210 F.3d 375 (7th Cir. 2000), 99-1405, Miller Billboard Advertising, Inc. v. Outdoor Systems, Inc.

Docket Nº:99-1405.
Citation:210 F.3d 375
Party Name:MILLER BILLBOARD ADVERTISING, INC., Plaintiff-Appellant, v. OUTDOOR SYSTEMS, INC., and Frances L. Kopp, Defendants-Appellees.
Case Date:February 22, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 375

210 F.3d 375 (7th Cir. 2000)



OUTDOOR SYSTEMS, INC., and Frances L. Kopp, Defendants-Appellees.

No. 99-1405.

United States Court of Appeals, Seventh Circuit

February 22, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued Oct. 25, 1999.

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 96 C 173. David F. Hamilton, Judge.

Before Honorable FRANK H. EASTERBROOK, Honorable DANIEL A. MANION, Honorable ILANA DIAMOND ROVNER, Circuit Judges.


Miller Billboard Advertising, Inc. ("MBA") sued Outdoor Systems, Inc. ("Outdoor"), alleging that Outdoor's representative had slandered MBA and tortiously interfered with a lease agreement between MBA and Frances L. Kopp; MBA also sought to have its agreement with Kopp enforced. The district court granted summary judgment in favor of the defendants on all claims save for MBA's claim of slander per se. MBA and Outdoor subsequently settled the defamation claim. MBA now appeals the entry of summary judgment as to its other claims. We affirm.


In 1981, Kopp and her husband (now deceased) entered into a series of seven leases that permitted Outdoor's predecessor to construct billboards on portions of their Indiana farm adjoining Interstate 265. Six of the leases expired on September 14, 1996; the seventh, referred to as number 4081, did not expire until April 26, 1997. Each of the leases contained a restrictive covenant barring the Kopps from allowing lands adjoining the leased premises to be used for advertising purposes.

In the Fall of 1995, MBA's president, Gary Miller, approached Kopp and persuaded her to bid farewell to Outdoor when its leases expired and to allow MBA to construct seven new billboards. Miller did not review the expiring Outdoor leases and assumed (incorrectly) that all seven would expire on September 14, 1996. Consequently, the lease agreement that Kopp and MBA eventually executed specified a 15-year term commencing on September 15, 1996. 1

Kopp subsequently developed misgivings, and when she told Outdoor's David Bennett about the new lease agreement with MBA, he pounced. Kopp asked him about MBA and Miller, and Bennett he told her that MBA was a fledgling "one-man show" with no equipment of its own, that MBA was "so small that it's a risky operation," and that it might go bankrupt if a storm damaged its signs.

Kopp decided to abandon the arrangement with MBA. Her attorney informed Miller that she considered the lease agreement with MBA to be invalid; and on September 3, 1996, Kopp entered into two amended leases with Outdoor. When Kopp's attorney informed Miller a short time later that Kopp was canceling the contract with MBA, MBA filed suit.

After discovery concluded, Judge Hamilton entered partial summary judgment in favor of the defendants. He found it undisputed that one of the seven original leases between the Kopps and Outdoor--number 4081--did not expire until April 1997 and thus remained in effect during the initial part of the MBA lease term. Because lease number 4081 contained a restrictive covenant precluding Mrs. Kopp from leasing adjoining premises to other billboard advertisers, it effectively rendered the MBA lease invalid and, at the same time, permitted Outdoor to preserve its own contractual rights. R. 60 at 14-15. MBA was thus unable to establish two of the requisite elements of its tortious interference claim against Outdoor; that MBA had an enforceable contract with Kopp, and that Outdoor acted without justification when it persuaded Kopp to extend her relationship with Outdoor. Id. at 15. For the same reasons, MBA was not entitled to specific performance of its lease with Kopp. Id. 2 As for the slander claim, Judge Hamilton...

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