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Click here for the full text of this decision FACTS:Recognition Communications Inc. (RCI) and its president, Matt Kincaid, contracted with the American Automobile Association (AAA) in 1992 to secure regional advertising for AAA publications. In 1996, AAA sold three divisions, and a new company, AAA Club Services Inc., was formed to be the parent of those three divisions. AAA published AAA World, and Matt Hamill was the advertising manager for this publication. Shortly after their contract was signed, Kincaid asked Hamill to give RCI additional territory, which would, in essence, make RCI the national sales representative for AAA. In response, AAA showed RCI a report that showed what national advertising accounts were still producing a revenue stream. The report also shoed several “in-house” accounts (Auto Plan and Auto Insider), and showed how much commission had been paid out on these accounts. In 1994, the parties agreed to RCI’s expanded territory. AAA then decided that it would label Auto Insider and Auto Plan as “house accounts” on which commissions would no longer be paid. RCI submitted claims for payment on these two accounts, but AAA refused to pay. Nonetheless, in 1995, believing that the New Jersey territory included Hertz Rental Co., RCI got AAA to give them the New Jersey territory for sales, too. Also in 1995, AAA World changed its name to Car & Travel, but when Harold Yankelevitz replaced Hamill as national advertising manager in mid-1996, AAA Club Services stopped using Car & Travel and began publishing Journey on its own. A “travel planner” program RCI sold ads for was discontinued in January 1997. Later in that year, AAA stopped publishing Car & Travel. Consequently, AAA canceled its contract with RCI. RCI sued AAA and AAA Club Services for breach of contract for failure to pay commission on the “in house” accounts and on the Hertz account. RCI claimed that, as the national sales representative, it was entitled to a commission on every advertisement placed by any advertiser in RCI’s territory. RCI also claimed fraud in the inducement. It asked for damages for a “termination fee” and unpaid sales commission, for a total of around $2 million, as well as attorneys’ fees for both the “termination fee” and the breach-of-contract claims. The trial court granted RCI partial summary judgment on its request for a termination fee. At trial, over RCI’s objection, the jury charge submitted the issue of the meaning of paragraphs 1(A), 1(D), 1(E), 1(F), 4, and 5(A) of the agreement and whether the contested advertisements were included in the agreement as modified, re-aligned or reassigned. The jury found that the contested accounts were not part of the agreement. The jury did not reach the issues relating to the breach of the agreement claim and found against RCI on all other issues. The trial court denied RCI’s motion for judgment notwithstanding the verdict and its motion for new trial. HOLDING:Affirmed in part; reversed and rendered in part. The court rejects AAA’s argument that RCI has waived its right to appeal. During cross-examination, Kincaid stated that, in regard to what was on the commission statements, “whatever the jury defines, we will not appeal.” The court finds that the context of the statement relates to AAA’s previous question on jury decisions and the location of the Hertz account, not a waiver of the right to appeal. The court then looks at RCI’s arguments on the jury charges, noting that the two primary issues raised in this case were first, whether the AAA/RCI contract was exclusive, and second, whether RCI was entitled to commissions on advertisements from its territory, regardless of whether RCI actually sold the ads. The jury questions offered by RCI did not address the second issue. Parsing the extensive language of the jury question, the court finds that some of paragraphs asked for the jury to assess the ambiguity of certain contract provisions, and their ambiguity was not one of the issues at trial. Despite this error, and assuming without deciding that the issue of ambiguity was not tried by consent, the court still concludes there was no harm. Question 1 submitted the issue of whether RCI had to actually sell an advertisement to obtain a commission (an issue not addressed in RCI’s offered question), along with the issue of exclusivity, so that the jury could consider both issues. Question 1 simply allowed RCI to freely make its argument as to the contract provisions, consistent with its trial presentation, and allowed the jury to consider those paragraphs RCI argued were relevant to the meaning of the agreement. The court finds the evidence legally sufficient to support the jury’s answers. There was, admittedly, conflicting evidence, but the jury’s answer was not against the great weight and preponderance of the evidence. The court then looks at the partial summary judgment award of attorneys’ fees for the termination fee. The court finds evidence that $76,764 was reasonable for the work done on the claim for the $10,000 termination fee, due to the protracted litigation. Consequently, RCI should have been granted full award of those fees. OPINION:Lang, J.; FitzGerald, Richter and Lang, JJ.

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