by franchisee equaled franchisor’s damages from breach by franchisee, and thus award of profits as compensatory damages for breach of contract was error. Attorney's fees award made pursuant to Florida statute vacated, and damages assessed for breach of franchise agreements vacated; case remanded with directions; judg- ment otherwise affirmed. 1. Jury (Key) 31(7%2) Partial new trial may not be granted if it would in- fringe upon litigant’s Seventh Amendment right to jury trial, and it must clearly appear that issue to be retried is so distinct and separable from others that trial of it alone may be had without injustice. U.S.C.A. Const.Amend. 7: Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. A3 2. Federal Civil Procedure (Key) 2315 If there is compromised finding on liability, separate trial on damages alone will not suffice, and both liability and damages must be relitigated in new trial. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. 3. Federal Civil Procedure (Key) 2194 Nominal or inadequate finding of damages by itself does not automatically mandate conclusion that award was product of compromise verdict and, rather, inquiry must concentrate on any indicia of compromise apparent from the record and other factors which may have caused jury to return verdict for inadequate damages. Fed.Rules Civ. Proc.Rule 59 (a), 28 U.S.C.A. 4. Federal Civil Procedure (Key) 2315 Only if “totality of the circumstances” indicates that is- sue sought to be excluded by partial new trial is not sep- arable from error in damage award will plenary new trial be authorized. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. 5. Federal Civil Procedure (Key) 2315 Where jury repeatedly found that defendant failed to establish its affirmative defenses, which was only basis on which defendant could escape liability, and where sole in- dication of jury compromise was low amount of damages and jury required only two to three hours to reach verdict after long, protracted trial, and where award could only be explained by reference to use of term “damages” on special interrogatories, compromise verdict was not indi- cated and district court did not abuse discretion in order- ing new trial only on issue of damages. Fed.Rules Civ.Proc. Rule 59a), 28 U.S.C.A. A4 6. Federal Courts (Key) 825 Even though more stringent appellate review is called for when trial court orders new trial, abuse of discretion standard controls appellate consideration of the decision. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. 7. Federal Civil Procedure (Key) 2197 Trial judge must make all reasonable efforts to recon- cile inconsistent jury verdict, and if there is view of case which makes jury’s answers consistent, court must adopt that vi:w and enter judgment accordingly. 8. Federal Civil Procedure (Key) 2192 Test employed in determining whether conflict in ver- dict can be reconciled is whether answers may fairly be said to represent logical and probable decision on relevant issues as submitted, but if jury’s answers are so am- biguous or conflicting that they cannot be reconciled fairly, trial court may not enter judgment thereon. 9. Federal Civil Procedure (Key) 2237 Special verdict which does not resolve essential facts or which does so in inexplicable fashion will not support judgment, and trial judges are not empowered to fill in facts omitted from answer to special interrogatory. 10. Federal Civil Procedure (Key) 2240 When insurmountable inconsistency or ambiguity in jury verdict is perceived, trial court may resubmit issue to jury before it is dismissed, or order new trial on some or all of the issues. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. A5 11. Federal Civil Procedure (Key) 2216 Because of risk of inconsistency and ambiguity which accompanies use of special interrogatories, attorneys should pay careful attention insuring that acceptable verdict has been rendered before jury is discharged from case. 12. Federal Civil Procedure (Key) 2240 In suit arising out of franchise operation, wherein jury’s choice of one alternative was inconsistent with its finding that no franchise had been properly terminated and jury’s answer did not resolve disposition of over half of the franchises, trial court properly declined to supply facts submitted for jury’s determination but left un- answered. Fed.Rules Civ.Proc.Rule 59(a), 28 U.S.C.A. 13. Contracts (Key) 261(1), 321(2) Mere breach of agreement which causes no loss will not sustain suit for damages, much less rescission. 14. Contracts (Key) 261(2) Although as general rule parties to contract may strictly enforce its terms and courts will not rewrite agree- ment to undo consequences of bad bargain, unilateral ter- mination of contracts is not blindly sanctioned when de- fault causes no harm to party seeking to avoid performance. 15. Contracts (Key) 353(7) Instruction to jury that franchise could not be revoked absent a “material’’ breach of the particular agreement comported with substantial Florida case law. A6 16. Federal Courts (Key) 781 Given possible ambiguity in state judicial precedent, Court of Appeals deferred to district judge’s interpretation of law of state in which he presided. 17. Trade Regulation (Key) 540 Ordinarily, trademark infringement cases are pred- icated on complaint that defendant employed trademark so similar to that of plaintiff that public will mistake defen- dant’s products for those of the plaintiff. Lanham Trade- Mark Act, § 32(1) (a), 15 U.S.C.A. § 1114(1) (a). 18. Trade Regulation (Key) 334 Falsely suggesting affiliation with trademark owner in manner likely to cause confusion as to source or sponsorship constitutes infringement. Lanham Trade-Mark Act, § 32 (1) (a), 15 U.S.C.A. § 1114(1) (a). 19. Trade Regulation (Key) 338 Unauthorized use of trademark which has effect of misleading public to believe that user is sponsored or ap- proved by registrant can constitute infringement. Lanham Trade-Mark Act, § 32(1) (a), 15 U.S.C.A. § 1114(1) (a). 20. Trade Regulation (Key) 112 Where trademark registrant consented to use of trade- mark provided that registrant retained its right to seek damages upon later determination of its right to cancel any or all of remaining franchises, trial court could find that franchisee “ratified” such proposal and therefore was es- topped from claiming that registrant had agreed to trade- mark use. Lanham Trade-Mark Act, § 32(1)(a), 15 U.S.C.A. § 1114(1) (a). A7 21. Trade Regulation (Key) 338 Continued trademark use by one whose trademark li- cense had been cancelled satisfied likelihood of confusion test and constituted trademark infringement. Lanham Trade-Mark Act, $$ 1 et seq., 32(1) (a), 35, 15 U.S.C.A. §§ 1051 et seq., 1114(1) (a), 1117. 22. Trade Regulation (Key) 598 Trial court could find that franchisor did not prove with sufficient certainty that continued operation after termination of franchise caused purported injury. 23. Damages (Key) 6 Wrongdoer cannot escape liability simply because harm he caused is difficult to value, but plaintiff must make positive showing that defendant was in fact respon- sible for the alleged damages. 24. Damages (Key) 28 Award of infringer’s profits can be appropriate mea- sure of damages for federal or state trademark infringe- ment but disgorgement of profits earned is not remedy for breach of contract and, under Florida law, contract plain- tiff may recover damages in amount which will place him in position that he would have obtained but for the breach or the damages that are the natural and proximate result of the default, subject to the rules of foreseeability and certainty. 25. Damages (Key) 189 Record failed to support finding that profits earned by franchisee equaled franchisor’s damage from breach by franchisee, and thus award of profits as compensatory dam- ages for breach of contract was error. A8 26. Damages (Key) 40(1) Accounting of profits may be appropriate to prevent unjust enrichment of trademark infringer, but does not compart with compensatory nature of breach of contract damages. 27. Trade Regulation (Key) 672, 683 Damages provision of Lanham Act vests considerable discretion in district court, and, guided by principles of equity, court may award defendant's profits, and additional extraordinary relief such as treble damages and attorney's fees are available under statute if district court believes that such assessment would be just. Lanham Trade-Mark Act, § 35, 15 U.S.C.A. § 1117. 28. Trade Regulation (Key) 725 Remedial accommodation provided by damages pro- vision of Lanham Act envisions exercise of trial judge's dis- cretion, and it would be inappropriate for reviewing court to attempt determination of damages in first instance. Lan- ham Trade-Mark Act, § 35, 15 U.S.C.A. § 1117. 29. Trade Regulation (Key) 682 Award of attorney’s fees for violation of Lanham Act is proper only in “exceptional cases” and the elements of bad faith or fraud must be present to support the same. Lanham Trade-Mark Act, § 35, 15 U.S.C.A. § 1117. 30. Trade Regulation (Key) 683 There is no automatic right to enhance damages for Lanham Act violation. Lanham Trade-Mart Act, § 35, 15 U.S.C.A. § 1117, A9 31. Trade Regulation (Key) 673 Although accounting of profits can be effective means to prevent unjust enrichment of trademark infringer, all monetary awards under damages provision of Lanham Act are subject to principles of equity. Lanham Trade- Mark Act, § 35, 15 U.S.C.A. § 1117. 32. Federal Civil Procedure (Key) 2737.5 Where it was provided in development agreements that in the event developers disputed franchisor’s termi- nation of agreement and legal action was commenced developers would indemnify and reimburse franchisor for costs and attorney’s fees in successfully “defending such action,” term “action” near end of provision meant legal action as opposed to “action” of terminating agreements in general, but where in response to franchisor’s general com- plaint developers contended that development agreements had been illegally cancelled and filed counterclaim for specific performance and damages for wrongful termina- tion, franchisor was placed in position of defending lawsuit for wrongful termination of development agreements, and situation was squarely within terms of attorney's fee pro- vision. 33. Costs (Key) 10 Under Florida law, contract which provides for pay- ment of attorney’s fees is binding and must be enforced by trial court. 34. Federal Civil Procedure (Key) 2737.5 In view of overlapping of issues, some of which were compensable and some of which were not compensable under contract provision for payment of attorney’s fees, Al0 and in view of district court judge’s opportunity to esti- mate amount of lawyer time devoted to various issues be- fore him, fee awarded to franchisor pursuant to develop- ment agreements satisfied reasonableness standard. 35. Costs (Key) 173(1) Under Florida statute providing for reasonable attor- ney’s fee award to prevailing party, there must be finding by the court that there was complete absence of justiciable issue raised by losing party, and same was true even where it was obvious to reviewing court that, by award- ing fees pursuant to the statute, the trial judge found that claims met statutory standard. West’s F.S.A. § 57.105. 36. Costs (Key) 173(1) Attorney’s fees can be granted under Florida statute when claims have been dismissed or defeated as long as no justiciable issues of law or fact were raised by the claims, and although dismissal by itself will not support award, voluntary dismissal is not bar to award of attor- ney’s fees under the statute. West's F.S.A. § 57.105. 37. Costs (Key) 173(1) Notwithstanding Florida statute providing for award of reasonable attorney's fee to prevailing party in any civil action in which court finds that there was complete absence of justiciable issue raised by losing party, there is no Florida authority to justify, much less mandate, award for services of house counsel as part of attorney’s fees. West's F.S.A. § 57.105. 38. Costs (Key) 10 Under Florida law, contract provision which specifies that attorney’s fees must be paid in event of litigation All is enforceable as agreement for indemnification, and where franchisor did not have to pay out additional money for services of its house counsel, it could not claim “reimburse- ment” for prorata share of fixed corporate expense. West's F.S.A. § 57.105. Appeals from the United States District Court for the Southern District of Florida. Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. ALBERT J. HENDERSON, Circuit Judge: Following approximately five years of litigation in the United States District Court for the Southern District of Florida encompassing two jury trials, one bench trial and countless motions and hearings, the appellants, a group of investors including Gerald Mason, Wesley Hardy, Donald Szabo and Richard Peterson (hereinafter collectively re- ferred to as ‘“Mason”) by this appeal, seek to reverse por- tions of the final judgment. The Burger King Corporation (“BKC”), the original plaintiff in the action, filed a cross- appeal to certain adverse rulings of the district court. Mason also filed a separate appeal from the attorney’s fee award and BKC again cross-appealed on this issue. After an exhaustive review of the evidence and each assignment of error, we affirm in part and remand in part for further proceedings. I. Introduction BKC, one of the largest franchisors of fast-food res- taurants in the United States, maintained a business rela- tionship with Mason for many years. As a result of this relationship, Mason acquired the right to establish Burger King restaurants in two major metropolitan areas and to Al2 develop other restaurants throughout the United States during the 1970's. Mason's territorial rights derived from two development agreements between the parties by which Mason obtained the exclusive authority to establish Burger King franchises in Pittsburg and Kansas City. Over the years Mason purchased at least twenty-seven Burger King franchises under separate agreements. In connection with the development of some of the franchises, BKC provided financing to Mason for which Mason executed promissory notes. Mason incurred additional obligations for payments due under certain lease agreements with BKC, for supplies furnished on account and for royalties due under the fran- chise agreements. (The leases, accounts for supplies and royalties will be referred to as the “accounts”. ) The long standing Mason-BKC business association began to deteriorate in 1977 when BKC notified Mason of the cancellation of the two exclusive development agree- ments. In 1978, BKC filed this suit seeking a declaration that it had properly terminated the development contracts. Mason responded with a counterclaim for reinstatement and damages for the revocation. Afterwards, in 1979, BKC informed Mason that it was unilaterally terminating all twenty-seven of its Burger King franchises for failure to comply with the terms of the franchise agreements. Even- tually, through amendments to the complaint and counter- claim, the suit filed in 1978 expanded to controversies concerning both the development and franchise agreements as well as demands arising from Mason’s liability on the promissory notes and the accounts. In 1980 the case came on for trial and the issues were submitted to the jury on special interrogatories. The jury found that the development contracts were validly can- celled but that BKC wrongfully terminated twelve of the franchise agreements. Because of the equivocal nature Al3 of the jury’s verdict as to the remaining fifteen franchise terminations, the district court ordered a new trial on those agreements. The court also granted a new trial to BKC for a computation of damages resulting from Mason’s lia- bility on the promissory notes and accounts, Since there Was no genuine issue of fact as to the amount due on the promissory notes and accounts, the district court thereafter entered a summary judgment in favor of BKC for those damages. Before the second jury trial, BKC conceded its error in terminating one of the fifteen franchises left for trial. Also, during the second trial, the district court sus- tained, as a matter of law, the revocation of seven of the franchises. Thus, by concession or court order, eight of these fifteen terminations were eliminated from the jury’s consideration. After the second trial in 1981, the jury found that BKC validly terminated six of the remaining franchises. Consequently, Mason prevailed in its efforts to nullify the terminations of fourteen of its franchises and BKC successfully defended the cancellation of thirteen franchise agreements. Subsequent to the second jury trial, the district court held a bench trial on BKC’s claims for common law trade- mark infringement, unfair competition and breach of the franchise agreements based upon Mason’s post-termination use of the Burger King trademarks. The court awarded to BKC the profits earned from the franchises previously found to have been lawfully terminated for the breach of the franchise agreements. Finally, the district court conducted a hearing on BKC’s application for attorney’s fees. The court awarded fees in accordance with the provisions of the development agreements, the notes, the leases and a Florida statute. Al4 II. The 1980 Jury Verdict In attacking the trial judge’s resolution of the 1980 jury verdict, Mason challenges the grant of a new trial limited to the issue of BKC’s damages on the promissory notes and the accounts, Second, Mason. asserts that the district court also erred in ordering a new trial for a deter- mination of the validity of BKC’s cancellation of the fran- chises not listed on the jury’s verdict form. A. Did the jury compromise? In its answer to Special Issue = 1, the jury found in favor of BKC on the promissory notes (valued at approx- imately $1,000,000.00), rejecting Mason's affirmative de- fenses thereto.! However, it awarded BKC only $1.00 as damages. Responding to Issue = 2, the jury sustained BKC’s right to recover on the accounts (valued at approx- imately $500,000.00) and found against the affirmative de- fenses. BKC was awarded $100,000.00 as “damages’’ for this item Neither party brought these inconsistent results to the district court’s attention until after the jury had been discharged and it was too late to resubmit the damages question to the jury. BKC eventually filed a motion for a clarification of the jury verdict on the promissory notes and the accounts. By this motion, BKC sought a judgment for the face amount of the debts, as shown by the evidence, plus the “damages” awarded by the jury. Alternatively, BKC moved for a judgment notwithstanding the verdict 1. As affirmative defenses to liability on the notes and the accounts, Mason claimed that (1) BKC was guilty of economic coercion; (2) BKC fraudulently induced Mason to incur the liabilities; and (3) Mason was entitled to a set-off for the full amount of the obligations because BKC wrongfully terminated the development agreements. These contentions were also the subject of Mason's counterclaim, Al5 for the full amount of the obligations. The district court denied both motions and, instead, ordered a new trial lim- ited to a computation of BKC’s damages on the promissory notes and the accounts. Subsequent to this order, BKC filed a motion for summary judgment supported by affi- davits establishing its entitlement to the full amount of the debts. Since Mason submitted no evidence in opposi- tion to the affidavits, the district court granted judgment to BKC for these liquidated amounts. Mason contends that the jury’s inadequate award of damages signifies an improper compromise verdict because three was no dispute as to the correct amount due on the notes and accounts. Mason therefore claims that the liabil- ity and damages issues were inseparable and the trial judge erred in restricting a new trial to the question of damages. Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.’’ The decision whether to grant a new trial is discretionary with the district court and will not be re- versed absent an abuse of that discretion. See, e.g., Franks v. Associated Air Center, Inc., 663 F.2d 583, 586 (5th Cir. 1981); Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980);* Young v. International Paper Co., 322 F.2d 820, 822 (4th Cir.1963). [1,2] Itis axiomatic, however, that a partial new trial may not be granted if it would infringe upon a litigant’s seventh amendment right to a jury trial. In Gasoline Prod- ucts v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1930), the Supreme Court enunciated the stan- dard which governs partial new trial practice: 2. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981. Al6 {w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly ap- pears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. Id. at 500, 51 S.Ct. at 515, 75 L.Ed. at 1191. Applying Champlin Refining, the former Fifth Circuit Court of Ap- peals held that a jury verdict influenced by an improper compromise cannot stand and a complete new trial is re- quired because liability and damages are inseparable. See, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291, 294 (5th Cir.1980); Hatfield v. Seaboard Air Line R.R. Co., 396 F.2d 721, 724 (5th Cir.1968). Hence, if there is a com- promised finding on liability, a separable trial on damages alone will not suffice—both liability and damages must be relitigated in a new trial. Id. [3, 4) With this admonition in mind, we focus our attention on whether the district court abused its discre- tion in rejecting the compromise claim. ‘“A compromise verdict is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Freight Terminals Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, a review of the cases from the former Fifth Circuit Court of Appeals establishes that a nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1247 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); Davis v. Becker & Associates, Inc., 608 F.2d 621 (5th Cir.1979); Bassett Furniture Industries of North Carolina, Inc. v. NVF Co., 576 F.2d 1084, 1094 (5th Cir.), reh. denied with opinion, 583 F.2d 778 (5th Cir.1978); Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). In- Al7 deed, if inadequate damages was the sole test for a com- promise, Rule 59(a) would have little or no purpose. Rather, our inquiry must concentrate on any indicia of compromise apparent from the record, Hatfield, 396 F.2d 721, 723-24, and other factors which may have caused the jury to return a verdict for inadequate damages. See Hadra, 632 F.2d 1242, 1244n. 1. Only if the “totality of the circumstances” indicates that the issue sought to be ex- cluded by a partial new trial is not separable from the error in the damage award, will a plenary new trial be au- thorized. See Williams v. Slade, 431 F.2d 605, 609 (5th Cir.1970). Two former Fifth Circuit cases offer instructive ex- amples of situations where the record contained adequate indications of compromise to warrant a complete new trial, In Hatfield, the court held that a jury verdict finding liability and awarding $1.00 in damages was the result of a compromise. The court found that under all the circumstances, including the jury’s confusion con- cerning contributory negligence and the fact that it took two days to return a verdict, there was strong support for the conclusion that the inadequate award of damages was the culmination of a compromise among the jurors. The former Fifth Circuit again determined that the jury probably compromised in Lucas v. American Manufac- turing Co., 630 F.2d 291 (5th Cir.1980). In Lucas, the trial judge admonished the jury to return a verdict quickly because a hurricane was approaching the city. The jury did so, but after finding the defendant liable, awarded the plaintiff patently inadequate damages. On appeal, the Fifth Circuit remanded for a new trial on liability and damages. The court reasoned that in their haste to decide the case before the arrival of the hurricane, the jurors probably compromised, agreeing to find liability only if the damages were kept to a minimum. Al8 By contrast, the court has rejected the compromise theory when the record discloses another basis for the improper award. For example, in Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981), the jury found that the defendant had breached the plaintiff's employment contract but awarded no damages. The district court ordered a new trial confined to the plaintiffs’ claim of damages for the breach. The Fifth Circuit affirmed the grant of a partial new trial. The court rejected the defendant’s contention that the jury verdict was the product of a compromise, thereby affirm- ing the district court’s explanation that the failure to afford monetary relief could have resulted from an im- proper determination that the plaintiff failed to mitigate his damages by accepting alternative employment. See 632 F.2d at 1244, n. 1. In Hadra, the court emphasized that the defendant pointed to ‘no circumstances, such as those listed in Hatfield, that indicate the possibility of a compromise verdict ...”. Id. at 1246. Consequently, since there was sufficient evidence to support the jury’s finding of liability, the court held that it was proper to order a new trial limited to damages. [5] The record before us confirms our belief that the liability and damages issues were also separable in this instance. First, and foremost, the jury repeatedly found that Mason failed to establish its affirmative de- fenses, the only basis upon which Mason could escape liability. It did so in finding against Mason on the prom- issory notes and accounts; it rejected the affirmative de- fenses again when they were asserted as grounds for setting aside the terminations of the development agree- ments; and once more when they constituted the founda- tion for the counterclaim against BKC. We can come Al9 to no other conclusion than that the jury did not believe Mason’s allegations of economic coercion, fraudulent in- ducement or wrongful termination of the development agreements. Having clearly convinced the jury that these claims lacked merit, BKC should not have to defend against them again. Second, the record contains abso- lutely no indicia of a compromise other than the low amount of damages. After a long, protracted trial, the jury required only two to three hours to reach its ver- dict. It obviously was not deadlocked. The jury did not request additional instructions or attempt to qualify its verdict in any manner. Finally, as BKC points out, the award could be explained by reference to the use of the term “damages” on the special interrogatories. It is possible that the jury thought that BKC would receive payment on the promissory notes and accounts based solely on their finding that BKC was entitled to recover for these items and, therefore, any additional finding of “damages” would simply amount to a duplication.® The “totality of the circumstances” simply do not point to a compromise verdict. Viewed in this factual and procedural setting, the district court did not abuse its discretion in ordering the partial new trial. B. Franchise Termination Verdict Form Special Issue = 5 sought a determination of the validity of BKC’s terminations of Mason's franchise agreements. The jury could find: (a) BKC properly terminated all of the agreements; (b) BKC wrongfully terminated all of the agreements; or (c) BKC properly terminated the 3. BKC offered alternative verdict forms which asked the jury to designate the amount of Mason’s “liability” on the various obligations. The term “liability” would have more accurately re- flected the nature of the recovery. Thus, although the proffer was rejected, BKC did attempt to avoid the potentially confusing reference to “damages”. A20 franchises listed in column one and wrongfully terminated the franchises listed in column two. The jury circled alternative (c), but after designating some franchise num- bers under the properly terminated column, crossed them out and wrote “none”. The jury specified only twelve of the twenty-seven franchise agreements at issue in the wrongfully terminated column.* Again, neither party requested that the issue be re- submitted to the jury for clarification. As a result, the jury was discharged without the opportunity to correct these inconsistencies, leaving the district court with the difficult task of interpreting the verdict. In a post trial motion, BKC sought a judgment notwithstanding the ver- dict, claiming that the evidence established that all of the franchises had been properly cancelled. Alternatively, BKC asked for a new trial on all of the franchise termi- nations. As expected, Mason took the opposite position, asserting that the verdict correctly found that all of the franchises were wrongfully terminated. The district court rejected all of those contentions, instead ordering a new trial for the restaurants which were not listed in either column. In its order, the court stated that “[i]t [was] very uncertain ... whether [the jury] made any deter- mination as to the other restaurants [not listed] .. . [and] it would not serve the best interests of justice for the court to attempt to read the jury’s mind in an effort to resolve this ambiguity.” R. 3136. Mason faults the trial court for its failure to construe these responses as a finding that all of the franchises had been wrongfully terminated. Emphasizing the dis- trict court’s duty to attempt to reconcile inconsistent special verdicts, Mason claims that the district court was 4. The jury’s answer to Special Issue # 5 is reproduced as an appendix to this opinion. A2l required to so conclude because the jury’s answer that “none” were properly cancelled obviously indicates that the jury decided that all twenty-seven terminations were without legal cause. Mason makes this argument in spite of the fact that the jury did not select that alternative on the verdict form and only identified twelve franchises in that category. (6) As stated before, the district court has authority under Rule 59(a) of the Federal Rules of Civil Procedure to order a partial new trial. Even though more stringent appellate review is called for when the trial court orders a new trial, the abuse of discretion standard still controls our consideration of the decision. See, e.g., Williams v. City of Valdosta, 689 F.2d 964, 974 (11th Cir.1982); Rabun v. Kimberly-Clark Corp., 678 F.2d 1053 (11th Cir.1982). {7-11} 1. Plaintiff's motion for clarification of the jury ver- dict as to Special Issues No. 1 & 2. 2. Plaintiff's motion for a judgment notwithstanding the verdict as to Special Issues No. 1 & 2. 3. Plaintiff's motion for a judgment notwithstanding the verdict as to Special Issue No. 5. 4. Plaintiff's motion for a new trial as to Special Issue No. 5. 5. Plaintiff's motion for a judgment notwithstanding the verdict as to Special Issue 6. A48 The Court has reviewed these motions and the memo- randa submitted in their support, as well as the papers filed in opposition. In addition, the Court has had the benefit of oral argument on these matters. Based upon an evaluation of the arguments presented, in light of the entire record in this cause, it is ORDERED AND ADJUDGED as follows: 1. The motion for clarification of the jury verdict as to Special Issues No. 1 & 2 is Denied. 2. The motion for a judgment notwithstanding the verdict as to Special Issues No. 1 & 2 is Denied. Although the motions pertaining to Special Issues Number 1 & 2 which seek clarification of the jury’s verdict and/or entry of a judgment notwithstanding the verdict are denied, an alternative form of relief is ap- propriate. The awards of money damages in favor of Burger King on both the promissory notes and the ac- counts receivables establish liability against the defen- dants. The verdict award of $1.00 on promissory notes with a face value of close to $900,000.00 and the verdict award of $100,000.00 on accounts receivable with a book value of over $500,000.00 are contrary to the weight of the evidence presented at trial. Therefore, a new trial shall be held on the issue of damages alone with respect to the promissory notes covered in Special Issue No. 1 and the accounts receivable covered in Special Issue No. 2. 3. The motion for a judgment notwithstanding the verdict as to Special Issue No. 5 is Denied. There was sufficient competent evidence presented to the jury from which they could have concluded that some of the franchises were improperly terminated. 4. The motion for a new trial as to Special Issue No. 5 is granted in part and denied in part. The jury A49 determined that the franchise agreements covering res- taurants +436, +837, +1127, +1201, #1360, +1689, +1791, +1863, +1887, +2024, +2247 and +2249 were improperly terminated. There was sufficient evidence pre- sented to the jury from which they could arrive at such a finding. Therefore, the motion for a new trial as is relates to these restaurants is Denied. It is very uncertain from the jury’s answer to Special Issue No. 5 whether they made any determination as to the other restaurants. Because of the substantial rights and property interests at stake, it would not serve the bests interests of justice for the Court to attempt to read the jury’s mind in an effort to resolve this ambiguity. Therefore, the motion for a new trial as it relates to the propriety of the termination of the franchise agree- ments covering restaurants +164, +285, +302, +473, $545, +583, +597, +606, +1055, +1091, #1253, +1802 and +2080 is Granted. 5. The motion for a judgment notwithstanding the verdict as to Special Issue No. 6 is denied. There was sufficient competence presented to the jury from which they could have determined that the defendants did not engage in a conspiracy to defraud Burger King. DONE AND ORDERED this 31st day of October, 1980. /s/ Edward B. Davis United States District Court Judge Copies Furnished To: Andrew C. Hall, Esq. Lee N. Abrams, Esq. Edward Kaufman, Esq. A50 ORDER OF U. S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, DATED FEBRUARY 20, 1981 (Filed February 24, 1981) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 78-2932-CIV-EBD BURGER KING CORPORATION, Plaintiff, -v- GERALD A. MASON, et al. Defendant. ORDER THIS MATTER has come before the Court on the fol- lowing motions: 1. The Motion of the Plaintiff for Bifurcation: 2. The Motion of the Plaintiff for Leave to Amend the Second Amended Complaint; and 3. The motion of the Defendants for Certification Pursuant to 28 U.S.C. §1292(b). The Court has considered these motions, as well as the papers filed in opposition. Based upon this evaluation, in light of the entire record in this cause, it is A51 ORDERED AND ADJUDGED as follows: 1. The Motion for Bifurcation is Denied. All re- maining issues will be tried in one proceeding. 2. The Motion to Amend the Complaint is granted in part and denied in part. Plaintiff's motion to amend paragraph 289 is granted. Plaintiff's motion to amend the Complaint in order to add Count XXXX is denied as to proposed paragraphs: 417, 419, 420, 424, 425, 427, 428, 429, 431 and 432. These paragraphs deal with matters which have already been the subject of a jury determina- tion. The motion, however, is granted as to all other paragraphs of the proposed amendment. 3. The Motion for Certification pursuant to 28 U.S.C. £1292(b) is Denied. The issue which the Defendants seek to appeal is simply not a controlling question of law. DONE and ORDERED this 20th day of February, 1981. /s/ Edward B. Davis U.S. District Court Judge ec: Counsel of Record A52 ORDER OF U. S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, DATED MAY 20, 1981 (Filed May 21, 1981) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 78-2932-CIV-EBD BURGER KING CORPORATION, Plaintiff, -V- GERALD A. MASON, et al., Defendants. ORDER THIS MATTER has come before the Court on the following motions: 1. The motion of the plaintiff for partial summary judgment; 2. The motion of the defendants to dismiss Counts XXXVI through XXXIX; 3. The motion of the defendants to dismiss Count XXXX. The Court has reviewed the motions, as well as the papers filed in opposition. Upon consideration of the argu- ments presented, in light of the entire record in this case, it is A53 ORDERED AND ADJUDGED as follows: 1, The motion of the plaintiff for partial summary judgment is Granted. The liability of the Defendant has already been determined. The amount due is the only unresolved issue with regard to the plaintiff's claims on the notes and receivables. The affidavit of Thomas F. Crummey, Vice President ot $37,30¢C.17 76:4) $232 087,87. Petercon Rent $11,136.C3 Tota] $232,057.57 Ber dy Fer.t $18,721.43 Seeerpreeee. eee Tote) $232,057.57 Gxnithfield Rent $11,136.03 ae tC LE eee Tote] $232,057.57 Lafayette Rent $6,904.68 Mow 2 i + .j.|. sseesecece Total $232,057.57 Lafayette Rent $11,816.75 Bo. 2 + |. seeeeeccee Tota) $232,057.57 Elkhart Rent $110,643.50 Boo) = == eeeeerecece Total $232,057.57 Southbend Rent $196,016.00 Bo, 2 em nn Total $232,057.57 BK Foods Rent $12,866.03 Total §232,057.57 State Rent $2,335.11 College PA j= sseee<<<-- Tota) $23,057.57 Johnstown Rent $2,099.00 (L. 4) Bo. 1 jj. = jj. = Seeeeececce Tota) $232,057.57 Allison Rent $1,730.00 Park 1 2 een ennn Total $232,057.57 s -750 x $48,468.93 = $363.67 2il. Ela. Stat. £52.105 All Counter-Plaintiffs PEES Costs TOTAL $39,040.80 $4,260.00 $43,300.80 iY. ZBANSCRIPT All Defendants $8,010.83 ] B20 2. SZABO 3. HARDY 4. PETERSON EFCLP DCurvs loyicnt Agreemcite Notcs Leeses 457.105 Transcript Tota] Development Agreements Notes (IIA 1) Leases (IIB 1) 157.105 Transcript (IA) Total Development Agreements Notes (I1IA.2) 4 Leases (IIB 1) 957.105 Transcript Total Developmnent Agreements Notes Leases (IIB 2) 957.105 Transcript Total $934,623.97 $649,512.00 $143,173.86 48,883.93 43,300.80 8,010.83 $892,486.42 $324,75€.00 C.00 2,327.47 43,300.80 8,010.83 $376,395.10 ORDER (Filed June 29, 1982) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 78-2932-CIV-EBD BURGER KING CORPORATION, Plaintiff, -V- GERALD A. MASON, et al., Defendants. ORDER THIS MATTER has come before the Court on the motion of the Defendants for clarification and/or to amend findings of fact pursuant to Rule 52(b). The Court has reviewed the motion, as well as the opposing papers which have been filed in response. Upon consideration of the motion, in light of the arguments presented and the entire record in this cause, it is ORDERED AND ADJUDGED that the motion is Denied. The Court’s findings are supported by the evi- dence adduced at the hearing on attorneys’ fees. DONE AND ORDERED this 29th day of June, 1982. s/ Edward B. Davis United States District Court Judge Copies: Lee Abrams, Esq Andrew Hall, Esq. Edward Kaufman, Esq. Al21 ORDER OF U. S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, DATED DECEMBER 30, 1980 (Filed December 30, 1980) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 78-2932-CIV-EBD BURGER KING CORPORATION, Plaintiff, -V- GERALD A. MASON, et al., Defendants. ORDER THIS MATTER has come before the Court on the motion of the Defendants for a new trial on all issues. A partial new trial has already been ordered as to the damage claims raised in Special Issues Nos. 1 & 2 and several of the franchise termination claims raised in Spe- cial Issue No. 5. The Court has reviewed the motion, as well as the opposing papers filed in response. In addition, the Court has had the benefit of oral argument on the matter. Based upon an evaluation of the argu- ments presented, in light of the entire record in this cause, it is ORDERED AND ADJUDGED that the Defendants’ motion for a new trial on all issues is Denied. There will be a new trial only as to those issues specified in this Court’s Order of October 31, 1980. A122 IT IS FURTHER ORDERED AND ADJUDGED that the parties shall have an additional thirty (30) days from the date previously ordered within which to submit the pretrial stipulation relating to those issues to be litigated in the partial new trial. DONE AND ORDERED this 30th day of December, 1980. s‘ Edward B. Davis United States District Court Judge Copies Furnished To: Edward A. Kaufman, Esq Lee Abrams, Esq. Mark Peddecord, Esa. Andrew C. Hall, Esq. A123 SPECIAL ISSUE NO. 5 SPECIAL ISSUE NO. $ With respect to BURGER KING CORPORATION's claus regarding termine- tion of the franchise agreements, we the jury find that A. BURGER KINO CORPORATION properly terminated all of the franchise sgqreements. a B. BURGER KING CORPORATION wrongfully termanated all of the franchise eqeemments = G (c. BURGER KING CORPORATION properly terminsted the fran- Chase agreements covering the restaurants listed in Colum |) and wrong- fully terminated the franchise eygegrments covering the restaurants listed an Column 2. } 2 Franchise Agreements : Franchise Agreer-nis Terminaieo Proceriy Terminates tm2-.serly ——— ; ——— — z4uG3 No ~ &, - a es Sa e337 === 112 1201 Sa @¢#13G¢0 %*\1G29 6 1049 #13G3 FFiee27 maclwty —— ——— waa) “#2249 en --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1134%3A1. Public record. Not legal advice.