Aon Risk Services, Inc. of Arkansas v. John Meadors
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DIVISION IV
CA061231
November 7, 2007
AON RISK SERVICES, INC., OF
ARKANSAS
APPELLANT
v.
AN APPEAL FROM PULASKI COUNTY
CIRCUIT COURT
[NO. CIV05193]
HONORABLE TIMOTHY FOX,
CIRCUIT JUDGE
JOHN MEADORS
APPELLEE
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART
A Pulaski County jury awarded appellee John Meadors $2,509,127.60 on several
breachofcontract claims against his employer, appellant Aon Risk Services, Inc., of
Arkansas (“ARS Arkansas”). In posttrial proceedings, the circuit judge reduced the award
to $1,281,930.90. The judge also gave Meadors $150,000 in attorney fees, to be increased
to $320,482.72 in the event of an appeal, and declined Meadors’s request for prejudgment
interest. ARS Arkansas appeals, arguing that the jury’s verdict was not supported by
substantial evidence and that the trial judge erred in subjecting it to an enhanced attorneyfee
award should it decide to appeal. On crossappeal, Meadors asks us to reinstate the jury’s
original damage award, grant him prejudgment interest, and reverse several summary
judgments that were entered prior to trial. We affirm in part and reverse and remand in part
on both direct and crossappeal.
Background Facts
Meadors is a veteran of the insurancebrokerage industry. On May 1, 1997, he
executed a fiveyear employment contract with ARS Arkansas, a Little Rock insurance
brokerage firm whose parent company is Aon Corporation. ARS Arkansas’s managing
director, Mark Brockington, described Meadors’s job as that of a producer, meaning that he
was responsible for attracting business and making sales. The contract provided that Meadors
would be compensated by a base salary plus an annual bonus calculated on a percentage of
new, firstyear commissions earned and collected by ARS Arkansas.
For twentyfive to thirty years prior to 1997, Meadors cultivated a business
relationship with Dillard’s department stores in hopes of brokering insurance benefits for
Dillard’s employees. His patience was rewarded in the fall of 1999, while he was employed
at ARS Arkansas. In August and September of that year, he put Dillard’s in touch with
Combined Insurance Companies, another subsidiary of Aon Corporation. Combined offered
a package called Workplace Solutions in which Dillard’s employees could purchase life,
disability, and other types of insurance policies through workplace enrollment. Dillard’s and
Combined ultimately executed a fiveyear agreement on March 24, 2000, giving Combined
access to Dillard’s employees for that length of time.
Before the agreement was signed, however, Meadors obtained a copy of what is
referred to as the “Interdependency Memo.” This document, dated February 9, 2000, was
sent by Aon to all Aon Risk Services Managing Directors, including Mark Brockington at
ARS Arkansas. Its intent was to promote “interdependency” among Aon entities, that is, to
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encourage ARS brokerage offices to place insurance business with Aonaffiliated companies.
The Memo recited the following:
[A] financial rewards system has now been put in place with almost all Aon
companies. ARS Management has agreed with the various Aon companies listed on
the following page that it will receive from these companies bonus pool monies
representing the listed percentage of interdependence revenues generated on new fees
and commissions.
(Emphasis in original.) The following page was headlined “Interdependency Compensation
Agreements for 2000,” and it listed, among others, Combined Insurance Companies.
Combined agreed to pay “30% of annualized premium on all life products over 15 year term
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plus 15% 1 year for all other products to pool.” The Memo then explained how the bonus
pool would operate:
Such funds will be paid out in entirety to ARS staffers in the form of annual bonus
pool payments under the following conditions:
1. The Aon Company will credit these monies to the ARS office(s) practice group(s)
as appropriate to their involvement in the procurement of revenue.
2. The credit is made as the income is booked and, if not booked on the accrual
method, for 12 full months of income booking.
3. No formulaic bonus will be accrued to any individual ARS employee.
4. Each office/practice group will accumulate its “bonus pool” through year end at
which time each Managing Director will allocate 100% of the fund balance in the
pool to those employees who have been the most responsible for the professional
production and/or marketing, servicing and/or maintenance of the client accounts
generating the bonus pool funds and who have done so in a manner consistent with
Aon’s stated policies of professional excellence, cooperative behavior, and ethical
conduct.
5. Shared introduction with an office/practice or between and office/practice
generates a single payment only. Which may be split as agreed by the MDs
[Managing Directors].
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6. Each Managing Director’s recommendation as to the allocation of the bonus funds
in the pool is subject to sign off by the President or CEO of ARS Americas for audit
purposes, but the Managing Director’s recommendation will not be altered without
assumed “extreme prejudice.” In any case, the entire pool in each office or practice
will be paid.
On a quarterly basis we will share the bonus pool figures with ARS professional staff
so that employees are aware of the magnitude of the rewards accruing to them from
serving client needs via interdependence efforts.
(Emphasis in original.) Additionally, the Memo declared that “local/practice group
management is now authorized to make the proper call ‘on the ground’ as to just how to
allocate bonus monies.” Managing Directors were asked to “carefully discuss this enhanced
compensation structure with all professional staff” and to “share this message as soon as
possible.”
According to Meadors, when he saw the Memo sometime in February 2000, he was
enthused about the program and “absolutely” believed that it would entitle him to
compensation over and above his basic employment contract compensation. However, after
the Dillard’s/Combined agreement was signed in March 2000, Combined placed no monies
in the bonus pool based on Dillard’s premiums. Mark Brockington explained that, in order
for Combined to acquire the Dillard’s account, it had to buy out another broker or insurance
company for $1.6 million. Thus, Combined told him, it could not pay normal commissions.
Following negotiations that lasted well beyond the signing of the Dillard’s agreement,
Combined and ARS Arkansas agreed to a $240,000 commission, of which Meadors received
fifteen percent, or $36,000, as called for in his basic employment contract.
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In 2005, Meadors sued ARS Arkansas, Combined, and several other Aon companies,
alleging that the Interdependency Memo was a unilateral contract, which was breached when
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he did not receive bonuspool monies generated by the Dillard’s agreement. Combined and
the other Aon entities were dismissed by summary judgment, as were Meadors’s claims for
unjust enrichment, fraud, and breach of contract as a thirdparty beneficiary. However, the
case against ARS Arkansas went to trial. There, Meadors testified that, had the appropriate
monies been placed in the bonus pool, he would have received $2,406,522.60 on the
Dillard’s transaction. The jury awarded him that amount, plus additional damages based on
other claims. In posttrial proceedings, the trial judge reduced the Dillard’s award by almost
fifty percent. This appeal followed.
We begin our discussion of the issues with ARS Arkansas’s direct appeal from the
jury’s verdict pertaining to the Dillard’s transaction and Meadors’s crossappeal from the
trial judge’s reduction of the damages on that same transaction.
I. Formation of Contract
ARS Arkansas argues that the Interdependency Memo did not form a contract
because: 1) it was not sufficiently definite to constitute an offer; 2) if it was an offer,
Meadors did not accept it; 3) if a contract was created, it was not an agreement between ARS
Arkansas and Meadors. ARS presents these argument in the context of the trial court’s denial
of its motion for a directed verdict. Our standard of review is therefore whether the jury’s
verdict was supported by substantial evidence. Stewart Title Guar. Co. v. Am. Abstract &
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Meadors first filed suit in 2002. He nonsuited his case in 2004 and refiled it in
2005.
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Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). Substantial evidence is that which goes
beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other.
Id. In determining whether there is substantial evidence, we view the evidence and all
reasonable inferences arising therefrom in the light most favorable to the party on whose
behalf judgment was entered. Id.
Meadors’s theory at trial was that the Interdependency Memo formed a unilateral
contract. There are several instances where unilateral contracts commonly appear, such as
where a reward is offered, e.g., Ark. Bankers’ Ass’n v. Ligon, 174 Ark. 234, 295 S.W. 4
(1927), where a contest is announced, e.g., Mears v. Nationwide Mut. Ins. Co., 91 F.3d 1118
(8th Cir. 1996), or where changes are made and disseminated in an employee manual. See
Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). In those situations, the
offeree does not accept the offer by express agreement but by his performance. For example,
in the case of a reward, the offeree accepts by performing the particular task, such as the
capture of a fugitive, for which the reward is offered. Even though he has not directly
communicated his acceptance, a contract is formed as the result of his performance. See
Ligon, supra. See also JOSEPH M. PERILLO, CORBIN ON CONTRACTS, § 1.23 (Rev. Ed. 1993);
17 C.J.S. Contracts § 9 (1999) (recognizing that a unilateral contract is composed of an offer
that invites acceptance in the form of actual performance); 17A AM. JUR. 2D Contracts § 5
(2d ed. 1991) (stating that, if performance occurs, then the offer has been accepted, and a
contract is formed). The performance also constitutes consideration for the contract. 17A
AM. JUR. 2D Contracts § 5.
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A. Definiteness of offer
ARS Arkansas argues first that the Interdependency Memo was not sufficiently
definite to constitute an offer for a unilateral contract. An offer is the manifestation of
willingness to enter into a bargain, so made as to justify another person in understanding that
his assent to the bargain is invited and will conclude it. ERC Mtg. v. Luper, 32 Ark. App. 19,
795 S.W.2d 362 (1990), overruled in part on other grounds by Mosley Mach. Co. v. Gray
Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992). An offer cannot be accepted so as to form
a contract unless the terms are reasonably certain. Restatement (Second) of Contracts § 33
(1981); see also Luper, supra. Not every utterance of an employer is binding. Crain Indus.,
supra (quoting Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983)). To bind
the employer, an offer must be definite in form and must be communicated to the offeree.
See Hardie v. Cotter & Co., 849 F.2d 1097 (8th Cir. 1988); Dumas v. Kessler & Maguire
Funeral Home, Inc., 380 N.W.2d 544 (Minn. Ct. App. 1986). Whether a proposal is meant
to be an offer for a unilateral contract is determined by the outward manifestations of the
parties, and not by their subjective intentions. Hardie, supra. The principal issue is whether
the employer’s statements are intended as an offer and accepted as such or are merely
statements of policy and practice. Id.
ARS Arkansas contends first that, because the trial court determined that the
Interdependency Memo was ambiguous in some respects, it was too indefinite to constitute
an offer. We disagree that an ambiguous offer is necessarily indefinite. A writing that is
indefinite is incomprehensibly vague or incapable of being understood, see Barnes v. Barnes,
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275 Ark. 117, 627 S.W.2d 552 (1982), and such indefiniteness is an impediment to the
formation of a contract. See Mgmt. Comp. Servs., Inc. v. Hawkins, Ash, Baptie, & Co., 206
Wis. 2d 158, 557 N.W.2d 67 (1996). But, ambiguity does not prevent the formation of a
contract; rather, it calls for interpretation of a contract. See id. An ambiguous writing may
be understood and enforced by applying the rules of contract construction. See generally
Smith v. Farm Bureau Mut. Ins. Co., 88 Ark. App. 22, 194 S.W.3d 212 (2004); see also
Shibley v. White, 193 Ark. 1048, 104 S.W.2d 461 (1937) (recognizing that, while a contract
was ambiguous, it was not uncertain). We therefore see no error in the trial court’s refusal
to grant a directed verdict on this basis.
ARS Arkansas also argues that the Interdependency Memo lacked definiteness,
because it merely expressed general concepts of teamwork and provided for judgment calls
in the allocation of bonuspool money. ARS cites several cases in which statements by
employers were deemed too indefinite to constitute an offer. See Hardie, supra (holding that
a statement by the employer’s representatives that, if workers voted out the union, the
employer would treat them as if a union contract remained in effect, was too indefinite to
place restrictions on job terminations); Crawford v. Gen. Contract Corp., 174 F. Supp. 283
(W.D. Ark. 1959) (holding that a promise to “stick by” a person fell short of a promise to
finance him for an indefinite period of time without regard to conditions and circumstances);
Mettille, supra (holding that statements in a company handbook that employment in the
banking industry was very stable and that job security was one reason why so many bank
employees had five or more years of service were general statements of policy rather than
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promises of employment for a particular period of time); Dumas, supra (holding that a
supervisor’s statement to an employee that they would “retire together” did not alter the
employee’s atwill employment status). We believe that the Memo contains terms far more
definite than these vague statements. The Memo expressly states that “a financial rewards
system has now been put in place.” It also sets out specific percentages of amounts to be
contributed to the bonus pool by each participating Aon entity, and it contains the precise
means by which those pool funds will be distributed to ARS staffers. It is therefore more
than a mere statement of policy or a vague promise regarding future events.
ARS also relies heavily on Martens v. Minnesota Mining & Manufacturing Co., 616
N.W.2d 732 (Minn. 2000), but it is also distinguishable. There, the Minnesota court held that
a brochure touting equal compensation for technical and administrative employees was too
indefinite to constitute an offer. The court noted that there was no suggestion that an
individual would be entitled to specific pay, benefit level, or condition of employment, nor
were there any criteria to determine when the rights to any benefits had been breached.
Further, the prerogative to make decisions as to individual employee promotions, salaries,
and so forth was clearly reserved to management based on an evaluation of the individual.
By contrast, the Interdependency Memo in this case does not merely set out general goals
and philosophies of compensation. It sets out specific percentages of premiums that will go
into the bonus pool as part of an “enhanced compensation structure.” And, while no
employee is entitled to a “formulaic” bonus and Managing Directors may decide how to
allocate the bonus pool among their employees, their discretion is not unfettered. For
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example, managers cannot withhold payment of the pool amount; the Memo provides that
the entire pool must be distributed annually. Thus, the mere inclusion of possible judgment
calls by management as to the manner of distribution among its employees does not, under
these circumstances, render the Memo too indefinite to operate as an offer for a unilateral
contract.
B. Acceptance of offer
ARS Arkansas claims that, even if the Memo constituted an offer, Meadors did not
accept it. ARS first cites MDH Builders, Inc. v. Nabholz Construction Corp., 70 Ark. App.
284, 17 S.W.3d 97 (2000), which states that, to create a binding contract, an acceptance must
unconditionally agree to all the material provisions of the offer. ARS contends that Meadors
did not unconditionally agree to the provisions of the offer because he testified as follows:
QUESTION: When you received this document [the Memo], did you ever
unconditionally agree to its terms?
MEADORS: That was not a conscious thought that I had when I – the first time I
looked at that.
QUESTION: And so whether it’s when you received it in February or whether you
received it in April, that’s never a decision you made to unconditionally
agree to the terms of [the Memo]?
MEADORS:
Not in that, no, I didn’t think about that.
ARS’s reliance on MDH is misplaced. The language in MDH does not lend itself to
a unilateral contract, which is accepted by performance rather than by express agreement.
Additionally, the point we were making in MDH was that an acceptance cannot vary the
terms of the offer. There is no claim that Meadors attempted to vary the terms of the Memo.
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In any event, we believe that ARS reads too much into Meadors’s statement that when he
first saw the Memo, he simply did not think about whether he unconditionally agreed to its
terms.
We turn now to ARS’s contention that Meadors could not have accepted the offer in
the Interdependency Memo because, by the time he learned of the Memo, he had already
performed his brokerage task of referring Dillard’s to Combined as a client. A unilateral
contract is not formed where a party’s performance is not made “on the faith of” the offer
or “in consequence of” the offer. See Ligon, supra. However, unless the offeror manifests
a contrary intention, an offeree who learns of an offer after he has rendered part of the
performance requested by the offer may accept by completing the requested performance.
See Restatement (Second) of Contracts § 51 (1981). Meadors contends that, even though he
began brokering the deal between Dillard’s and Combined before the Memo was in
existence, he did not complete performance until after he received the Memo. Thus, he
claims, he accepted the Memo’s offer. We agree that substantial evidence supported the
jury’s verdict on this point.
There was evidence at trial that Meadors was aware of the Memo before the
Dillard’s/Combined deal was finalized in March 2000. ARS managing director Mark
Brockington testified that he assumed that he received the Memo on or about February 9,
2000, and he agreed that it directed him to share its message with his eligible professional
staff, which would have included Meadors. Meadors testified that he obtained a copy of the
Interdependency Memo from Combined Insurance Companies in February 2000, although
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he did not receive a copy directly from ARS Arkansas until April or May 2000. There was
also evidence from which the jury could have concluded that Meadors continued or
completed his performance on the Dillard’s account after learning of the Interdependency
Memo. Combined Insurance Companies executive Heather Gardere said that Meadors played
a role in the Dillard’s transaction other than the initial referral. She also said that he was
involved in the coordination of the overall strategy, the sales process, and was ultimately
responsible for the overall relationship. Neil Mayfield, who worked for the enrollment
division of Combined, said that Meadors called him after the contract had been signed,
asking how the enrollments were going. Moreover, the Interdependency Memo provided that
bonuspool monies would go to employees who were responsible not only for production of
accounts but for servicing and maintaining accounts.
Though the evidence on this point is spare, it was the jurors’ prerogative to believe
or disbelieve it and to accord it whatever weight and value they deemed appropriate. See
generally Stewart Title, supra. Our task on appeal is not to substitute our view of the
evidence for the jury’s but to determine whether the jury’s verdict was supported by
substantial evidence. See Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). With that
standard to guide us, we cannot say that ARS Arkansas was entitled to a directed verdict on
this point.
C. Parties to the contract
Finally, ARS Arkansas argues that neither it nor Meadors is named in the Memo and,
therefore, the Memo does not constitute a contract between them. However, the Memo
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imposed certain duties on ARS Arkansas, as it did on all ARS offices, such as accumulating
bonuspool monies and distributing them to deserving employees. And, as already discussed,
the Memo was accepted as a unilateral contract by Meadors, thereby making him a party to
it. There was, therefore, substantial evidence from which the jury could conclude that
Meadors and ARS Arkansas had rights and obligations under the Memo.
II. Breach of Contract
ARS argues next that, assuming the Memo formed a contract, there was no substantial
evidence that ARS breached the contract. It points out that no bonuspool money was sent
to it on the Combined/Dillard’s deal and, therefore, it had no money to distribute to Meadors.
Thus, it could not have committed a breach.
When performance of a duty under a contract is due, any nonperformance is a
breach. Restatement (Second) of Contracts § 235(2) (1981). As the jury was instructed in this
case, every contract imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement. CantrellWaind & Assocs. v. Guillaume Motorsports, 62
Ark. App. 66, 968 S.W.2d 72 (1998) (quoting Restatement (Second) of Contracts § 205).
Moreover, a party has an implied obligation not to do anything that would prevent, hinder,
or delay performance. See generally Commerical Bank of N. Ark. v. TriState Propane, 89
Ark. App. 272, 203 S.W.3d 124 (2005).
We believe that there was substantial evidence to support the jury’s conclusion that
a breach occurred. ARS Arkansas knew that Meadors was eligible to participate in the
enhancedcompensation program described in the Memo. It was also aware, or should have
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been aware from reading the Memo, that Combined had agreed to deposit a certain
percentage of premiums into the bonus pool and that ARS Arkansas, as a local office, would
be obligated to distribute the pool money. Yet, ARS Arkansas negotiated with Combined
Insurance Companies to receive a reduced commission, and much of the negotiating process
took place long after the Interdependency Memo was issued, into 2001 when the large
amount of revenue attributable to the Dillard’s account was known. The jury may well have
determined that ARS’s acceptance of a lesser commission from Combined was a badfaith
hindrance of the bonuspool process, which prevented money from being placed in the pool
and, thus, prevented it from being distributed to Meadors. Again, the presence of substantial
evidence means that we cannot say that the trial court was required to grant a directed verdict
on this point.
III. Damages—Dillard’s Transaction
The jury awarded Meadors $2,406,522.60 with respect to the Dillard’s transaction.
ARS Arkansas argues that, assuming that a contract was formed and that ARS Arkansas
breached the contract, Meadors did not produce competent evidence to support that damage
award. Meadors crossappeals from the trial court’s reduction of his Dillard’s damages to
$1,255.825.90. Although damages other than those attributable to the Dillard’s transaction
are discussed in Meadors’s crossappeal, for the moment we limit our consideration to the
Dillard’s award.
Meadors calculated his damages on the Dillard’s transaction by using information sent
to him by Neil Mayfield of Employee Benefit Services, the enrollment arm of Combined
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Insurance Companies. Mayfield initially sent Meadors a summary of Dillard’s enrollment
numbers for 2000 and 2001, broken down by categories of insurance. Later, following a
deposition, Mayfield provided Meadors with the same type of calculations for 2002, 2003,
and 2004. Using Mayfield’s charts, Meadors determined which premiums fell under
Combined’s thirtypercent obligation in the Interdependency Memo and which fell under the
fifteenpercent obligation. He then arrived at $2,406,522.60 as the amount he would have
received over the fiveyear life of the Dillard’s/Combined contract had the money been
placed into the bonus pool. Regarding the year 2000 in particular, which will be at issue
under this point, Meadors relied on Mayfield’s figure of $4,174,421 as total premiums for
that year and, applying the thirtypercent and fifteenpercent figures, came up with $831,873
owed him for that year.
ARS Arkansas argues first that Meadors did not produce reliable evidence of his
damages for the year 2000. It cites Mayfield’s deposition testimony that, with regard to the
printed summary that he sent to Meadors for the year 2000, he did not know where he got
it, he did not know who generated it, and he did not verify its accuracy before sending it to
Meadors. The trial court, in a posttrial ruling, agreed with ARS that the 2000 summary sent
by Mayfield “should not have been submitted to the jury” and, using a different trial exhibit,
reduced Meadors’s 2000 damages from $831,873 to $622,694.
We believe that the trial court erred in reducing the damages. Two trial exhibits, other
than the chart sent by Mayfield, show year 2000 revenues for Combined (Worksite
Solutions) attributable to the Arkansas office in the amount of $4,178,888, which is very
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close to the $4,174,421 figure contained in Mayfield’s chart. Further, Heather Gardere of
Combined Insurance Companies testified that the $4,178,888 figure represented the premium
written though the Arkansas office for Combined (Worksite Solutions) and that most of it
was the Dillard’s deal. Additionally, Greg Golden, the Chief Operating Officer of ARS
Arkansas, sent a letter to ARS of the Americas in 2002 in which he relied on Mayfield’s
report to state that year 2000 revenues were $4,174,000 and that, if Meadors were
compensated under the Interdependency Memo, he would receive $834,800 for that year,
which is very close to the $831,873 calculated by Meadors. Finally, Mayfield, after testifying
that he did not know where he got the 2000 summary sheet, agreed that, at the time he sent
his communication to Meadors, he believed that everything he was communicating was true
and accurate. There is certainly no dispute that Mayfield was, at the time he sent the
information to Meadors, an employee of the enrollment division of Combined. Based on
these factors, the jury was within its province in determining that Meadors’s year 2000
damage calculation was accurate and reliable.
Further, even if, as ARS contends, Meadors produced only an approximate amount
of his damages for the year 2000, the jury obviously believed it was a reasonably good
approximation. Arkansas law has never required exactness of proof in determining damages,
and, if it is reasonably certain that some loss occurred, it is enough that damages can be
stated only approximately. Bank of Am. v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d
425 (2003). The fact that a party can state the amount of damages he suffered only
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approximately is not a sufficient reason for disallowing damages if, from the approximate
estimates, a satisfactory conclusion can be reached. Id.
We consequently conclude that the trial court erred in remitting Meadors’s damage
award for the year 2000. While remittitur is appropriate when the compensatory damage
award cannot be sustained by the evidence, United Ins. Co. of Am. v. Murphy, 331 Ark. 364,
961 S.W.2d 752 (1998), a trial court may not substitute its judgment for the jury’s when
there is a basis in the evidence for the award and when there is no evidence, appropriately
objected to, that tends to create passion or prejudice. Smith v. Hansen, 323 Ark. 188, 914
S.W.2d 285 (1996). See also McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994).
ARS argues further that Meadors should have been awarded no damages for the years
2001 to 2004 because the Interdependency Memo states that its agreements apply “only to
New Revenue Generated in 2000.” There was no trial testimony regarding the meaning of
the term “generated,” but it ordinarily means to cause to be or to bring into existence.
Webster’s Third New Int’l Dictionary at 945 (1993). Given that commonsense definition,
we cannot say that the jury’s damage award for the years 2001 to 2004 is unsustainable. The
Interdependency Memo could be interpreted to mean that, if a multiyear contract were
signed in 2000, then the entire amount of revenue produced over the life of the contract was
generated or “brought into existence” in 2000.
ARS’s next argument concerns the term “annualized premiums.” The Interdependency
Memo provided that Combined agreed to place into the bonus pool thirty percent of “
annualized premium on all life products over fifteen year term.” ARS claims that Meadors
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produced no evidence that the premium figures on which he relied for his 2001 to 2004
damages were annualized premiums. We disagree. Meadors defined an annualized premium
as a “premium for a full year,” and the figures contained in Neil Mayfield’s 2001 to 2004
calculations refer to “annual premiums.” Although Meadors testified that he was “guessing”
that Mayfield’s calculations were based on annualized premiums, Mayfield’s numbers speak
for themselves, and the jury may have concluded that the 2001 to 2004 figures represented
2
premiums for a full year.
Additionally, ARS argues that all of Meadors’s damage calculations were wrong
because they included premiums for a company that was not listed on the Interdependency
Memo – Provident Unum. While ARS is correct that ProvidentUnum premiums were
included, as Neil Mayfield explained, in states where certain products were not approved for
Combined to sell “we used Provident.” From this testimony, the jury may have concluded
that a Unum Provident product fell within the umbrella of Combined Insurance Companies.
Based on the foregoing analysis, we affirm the jury’s verdict in favor of Meadors for
breach of a unilateral contract and reinstate the jury’s damages award of $2,406,522.60
pertaining to the Dillard’s account.
IV. Attorney Fees
After trial, Meadors’s attorneys presented fee petitions based on hourly rates totaling
approximately $200,000. They also provided the court with their employment contract with
2
Our disposition of this issue makes it unnecessary for us to reach Meadors’s
argument on crossappeal that the trial court erred in excluding certain evidence regarding
annualized premiums.
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Meadors, which called for them to receive forty percent of all sums recovered if the case
went to trial. The trial judge awarded Meadors fees of $177,500, although in a corrected
judgment filed later that same day, the amount was stated as $150,000. However, the judge
declared that, in the event that ARS Arkansas appealed, the fee would be increased to
$320,482.72.
ARS now argues that Arkansas law does not permit a trial court to enhance an
attorneyfee award based on the opposing party’s decision to appeal. It cites the factors to
be considered in making an award of attorney fees that our supreme court set out in Chrisco
v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), and notes that a party’s
decision to appeal is not included among them. ARS also cites Roberts v. Roberts, 226 Ark.
194, 288 S.W.2d 948 (1956), where our supreme court held that a trial court cannot
condition a party’s right to appeal on his first paying an attorney fee.
We review a trial court’s award of attorney fees for an abuse of discretion. Newcourt
Fin. v. Canal Ins., 67 Ark. App. 347, 1 S.W.3d 452 (1999). However, because we have
reinstated a substantial portion of the jury’s verdict, rather than review the trial court’s fee
award, we reverse and remand for the trial court to reconsider the award. Upon remand, the
trial court may take into account the time and effort spent on appeal. But we take this
opportunity to voice our doubt that an enhanced fee award, employed as a prior restraint on
a party’s right to appeal, would lie within a trial court’s discretion.
V. Prejudgment Interest
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The trial court refused to award Meadors prejudgment interest on his recovery, and
he crossappeals from that ruling.
Prejudgment interest is allowable where the amount of damages is definitely
ascertainable by mathematical computation, or if the evidence furnishes data that makes it
possible to compute the amount without reliance on opinion or discretion. Ray & Sons
Masonry Contr. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). If a method
exists for fixing the exact value of a cause of action at the time the event that gives rise to
the cause of action occurs, prejudgment interest should be awarded. Nationsbanc Mtg. Corp.
v. Hopkins, 82 Ark. App. 91, 14 S.W.3d 757 (2003).
In this case, a fiveyear agreement was brokered between Dillard’s and Combined,
and the Interdependency Memo set forth specific percentages of Combined premiums that
were to be placed in the bonus pool. A method therefore existed by which Meadors’s
damages could be computed without reliance on opinion or discretion. ARS claims, however,
that discretion played a part in determining how much of the bonus pool it would have
distributed to Meadors, given that the Interdependency Memo vested local managing
directors with discretion in allocating the pool money. While that discretion may have proved
relevant if two or more ARS Arkansas staffers had been responsible for the Dillard’s
transaction, that was not the case here. Mark Brockington agreed that Meadors was the
producer on the Dillard’s account. Further, there was no evidence that any other ARS office
or any other ARS Arkansas employee was responsible for the Dillard’s/Combined
transaction. Additionally, the Memo required the managing director to distribute onehundred
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percent of the money in the bonus pool. Thus, Brockington could not have employed
discretion in allocating the bonus money to anyone other than Meadors. We therefore reverse
and remand to allow the trial court to calculate an award of prejudgment interest.
VI. Other Damage Awards
Meadors’s complaint also sought damages against ARS Arkansas for breach of
contract concerning a JB Hunt account and for unpaid compensation under his basic
employment contract. The jury awarded him $40,500 on his JB Hunt claim and $59,000 in
unpaid compensation. After trial, the circuit judge reduced the JB Hunt award to zero and
the unpaid compensation award to $23,000. Meadors argues on crossappeal that these
reductions were erroneous, but we affirm them. The jury also awarded Meadors $3105 under
the Interdependency Memo for business he placed with another Aon entity listed in the
Memo, Cambridge. The trial judge refused to reduce that award, and ARS asserts error, but
we affirm that ruling as well.
Regarding the JB Hunt account, Meadors developed an arrangement in which Aon
entities reviewed Hunt’s employeebenefit plans and made recommendations in exchange
for a consulting fee. Hunt eventually paid a fee of $355,000. However, ARS Arkansas
received only $85,000. According to Mark Brockington, the remaining money went to the
other Aon entities that participated in the consultation. Pursuant to his employment contract
with ARS, Meadors received fifteen percent of the $85,000 that ARS Arkansas collected, for
a total of $12,750. However, Meadors argued at trial that he was entitled to fifteen percent
of the entire $355,000, which would have totaled $53,250. He therefore asserted a claim for
21
the $40,500 difference. The jury awarded him $40,500, but the circuit judge reduced the
verdict to zero based on a finding that Meadors received all that was due him under his
employment contract. The trial court’s ruling was correct. It was undisputed that ARS
Arkansas received $85,000 from the JB Hunt transaction. Meadors’s employment contract
provided that he would receive fifteen percent of first year commissions “earned and
collected” by ARS Arkansas. Because ARS collected $85,000, Meadors was fully
compensated by receiving fifteen percent of that amount, or $12,750.
Meadors also sought compensation of $59,000 under his employment contract,
separate and apart from the Interdependency Memo. This figure was based on a 2002
calculation by Chief Operating Officer Greg Golden concerning amounts owed to Meadors
as Meadors was nearing the end of his fiveyear employment period. Golden determined that
Meadors was due $59,000 in additional salary, based in part on revenues earned by ARS in
the Dillard’s transaction. The jury awarded Meadors $59,000, but the trial court correctly
reduced it to $23,000, based on undisputed testimony that Meadors received $36,000 as a
standard commission from ARS Arkansas on the Dillard’s deal.
Finally, ARS argues that there was no substantial evidence to support a damage award
on Meadors’s transaction with Cambridge. The jury awarded Meadors $3105 based on a
2002 memo in which Greg Golden stated that Meadors “did a deal with Cambridge in 2001
– it is not fully paid yet.” The memo further stated that Meadors was owed $3105. In light
of this memo, we find no error in the trial court’s refusal to remit that award.
VII. Summary Judgments Granted to Other Aon Entities
22
Meadors’s complaint named as defendants six Aon entities other than ARS Arkansas:
ARS of the Americas, ARS of Missouri, Aon Corporation, Combined Insurance Companies,
Aon Risk Management, and ARS Illinois. The trial court granted summary judgment in favor
3
of all defendants except ARS Arkansas and ARS Illinois. Meadors now argues that these
grants of summary judgment were in error. We affirm the summary judgments against all
entities other than Combined Insurance Companies.
At various points, Meadors’s complaint refers to the entities other than Combined and
speculates on their involvement with the Interdependency Memo and other aspects of the
case. However, the complaint does not state facts that show that these entities participated
in any breach or other conduct that led to Meadors’s damages. Moreover, upon being faced
with summary judgments, Meadors was likewise unable to satisfactorily explain his inclusion
of these entities as defendants or create a material question of fact as to why they should
remain in the case. And finally, in his appellate brief, Meadors makes no convincing
argument that the trial court erred in granting summary judgment to these companies. He
therefore has not met his burden on appeal of demonstrating reversible error. See Arrow Int’l,
Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003).
However, Meadors is more exact with regard to his case against Combined Insurance
Companies. His complaint asserts that Combined was an obligor on the Interdependency
Memo, which he described as a contract between him, ARS Arkansas, and Combined. He
3
Meadors’s case against ARS Illinois went to trial on one particular transaction.
He was awarded $45,500, and ARS Illinois satisfied that judgment. It is not at issue on
appeal.
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further alleged that a breach occurred when Combined and ARS Arkansas failed to pay him
the amounts called for in the contract. Moreover, in his response to the defendants’ motions
for summary judgment, Meadors attached Combined’s responses to requests for admission,
in which Combined admitted that the Interdependency Memo accurately set out the terms
and conditions of an agreement among Aon entities identified on the first page (which
included Combined), and that Combined was a participant in the Interdependency program.
The Memo itself was also attached, showing that Combined had agreed to deposit certain
amounts into a bonus pool. Further, it was undisputed that Combined did not place monies
from the Dillard’s transaction into the bonus pool. We need only decide if the trial court’s
grant of summary judgment was appropriate based on whether the evidence presented by the
moving party left a material question of fact unanswered. Doe v. Baum, 348 Ark. 259, 72
S.W.3d 476 (2002). Because the evidence showed that a material question of fact remained
with regard to whether Combined breached a contract with Meadors, summary judgment was
inappropriate as to Combined. See generally Newberg v. Next Level Events, Inc., 82 Ark.
App. 1, 110 S.W.3d 332 (2003).
Combined argues that it was nevertheless entitled to summary judgment because
Meadors testified at trial that his only contract was with ARS Arkansas. However, by the
time of trial, Meadors’s only remaining cause of action was against ARS Arkansas;
Combined had already been dismissed from the case. In any event, Meadors’s deposition
attached to his response to the motions for summary judgment and his complaint assert that
24
his contract was with ARS Arkansas and Combined. We therefore reverse and remand the
4
award of summary judgment to Combined.
VIII. Summary Judgment on Other Causes of Action
The trial court also granted summary judgment against Meadors on his claim that he
was a thirdparty beneficiary of the Interdependency Memo and on his claims of fraud and
unjust enrichment.
Meadors’s thirdparty beneficiary count was pled as an alternative to his allegation
that the Interdependency Memo created a unilateral contract. Because we hold today that a
unilateral contract was created by the Memo and that Meadors, by his acceptance, was an
obligee under the Memo, his alternative thirdparty beneficiary claim is no longer extant. We
therefore decline to address this moot point. See Davis v. Williamson, 359 Ark. 33, 194
S.W.3d 197 (2004).
Meadors’s unjustenrichment claim is likewise moot because it was not asserted
against either ARS Arkansas or Combined Insurance Companies but against other Aon
companies, which we have already determined were entitled to summary judgment.
This leaves the fraud count for our consideration. Meadors’s complaint essentially
alleged that Combined and ARS Arkansas committed fraud by publicizing the
Interdependency Memo with the intent of inducing the sale of products but with no intent of
4
Our reinstatement of Meadors’s damages on the Dillard’s transaction seemingly
renders his case against Combined on the same transaction moot. However, during oral
argument, Meadors asked that, if we reinstated his award, we nevertheless review the
entry of summary judgments in favor of other Aon entities, in the event that he is unable
to collect on his judgment against ARS Arkansas.
25
abiding by agreement and by not allocating to him what was earned from the Dillard’s
transaction. As damages, he sought his full compensation under the Interdependency Memo.
In light of our decision that ARS Arkansas breached the contract created by the Memo and
our holding that a fact question remains as to whether Combined did the same, we see no
point in reversing a summary judgment on a fraud count that is, for all practical purposes,
based on a breach of contract and seeks the same damages that Meadors has already been
awarded. We therefore consider this point moot as well.
IX. Conclusion
We affirm the jury’s verdict for breach of a unilateral contract against ARS Arkansas
and reinstate Meadors’s damages of $2,406,522.60 pertaining to the Dillard’s transaction.
We affirm the jury’s damages award of $3105 on the Cambridge transaction and affirm the
trial court’s reduction of damages on the JB Hunt account and on Meadors’s claim for unpaid
compensation. We also affirm the trial court’s grant of summary judgment against all other
Aon entities except Combined Insurance Companies, which we reverse. We decline to
address the grant of summary judgment on Meadors’s three additional causes of action as
moot. Finally, we reverse and remand for the trial court to reconsider the attorneyfee award
and to award prejudgment interest.
Affirmed in part; reversed and remanded in part.
ROBBINS, J., agrees.
BAKER, J., concurs.
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