Gemini Investors Inc. v. Ameripark, Inc.

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [10-1312]

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Date Filed: 06/23/2011

Entry ID: 5560336

United States Court of Appeals
For the First Circuit
No. 10-1312
GEMINI INVESTORS INC.,
Plaintiff, Appellant,
v.
AMERIPARK, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Victor H. Polk, Jr., with whom Zachary C. Kleinsasser and
Greenberg Traurig, LLP were on brief, for appellant.
Rocco E. Testani, with whom Jamala S. McFadden, Donna M.
Brewer, Douglas K. Mansfield, Sutherland Asbill & Brennan LLP and
Casner & Edwards LLP were on brief, for appellee.

June 23, 2011

*

The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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STAHL, Circuit Judge.

Date Filed: 06/23/2011

Entry ID: 5560336

Gemini Investors Inc. ("Gemini")

sued AmeriPark, Inc. ("AmeriPark")1 alleging breach of contract and
breach of the covenant of good faith and fair dealing.

Gemini,

having lost at trial, asserts that the district court erred in
instructing the jury.

We affirm.
I.

Facts & Background

AmeriPark owns and runs valet service operations at
restaurants, hotels, and shopping centers across the country.

It

was founded by Robert K. Patterson, who led the company until 2008.
At the time relevant to this litigation, Greenfield Partners,
L.L.C. ("Greenfield") owned 24.9 percent of AmeriPark.2

James S.

Nix was Greenfield's Vice President and AmeriPark's primary contact
at Greenfield.
On

January

31,

2007,

AmeriPark

and

Mile

Hi

Valet

Services, Inc. ("Mile Hi"), a competing valet services company,
executed a letter of intent indicating that AmeriPark would acquire
Mile Hi for sixteen million dollars.

Although much of the letter

of intent was non-binding, the parties agreed to be bound by an

1

AmeriPark's name has since been changed to "E & B Parking
Services, Inc." Consistent with the record below, we refer to the
company as AmeriPark.
2

AmeriPark's brief suggests that these shares were held by two
related companies ("GreenPark Investment, L.L.C. and Greenfield
Parking PL, L.L.C."), but at least some documents in the record
refer to the shareholder as simply "Greenfield Partners, L.L.C."
The name or names of the shareholder(s) does not impact our
analysis.
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exclusivity clause prohibiting Mile Hi from negotiating for its
sale with anyone other than AmeriPark for a seventy-five day
period.
To facilitate its purchase of Mile Hi, AmeriPark sought
financing from Gemini, a private equity firm.

Gemini's Managing

Director, James Rich, took the lead in negotiations with AmeriPark.
On March 15, 2007, AmeriPark and Gemini executed an "Outline of Key
Transaction Terms" ("Outline"), which specified the terms pursuant
to which Gemini would finance the Mile Hi acquisition, as well as
some conditions for completion of the deal.

Because the Outline

contemplated a recapitalization of AmeriPark and a redemption of
Greenfield's shares, AmeriPark needed Greenfield's approval to move
forward with the financing as specified in the Outline.
Among other terms, the Outline included the following
language: "This Outline does not constitute a commitment by Gemini
to

complete

the

financing

and,

other

than

the

Section

[sic]

entitled 'Exclusivity' and 'Confidentiality', is non-binding on
either party hereto."

That is, the only terms of the Outline that

bound Gemini and AmeriPark were the exclusivity and confidentiality
provisions.
The exclusivity provision read:
In consideration of Gemini's commitment to
expend significant time, effort and expense to
evaluate the possible investment, AmeriPark
(and
any
officers,
directors
or
representatives of AmeriPark) agrees not to
discuss
this
opportunity
or
reach
any
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agreement with any person or entity regarding
financing for this Transaction or the pursuit
of any sale or major other financing until
April 16, 2007, provided that the exclusivity
shall be automatically extended to the date
that Mile Hi extends their exclusivity with
[AmeriPark] either verbally or in writing.
(Emphasis added).

The confidentiality provision read:

This Outline is delivered to you with the
understanding
that
neither
it
nor
its
substance shall be disclosed by you to any
third party except those in a confidential
relationship
with
[AmeriPark]
such
as
directors, senior executive officers, legal
counsel and accountants.
Disclosure to
investment banking firms, mezzanine, venture
capital or private equity funds or any other
individual investors is strictly prohibited.
(Emphasis in original).
Importantly, as indicated in the above-quoted language,
the Outline's exclusivity period was essentially coterminous with
the exclusivity period created by the AmeriPark-Mile Hi letter of
intent. Consequently, when Mile Hi later agreed to an extension of
the

letter

of

intent's

exclusivity

period,

the

Outline's

exclusivity automatically extended as well.
In April 2007, after the parties signed the Outline but
before the exclusivity provision expired, Patterson asked Nix if
Greenfield would be interested in financing the Mile Hi acquisition
in lieu of the Gemini-led financing.3

3

Also during this period,

As work on the Mile Hi acquisition progressed, Patterson
began to distrust Rich and Gemini, and he therefore sought
alternative financing sources.
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Patterson approached Robert Stroup, the Chief Executive Officer and
sole shareholder of Mile Hi, about the possibility of seller
financing.

After some negotiation, Stroup agreed to finance the

acquisition and, on May 4, 2007, AmeriPark purchased Mile Hi using
this seller financing.
On June 25, 2007, Gemini sued AmeriPark in Massachusetts
Superior Court alleging that AmeriPark breached the Outline's
exclusivity

provision

by

pursuing

financing

acquisition from both Greenfield and Stroup.

for

the

Mile

Hi

The suit was removed

to federal court, and eventually went to trial.4
At trial, the parties had competing views about the
meaning of the exclusivity provision.

AmeriPark argued that the

phrase "any person or entity" referred to the persons or entities
expressly set forth in the confidentiality provision — investment
banks, private equity funds, etc. — and therefore AmeriPark's
financing-related discussions with Greenfield and Stroup did not
constitute

a

breach

of

AmeriPark's

contractual

obligations.

Gemini, on the other hand, contended that the exclusivity provision
was unambiguous and prohibited discussions with "any person or
entity," including Greenfield and Stroup.

Accordingly, Gemini

requested the following jury instruction: "Under the Exclusivity
agreement, AmeriPark agreed not to discuss with any person or

4

AmeriPark unsuccessfully counterclaimed against Gemini.
Neither party raises any issues relating to those counterclaims.
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entity the proposed transaction with Mile Hi or to reach any
agreement with any person or entity regarding any major financing
until the exclusivity period expired."
Over Gemini's objection, the district court concluded
that the exclusivity provision was ambiguous and instructed the
jury about its meaning in part as follows:
[Y]ou've got to look at the language of
the exclusivity provision. . . . [Y]ou've got
to figure out what does that private law
require each party . . . to do. . . .
You use the plain and ordinary meaning
of the words that the parties used, having in
mind the commercial context. . . . Having in
mind what the parties, what their commercial
goals were, what did they have in mind when
they entered into this deal, so that you can
understand what the language they put down in
that exclusivity agreement means. . . .
I'm telling you that the law is that if
the plain and ordinary meaning of the words
that they used tell [sic] us how they should
have behaved, you follow that. . . . That's
what they put down in a contract. What they
say about it afterwards doesn't count.
Now, if you are not clear on the point,
if you think that there's any ambiguity in
those words, start with this. What were they
trying to do. . . . And while what they think
later may bear on that, its not what they
think later, it bears only to tell you what
they thought they were doing when they agreed.
Later in the instructions, the district court further clarified:
"you're going to interpret the contract, which means you're going
to decide what it requires[.]"

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As for causation and damages, Gemini argued that the Mile
Hi acquisition would have occurred with Gemini's financing but for
AmeriPark's breach of the exclusivity provision, and therefore
Gemini was entitled to expectation damages for the profits it would
have realized had the deal been completed.

As an alternative

theory of causation and damages, Gemini, citing Air Technology
Corp. v. General Electric Co., 199 N.E.2d 538 (Mass. 1964), urged
the district court to instruct the jury on what Gemini called a
"lost opportunity" theory.

Specifically, Gemini argued that, even

if it could not prove by a preponderance that AmeriPark's breach
was the but for cause of the Gemini-financed deal falling through,
the jury could still award damages for Gemini's "lost . . .
opportunity to negotiate" with AmeriPark to finance the deal. This
"lost

opportunity,"

Gemini

claimed,

could

be

calculated

by

assessing the value of the transaction to Gemini had it gone
forward, and then decreasing that value based on the possibility
that the deal would have fallen through for some reason other than
AmeriPark's breach.
The

district

court

refused

to

issue

Gemini's

"lost

opportunity" instructions.5 Instead, it instructed the jury on
causation and expectation damages in part as follows:
Gemini, since they [sic] want the
benefit of the bargain, they've [sic] got to

5

Gemini did not request reliance damages for the expenditures
it made in reliance on the exclusivity clause.
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prove that but for the breach this deal would
in fact have gone through and they would have
made money. . . .
A reasonable approximation [of damages]
will suffice, but its got to be proved by a
fair preponderance of the evidence.
This is largely a matter of judgment
committed to the jury taking into account
relevant factors, including what you conclude
would have been the approximate net amount
realized by Gemini from the deal going
through.
After closing, the district court gave the jury a general
verdict form, despite AmeriPark's previous request for a special
verdict.

During deliberations, the jury asked the following

question: "Please redefine Question No. 4. Did breach cause Gemini
losses?

Do we assume [sic] contract would have gone through if it

was not breached?"

The district court responded by essentially

reiterating its causation instruction and stressing that it was for
the jury to determine if the breach caused the deal to collapse.
Later that same day, the jury returned a verdict in favor of
AmeriPark.
II.

Discussion

Gemini essentially raises two issues on appeal.6

First,

did the district court err by refusing to instruct the jury on

6

Gemini's brief lists four issues, but the first three all go
to the propriety of the district court's failure to instruct on
Gemini's lost opportunity theory.
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Gemini's "lost opportunity"7 theory of causation and damages?
Second, did the district court err in its instruction to the jury
about the meaning of the exclusivity provision?
This court reviews jury instructions de novo.
Happ, 392 F.3d 12, 28 (1st Cir. 2004).

SEC v.

Where an objection is

properly registered below,8 jury instructions are "reviewed to see
whether there was error and, if so, whether [that error] was
harmless."
2000).

Sheek v. Asia Badger, Inc., 235 F.3d 687, 697 (1st Cir.

"We reverse the giving of an instruction 'if it (1) was

misleading, unduly complicating, or incorrect as a matter of law,
and

(2)

rights.'"

adversely

affected

the

objecting

party's

substantial

Happ, 392 F.3d at 28 (quoting Sheek, 235 F.3d at 697).

Similarly, "'refusal to give a particular instruction constitutes
reversible error only if the requested instruction was (1) correct
as a matter of substantive law, (2) not substantially incorporated
into the charge as rendered, and (3) integral to an important point

7

Throughout our analysis, we refer to the "lost opportunity
theory" and "lost opportunity damages." Courts have used similar
language to describe various concepts. We use these phrases to
refer only to the lost opportunity approach that Gemini urges this
court to apply in the case at hand.
8

AmeriPark argues that because Gemini requested a but for
instruction, it "invited any alleged error" in the causation
instructions and at the least Gemini's challenge to the causation
instructions should be subject to plain error review. Because we
find no error in the instructions, see infra, we need not address
these arguments.
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in the case.'"9

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Entry ID: 5560336

Seahorse Marine Supplies, Inc. v. P.R. Sun Oil

Co., 295 F.3d 68, 76 (1st Cir. 2003).
1.

The District Court's Failure to Instruct on Gemini's "Lost
Opportunity" Theory
Under Massachusetts law,10 to recover expectation damages

for breach of contract the plaintiff must prove by a preponderance
that an agreement existed, the agreement was breached, and the
breach caused the plaintiff to suffer damages.

See St. Charles v.

Kender, 646 N.E.2d 411, 413 (Mass. App. Ct. 1995); see also Salvas
v. Wal-Mart Stores, Inc., 893 N.E.2d 1187, 1216 (Mass. 2008)
("'Contract damages are ordinarily based on the injured party's
expectation interest and are intended to give him the benefit of
his bargain by awarding him a sum of money that will, to the extent
possible, put him in as good a position as he would have been in
had the contract been performed[.]'" (quoting Restatement (Second)
of Contracts § 347, cmt. a (1981))); Abrams v. Reynolds Metals Co.,
166 N.E.2d 204, 207 (Mass. 1960) ("Damages may be awarded for a

9

At oral argument, we asked the parties to submit supplemental
briefing about the effect of a general verdict on Gemini's
challenge to the jury instructions. AmeriPark and Gemini seem to
agree that the fact that a general verdict was entered will not
prevent an improper instruction from resulting in a new trial
unless this court can be reasonably sure that the jury relied on an
alternative, permissible basis in reaching its verdict.
See
Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29-31 (1st Cir.
2004); Davis v. Rennie, 264 F.3d 86, 105-06 (1st Cir. 2001).
Because we reject Gemini's contention that the instructions were
flawed, we need not delve into this issue.
10

Both parties agree that Massachusetts law applies to this
diversity action.
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breach of contract for the net amount of the losses caused and
gains prevented by the defendant's breach." (internal citations
omitted)); Schwartz v. Travelers Indem. Co., 740 N.E.2d 1039, 1047
(Mass. App. Ct. 2001) (noting that a claim of breach of an implied
contract will not go to the jury without "any evidence supporting
an inference that the harm which befell [plaintiff] followed as a
natural consequence of the breach." (internal marks omitted)).
The causation element generally requires the plaintiff to
prove that but for the defendant's breach the plaintiff would have
realized some gain or avoided some loss.11

See Taylor v. Int'l

Indus., Inc., 398 N.E.2d 501, 503 (Mass. App. Ct. 1979).
Gemini does not dispute the fact that but for causation
is

usually

Nonetheless,

a

prerequisite
Gemini

appeals

to

recovering

the

district

expectation
court's

damages.

failure

to

instruct the jury on its alternative "lost opportunity" approach to
causation and damages. Specifically, Gemini asserts that, pursuant
to the Massachusetts Supreme Judicial Court's ("SJC") holding in
Air Technology, "[t]he district court should have instructed the
jury that Gemini could show that it was harmed by proving that
AmeriPark's breach caused it to lose the exclusive opportunity to

11

AmeriPark suggests that the breach of a binding exclusivity
agreement in a non-binding letter of intent can never result in
lost profit damages because it is not reasonably foreseeable that
such a breach could cause a deal to fall through.
Because we
reject Gemini's challenge to the district court's instructions, we
need not address this argument.
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negotiate a final contract with AmeriPark."

Entry ID: 5560336

Under this approach,

Gemini contends that "the jury should have been instructed that it
could

determine

the

value

discounting

[Gemini's]

transaction

with

of

Gemini's

lost

profit

from

expected

AmeriPark

by

the

uncertainty

opportunity
the

by

potential

that

a

final

agreement would have been reached."12
Air Technology's holding and facts are confusing, but we
recount them here as clearly and succinctly as possible.13

In the

early 1960s, the General Electric Company ("GE") sought a contract
from

the

Air

Force

to

assist

with

the

"establish[ment]

[of]

installations in North America for detecting and determining the
direction and yield of nuclear detonations by methods including the
use of electromagnetic (EM) sensors."
540.

Air Tech., 199 N.E.2d at

To bolster its efforts, GE considered assistance from Air

Technology Corporation ("AT").

Id. at 541.

In a meeting between

representatives of the two companies, AT proposed a system "for the
EM sensor portion of the [Air Force project]."

Id.

Eventually, GE

12

It is unclear whether Gemini seeks to apply this lost
opportunity approach to its claim for breach of the covenant of
good faith and fair dealing in addition to its breach of contract
claim.
Regardless, even if Gemini's appeal is understood as
arguing for the theory's application to both claims, it would not
materially change our analysis.
13

Although the agreement in Air Technology was governed by New
York law, the SJC cited to Massachusetts case law throughout the
opinion and noted that "[i]t is not argued that the Massachusetts
law and the New York law differ substantially in relevant
respects." 199 N.E.2d at 546 n.13.
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and AT agreed that AT would become a "team member" on GE's bid.
Id. at 547. "Team membership," the SJC concluded, "was intended to
mean more to AT than opportunity to bid in the program"; rather,
"if [GE] received a prime contract AT[,] subject to Air Force
approval[,] would receive a subcontract for the EM sensor[.]"
(internal marks omitted).

Id.

Thereafter, AT personnel helped GE

prepare and present its proposal to the Air Force.

Id. at 541-43.

The Air Force subsequently awarded the prime contract to
GE.

Id. at 543.

Among other things, this contract required that

all GE subcontracts receive Air Force approval.

Id. at 544.

To

AT's dismay, GE refused to acknowledge its obligation to award a
subcontract to AT for the design and manufacture of the EM sensor,
and instead sought competitive bids for the job.

Id. at 544-45.

The SJC held that "GE, by failing to press for AT's
continuing participation in the program and by competing for the EM
sensor work, committed total breaches of its duties to AT."
548-49.

Id. at

As for damages, the SJC remanded for a determination of

the value of AT's lost opportunity, id. at 548-50, explaining:
[T]he detailed terms of AT's subcontract were
never determined beyond the expectation that
the subcontract would cover the EM sensor and
enable AT to recover its costs and a
reasonable profit. Whatever uncertainty may
have existed about the subcontract does not
preclude recovery by AT. What AT lost by GE's
breaches
of
contract
was
a
business
opportunity. The problem is to determine the
value of that opportunity . . . .

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Id. at 548 (internal citations omitted).

Entry ID: 5560336

The SJC rejected the

master's decision to use AT's subcontract proposals to measure
damages in part because
the master's computation of damages seems to
have been made by allowing to AT the whole of
what it would have received . . . on the basis
of its bids, less the cost to AT of performing
such a subcontract. That computation did not
in
any
degree
reflect
the
potential
effect . . . of bargaining or the possibility
that the Air Force would not have approved
such a subcontract without competition.
Id. at 549 (internal citation omitted).
The court therefore concluded:
The master or a judge . . . must appraise the
fair value of AT's lost opportunity in the
light of the uncertainties.
This will be
largely a matter of judgment, taking into
account relevant factors, including what the
trier of the fact concludes would have been
(1) the approximate net amount realized by AT
from
a
subcontract,
if
one
had
been
negotiated, and (2) the probability of
successful
negotiations
and
Air
Force
approval.
Id. (internal citation omitted); see also Miller v. Allstate Ins.
Co., 573 So. 2d 24, 29 (Fla. Dist. Ct. App. 1990) (in approving a
similar damages theory, concluding "that recovery will be allowed
where a plaintiff has been deprived of an opportunity or chance to
gain an award or profit even where damages are uncertain"); Wachtel
v. Nat'l Alfalfa Journal Co., 176 N.W. 801, 802-05 (Iowa 1920)
(where

defendant

breached

contract

by

restricting

plaintiff's

ability to compete in contest in which she was likely to win a

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holding

that

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Date Filed: 06/23/2011

could

be

held

plaintiff's lost chance of winning a prize).

liable

Entry ID: 5560336

for

the

But see Wright v. St.

Mary's Med. Ctr. of Evansville, Inc., 59 F. Supp. 2d 794, 799 (S.D.
Ind. 1999) (rejecting loss of chance theory because, among other
reasons,

Indiana

had

rejected

a

similar

doctrine

in

medical

malpractice cases and "[t]here is less basis for denying recovery
for loss of a chance in tort cases [as compared to contract
cases]")14; Phillips v. Pantages Theatre Co., 300 P. 1048, 1049-50
(Wash.

1931)

contractual

(where

duty

to

court
allow

assumed
plaintiff

that
to

defendant

enter

final

breached
round

of

contest, affirming dismissal because "[w]ithout either the winning
. . . or substantial proof that she would have won had she been
permitted to enter, no recovery can be had").
In Sampson v. Eaton Corp., 809 F.2d 156 (1st Cir. 1987),
the defendant and Sampson had agreed that Sampson would serve as
the defendant's exclusive real estate agent as the defendant sought
to purchase property in Massachusetts.

Id. at 159.

Although

industry norms dictated that the seller was to pay the agent's
brokerage fee, the agreement obligated the defendant to inform the
seller of Sampson's position if the defendant ended up acquiring a
property that Sampson had showed.

See id.

14

The defendant was under

In medical malpractice cases, Indiana now appears to have
embraced an approach similar to, if not the same as, the loss of
chance doctrine.
See Cahoon v. Cummings, 734 N.E.2d 535 (Ind.
2000).
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no obligation, however, to ensure that the seller actually paid
Sampson the fee.

Id.

The defendant ended up

purchasing a

property, but never informed the seller about Sampson, and the
seller paid the fee to a different agent.

Id. at 157-58.

Because

the contract lacked a guarantee that Sampson would receive any
payment, Sampson "went to the jury not for a brokerage fee, but for
the found value of the promised, and lost, opportunity to obtain
one."

Id. at 160.

The jury awarded Sampson one-half the value of

the fee, id. at 157, and this court concluded that those damages
were not too speculative.

Id. at 160.

Citing Air Technology, the

court observed, "the jury had specific evidence on the amount of
brokerage fees awarded generally and on the [specific sale at
issue], and the additional findings required to assess plaintiff's
chances are not demonstrably more speculative than those required
in many contract or tort actions."

Id.

We do not think the lost opportunity theory of causation
and damages urged by Gemini is applicable to the case before us.
First,

the

Gemini-AmeriPark

contractual

agreement

distinguishable from the agreement in Air Technology.

is

In Air

Technology, GE was obliged to award AT a subcontract if GE secured
the prime contract, provided that the parties were able to agree on
specific terms and obtain Air Force approval for the subcontract.
In the case at hand, AmeriPark lacked any analogous contractual
duty; rather, at best, AmeriPark's obligation was merely to refrain

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from discussing, negotiating for, or obtaining financing from third
parties.

To be sure, this exclusivity provision was presumably

drafted to pressure AmeriPark into accepting financing from Gemini
if it moved forward with the Mile Hi acquisition.

But there is a

meaningful difference between a duty to award a subcontract, albeit
subject to certain conditions, and a duty to refrain from dealing
with third parties.

Even if Air Technology holds that a breach of

the former duty can cause the type of lost opportunity injury
asserted by Gemini, it does not necessarily follow that a breach of
the latter duty does as well.

Put differently, in Air Technology

the plaintiff actually lost a contractually guaranteed right to a
subcontract (subject to certain conditions); in the case at bar,
Gemini was at best deprived of a contractually guaranteed right to
exclude others from negotiating with AmeriPark.
Nor do we see any indication that Massachusetts has
extended the interpretation of Air Technology urged by Gemini
beyond the circumstances of that case.

Massachusetts is of course

free to do so, but we are not in a position to take that step for
it.

See Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009)

(acknowledging this court's obligation to provide its "best guess"
as to open questions of state law, but "recogniz[ing] that . . . we
must tread lightly in offering interpretations of state law where
controlling precedent is scarce"); Gill v. Gulfstream Park Racing
Ass'n, 399 F.3d 391, 402 (1st Cir. 2005) ("A federal court sitting

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in diversity cannot be expected to create new doctrines expanding
state law.").
Because we conclude that Gemini's lost opportunity theory
of causation and damages does not apply in this case, the district
court did not err in refusing to issue the corresponding jury
instruction.
2.

The District Court's Instruction Regarding the Meaning of the
Exclusivity Provision
Gemini

contends

that

the

district

court

erred

in

concluding that the exclusivity provision was ambiguous and in
instructing the jury accordingly.
logically

prior

question

of

This objection goes to the

whether

the

jury

was

correctly

instructed on the core question of whether there was a breach of
contract at all.15 Specifically, Gemini argues that the phrase "any
person or entity" is unambiguous, and that the jurors should not
have been given instructions that allowed them to conclude that
Stroup and Greenfield did not fit the definition of "any person or
entity."
"Ordinarily, in Massachusetts 'contract interpretation is
for the court, unless disputed issues of fact bear upon the
interpretation of ambiguous language.'"

Kunelius v. Town of Stow,

588 F.3d 1, 10 (1st Cir. 2009) (quoting Liberty Mut. Ins. Co. v.

15

It is possible the jury found there was no breach and did not
reach the causation and damages question.
Because there was a
general verdict, we do not know.
-18-

Case: 10-1312

Document: 00116224447

Page: 19

Date Filed: 06/23/2011

Greenwich Ins. Co., 417 F.3d 193, 197 (1st Cir. 2005)).

Entry ID: 5560336

"A term is

ambiguous only if it is susceptible of more than one meaning and
reasonably intelligent persons would differ as to which meaning is
the proper one."

Citation Ins. Co. v. Gomez, 688 N.E.2d 951, 953

(Mass. 1998); see also Lanier Prof'l Servs., Inc. v. Ricci, 192
F.3d 1, 4 (1st Cir. 1999).

Even if the meaning of a term is clear

by itself, it "may be ambiguous when read in the context of the
entire . . . contract, or as applied to the subject matter."
Jefferson Ins. Co. of N.Y. v. City of Holyoke, 503 N.E.2d 474, 477
(Mass. App. Ct. 1987).
The district court did not err in concluding that the
exclusivity provision was ambiguous. The relevant language read as
follows: "AmeriPark (and any officers, directors or representatives
of AmeriPark) agrees not to discuss this opportunity or reach any
agreement with any person or entity regarding financing for this
Transaction or the pursuit of any sale or major financing . . . ."
As

AmeriPark

points

out,

a

literal

reading

of

this

language

precludes AmeriPark from "discuss[ing] this opportunity . . . with
any person or entity regarding financing for this Transaction."
The Outline did not define "person or entity," however, and it
implicitly contemplated that AmeriPark would in fact "discuss" the
acquisition's financing with other "person[s] or entit[ies]."16

16

For example, the confidentiality provision permitted
AmeriPark to disclose the contents of the Outline to "those in a
confidential relationship with [AmeriPark] such as directors,
-19-

Case: 10-1312

Document: 00116224447

Page: 20

Date Filed: 06/23/2011

Entry ID: 5560336

Consequently, "reasonably intelligent persons" could disagree about
what or who qualified as a "person or entity."

The district court

therefore correctly concluded that the terms were ambiguous, and it
did not err in instructing the jury accordingly.
III.

Conclusion

For the reasons explained above, we affirm.

senior executive officers, legal counsel and accountants."
Moreover, the non-binding provisions of the Outline contemplated
that part of the financing would be used to repurchase Greenfield's
equity position in AmeriPark, which presumably would require some
discussion of the financing with Greenfield.
-20-