Fowler v. Happy Goodman Family

CourtSupreme Court of Tennessee
Citation575 S.W.2d 496
PartiesJack FOWLER, Defendant-Petitioner, v. The HAPPY GOODMAN FAMILY and Top Billing Inc., Respondents-Plaintiffs. 575 S.W.2d 496
Decision Date29 December 1978

Tom H. Williams, Jr., Nashville, for defendant-petitioner.

Aubrey B. Harwell, Jr., Thomas H. Dundon, Nashville, for respondents-plaintiffs.

OPINION

HARBISON, Justice.

In this action the trial court rendered summary judgment against petitioner for fees owed by him to the respondents under contracts for musical performances. The Court of Appeals affirmed. Although other defenses were presented in those courts, the only question raised in the petition for certiorari is whether petitioner offered sufficient evidence in opposition to the motion for summary judgment to create a genuine fact issue on his claim of fraud in the inducement.

After careful consideration of the record, we affirm the judgment of the courts below.

Respondents, The Happy Goodman Family, are a group of ten performing musicians. Respondent Top Billing, Inc., is their booking agent, receiving a percentage of their fees for performances. Petitioner is engaged in promoting musical concerts. On May 14, 1975, he contracted with Top Billing, Inc., to be sole representative of the latter for personal appearances of The Happy Goodman Family within a four-state area. Petitioner agreed to guarantee a minimum of fifty personal appearance for The Happy Goodman Family in the prescribed territory at a set price for each engagement. The fifty performances were to be promoted between the dates of July 1, 1975 and June 30, 1976. The promotion contract itself is not at issue in this litigation.

Subsequent to the execution of this agreement, petitioner entered into five separate contracts with The Happy Goodman Family for performances in his franchised territory, to be given on dates between October 30 and November 28, 1975. Petitioner was to pay to the performers and their agent a specified fee for each of these engagements.

The first of these contracts was entered into on June 18, 1975. The other four were executed a number of weeks later, their respective dates being September 3, 9, 12, and 30, 1975.

This action was instituted by respondents on May 14, 1976, alleging that The Happy Goodman Family had given each of the performances required by the September contracts, and that they had been ready, willing and able to give the other performance, called for by the June 18 contract, but that this engagement had been cancelled by petitioner without just cause. Respondents alleged that they had been paid nothing under any of the contracts.

In his answer, petitioner admitted signing the contracts, admitted that nothing had been paid under any of them, conceded that four of them had been performed by respondents and admitted cancellation of the fifth. He denied any breach on his part. In addition to questioning the jurisdiction of the Tennessee courts, he raised several defenses on the merits, including lack of consideration. He also alleged misrepresentation and fraud in the inducement, without elaboration or statement of any supporting fact.

Respondents filed a motion for a more definite statement with respect to the allegations of fraud and misrepresentation, citing Rule 9.02, Tennessee Rules of Civil Procedure, which states that "the circumstances constituting fraud or mistake shall be stated with particularity." This motion was sustained. In response thereto, on October 4, 1976, petitioner filed an amended and supplemental answer, detailing a number of representations allegedly made to him by respondents in connection with the May 1975 contract and the subsequent entertainment contracts. Petitioner pled "on information and belief" that all of these representations had been false and that they were calculated to mislead him. The representations consisted of promises of future conduct by respondents, rather than past or existing facts. 1

No further challenge to the sufficiency of the pleadings was made. On June 15, 1977, more than eight months after the amended answer had been filed, respondents moved for summary judgment in the amount of the contract fees. This motion was supported by affidavits which generally reiterated the allegations of the complaint.

The motion for summary judgment was not acted upon until August 24, 1977, an interval of more than two months after its filing. The only defense to the motion interposed by petitioner was a single affidavit, executed by him, and filed on the day of the hearing. Although the case had by then been pending for over a year, if petitioner took advantage of any of the various pre-trial procedures available under the Tennessee Rules of Civil Procedure, such as depositions, interrogatories or requests for admissions, the results of none of them were filed. Nor were there supporting affidavits from any person other than himself.

A motion for summary judgment goes to the merits of the litigation. One faced with such a motion may neither ignore it nor treat it lightly. As stated in Rule 56.05, T.R.C.P.:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

Petitioner was faced with a motion for summary judgment upon five contracts which he had admittedly executed, and four of which he conceded had been performed by the adverse parties. It was therefore incumbent upon him, in order to establish a defense of fraud in the inducement, to come forward with specific factual information or run the risk of being cast in judgment. 2

Rule 56.05 expressly provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The affidavit filed by the petitioner does not meet these criteria. It details a number of representations and promises allegedly made to him by respondents when the May 14, 1975 promotion contract was executed. There is no reference to any further communication or conference with respondents until "late July of 1975" a date subsequent to the execution of the first of the performance contracts now in issue, that agreement having been signed on June 18.

The affidavit alleges...

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122 cases
  • As You Sow v. Aig Financial Advisors, Inc., 3:06-01171.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 26, 2008
    ...(D.P.R.2006). Stokes' alleged conduct also constitutes promissory fraud in violation of Tennessee common law. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn.1978) (promise of future conduct made with intent not to perform is actionable For the reasons set forth above, the Court c......
  • Shah v. Racetrac Petroleum Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 24, 2003
    ...a plaintiff must demonstrate that "a promise or representation was made with the intent not to perform." Fowler v. Happy Goodman Family, 575 S.W.2d 496, 499 (Tenn.1978). Tennessee courts have found promissory fraud in several cases. See, e.g., Brungard v. Caprice Records, 608 S.W.2d 585, 59......
  • Coleman v. General Elec. Co.
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • June 23, 1986
    ...Initially, the Court notes that from GE's prospective, the matters discussed appear to relate to future facts. See Fowler v. Happy Goodman Family, 575 S.W.2d 496 (Tenn.1978); see also McElroy v. Boise Cascade Corp., 632 S.W.2d 127 (Tenn.Ct.App.1982). Plaintiffs protest that Tennessee does r......
  • Hannan v. Alltel Publishing Co.
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    • October 31, 2008
    ...therefore, that a nonmoving party facing a summary judgment should "neither ignore it nor treat it lightly." Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978). Rather, when a motion for summary judgment is properly made and supported, the nonmoving party "may not rest upon the......
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