Infinity Entertainment Corp. v. David Sutton ( 1998 )

FILED
July 29, 1998
INFINITY ENTERTAINMENT CORP,, )
formerly OLYMPUS ENTERTAINMENT,)
Cecil W. Crowson
INC., and RICCI MARENO, Individually, )
Appellate Court Clerk
) Davidson Chancery
Plaintiffs/Appellants, ) No. 95-2932-III
)
VS. )
)
DAVID SUTTON, Individually and ) Appeal No.
d/b/a DAVID SUTTON MUSIC, ) 01A01-9712-CH-00722
TIM HADLER a/k/a TIMOTHY )
MICHAEL HADLER, ANGELA SAVAGE)
HADALLER, and MARK BERNARD )
a/k/a) ZYLER BEA, )
)
Defendants/Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
Franklin D. Brabson, Esq., #3890
2806 Natchez Trace
Nashville, Tennessee 37212
ATTORNEY FOR PLAINTIFFS/APPELLANTS
James H. Harris, III, #2731
49 Music Square West, Suite 600
Nashville, Tennessee 37203
ATTORNEY FOR JIM HADLER/DEFENDANTS/APPELLEES
Joe T. Childress, #9929
300 James Robertson Parkway, Second Floor
Nashville, Tennessee 37201
ATTORNEY FOR DAVID SUTTON/DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
INFINITY ENTERTAINMENT CORP,, )
formerly OLYMPUS ENTERTAINMENT,)
INC., and RICCI MARENO, Individually, )
) Davidson Chancery
Plaintiffs/Appellants, ) No. 95-2932-III
)
VS. )
)
DAVID SUTTON, Individually and ) Appeal No.
D/b/a DAVID SUTTON MUSIC, ) 01A01-9712-CH-00722
TIM HADLER a/k/a TIMOTHY )
MICHAEL HADLER, ANGELA SAVAGE)
HADALLER, and MARK BERNARD )
a/k/a) ZYLER BEA, )
)
Defendants/Appellees. )
OPINION
The captioned plaintiffs have filed successive notices of appeal from successive summary
judgment dismissing all defendants.
On September 21, 1995, plaintiffs filed their complaint alleging in substance the
following:
1. This is a complaint for injunctive relief and for
damages. Count I states a claim for breach of contract. Count
II for statutory inducement for breach of contract, Count III
for common law inducement for breach of contract, Count IV
for civil conspiracy and Count V for injunctive relief.
5. Infinity Entertainment Corporation formerly
known as Olympus Entertainment, inc. is in the music and
entertainment business, including, but not limited to, song
writing, publishing and the promotion of artists and of the
artists’ activities and assisting its artists in all ways in
connection with their careers.
8. From September of 1993 Tim Hadler a/k/a
Timothy Michael Hadaller signed an Exclusive Management
Agreement for one year with three pone year options with
Olympus as per Exhibit “A” attached hereto. Hadler was a
new comer and unknown artist. In October of 1993, Hadler
signed an Exclusive Writers Agreement (Exhibit “B”) and a
Production Agreement (Exhibit “C”).
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10. During July and August of 1995, Hadler
initiated a scheme whereby he would negotiate a release under
the pretense of leaving the music business to return to his
home in the state of Washington. On a prior occasion in 1994
Hadler attempted to raise personal promotion funds for
himself by plotting with a potential Mississippi investor to
send funds to his father who would then relay the money to
Hadler.
13. Upon information and belief, Hadler received
$25,000.00 from Sutton on August 29, 1995 which he
deposited in his personal account at First Union Bank and
obtained a $25,000.00 cashiers check to pay for his
conditional release. David Sutton provided these funds to
Hadler to procure the breach.
15. Songwriter Mark Bernard has breached his Exclusive
Writers Agreement dated February 6, 1995 (Exhibit “E”) by
obtaining funding from David Sutton to cut several demos at
Javelina Studios. Sutton paid the expenses by check to the
studio and paid the musicians on the session by cash.
On October 23, 1995, Mark Bernard filed the following answer:
I was an exclusive writer with the Infinity
Entertainment Corporation. Infinity and I had some
differences for several months and when David Sutton offered
to finance some demos and help me financially, I accepted.
I told Mr. Sutton that I wasn’t really sure whether or
not I was still under contract with Infinity but he didn’t seem
to be concerned about it. He was going to pay for the demos,
hep me some financially, and get one-half of the publishing
rights on the songs demoed.
I didn’t think Infinity would care - but obviously they
do.
On December 5, 1995, Tim and Angela Hadaller filed their answer stating:
8. With respect to the allegations contained in
paragraph 8 of the complaint, Defendant Tim Hadler admits
that he signed the agreements identified as Exhibits A, B, and
C to the complaint.
AFFIRMATIVE DEFENSES
1. The complaint fails to state a claim upon which relief
can be granted.
2. Plaintiffs are estopped from asserting their claims
against these Defendants because they released Defendant
Tim Hadler from all contractual obligations to Plaintiffs and
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accepted as consideration for their release payment from
these Defendants in the amount of $25,000.00.
3. Plaintiffs have received accord and satisfaction in
that they accepted the sum of $25,000.00 as consideration
for their release of Tim Hadler from all contractual
obligations to Plaintiffs.
Otherwise, said defendants denied the allegations of the complaint.
On December 13, 1995, David Sutton filed his answer stating:
15. Defendant admits that he paid the studio and
musician expenses and met with Mark Bernard and Thomas
E. Stewart, Attorney at Law, as stated in Paragraph 15.
17. Defendant admits that he was award that Tim
Hadler and Mark Bernard had contractual relationships with
one or more of the Plaintiffs.
Otherwise, said defendants denied all allegations of the complaint and pled the same affirmative
defense as the Hadallers.
On April 10, 1997, the Hadallers filed a motion for summary judgment.
On July 7, 1997, plaintiffs filed a response to the summary judgment stating:
Plaintiffs have agreed to take a voluntary non-suit as
to Angela Savage Hadaller, Defendant Timothy Michael
Hadaller’s wife.
Plaintiffs believe the complaint speaks for itself and
is simple, concise and direct.
On July 10, 1997, the Hadallers filed an excerpt from their deposition including the
following:
Q. Mr. Hadler, with respect to your obligations
pertaining to the leukemia project, did you remain available
after you signed this release to perform those obligations?
A. Yes, I did.
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Q. Okay. Were you ever asked by anybody to do
anything with respect to the leukemia project after you signed
the release?
A. No.
On July 18, 1997, the Trial Court entered an order stating:
The court finds that there are no allegations of fact
before this court against Defendant Angela Hadaller which
tend to establish any claim for relief against her.
The court construes the Release Agreement to require
Mr. Hadaller to pay Plaintiff the sum of Twenty-Five
Thousand Dollars ($25,000.00). This is the only condition to
the effectiveness of the release and Mr. Hadaller has clearly
satisfied that condition. The record before the court does not
contain statements from affidavits, from discovery or
otherwise which tend to establish a breach of contract by
either of the Defendants Hadaller.
With respect to the claims for relief based on statutory
and common-law inducement to breach, and upon a civil
conspiracy, the record before the court is equally devoid of
the specific facts from either affidavits or discovery materials
that are required by Byrd v. Hall, 847 S.W.2d 208 (1993).
Likewise, the “injunctive relief” that Plaintiff refers to in this
complaint is a remedy only and is not a ground for relief.
It is therefore Ordered that the motion for partial
summary judgment is granted and that the defendants
Timothy Michael Hadaller and Angela Savage Hadaller are
dismissed as parties to this action.
On August 25, 1997, the Trial Court overruled a motion to alter or amend the order
entered on July 18, 1997.
On August 27, 1997, Don Sutton filed his motion for summary judgment.
On September 23, 1997, plaintiffs appealed from the July 18 and August 25, 1997,
orders.
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On November 5, 1997, the Trial Court entered “partial summary judgment” in favor of
David Sutton stating:
This cause came on to be heard before this Honorable
Court on the 9th day of October, 1997 upon the Motion for
Partial Summary Judgment filed on behalf of the Defendant,
David Sutton, statements by counsel, supporting affidavits,
evidence, memoranda and the record as a whole;
This Court finds that no genuine issue of material fact
exists regarding Mr. Sutton’s knowledge of the existence of
an exclusive agreement between Infinity Entertainment
Corporation and Defendant, Mark Bernard, that same is an
essential element to proving the existence of a breach of
contract between Infinity Entertainment Corporation and
Mark Bernard and that there is no evidence to support
Plaintiffs’ theory of a conspiracy between Defendants David
Sutton and Mark Bernard regarding a breach of Mr. Bernard’s
contractual obligations with Plaintiff.
In making its findings, the Court has considered the
past dealings between the parties, the testimony of Mark
Bernard, Ricci Mareno and David Sutton, as well as the
pleading filed in this case; specifically, Paragraph 21 of the
Answer filed on behalf of the Defendant, David Sutton.
On December 8, 1997, (a Monday), the plaintiffs filed a notice of appeal stating:
Comes the Plaintiffs and file this Notice of Appeal
from a second partial summary judgment from the Chancery
Court of Davidson County, Tennessee, Part III.
The appellants present the following issues:
1. Did court err in granting summary judgment to
Defendant, Tim Hadler?
2. Did Court err in granting summary judgment to
Defendant, David Sutton?
3. Does Tennessee Rules of Civil Procedure abrogate the
Plaintiffs’ right to trial by jury?
4. Does bench trial by deposition and summary judgment
deprive parties of their day in court?
FIRST ISSUE
Dismissal of Tim Hadaller
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The uncontroverted evidence shows that whatever contractual relations existed between
plaintiffs and Tim Hadaller were released and discharged by a written agreement. Plaintiffs
appear to seek rescission of the release for fraud. Defendants offer evidence denying fraud, and
plaintiffs offer no evidence to establish fraud which is not presumed. Hiller v. Hailey, Tenn.
App. 1995, 915 S.W.2d 800; Fowler v. Happy Goodman Family, Tenn. 1978, 575 S.W.2d 496.
No merit is found in plaintiffs’ first issue.
SECOND ISSUE
Dismissal of David Sutton
Plaintiffs’ suit against David Sutton was apparently based upon the theory that he
furnished the $25,000.00 consideration for the release of Tom Hadaller and thereby joined in a
conspiracy to defraud plaintiffs. A necessary prerequisite to recovery of damages from David
Sutton is a rescission of the instrument executed by plaintiffs releasing Tim Hadaller. As
heretofore discussed, plaintiffs have not offered evidence to support such rescission and the
release discharged Tim Hadaller. Without rights against Tim Hadaller, plaintiffs have no rights
against any alleged conspirator in connection with the release.
No merit is found in plaintiffs second issue.
THIRD ISSUE
Right to Trial by Jury
Decisions granting summary judgment involve only questions of law and therefore do
not invade the province of the jury. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.
No merit is found in plaintiffs’ third issue.
FOURTH ISSUE
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Day in Court
Plaintiffs have had their day in court and have been defeated by a ruling of law similar
to a directed verdict. Gray v. Amos, Tenn. App. 1993, 869 S.W.2d 925.
The judgments of the Trial Court are affirmed. Costs of this appeal are assessed against
the appellants. The cause is remanded to the Trial Court for necessary further proceedings.
AFFIRMED AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
WILLIAM C. KOCH, JR., JUDGE
____________________________
WILLIAM B. CAIN, JUDGE
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