Cotner Productions, Inc. v. Snadon

• Decision Date: 08 March 1999
• Docket Number: No. 22124,22124
• Citation: 990 S.W.2d 92
• Parties: COTNER PRODUCTIONS, INC., and Steve Litman Productions, Inc., Plaintiffs-Respondents, v. Gary W. SNADON and Patsy Snadon, Husband and Wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 92

990 S.W.2d 92

COTNER PRODUCTIONS, INC., and Steve Litman Productions, Inc., Plaintiffs-Respondents, v. Gary W. SNADON and Patsy Snadon, Husband and Wife,

Defendants-Appellants.

No. 22124.

Missouri Court of Appeals,

Southern District,

Division One.

March 8, 1999.

Motion for Rehearing and Transfer

Denied Nov. 20, 1998.

Application to Transfer Denied

June 1, 1999.

Vincent F. O'Flaherty and Melodie A. Powell, Niewald, Waldeck & Brown, Kansas City, Gary A. Love, Ozark, for Appellants.

Joseph D. Sheppard, III and Rodney H. Nichols, of Carnahan, Evans, Cantwell & Brown, of Springfield, MO, for Respondents.

JAMES K. PREWITT, Presiding Judge.

Plaintiffs filed this action in "quantum meruit," seeking damages for the reasonable value of their services to Defendants in connection with arranging for Wayne Newton to perform as an entertainer at a theater developed by Defendants. Following jury trial, Plaintiff Cotner Productions, Inc. received a verdict in its favor and against Defendants for $150,000.00, plus interest, and Plaintiff Steve Litman Productions, Inc. received a verdict in its favor for $200,000.00, plus interest. Judgment was entered in accordance with the verdict. Defendants appeal, presenting six points relied on. As an aid to understanding the points relied on, we initially recite some of the facts presented at trial.

GENERAL FACTS

Howard Cotner is the principal owner and operator of Cotner Productions, Inc., and Steve Litman is the principal owner and operator of Steve Litman Productions, Inc. Both men are entertainment promoters; Cotner is from the Springfield area, and Litman is from St. Louis. They work together on occasion in the promotion and booking of various entertainers for live performances and appearances.

Defendants Gary Snadon and Patsy Snadon are Branson, Missouri residents and have participated in the development and operation of various tourist and entertainment attractions in the Branson area. In 1990, Gary Snadon and Patsy Snadon acquired an interest in the Ray Stevens Theater in Branson. Late in 1991, they were seeking to sell their interest in the theater. Gary Snadon discussed the possibility of such a sale with Charles Luna, a long-time acquaintance, from the Branson area. In the course of these discussions, Gary Snadon provided to Charles Luna a financial report on the Ray Stevens Theater, which Charles shared with his brother, Larry. Both were impressed with the profitability of the theater.

Larry Luna was a friend of Howard Cotner. In anticipation of their participation in the Ray Stevens Theater operation, Luna approached Cotner regarding the possibility of his managing the theater. Their initial discussions involved the prospect of adding additional entertainers to perform at times when Ray Stevens was not appearing. Wayne Newton was suggested as a possibility, since Howard Cotner had previously produced shows which Newton headlined.

The Snadons ultimately sold their interest in the theater to Ray Stevens, but Charles and Larry Luna remained interested in operating a theater in Branson. Charles approached Gary Snadon with the idea they operate a theater with Wayne Newton as the entertainer. Gary Snadon expressed an interest in the project, but only if Wayne Newton was the performer involved.

On February 18, 1992, Gary Snadon, Charles Luna and Larry Luna participated in a meeting with Howard Cotner and The result of the meeting was that Howard Cotner and Litman were directed to contact Wayne Newton and arrange for a meeting with him to discuss the theater project, and Gary Snadon indicated he would check into the possibility of acquiring additional land upon which to build a theater. Cotner and Litman arranged for a meeting with Wayne Newton in March.

Jeannie Cotner, at the Cotners' home. Also present was Steve Litman. Larry Luna had been in contact with Cotner previously, and Cotner testified that although he knew of Gary Snadon and his background in Branson, he had never met him and wished to do so if he was going to be presenting the Snadons to Wayne Newton. They discussed the prospect of recruiting Wayne Newton to perform in Branson.

On March 6, 1992, Steve Litman and Howard Cotner met with Wayne Newton at Hot Springs, Arkansas. They had co-produced Newton's appearance there. They discussed with Newton his headlining a theater in Branson. Newton inquired into the competency and capacity of the Snadons and Lunas to successfully handle such a project. He testified that without the positive assurances and recommendations from Cotner and Litman regarding Snadon and Luna he would not have agreed to any further discussion. Cotner and Litman furnished him with information regarding the Branson area and the potential market for his performances there. Newton was interested in knowing if the Snadons had the ability to manage the project. Newton expressed his interest in participating in the project and agreed to a subsequent meeting with the parties in Las Vegas, Nevada, later that month. After the initial meeting with Cotner and Litman, Newton directed his accountant, Marty Weiss, to investigate the prospect of such a Branson engagement. Mr. Weiss subsequently met with Steve Litman in an effort to obtain further information regarding the Branson market. Cotner and Litman arranged with Newton for a meeting between the interested parties on March 22, 1992, in Las Vegas.

On that date, prior to the scheduled meeting with Wayne Newton, Gary Snadon and Patsy Snadon, Charles Luna and his wife, Larry Luna and a friend, and Howard Cotner and Steve Litman gathered in the Snadons' room and discussed various matters relating to the pending meeting with Newton. Mr. Snadon provided architectural renderings of a theater for their inspection, and Steve Litman provided the group with financial projections which he had compiled. The projections contained several scenarios, based upon various attendance estimates and performance schedules. They also purportedly discussed, although there is a disparity in the testimony regarding how seriously or into what depth these items were discussed, estimates for management fees ($10,000/month), booking commissions (5%), and management fee overrides (20%), which were intended for the compensation of Cotner and Litman. Following the discussion of these items, the meeting adjourned.

The meeting with Wayne Newton was held later that evening in his dressing room following his performance, which the parties had attended. Also present were his accountant and his fiance. The group made their presentation to Mr. Newton, who indicated to them he was interested in pursuing such a project, and all agreed that Newton should come to Branson so that he could check it out for himself. Following the meeting in Newton's dressing room, the group from Missouri reconvened in the coffee shop at the hotel and discussed the meeting.

On March 26, 1992, Gary Snadon contracted for the purchase of an additional 32 acres to accommodate the construction of a theater. In April of 1992, the Snadons held a meeting in Branson, where they proposed certain changes regarding the compensation of Cotner and Litman. Present at this meeting were the Snadons, Charlie and Larry Luna, Steve Litman On June 4, 1992, the Snadons incorporated Shenandoah South, Inc., a corporation that ran the theater. Wayne Newton signed his performance contract with Shenandoah South, Inc. on August 1, 1992. Construction began on the theater in September of 1992. Named the Wayne Newton Theater, it opened May 1, 1993. The Lunas sold their interest in August of 1993.

and Howard Cotner and Jeannie Cotner. There, the Snadons told Mr. Litman that unless he invested in the project and moved to Branson to participate in the management of the theater, he would no longer be part of the project. The Cotners were offered the same management opportunity. Neither accepted the offer at that time. Mr. Litman testified he could not move to Branson, and ultimately was no longer party to the theater project. The Cotners did accept employment as managers. There was conflict in the testimony regarding the salary, but apparently it was ultimately determined that the Cotners would accept $100,000 for their management of the theater.

Contradictions in the testimony included:

Gary Snadon testified that Charles Luna initially represented the Cotners as "potential investors," and that he believed it was in that capacity they were involved up until the trip to Las Vegas. Snadon testified that at the meeting in his hotel room on March 22, 1992, there was no indication from him that he was willing to pay Plaintiffs the amount of compensation that was listed on the projections they reviewed. He had only offered to allow them to invest.

Larry Luna testified that fee arrangements were discussed at the meeting in Snadons' room on March 22, 1992, and were brought up by Mr. Snadon. Mr. Luna also remembered that the same fee arrangements were discussed in the meeting at the Cotners' home in February, 1992, and there was no condition requiring investment and no objections to compensate Litman and Cotner prior to the meeting with Wayne Newton in Las Vegas. He further testified: "I believe there was an implied agreement to compensate [Plaintiffs] for introducing them to Wayne Newton and bringing him to Branson.... " " It was not a gratuitous meeting or effort by [Plaintiffs] from that point on."

Charles Luna testified that when Plaintiffs stated "they wanted 25 percent of the business," he responded, "[T]he only way you're going to get to own any of this theater ... is that you put up a proportionate amount of the capital." Further: "When he wanted 25 percent given to him for what he had done to that point, I thought it was ridiculous. Now, that was my opinion of his proposal. As a businessman there wasn't any way in the world he was going to get 25 percent of the action for nothing,--for a couple of phone calls...."

Steve...