                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0145n.06

                                         Case No. 18-5137

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                Mar 26, 2019
AMERICA’S COLLECTIBLES NETWORK,                       )
                                                                            DEBORAH S. HUNT, Clerk
INC., dba Jewelry Television,                         )
                                                      )
       Plaintiff-Appellant,                           )      ON APPEAL FROM THE UNITED
                                                      )      STATES DISTRICT COURT FOR
v.                                                    )      THE EASTERN DISTRICT OF
                                                      )      TENNESSEE
STERLING COMMERCE (AMERICA),                          )
INC.; INTERNATIONAL BUSINESS                          )
MACHINES CORPORATION, successor in                    )
interest Sterling Commerce (America), Inc.,           )
                                                      )
       Defendants-Appellees.                          )
                                                      )
____________________________________/

Before: MERRITT, GUY, and MOORE, Circuit Judges.

       MERRITT, Circuit Judge. The major issue in this Tennessee diversity case is whether

when the jury entered as damages “$13 million” three separate times on a jury verdict form

itemizing three separate overlapping theories of liability, the District Court erred in reading the

verdict as a single award of $13 million instead of totaling the three separate awards of the same

amount for a total final judgment of $39 million in favor of the plaintiff. We agree with the District

Court that the jury must have intended, and the record in the case will justify, only one award of

$13 million. We will deal with this issue first and then deal with an issue regarding prejudgment

interest on the award.
Case No. 18-5137, America’s Collectibles Network v. Sterling Commerce (America), et al.




                          I. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff is America’s Collectibles Network, Inc., doing business as Jewelry TV. The

company is a television and internet retailer of jewelry which uses a computer system in the

purchase and sale of its jewelry on TV and maintaining its inventory. The defendant is Sterling

Commerce America, Inc., a former subsidiary of International Business Machines Corporation,

which is responsible for any judgment in this case. Sterling was in the business of producing and

licensing commercial software. More than ten years ago, Jewelry TV hired Sterling to replace and

upgrade the software used to operate its computer system. The project failed when Sterling

delivered a defective software system.

       The theory of the case was that Sterling induced Jewelry TV to select Sterling for an

overhaul of Jewelry TV’s warehouse and business operations computer software. The Sterling

update resulted in software crashes, sorting errors, a slowed purchase order process, mis-payment

of vendors, and Internet order malfunctions. Jewelry TV went to trial on theories of fraud in the

inducement, promissory fraud, negligent misrepresentation, breach of contract, and breach of

express warranties.

       The District Court presided over a sixteen-day jury trial in May and June of 2017. The

jury instructions included sections on each separate claim or theory. Importantly, Jury Instruction

28 told the jury not to apportion its award among multiple theories. This appeal arises from

Instruction 28 which read: “Do not increase or reduce the amount in one answer because of your

answer to any other question about damages. Do not speculate about what any party’s ultimate

recovery may or may not be. Any recovery will be determined by the Court when it applies the

law to your answers at the time of judgment.” The instruction then asked that the jury make


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findings as to whether each theory had been proven and what (if any) damages arose from that

specific injury. In a communication to the Court during deliberations, the jury foreman wrote,

“We are having trouble interpreting jury instruction 28. Do we add damages together or should

[sic] be the same on every line [?]” The District Court simply told the jury to read the instructions

and follow them.

       The verdict form broke each claim into individual questions relating to whether Jewelry

TV had proven the claim, whether Sterling had proven any affirmative defenses, and whether any

damages flowed from that specific claim. The jury made the following findings:

   ➢ On the fraudulent inducement claim, the jury found for Jewelry TV and wrote

       “$13 million” in the compensatory damages blank.

   ➢ On the promissory fraud claim, the jury found that Jewelry TV had not proven the required

       elements.

   ➢ On the negligent misrepresentation claim, the jury found for Jewelry TV and wrote

       “$13 million” in the compensatory damages blank on the verdict form.

   ➢ On the breach of contract claim, the jury found for Jewelry TV. The foreman wrote

       $13 million” in the “reliance” damages blank but “$0” in the “benefit of the bargain

       damages” blank and $0 in the “lost profits” blank. The jury wrote $13 million for breach

       of contract, although damages for breach of contract were limited to $5 million by a

       provision in the agreement.

The jury’s findings show that it intended Jewelry TV to succeed on at least some of its theories.

                                   II. ELECTION OF REMEDIES

       It is not entirely clear whether the jury wanted to award $39 million (awards added

together) or $13 million. Instruction 28 told the jury not to increase an award on one claim because


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of the jury’s answer on another claim. If the jury intended the three damage awards to be added

together, there is no explanation for the jury’s award of exactly the same sum for three distinct

theories. Our role is to assess the District Court’s interpretation of this verdict form.

       After trial, the District Court directed the parties to brief the issue of election of remedies.

This post-trial proceeding converted the jury’s findings into a specific number for judgment. The

District Court was required to take the jury’s findings and distill them into a legally accurate

damage award. The jury found which theories had been proven, and the District Court applied the

doctrine of election of remedies to pinpoint how much Sterling would have to pay Jewelry TV.

       At oral argument in this court, the judges asked the parties about the possibility of ordering

a new trial as a method of clarifying the questions left unclear by the jury’s verdict form. The

plaintiff-appellant stated clearly that it does not want and is not asking for a new trial. The

defendant-appellee also does not want a new trial. That leaves us the responsibility to decide

whether we should interpret the verdict form by adding the three $13 million figures together or

follow the District Court’s interpretation that the jury intended only one $13 million finding of

damages. In this situation, the fact that the District Court oversaw the preparation of the verdict

form and discussed with the jury their questions about its meaning leads us to give great weight to

his view of how the verdict form should be interpreted. This reliance on the trial judge is

particularly appropriate in Tennessee which has stated the role of the trial judge as “thirteenth

juror” as follows:

       The trial judge, charged with ensuring a fair trial, serves as an important check on
       a jury’s discretion to award damages. One way the trial judge does this is by serving
       as the thirteenth juror. [citation omitted] As thirteenth juror, the trial judge must
       independently weigh and review the evidence presented at trial to determine
       whether it preponderates in favor of the verdict and decide whether he or she agrees
       with and is satisfied with the jury’s verdict. [citation omitted] No verdict is valid
       unless approved by the trial judge acting as the thirteenth juror. [citation omitted]


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Case No. 18-5137, America’s Collectibles Network v. Sterling Commerce (America), et al.


Meals ex rel. William Meals v. Ford Motor Company, 417 S.W.3d 414, 420 (2013).
       We have also addressed this exact problem before. See Hickson Corp. v. Norfolk S. Ry.

Co., 260 F.3d 559 (6th Cir. 2001) (interpreting Tennessee law). In Hickson, we remanded because

a verdict form was insufficiently detailed. Id. at 567–68. But we cautioned that after the form was

fixed, “it is incumbent on the trial judge to ensure that the awards are not duplicative or

overlapping.” Id. at 568. Hickson also involved an incident that could arguably have been

redressed by different remedies. At the conclusion of that litigation and this one, there was only

one injury to redress. Id. at 566–67 (“Election of remedies is ‘the legal version of the idea that a

plaintiff may not have his cake and eat it too.’”) (citing D. Dobbs, REMEDIES § 1.5 at 14 (1973));

see also Shahrdar v. Glob. Hous., Inc., 983 S.W.2d 230, 238 (Tenn. Ct. App. 1998) (“Whether the

theory of recovery is breach of contract, intentional misrepresentation, or promissory fraud, if the

damages claimed under each theory overlap, the Plaintiff is only entitled to one recovery.”).

                              III. PREJUDGMENT INTEREST RATE

        Because this case has been pending so long, the amount of interest awarded on the

judgment could be large. The District Court set the prejudgment interest rate in this case at 1.22%,

which was exactly the federal postjudgment rate at the time of judgment. The District Court’s

selection of this interest rate without much explanation strikes us as mechanical. We have held

before that similar defects were an abuse of discretion. See, e.g., Pittington v. Great Smoky

Mountain Lumberjack Feud, LLC, 880 F.3d 791, 807–09 (6th Cir. 2018); Schumacher v. AK Steel

Corp. Retirement Accumulation Pension Plan, 711 F.3d 675, 685–87 (6th Cir. 2013). The thrust

of those cases is that the District Court must thoroughly explain its decision on prejudgment

interest.

        Under Tennessee law, treating a single factor as dispositive in the interest assessment is

suspect. In Hunter v. Ura, the Tennessee Supreme Court held that a trial court did not abuse its

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discretion on prejudgment interest because, “the trial court gave extensive consideration to this

issue and fully analyzed the plaintiff’s arguments and evidence. . . . There is no indication that the

trial court failed to consider the relevant factors or that the trial court considered any of the factors

dispositive.” Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn. 2005). The exact opposite is true here.

The district court’s analysis was terse at best, and to the extent that the length of the litigation was

a reason for its initial decision on prejudgment interest, that factor was dispositive. Tennessee

courts will not “rubber stamp” a trial court’s decisions on interest, Poole v. Union Planters Bank,

N.A., 337 S.W.3d 771, 790 (Tenn. Ct. App. 2010), and many decisions analyze the record to craft

an interest award fitting the dispute. See, e.g., Wooten v. Black, No. M2009-00963-COA-R3-CV,

2009 WL 4841066, at *3 (Tenn. Ct. App. Dec. 15, 2009) (affirming interest award but analyzing

specific facts); Scholz v. S.B. Int’l, Inc., 40 S.W.3d 78, 84 (Tenn. Ct. App. 2000) (vacating and

remanding on interest).

        The District Court engaged in the same “mechanical application” of the federal rate that

we found fatal in Schumacher. See 711 F.3d at 685. We have also explained that District Courts’

discretion is cabined by “the fact that we look with disfavor on simply adopting state law interest

rates.” See Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2000). Indeed, in “simply

adopting” the federal rate of 1.22%, the district court relied on only its discretion—that is the

epitome of an impermissible “mechanical application.” When a District Court makes a specific

calculation assessing interest, that exercise bears on the case before the court. See, e.g., Lativafter

Liquidating Tr. v. Clear Channel Commc’ns, Inc., 345 F. App’x 46, 52 (6th Cir. 2009) (affirming

District Court’s calculations of 4.666%). But that did not happen here. Accordingly, we vacate

and remand this issue to the District Court for further proceedings.




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                                       IV. CONCLUSION

       In this complex case, the District Court was in the best position to evaluate what the jury

did. We REMAND this case as to the prejudgment interest issue and AFFIRM in all other

respects.




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Case No. 18-5137, America’s Collectibles Network v. Sterling Commerce (America), et al.


       RALPH B. GUY, JR., Circuit Judge, concurring. For the reasons briefly outlined

below, I concur in Judge Merritt’s opinion and write separately to explain why I would affirm the

district court’s decision to enter judgment in favor of plaintiff for $13 million in damages.

       If the jury had been polled, there would be no need to speculate about the jury’s intentions

with respect to the damages it awarded. In my view, whether or not the jury intended to award a

total of $39 million in damages, the district court did not err in requiring an election of remedies

because “the damages awarded by the jury on Plaintiff’s claims for fraudulent inducement,

negligent misrepresentation, and breach of contract overlap such that recovering damages on more

than one of these claims would result in a duplicative recovery for Plaintiff.” Judgment, p.2 (citing

Hickson Corp. v. Norfolk S. Ry. Co., 260 F.3d 559, 566 (6th Cir. 2001)). (Page ID # 30765.) This

conclusion is consistent with Concrete Spaces, which explained, in part, that special verdicts

should be used “in cases involving multiple theories of liability and various types of damages” in

order “to preserve the jury’s findings and facilitate the plaintiff’s ability to elect damages.”

Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 910 (Tenn. 1999) (emphasis added). Because the

jury here was instructed to determine the damages on each claim independently and return verdicts

awarding damages separately on each claim, it was “incumbent on the trial judge to ensure that

the awards are not duplicative or overlapping.” Hickson, 260 F.3d at 568.

       Nor do plaintiff’s arguments on appeal persuade me that the district court erred in finding

that the damage awards were duplicative of each other. Indeed, although proof of fraudulent

inducement and negligent misrepresentation may have rested on different conduct, the damages

that arguably resulted covered the same ground. And, plaintiff’s appeal outlines the proofs offered

in support of its claim to aggregate losses of $56 million in terms of the categories of damages—

both “benefit of the bargain” and “out of pocket” damages—without distinguishing between the


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Case No. 18-5137, America’s Collectibles Network v. Sterling Commerce (America), et al.


damages that flowed from each of the claims. Moreover, when asked to specify the damages

resulting from the breach of contract, the jury awarded $13 million in reliance damages but

awarded nothing for benefit-of-the-bargain damages or “lost profits.” (Page ID # 26353.) For

these reasons, I would affirm the required election of remedies and the district court’s order that

plaintiff recover $13 million in damages on its claim for negligent misrepresentation.




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        KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

The fact is that the jury awarded $39 million. Admittedly, it is odd that the jury awarded

$13 million on each claim—but the question is what to do about the jury’s allocation. We should

side with the jury. Importantly, the jury used a special verdict form to enter three separate awards,

and its $39-million total falls easily within the $56-million range presented by the Plaintiff’s expert

at trial. I therefore disagree with the majority’s framing and resolution of this issue. Because the

majority sees it differently, I respectfully dissent.

        As a threshold matter, Jury Instruction 28 can be read only to mean that the jury should

decide damages on each claim independently. See R. 823 (Jury Instr. at 32) (Page ID #26512)

(“Do not increase or reduce the amount in one answer because of your answer to any other question

about damages.”); see also R. 912 (Trial Tr. at 177–78) (Page ID #34977–78) (trial judge referring

to Jury Instruction 28 as the one that says “take the questions one at a time.”). In the absence of

indications to the contrary, we presume that the jury followed this instruction. See Barnes v.

Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir. 2000); see also Mike’s Train House,

Inc. v. Lionel, L.L.C. (“MTH, Inc.”), 472 F.3d 398, 415 (6th Cir. 2006). Furthermore, the jury used

a special verdict form, which asked the jury to find liability separately for each claim and to find

damages separately for each claim. R. 815 (Verdict Form); R. 913 (Trial Tr. at 29–31) (Page ID

#35044–46). That is exactly what the jury did. See id.

        The district court also thought that the jury made three independent awards. The district

court determined that the jury’s three awards “overlap such that recovering damages on more than

one of these claims would result in duplicative recovery for Plaintiff.” R. 868 (J. Order at 2) (Page

ID #30765). Accordingly, the district court made the Plaintiff elect a remedy. Id. If there were

truly a single $13-million award, then the election of a remedy would not be necessary. That is,


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the district court would have simply interpreted the verdict form as a $13-million total award for

all three claims—and thus an election of a remedy would be unnecessary because the jury awarded

a single $13-million award, not three from which the Plaintiff must chose. The jury’s actual award

therefore, was $39 million, and then the district court reduced the award to $13 million.

       The district court should not have overridden the jury. First, the special verdict form

alleviates the concerns underlying double recovery expressed by the Tennessee Supreme Court in

Concrete Spaces. In that case, the Tennessee Supreme Court explained that a special verdict form,

as well as separate jury instructions for each theory of liability, can prevent the risk of double

recovery. See Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 909–10 (Tenn. 1999); see also

Hickson Corp. v. Norfolk S. Ry. Co., 260 F.3d 559, 568 (6th Cir. 2001) (remanding for a new trial

on only damages because the verdict form “failed to ask the jury what the specific damages were

for that claim.”). As stated, we presume that the jury followed the instructions and the special

verdict form, and thereby awarded separate damages for each theory of liability. At the very least,

the district court’s essentially nonexistent explanation for its determination that the jury’s awards

overlapped, see R. 868 (J. Order at 2) (Page ID #30765), “leav[es] us guessing whether this

exercise of discretion is a permissible one.” See Gibson v. Moskowitz, 523 F.3d 657, 667 (6th Cir.

2008). Nor did the district court find or explain why the different remedies were “inconsistent and

irreconcilable[,]” such that requiring the Plaintiff to elect a remedy was appropriate. See Concrete

Spaces, 2 S.W.3d at 906; see also Miller v. United Automax, 166 S.W.3d 692, 696 (Tenn. 2005)

(“[A] plaintiff may be forced to elect between different remedies where the remedies are so

inconsistent or repugnant that pursuit of one necessarily involves negation of the other.”) (internal

quotation marks and citation omitted) (emphasis added). In sum, the special verdict form counsels

in favor of following the jury, and the district court has left us guessing why it thought differently.


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       Next, even if the jury erred or was confused by the instructions, any error is harmless. See

R. 908 (Trial Tr. at 34–36) (Page ID #33923–25) (presenting expert evidence to the jury that

damages totaled as much as $56 million). In Barnes, despite some errors in the jury instructions,

sufficient evidence supported the jury’s damages award. 201 F.3d at 827–28. Consequently, we

upheld the award as reasonable. Id. Here, the jury’s $39-million award easily comes under the

$56-million ceiling set by the Plaintiff’s expert at trial. Compare Wesley v. Campbell, 864 F.3d

433, 445 (6th Cir. 2017) (restating the well-established rule that an appellate court “should not

disturb a jury verdict unless it is beyond the maximum damages that the jury reasonably could find

to be compensatory for a party’s loss.”) (quoting cases), and Hudson v. Insteel Indus., Inc., 5 F.

App’x 378, 387–88 (6th Cir. 2001) (explaining that, despite the possibility of double recovery in

the case, “[t]he jury’s award . . . did not exceed that which could have reasonably been awarded in

the absence of any double recovery.”), with MTH, Inc., 472 F.3d at 415 (“Although juries are

presumed to follow instructions, it is quite clear that the jury did not do so here. There is no

evidence in the record that [defendant’s] enrichment exceeded [plaintiff’s] losses by $12,834,820,

nor does [plaintiff] identify the evidence in the record that could support that award.”) (emphasis

added). In short, sufficient evidence here supports the jury’s $39-million award.

       Moreover, the debate about whether the Plaintiff’s claims seek to redress multiple injuries

or just one injury is irrelevant. This debate is an issue for the two tort claims in particular, but

there is a factual and a legal response that reveal this is no problem at all. Factually, again, the

evidence in the record more than doubled the $26-million jury award on the two tort claims. See

R. 908 (Trial Tr. at 34–36) (Page ID #33923–25). Legally, “[a]lthough a double recovery may not

be had, the jury is not prohibited from allocating a total damages award between different theories

of recovery.” See Gibson, 523 F.3d at 667 (quoting Johnson v. Howard, 24 F. App’x 480, 485


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(6th Cir. 2001)). In Johnson, for example, a correction officer beat an inmate, and the inmate

brought assault and battery and excessive force claims against the officer. See 24 F. App’x at 484.

The jury divided the award equally between the two theories of recovery, and we upheld the jury’s

allocation. Id. at 484–85, accord Gibson, 523 F.3d at 667.

        Meals ex rel. Meals cannot carry the weight the majority places on it. That case addressed

the trial judge’s role as a “thirteenth juror” in the context of remittitur (which cures excessive

awards), not double recovery or election of remedies (which cures overlapping awards). See Meals

ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 420–21 (Tenn. 2013). Notably, the trial judge

in Meals deferred to the jury’s award, id. at 422, and the Tennessee Supreme Court held that the

“verdict was supported by material evidence and is within the range of reasonableness.” Id. at

428. The district court here, however, provided no analysis of the evidence.

        Lastly, the Plaintiff concedes that it cannot recover more than $5,521,025 on its contract

claim because of a contractual damages cap. Appellant’s Br. at 42. (The jury was not instructed

on this point.) For these reasons, I would reverse the district court and reinstate the jury’s $39-

million award, less the amount in excess of the contractual damages cap.

                                               ***

        I agree with the majority’s holding on prejudgment interest and that we should remand that

issue to the district court.




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