___________ No. 95-3330

___________ David Mears, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Nationwide Mutual Insurance * Company, * * Appellee. *

__________ Submitted: March 14, 1996 Filed: August 2, 1996

__________ Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MAGILL, Circuit Judge.

David L. Mears won a contest sponsored by his employer, Nationwid e Mutual Insurance Comp any. It was unclear, however, what his prize should be. M ears expected to receive two Mercedes-Benz automobiles, whil e Nationwide offered a gift certificate for a free restaurant meal.
Mears sued for breach of contract in this diversity action. Th e jury found in his favor and awarded damages of $60,000. The district cour t voided the verdict, granting judgment as a matter of law for Nationwide or , in the alternative, a new trial. We reverse, finding that there wa s sufficient evidence to support the jury verdict and an inadequate basis fo r a new trial.

### -2- I.
Nationwide Mutual Insurance Company (Nationwide) traditionally holds
a regional convention for its employees every three years. The convention s were intended to boost employee morale by recognizing workplac e achievements.

Nationwide planned to have a regional convention for the Sout h Central Regional Offices (SOCRO) in July 1994. To organize and plan the convention, Nationwide created an Executive Convention Committee and six subcommittees. One committee, consisting of Linda McCauley, Mary Peterson , and Jeff Handy, was responsible for selecting a convention theme. The y decided to have a theme contest and drafted the following announcement:

SPECIAL ANNOUNCEMENT! The 1994 SOCRO Claims Co nvention plans are being developed and we need your creativity. We don't know where. We don't know when
. And we don't have a theme. That's where you come in

. A contest is hereby announced to create a theme. Here's what you could win: His and Her's Mercedes. An all expense paid trip for two around the world. Additional prize to be announced. (All prizes subject to availability) Only two rules apply: 1. The slogan is limited to no t more than eight words. 2. All e ntries must be submitted to Linda McCauley , Regional Office by August 1, 1993.
Put your thinking caps on, get those creative juices flowing, tap the far reaches of your mind. Prior themes are no t eligible. As you will remember, our 1991 theme was "Our Moving Force is You." Don't delay. Like Ed McMahon says, you can't win if you don't enter.

Pl. Ex. 1.

### -3- David Mears, who worked out of his home as a claims adjuster fo r Nationwide from October 1985 to September 1993, was one of approximately 185 SOCRO employees who received the announcemen t. Mears decided to enter the contest and submi tted several themes, including "At the Top and Still Climbin g." Several months after submitting his theme, Mears left th e employment of Nationwide.

In October 1993, Peterson notified Mears that his theme had bee n chosen for the 1994 c onvention. Mears claims that Peterson also told him that he had won two Mercedes-Benz automobiles, a fact that Peterso n dispu tes. In January 1994, Mears spoke with Peterson again to inquir e about the status of the Mercedes. Peterson warned him that he might not receive the automobil es for three reasons: first, Nationwide might change the convention theme; second, Mears was no longer employed by Nationwide; and third, the contest was a joke.
In the end, Nationwide used the theme submitted by Mears for th e July convention. The them e appeared on name tags and convention booklets, and provide d an overarching message for the convention events. After th e convention, Mears spo ke with Handy. Handy informed Mears that Nationwide
never intended to award the two automobiles, and offered Mears a restauran t gift certificate instead.

On Octobe r 12, 1994, Mears sued Nationwide in federal court fo r breach of contract. Nationwide admitted that the contest was legitimate, but argued that Mears was not entitled to the two Mercedes-Benz automobile s as a prize. The jury found in favor of Mears and awarded him $60,000 in damages.

On Nationwide's motion, the district court granted judgment as a matter o f law. The court held that "the 'contract' sued on herein wa s simply not a contract because the terms are not nearly

### -4-

definite enough to be enforced and there is simply no reasonably certain basis for giving an appropriate remedy." Mem. Op. at 4. In th e alternative, the district court also granted a new trial on the ground s that the evidence was insufficient to substantiate the amount of damages. Mem. Op. at 8; see also Fed. R. Civ. P. 50(c). Mears appealed, challengin g both the judgment as a matter of law and the contingent new trial. I n considering Mears' ap peal, we look to the substantive law of the State of Arkansas. See Mudlitz v. Mutual Serv. Ins. Co. , 75 F.3d 391, 393 (8th Cir

. 1996).

II.

The distri ct court granted judgment as a matter of law on tw o grounds. First, the court concluded that Nation wide's prize offer was too indefinite to give ri se to an enforceable contract. As the court phrased it,

assu me that A told B that if B would mow A's lawn, A "could " pay him with: a) his and her Mercedes; b) an all-expense paid trip for two around the world; c) additional prize to b e ann ounced, and then told him that "all prizes subject t o ava ilability," would anyone seriously argue that A and B ha d entered into an enforceable agreement?

Mem
. Op. at 6. Because the contest announcement, like the court' s hyp othetical, stated several possible prizes, including an open-ende d "additi onal prizes to be announced," the court believed the nature o f Nationwide's offer was unenforceably indefinite.

Even if o ne assumed that the person who submitted the winning theme
was en titled to two Mercedes-Benz automobiles, the court believed th e consideration to be i ndefinite because the contract still left it unclear what type of Mercedes would be awarded. Mem. Op. at 7. Would it be "two 197 0 Mercedes worth a few hundred or, at most, a few thousand dollar s each," or a 1996 model costing over $100,000? Id.

### Prize conte sts are enforceable contracts. See 14 W. Jaeger, 1 

### Williston on Contracts § 1666 (3d ed. 1972). -5- Second, a ssuming that Mears could show sufficient definitiveness in th e contract terms, the court held that the damages claimed wer e speculative. Mears testified that a visit to a Mercedes-Benz dealership indicated that the cheapest new Mercedes cost $31,450. The court held tha t the sticker price of one car in the lot provides no indication of Mears' damages caused by Nationwide's breach of contract.
We review a judgment as a matter of law with deference to the jury's verdi ct. White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992). The part y securing the jury verdict receives the benefit of all reasonable inference s to be drawn from the evidence. We will affirm a judgment as a matter of law only where all the evidence points in one di rection and is susceptible to no reasonable inte rpretation supporting the jury verdict. Id. ; Singer Co. v. E.I. du Pont de Nemours & Co. , 579 F.2d 433, 440-41 (8th Cir. 1978)

. In light of this standard of review, judgment as a matter of law was not justified in this instance.

A.

In order to be binding, a contract must be reasonably certain as to its terms and requirements. ERC Mortgage Group, Inc. v. Luper , 795 S.W.2d 1 362, 364 (Ark. App. 1990); see also 17A Am. Jur. 2d Contracts § 192 (1991)
. A contract is suffici ently certain if it provides a basis for determining the existence of a breach and for giving an appropriate remedy. Ciba-Geig y Corp. v. Alter , 834 S.W.2d 136, 146 (Ark. 1992). The law does not favor the destruction of contracts because of uncertainty. Id.

Nationwide's contest notice offered several prizes--an all-expens e paid trip around the world for two and prizes to be

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det ermined later, as well as the his and her Mercedes--and gave n o indica tion of which prize the winning theme submitter would receive

. However, a contract t hat is facially ambiguous can be made certain by the subsequent actions or declarations of the parties. Swafford v. Sealtest Foods Div. of Nat'l Dairy Prods. Corp. , 483 S.W.2d 202, 204 (Ark. 1972); see also Phipps v. Storey , 601 S.W.2d 249, 251 (Ark. 1980).

At tria l, both Peterson and Mears testified that she told him tha t he had won two Mercedes while at a dinner attended by many Nationwid e employees. Peterson claimed that she spoke with a facetious tone and, in reality, had no intention of awarding the automobiles. Mears, on the othe r hand, took Peterson a t her word and believed that of the prizes listed on the contest announcement, he had won the Mercede s. It appears that others around Mears also believed that he had won the automobiles. I Trial Tr. at 27, 60-61, 63-64, 89. Faced with this factua l dispute, the jury had to decide which version of events was more credible . They believed Mears and we perceive no reasoning for undoing this jury determination.
Because the contest contract could be reasonably construed to e ntitle Mears to two Mercedes-Benz automobiles, the only remaining uncertainty lie s in th e type of Mercedes to be awarded. There is, as the district cour t notes, a wide range of values for Mercedes, depe nding largely on the model and year. This uncertainty, however, is not fat al. First, contract terms
are interpreted with strong consideration for what is reasonable. Se e Dziga v. Muradian Business Brokers, Inc. , 773 S.W.2d 106, 107 (Ark. App. 1989) ("courts will, if possible, construe the contract in a manner which gives effect to the reasonable intentions of the parties"); Morgan v. Farr , 614 S.W.2d 233, 234 ( Ark. 1981) ("construction should be adopted which is most fa ir and reasonable"). Under a reasonable interpretation of th e contest contract, the jury could expect the automobiles to be new.

### The A rkansas Supreme Court held that a contract in which a 2 

### Ford automobile dealership agreed to buy a customer's two use d automobiles as trade-in for a new, but unspecified, Ford truck to be purchased later was enforceable. The customer then bought a truck elsewhere and sought to recover his trade-in money. Despite the numerous different truck models manufactured by Ford, th e court held that the contract was certain enough to be enforceable an d that the dealership was entitl ed to damages in the amount of their profits for the least profitable new truck. Dolly Parker Motors, Inc. , 245 S.W.3d at 821. -7- Secon d, when a minor ambiguity exists in a contract, Arkansas la w allows the complaining party to insist on the reasonable interpretatio n that is least favorable to him. Arkansas Rock & Gravel v. Chris- T Emulsion , 536 S.W.2d 724, 726 (Ark. 1976). Indeed, in Dolly Parker Motors , Inc. v. Stinson , 245 S.W.2d 820, 821 (Ark. 1952), the Arkansas Suprem e Court held that a con tract that specified only the make of the automobile had enoug h certainty to be enforceable. These two factors, take n 2 together, are suffici ent to support the jury's conclusion that Nationwide owed Mears two of Mercedes-Benz's least expensive new automobiles as his contest prize.

B.

The district court believed that even if the make and model of a Mercedes-Benz could reasonably be determined, the evidence was insufficien t to fix damages. Courts will not enforce a contract where the determinatio n of dam ages is left to speculation and conjecture. Wasp Oil, Inc. v

. Arkansas Oil & Gas, Inc. , 658 S.W.2d 397, 401 (Ark. 1983). The burde n rests with the plaint iff to present evidence sufficient to fix damages in dollars and cents. Milligan v. General Oil Co. , 738 S.W.2d 404, 406 (Ark. 1987). Damages, however, need not be proven with absolute, mathematical certainty. 25A C.J.S. Damages § 162(2) (1966).

Based on the evidence presented at trial, we conclude that th e damages sustained by Mears due to Nationwide's breach of contract

### The f act that the jury's damage award was $2,900 less tha n 3 

### the da mages suggested by Mears' price figures suggests that th e jury adjusted the damages to account for the fact that Mears ' price figure was based on 1995 automobiles, while the prize, if awarded in a timely fashion, would have been 1993 models. -8- are not speculative, but are susceptible to adeq uate certainty. Mears did not r eceive the two bottom-of-the-line Mercedes that Nationwide ha d prom ised in exchange for the winning convention theme and, thus, hi s damages are the value of those automobiles. At trial, Nationwide did not offer any evidence on the price of such Mercedes-Benz. Mears, on the othe r hand, testified that the least expensive new Mercedes cost $31,450. I Trial Tr. at 32. He based this figure on information from Mercedes-Benz dealerships in Little Rock and in Fayetteville. Id. at 35. In the absenc e of contrary testimony from Nationwide, the jury reasonably concluded that Mears suffered $60,000 in damages. 3

III.

In a ddition to its petition for judgment as a matter of law , Natio nwide also moved for a new trial, arguing that the jury's $60,00 0 verdict went against the weight of the evidence. Rule 50(c) of the Federa l Rules of Civil Proced ure requires that the district court, in ruling on a motion for judgment as a matter of law where a motion for new trial is als o pending, conditionally rule on the new trial mot ion. In keeping with this rule, the district court granted a contingent new trial because it believe d that the trial evidence on damages was thin and forced the jury t o speculate as to their amount. Mem. Op. at 8.

The distr ict court may order a new trial where it is convinced that the ve rdict goes against the clear weight of the evidence or where a miscarriage of justic e will result. Benjamin v. Aluminum Co. of Am. , 921 F.2d 170, 173 (8th Cir. 1990). While the district court's discretion is not boundless, it can rely on its own reading

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of the evidence in de termining whether the verdict goes against the clear weight of the evidence. White , 961 F.2d at 780. We review a contingent grant of new trial for abuse of discretion. See Fineman v. Armstrong Worl d Indus ., Inc. , 980 F.2d 171, 206 (3d Cir. 1992) (reviewing a contingen t grant of new trial for abuse of discretion), cert. denied , 507 U.S. 92 1 (1993); Larabee v. M M & L Int'l, Inc. , 896 F.2d 1112, 1117 (8th Cir. 1990 ) (affirming the distri ct court's denial of a conditional new trial because it was not an abuse of discretion).
Having carefully reviewed the trial transcript, we do not believ e that the damage evidence presented by Mears forced the jury to speculate
on damag es. While Mears did not present Mercedes-Benz invoices o r affidavits from the company or its dealerships to prove the cost of a basi c automobile, he did te stify that the price of a Mercedes-Benz was $31,450,
a figure based on inquiries he had made with two Mercedes-Benz dealerships

. This evidence is, as a matter of law, sufficient to take any damage award out of the field of pure conjecture. It is an abuse of discretion when th e district court bases its decision on an error of law. First Bank v. First Bank Sys., Inc. , 84 F.3d 1040, 1044 (8th Cir. 19 96). To order a new trial based on the lack of damage evidence was, therefore, an abuse of th e district court's discretion, and we reverse.

IV.

Fo r the reasons stated, we reverse the district court's order o f judgment as a matter of law and contingent new trial and reinstate th e jury's verdict for $60,000.

### -10- A true copy.

Attest:

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