Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc.

• Decision Date: 27 August 2013
• Docket Number: No. A13A1016.,A13A1016.
• Citation: Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc., 323 Ga.App. 757, 748 S.E.2d 127 (Ga. App. 2013)
• Parties: COMMUNITY MUSIC CENTERS OF ATLANTA, LLC v. JW BROADCASTING, INC.
• Court: Georgia Court of Appeals

323 Ga.App. 757

748 S.E.2d 127

COMMUNITY MUSIC CENTERS OF ATLANTA, LLC

v.JW BROADCASTING, INC.

No. A13A1016.

Court of Appeals of Georgia.

Aug. 27, 2013.

Matthew W. Carlton, Atlanta, for Appellant.

Marion B. Stokes, Rachel Humphrey, Atlanta, for Appellee.

ELLINGTON, Presiding Judge.

Community Music Centers of Atlanta, LLC (“Community”) agreed to advertise on JW Broadcasting, Inc.'s (“JW”) radio station, but failed to pay for advertising services rendered. JW brought a suit on an open account and Community counterclaimed, asserting claims for breach of contract, fraud, punitive damages, and attorney fees. Following a hearing, the trial court granted summary judgment to JW on its suit on account and on Community's counterclaims, and Community appeals. For the following reasons, we affirm.

“To prevail at summary judgment under OCGA § 9–11–56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). “[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case.” Id. “If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. (citing OCGA § 9–11–56(e)).

Community operates music centers and offers music lessons. JW owns radio stations in Atlanta and provides advertising on its stations. In early 2010, JW and Community agreed to an advertising package to promote Community's services for a period of six months, which JW and Community later extended for four more months. Following the conclusion of the advertising agreement, Community failed to pay the balance owed to JW. After Community failed to comply with JW's written demand for payment, JW filed this action. In its answer, Community admitted that it had entered into the advertising agreement, but it issued a general denial of JW's claim on the overdue balance of the advertising.¹ Community also filed a counterclaim, alleging that JW committed fraud and breach of contract.

The crux of Community's answer and counterclaims, and the crux of its arguments on appeal, is that JW misrepresented the exposure it would provide through podcast downloads. The record shows that Communityand JW negotiated a six-month initial package at a rate of $1,500 per month that would provide advertisements through on-air commercials, a banner ad on AM1690's website, in-studio interviews featuring representatives of Community, and sponsorship of a weekly radio segment. For its sponsorship, Community chose a segment called “Backroads and Banjos with Art Rosenbaum” because of that segment's exposure within the Atlanta market. As part of this sponsorship, Community's Little 5 Points Music Center would “be mentioned before and after each segment[,]” which aired three times each Wednesday on AM1690. In addition, the segment was available for download as a podcast. During negotiations, JW's account executive told Community's director that “[t]his segment has received hundreds of thousands of downloads on iTunes meaning this will give Little 5 Points Music Center a ton of additional exposure.” During the time Community advertised through JW, Community repeatedly reported satisfaction with the advertisements. Moreover, in February 2011, after the parties' advertising agreement had concluded, Community's director told JW that he was “grateful ... for the role 1690 has played this year in doubling our enrollment.” At that same time, Community acknowledged its debt to JW and offered to pay off the balance in ten equal payments. Then, just two weeks after acknowledging the debt, Community asked about podcast download statistics. In response, JW estimated that the total number of podcast downloads of the sponsored segment during the advertising agreement was likely less than hundreds of thousands.

According to Community, JW failed to fulfill its promise that there would be “hundreds of thousands of downloads” of the program Community sponsored and, as a result, Community did not receive the advertising exposure it had bargained for. This alleged misrepresentation by JW was the basis for Community's fraud and breach of contract counterclaims.

The trial court granted JW's motion for summary judgment on both JW's suit on account and on Community's counterclaims, based on an absence of evidence to support Community's claims for fraud and breach of contract, and because Community's debt was not disputed.

1. Community argues that the trial court erred in granting summary judgment to JW on its breach of contract counterclaim. According to Community, JW breached the contract by failing to fulfill its promise to provide advertising through hundreds of thousands of podcast downloads of the program Community agreed to sponsor. The construction of a contract is a question of law subject to de novo review. Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga.App. 292, 609 S.E.2d 103 (2004).

Although Community claims that it agreed to sponsor a program that JW promised would be downloaded by listeners hundreds of thousands of times during its advertising agreement with JW, the record shows that JW never made such a promise. Instead, JW promoted the program's national popularity by stating that it “has received hundreds of thousands of downloads,” in other words, in the past. Community has failed to present any other evidence to show that JW promised that there would be a certain number of future downloads of the program. Moreover, the evidence shows that JW provided the agreed-upon frequency of the radio show sponsorship announcements for the agreed-upon time period, as well as fulfilling all of its other obligations under the advertising agreement, including broadcasting thousands of...