In 1996 and 1997, the First National Bank of Omaha (the Bank) and Three Dimension Systems Products, Inc. (3D) entered into a series of written agreements by which. 3D was to develop, customize, and deliver to the Bank three software computer programs intended for the use of the Bank’s affiliates, subsidiaries and clients. Two of the programs, known as PPS and Teller, were successfully installed by 3D at the Bank and are not the subject of the litigation below.
It is the third program, known as Platform, which is at the heart of the lawsuit. Following 3D’s delivery of the first stage (Stage I) of the Platform program to the Bank, a dispute concerning contract performance arose between the parties. In this litigation, the Bank claimed that 3D had breached the contract by (a) refusing to “performance test” that part of the program, Stage I, which had been delivered and (b) demanding the payment of $250,000 as a condition of its continued performance. 3D denied any breach and counterclaimed for breach of contract by the Bank, copyright infringement, and conversion. Among the defenses asserted by 3D was the Bank’s failure to give 3D the contractual opportunity to cure the alleged breach.
Although there were several issues between the parties, each of which was the subject of extensive testimony during the two-week jury trial, the heart of this appeal is whether there was sufficient evidence to support the Bank’s assertion, and
Following the jury’s verdict, in which it found that 3D had anticipatorily breached the contract, the District Court determined that “given the evidence presented at trial, no reasonable jury could have arrived at the conclusion that 3D had anti-cipatorily breached the contract with [the Bank].” Accordingly, it granted 3D’s motion for judgment as a matter of law, which had been taken under advisement at the close of all the evidence. The Bank now appeals from that determination. Because our review of the entire record satisfies us that there was sufficient evidence to support the jury’s finding that 3D had anticipatorily breached the contract, we reverse and reinstate the jury’s verdict.
Before reviewing the evidentiary bases for the jury’s determination, it is well to understand what is
not
at issue in this appeal. The parties, and the District Court, agreed that Arizona law governs the contract and all issues relating to anticipatory breach. Under Arizona law, anticipatory breach may be proven by evidence that a party has “expressed a positive and unequivocal manifestation that [it would] not render the required performance when it [was] due.”
Oldenburger v. Del E. Webb Dev. Co.,
We review
de novo
the District Court’s grant of judgment as a matter of law and view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party — the Bank.
See Gardner v. Buerger,
As this Court has recently stated
[T]he law places a high standard on overturning a jury verdict because of the danger that the jury’s rightful province will be invaded when judgment as a matter of law is misused. Where conflicting inferences reasonably can be drawn from the evidence, it is the role of the jury, not the court, to determine which inference shall be drawn. Only where “all of the evidence points in one direction and is susceptible to no reasonable interpretation supporting the jury verdict” should the grant of a motion for judgment as a matter of law be affirmed. Thus, it is improper to overturn a jury verdict unless, after giving the nonmoving party the benefit of all reasonable inferences and resolving all conflicts in the evidence in the nonmoving party’s favor, there still exists “a complete absence of probative facts to support the conclusion reached so that no reasonable juror could have found for the nonmoving party.”
Hunt v. Nebraska Pub. Power Dist.,
To establish anticipatory breach of a contract under Arizona law, it was necessary for the Bank to prove (1) an unequivocal intent on the part of 3D not to perform as promised and (2) its own willingness and ability to perform the contract in the absence of the anticipatory breach. The Bank asserted that 3D had refused to give the required support for Stage I and had refused to continue performing under the contract unless and until the Bank paid
In response to the foregoing, 3D argued and presented testimony to the effect that the written and verbal communication relating to Stage I errors did not state, nor could they be reasonably construed as stating, that Stage I errors would never be corrected. Rather, they would be corrected in the later stages and that process would neither delay nor impede the completion of the project. 3D also denied that the payment of the $250,000 was ever made a condition of continued performance. At most, 3D claimed, it was a subject discussed by the parties.
The record shows sharp disagreement between the parties as to what was said, intended, and understood with respect to these two issues. Each was given wide latitude by the District Court to put before the jury evidence in support of its respective position. The jury was instructed in accordance with Arizona law and neither party had substantive objections to those instructions. The jury was asked, in effect, to resolve the conflicting testimony, and it did so.
We have made a thorough review of the entire record and are satisfied that the jury’s determination that there was an anticipatory breach of the contract by 3D was supported by the evidence before it. It is not within the province of a trial court to replace a jury’s reasonable findings with its own, but that appears to be what occurred here when the jury verdict was set aside. We recognize that this jury could have reached a different result — this was a close case — but the need to resolve factual issues in close cases is the very reason we have juries. Both parties had ample opportunity to present evidence on the issue of anticipatory breach. The jury resolved that issue in favor of the Bank and we are satisfied that the decision has support in the record and should be allowed to stand.
2
Notes
. The District Court also determined that the Bank had failed to comply with the contract provision requiring it to provide 3D with notice of default and an opportunity to cure. The Court had previously instructed the jury that “an anticipatory breach or repudiation by one party excuses the other party from having to give notice and an opportunity to cureThis instruction accurately reflects Arizona law, and was not objected to by ei