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Premier Signatures v. Feld Entertainment ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    PREMIER SIGNATURES INTERNATIONAL,
    INCORPORATED,
    Plaintiff-Appellant,
    v.
    No. 98-2456
    FELD ENTERTAINMENT PRODUCTIONS,
    INCORPORATED, d/b/a Ringling Bros.
    and Barnum & Bailey Circus,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    T. S. Ellis, III, District Judge.
    (CA-98-2-A)
    Argued: May 6, 1999
    Decided: June 25, 1999
    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: James Warren Hundley, BRIGLIA & HUNDLEY, P.C.,
    Fairfax, Virginia, for Appellant. John A.C. Keith, BLANKINGSHIP
    & KEITH, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: David
    J. Gogal, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for
    Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Premier Signatures International, Incorporated, challenges the dis-
    trict court's entry of summary judgment against it in its diversity
    action for breach of contract against Feld Entertainment, Incorpo-
    rated. We affirm.
    I.
    The facts in this case are essentially undisputed. Appellee Feld
    Entertainment, Incorporated ("Feld"),1 operates a number of entertain-
    ment properties, including the Ringling Bros. and Barnum & Bailey
    Circus. Beginning around 1985, Feld sought a corporate sponsor to
    serve as the "title" sponsor for the circus. To that end, Allen Bloom,
    vice president of Feld, contacted Bud Stanner, senior vice president
    of International Management Group (IMG). IMG agreed to assist Feld
    in finding a title sponsor, in return for a commission of approximately
    20% on any subsequent sponsorship deal. In the following few years,
    IMG successfully negotiated successive sponsorship agreements with
    Ocean Spray and Proctor & Gamble. However, in each case, the spon-
    sors chose not to renew their respective agreements.
    After Proctor & Gamble terminated its sponsorship agreement,
    IMG began looking for another sponsor. Because Feld's agreement
    with IMG was non-exclusive, Feld also enlisted the assistance of Cor-
    porate Entertainment Productions (CEP), a joint venture by Young &
    Rubicam, an advertising agency, and appellant Premier Signatures
    International, Incorporated ("Premier"). At approximately the same
    _________________________________________________________________
    1 The corporate predecessor of Feld Entertainment, Incorporated, was
    Irvin Feld and Kenneth Feld Productions, Incorporated. For purposes of
    this opinion, we use the shorthand "Feld" to refer to both companies
    interchangeably.
    2
    time, both IMG and CEP told Bloom that they were working on
    obtaining an agreement from Sears to sponsor the circus.2 As negotia-
    tions between IMG, CEP, and Sears were proceeding, Bloom worked
    out separate oral agreements with IMG and CEP for each company
    to split the commission should Sears sign a sponsorship agreement
    with Feld. Specifically, IMG agreed to take a 12% commission, and
    CEP agreed to a 7.5% commission. The agreement between Feld and
    IMG was subsequently memorialized in a letter, which Bloom ini-
    tialed; the agreement between Feld and CEP was never reduced to
    writing.
    Bloom recalls that, at the time of the negotiations, he told both
    IMG and CEP that, if Sears signed with Feld and subsequently
    renewed the sponsorship agreement, "we [Feld] would take care of
    them [IMG and CEP] on a renewal basis and we would negotiate a
    renewal fee with them." J.A. at 49 (deposition of Allen Bloom). Eric
    Weisman, executive vice president of CEP and the individual at CEP
    with whom Bloom negotiated, similarly recalls the conversation
    between him and Bloom, saying that Bloom said, "if we [Feld] have
    a renewal, you [CEP] will get something and I'll determine it at that
    time." Id. at 108-09 (deposition of Eric Weisman). According to
    Bloom, it was understood that any renewal commissions would be
    lower than the original commissions. See id. at 50 (deposition of
    Bloom). Weisman further recollects that Bloom told him that CEP
    would be compensated in the same proportion to IMG as it was being
    compensated for the original sponsorship agreement. See id. at 109-10
    (deposition of Weisman).
    In November 1994, Sears signed a sponsorship agreement with
    Feld for $5.2 million. The agreement -- unlike Feld's previous spon-
    sorship agreements with Ocean Spray and Proctor & Gamble -- con-
    tained no explicit provision for renewal. In September 1996, Feld,
    without any assistance either from IMG or from CEP, which had
    since disbanded, negotiated a renewal of the sponsorship arrangement
    with Sears for another two years. IMG and Premier, which had suc-
    _________________________________________________________________
    2 Both IMG and CEP had preexisting relationships with Sears. IMG
    had performed consulting work for Sears, and Young & Rubicam, one
    of the two partners behind the CEP joint venture, was Sears' advertising
    agency.
    3
    ceeded to CEP's contractual rights as part of the CEP dissolution
    agreement, then sought commissions from Feld for Sears' renewal,
    based on their prior conversations with Bloom, who had since left
    Feld. IMG, with whom Feld had a continuing professional relation-
    ship, sought a 12% commission for both years of the renewal, and a
    similar commission for all future renewals; after some wrangling,
    Feld agreed to pay IMG a 6% commission for two years, but no fur-
    ther commissions. Feld refused to pay a renewal commission to Pre-
    mier, with whom it was no longer doing business. Premier then
    commenced this action against Feld, alleging that Feld's refusal to
    pay a renewal commission constituted a breach of express and
    implied contract. Both parties moved for summary judgment; the dis-
    trict court granted summary judgment to Feld and denied it to Pre-
    mier. Premier now appeals.
    II.
    On appeal, Premier renews its claims that Feld's refusal to pay a
    renewal commission constituted a breach of express and implied con-
    tract. We address each of these claims in turn.
    A.
    Appellant first contends that Bloom bound Feld to an express oral
    contract by promising Weisman that Feld would pay CEP a renewal
    commission. We disagree.
    Whether we accept Bloom's or Weisman's version of what Bloom
    said to Weisman, it is clear that Bloom told Weisman two things:
    first, that Feld would pay CEP some renewal commission if Sears
    decided to renew its sponsorship arrangement, and second, that the
    amount of that commission would be determined only after Sears so
    decided. Assuming, without deciding, that any "contract" between
    Feld and CEP would not be void for lack of consideration -- and in
    view of the absence of any evidence that CEP promised to perform
    any services to Feld in return for the renewal commission, we have
    serious doubts on that score3-- we agree with the district court that
    _________________________________________________________________
    3 Indeed, Bloom's assertion that he told Weisman that "we would take
    care of them on a renewal basis," and Weisman's assertion that Bloom
    4
    the agreement between Bloom and Weisman did not constitute an
    enforceable contract because it was insufficiently certain as to at least
    one material term: namely, the amount of the commission. "[A]n
    agreement for service must be certain and definite as to . . . the com-
    pensation to be paid, or it will not be enforced." Mullins v. Mingo
    Lime & Lumber Co., 
    176 Va. 44
    , 50 (1940) (internal quotation omit-
    ted); accord Progressive Constr. Co. v. Thumm, 
    209 Va. 24
    , 30-31
    (1968); Smith v. Farrell, 
    199 Va. 121
    , 127-28 (1957); Parker v.
    Murphy, 
    152 Va. 173
    , 183 (1929). In Mullins , the Virginia Supreme
    Court concluded that a mere assertion that the defendant would "take
    care of" compensating the plaintiffs, without more, was insufficient
    to establish an express contract. See 
    id. at 49
    . Similarly, in this case,
    we conclude that Bloom's promise to Weisman -- either that Feld
    would "take care of" CEP, or that CEP would"get something,"
    depending on whose version of the conversation we accept -- is
    insufficient, standing on its own, to establish an express contract.
    Appellant additionally contends that, although the amount of the
    commission was not specifically fixed, it was made sufficiently cer-
    tain by virtue of Bloom's alleged promise to Weisman that CEP
    would be compensated in the same proportion to IMG as it was being
    compensated for the original sponsorship agreement. In the absence
    of a term explicitly establishing the amount of compensation, a con-
    tract must contain a sufficiently specific "method or formula . . . for
    determining the amount payable" or be voided for uncertainty. Allen
    v. Aetna Cas. and Surety Co., 
    222 Va. 361
    , 364 (1981). In this case,
    even if Bloom did promise that CEP would be compensated in the
    same proportion to IMG, the amount of compensation would still be
    insufficiently certain because there is no evidence that Bloom and
    Weisman discussed the percentage compensation that either CEP or
    IMG would receive from a renewal by Sears. To the contrary, Bloom
    explicitly told both CEP and IMG that the size of their renewal com-
    missions would not even be negotiated until after Sears decided
    _________________________________________________________________
    told him that "you will get something and I 'll determine it at that time,"
    both suggest that any renewal commission would be given by Feld not
    in return for any services rendered, but almost as a gratuity, above and
    beyond the contractual compensation provided in the form of the original
    commission, for CEP's assistance in securing the original contract.
    5
    whether to renew its sponsorship agreement.4 Because the amount on
    which the amount of compensation to CEP depended-- namely, the
    amount of compensation to IMG -- was thus itself sufficiently inde-
    terminate, we conclude that any contract between Feld and CEP was
    void for uncertainty as to the material term of compensation.5
    B.
    Appellant next contends that Feld was bound by an implied oral
    contract to pay CEP a renewal commission. Again, we disagree.
    In order to obtain quantum meruit damages for breach of an
    implied contract, a plaintiff must show that it performed some service
    on the defendant's behalf for which it was entitled to compensation.
    See, e.g., Hendrickson v. Meredith, 
    161 Va. 193
    , 203 (1933). In this
    case, as the district court noted, see J.A. at 299, appellant introduces
    no evidence that CEP performed any service for Feld in connection
    with Sears' renewal of the sponsorship arrangement with Feld:
    indeed, CEP had disbanded by the time of Sears' renewal, and appel-
    lant -- unlike Young & Rubicam, the other partner behind the CEP
    joint venture -- had no special access to Sears that would have
    enabled it to assist Feld in securing a renewal. We therefore reject
    appellant's implied-contract claim.
    _________________________________________________________________
    4 Such statements did not actually bind Feld to conduct such negotia-
    tions, because it is well-established in Virginia that a mere agreement to
    negotiate at some point in the future is not enforceable. See, e.g., Allen,
    222 Va. at 363-64; Kay v. Professional Realty Corp., 
    222 Va. 348
    , 351
    (1981).
    5 The fact that Feld eventually paid what is arguably a "commission"
    to IMG is irrelevant, because the only question before us is whether the
    contract between Feld and CEP was sufficiently certain at the time at
    which it was agreed: as the district court noted, subsequent, extrinsic
    events cannot render an uncertain contract certain. In any event, Feld's
    subsequent payment to IMG was not strictly speaking a "commission,"
    but rather a settlement of IMG's similarly disputed claim to a commis-
    sion.
    6
    CONCLUSION
    The judgment of the district court is affirmed.
    AFFIRMED
    7
    

Document Info

Docket Number: 98-2456

Filed Date: 6/25/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021