Sealed 1 v. Sealed 1 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2006
_____________________
Charles R. Fulbruge III
No. 05-30297 Clerk
(Summary Calendar)
_____________________
SEALED APPELLANT 1,
Plaintiff - Appellant,
v.
SEALED APPELLEE 1,
Defendant - Appellee.
________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:03-CV-771
________________________________________
Before SMITH, STEWART, AND PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee. Appellee is a
recording artist. Appellant is Appellee’s former manager.
Appellant alleges that, under a management contract Appellee
signed with her in the 1980s, she is entitled to further
royalties for albums Appellee recorded under an October 22, 1992
record contract with Curb Records (“Curb Records contract”).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Appellant first brought suit against Appellee in the mid-1990s
for breach of the management contract. Appellant secured an
award by arbitration that was ultimately affirmed by this court
on November 13, 1997. The terms of the arbitration award bears
on Appellant’s current lawsuit against Appellee, in which she
contends that the district court erroneously granted summary
judgment.
Appellant makes two arguments. First, she contends
that there was insufficient evidence for the district judge to
grant summary judgment on the issue of whether the “initial
period” requirement of the Curb Records contract was fulfilled.
Second, she argues that the district judge erred by failing to
read the management contract between her and Appellee in pari
materia with the Curb Records contract, which resulted in a
premature discontinuation of her royalty interests.
Reviewing de novo the district court’s grant of summary
judgment, we affirm. See Degan v. Ford Motor Co., 869 F.2d 889,
892 (5th Cir. 1989).
Appellant’s first argument fails because the district
judge relied on the affidavits of individuals based on their
personal knowledge. See FED. R. CIV. P. 56(e). Under the
arbitration award, Appellant was awarded fifteen percent
commission on certain royalties paid under the Curb Records
contract. The Curb Records contract provided for an “initial
period” and deemed Appellee’s previous recordings with Curb
2
Records to have fulfilled the recording commitment during that
period.1 Appellee and his personal manager, Scott F. Siman,
provided affidavits attesting to the fact that the initial period
requirement was fulfilled. Both stated, based on their personal
knowledge, that Appellee had previously produced three recordings
under a prior agreement with Curb Records. By the terms of the
Curb Record contract, these previous recordings fulfill the
initial period requirement.
Appellant’s second argument fails because any alleged
payments she was due to receive under her management contract
with Appellee was limited by the arbitration award that resulted
from her initial lawsuit. In the district court’s August 6, 1999
order approving the arbitration award, it clearly stated that
“[p]ayments shall be made to [Appellant] as set forth above until
the October 22 Curb Records agreement terminates its terms, which
is nine months after delivery to Curb Records of all masters
required during the final option period.” Appellee successfully
fulfilled the terms of the Curb Records contract when he
delivered the eighth and final album required under the Curb
1
The contract reads: “All masters previously recorded by
you under any agreement with any firm owned or affiliated with
Mike Curb (“Prior Agreement”) shall be deemed to be Masters
recorded during the initial period of this agreement and shall be
deemed to have fulfilled your required recording commitment
during the initial period of this agreement.”
3
Records contract to Curb Records on September 19, 2002.2 Thus,
Appellant was entitled to payments until nine months after
September 19, 2002, and no more.
AFFIRMED.
2
The pertinent provision reads: “You grant Curb eight (8)
options, each to extend the term of this agreement for one option
period commencing immediately upon expiration of the then current
period (i.e., the initial period or an option period, as the case
may be) and continuing until nine (9) months after your delivery
to Curb of all Masters required during such option period . . .
.”
4