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No. 94-3969WM

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Princess House, Inc., a *

Massachusetts corporation, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Rita Lindsey; Herb Lindsey, * [UNPUBLISHED]

*

Appellants. *

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Submitted: December 13, 1995

 Filed: February 26, 1996

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Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

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PER CURIAM.

Rita and Herb Lindsey sold crystal products and other

decorative items for Princess House, Inc. for many years. The

Lindseys eventually became high-level supervisors within a group of

Princess House salespeople operating in Missouri and surrounding

states. After Princess House had repeated problems filling product

orders on time, the Lindseys decided to supplement their income by

selling products for Jewels by Park Lane, Inc. (Park Lane), a

competitor of Princess House. The Lindseys asked a Park Lane

recruiter to hold local informational meetings about his company,

and the Lindseys invited the other supervisors in their Princess

House sales group to attend. Most of the supervisors attended the

meetings and decided to work for Park Lane. Princess House then

brought this diversity action against the Lindseys, contending they

breached their contracts with Princess House by recruiting for Park

Lane, intentionally interfered with Princess House's contracts with
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the other supervisors, and unlawfully used company trade secrets.

The Lindseys filed a number of counterclaims. The district court

granted Princess House summary judgment on most of the

counterclaims before trial, and a jury later found for Princess

House on all Princess House's claims and the remaining

counterclaims. The jury awarded damages and the district court

permanently enjoined the Lindseys from using Princess House's

confidential information and recruiting Princess House salespeople.

The Lindseys appeal. We affirm.

The Lindseys contend the district court improperly excluded

evidence about Princess House's supply problems and erroneously

instructed the jury that the Lindsey's reasons for joining Park

Lane were irrelevant to Princess House's breach of contract claim.

According to the Lindseys, they were entitled to breach their

contracts with Princess House because Princess House had already

breached the contracts by failing to supply products on time. The

Lindseys' theory fails under Missouri law. If Princess House's

supply problems amounted to a material breach of contract, the

Lindseys were entitled to cancel their contracts, Curt Ogden Equip.

Co. v. Murphy Leasing Co., 895 S.W.2d 604, 608-09 (Mo. Ct. App.

1995), but the Lindseys chose not to cancel. They concede that

even after they began selling products for Park Lane, they

continued to work for Princess House and told Princess House

executives they were not quitting the Princess House organization.

Because the Lindseys did not treat the failure to supply products

as a material breach, the Lindseys had a duty to continue

performing as their contracts required, although they could bring

an action against Princess House for damages. Id. at 609;

McKnight v. Midwest Eye Inst., 799 S.W.2d 909, 915-16 (Mo. Ct. App.

1990). The Lindseys were not entitled to breach their contracts

while continuing to work for Princess House and accept the

contracts' benefits. See GNG XI, Inc. v. Quixoti Corp., 651 F.

Supp. 68, 72 (E.D. Mo. 1986). Given that the Lindseys cannot use

Princess House's supply problems as a defense, the district court
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correctly concluded evidence about the failure to supply products

was not relevant to the breach of contract claim. And because the

Lindseys did not seek damages from Princess House based on the

supply problems, the evidence also was not relevant to the

Lindseys' breach of contract counterclaim. See Rice v. West End

Motors, Co., 905 S.W.2d 541, 542 (Mo. Ct. App. 1995).

We also reject the Lindseys' assertions that the district

court erroneously excluded a variety of other evidence. The

Lindseys' brief does not explain why they wanted to present some of

the evidence. Further, the record shows the district court did not

abuse its discretion by excluding each piece of evidence as

irrelevant, cumulative, or unduly confusing and prejudicial. See

Fed. R. Evid. 402-403.

Turning to the Lindseys' objections to the adverse grant of

summary judgment on several of their counterclaims, we affirm for

the reasons discussed in the district court's order. See Princess

House, Inc. v. Lindsey, No. 91-0540-CV-W-2 (W.D. Mo. Aug. 10,

1994). The Lindseys also argue there is insufficient evidence to

support the jury verdict for Princess House on the claims for

intentional interference and wrongful use of trade secrets. Having

carefully examined the record, we disagree. Moreover, the jury's

damages award has an adequate basis in the record and is proper.

See Polytech, Inc. v. Affiliated FM Ins. Co., 21 F.3d 271, 276 (8th

Cir. 1994). Finally, the Lindseys contend the permanent injunction

is overbroad and unnecessary because of the passage of time, but

the Lindseys should first present this argument to the district

court. See Airlines Reporting Corp. v. Barry, 825 F.2d 1220, 1226

(8th Cir. 1987).

We affirm the judgment for Princess House in this well-tried

case. We also deny the Lindseys' motion to supplement the record.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.