         09-2656-cv
         ChooseCo, LLC v. Lean Forward Media, LLC

                                 UNITED STATES COURT OF APPEALS
                                       F OR T HE S ECOND C IRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated Term of the United States Court of Appeals
         for the Second Circuit, held at the Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 2 nd day of February, two thousand and ten.

         Present: RICHARD C. WESLEY,
                  GERARD E. LYNCH,
                                Circuit Judges,
                  MARK R. KRAVITZ,
                                District Judge. *
         ________________________________________________

         CHOOSECO, LLC,

                                       Plaintiff-Counterclaim-Defendant-
                                       Appellee,


                        - v. -                                              (09-2656-cv)

         LEAN FORWARD MEDIA, LLC,

                            Defendant-Counterclaimant-Appellant. **
         __________________________________________________



               *
                  The Honorable Mark R. Kravitz, of the United States District Court
         for the District of Connecticut, sitting by designation.
                **
                 The Clerk of the Court is directed to amend the official caption as
         set forth above.

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     Appearing for Appellant:     PIETRO J. LYNN, Lynn, Lynn
                                  & Blackman, P.C., Burlington,
                                  Vermont.

     Appearing for Appellee:      GARY L. FRANKLIN, Primmer Piper
                                  Eggleston & Cramer P.C.,
                                  Burlington, Vermont.


          Appeal from the United States District Court for the
     District of Vermont (Murtha, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the District of Vermont be AFFIRMED.

 4       Appellant, Lean Forward Media (“LFM”), appeals from the

 5   district court’s August 22, 2008 denial of its motion for

 6   summary judgment regarding the construction of the Option

 7   and License Agreement (the “Agreement”) entered into by the

 8   parties, and from the court’s May 20, 2009 denial of its

 9   motion to withdraw or defer judgment based on its

10   affirmative defense of unclean hands.   LFM also challenges

11   the district court’s jury instructions and verdict form.

12       This case involves a dispute regarding an Agreement

13   entered into between the parties pursuant to which LFM

14   acquired certain rights from ChooseCo, a company formed by

15   the creators of the “Choose Your Own Adventure” series of

16   children’s books.   ChooseCo subsequently terminated LFM’s


                                    2
 1   alleged failure to perform according to the specifications

 2   of the Agreement.     ChooseCo sought a declaratory judgment

 3   that it was entitled to terminate the Agreement, and the

 4   matter was tried before a jury.       On April 2, 2009 a verdict

 5   was entered in favor of ChooseCo.       The jury found that

 6   ChooseCo proved by a preponderance of the evidence that LFM

 7   failed to comply with the Agreement and that, therefore,

 8   ChooseCo properly terminated the Agreement.       We presume the

 9   parties’ familiarity with the underlying facts, the

10   procedural history of the case, and the issues on appeal.

11       Pursuant to a choice of law provision agreed upon by the

12   parties, Vermont law governs the interpretation of the

13   Agreement.     The question of whether a contract is ambiguous

14   is a question of law.     See John A. Russell Corp. v. Bohlig,

15   739 A.2d 1212, 1216 (Vt. 1999).       The district court

16   determined that the disputed contract provision was

17   ambiguous.     Once a court has made this legal determination,

18   “the question of what the parties intended becomes a

19   question of fact for the factfinder to resolve.”       Id. at

20   1205.   Under those circumstances, summary judgment is not

21   appropriate.     Id. at 1204.   Contrary to LFM’s argument, the

22   contractual provision at issue was not unambiguously


                                       3
 1   favorable to LFM’s position, and summary judgment in LFM’s

 2   favor was therefore properly denied.

 3       LFM argues that the doctrine of unclean hands applies to

 4   bar ChooseCo from obtaining relief.    Under Vermont law,

 5   “[a]ny willful act concerning the cause of action which

 6   rightfully can be said to transgress equitable standards of

 7   conduct is sufficient cause for the invocation of the maxim”

 8   of unclean hands.   Starr Farm Beach Campowners Ass’n, Inc.

 9   v. Boylan, 811 A.2d 155, 160 (Vt. 2002).    In this case, like

10   the district court, “[w]e see no evidence of any action

11   taken by [ChooseCo] which is outside the spirit of fairness,

12   justness, and right dealing such that we need to effectuate

13   a result different from that of the trial court in order to

14   ensure that an injustice does not occur here.”     Id.

15   (internal quotation marks omitted).

16       LFM’s objection to the jury instructions and verdict

17   form clearly did not comply with Federal Rule of Civil

18   Procedure 51(c).    The parties were given an opportunity to

19   object to the jury instructions and verdict form, see Fed.

20   R. Civ. P. 51(b)(2), but LFM did not raise any objection

21   until during the jury’s deliberations.     The “[f]ailure to

22   object to a jury instruction or the form of an interrogatory


                                     4
 1   prior to the jury retiring results in a waiver of that

 2   objection.”   Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d

 3   Cir. 2006) (internal quotations omitted).   We decline to

 4   find that the instructions and verdict form given to the

 5   jury constituted fundamental error.   See Fogarty v. Near N.

 6   Ins. Brokerage, Inc., 162 F.3d 74, 80 (2d Cir. 1998).

 7       ChooseCo’s motion to strike portions of the appendix

 8   submitted to this Court by LFM is GRANTED IN PART and DENIED

 9   IN PART.   The following pages shall be stricken from the

10   appendix filed by LFM: 397-412, 419, 423, and 426-35.    See

11   Fed. R. App. P. 30(a)(1).

12       The Court has reviewed Appellant’s remaining arguments

13   and finds them to be without merit.   Accordingly, the

14   judgment of the district court is hereby AFFIRMED.

15

16                                For the Court
17                                Catherine O’Hagan Wolfe, Clerk
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