Fox v. Deese

• Decision Date: 25 November 1987
• Docket Number: No. 841351,841351
• Parties: Fenroy A. FOX v. Manuel DEESE, et al. Record
• Court: Virginia Supreme Court

Page 699

362 S.E.2d 699

234 Va. 412

Fenroy A. FOX v. Manuel DEESE, et al.

Record No. 841351.

Supreme Court of Virginia.

Nov. 25, 1987.

John H. Herbig (Tuck, Freasier & Herbig, Richmond, on brief), for appellant.

John K. Burke, Jr., Reginald M. Barley, Sr. Asst. City Atty. (D. Eugene Webb, Jr., Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellees.

Present: All the Justices.

STEPHENSON, Justice.

Fenroy A. Fox, individually and trading as Hosea Productions, filed an eight-count amended motion for judgment against the City of Richmond (the City); Manuel Deese, Richmond's City Manager; Jerry N. Johnson, Director of the City's Department of Community Facilities; Grady James Mathias, Assistant Director of the City's Department of Community Facilities; and Jack Fulton, the City's Director of Public Safety. Counts I, II, III, V, and VI sound in tort, and Counts IV, VII, and VIII sound in contract.

The trial court sustained "demurrers to all eight counts by all of the defendants ... without leave to amend." The court also sustained the "special pleas of estoppel ... to all [eight] counts," and the "special pleas of immunity as to Counts I, II, III, V and VI." In sustaining the demurrers and pleas, the trial court stated that it did so "[f]or the reasons stated by the various defendants in their memoranda, as well as in their oral presentation in court." The trial court entered an order dismissing Fox's case with prejudice. In this appeal, Fox challenges all the trial court's rulings. ¹

I

ALLEGED FACTS AND CLAIMS.

The facts alleged in Fox's amended motion for judgment are as follows. ² Fox is engaged in the business of producing and promoting shows and concerts in the various facilities available throughout the Richmond area. Deese, at all times relevant to this action, was Richmond's City Manager. Mathias was Acting Director of the City's Department of Community Facilities until June 23, 1980, when he became the Assistant Director of that department. Johnson became the City's Director of Community Facilities on or about June 23, 1980.

In late May and early June 1980, Fox engaged in a series of meetings with Deese, Mathias, and Fulton relative to Fox's promotion of an outdoor "Mardi Gras" concert scheduled to be held at the City Stadium on July 4 and 5, 1980. At these meetings, the parties discussed the terms and conditions Fox had to meet to secure the use of the City Stadium for the concert. Deese made handwritten notes of the requirements agreed upon in these discussions and gave the notes to Fox. On June 2, 1980, at the conclusion of the final meeting, Deese directed Mathias to prepare a written contract reflecting the requirements contained in the handwritten notes of that meeting. Fox was assured that he could hold the Mardi Gras concert at the City Stadium if he met these requirements. Further, he was instructed to secure written contracts with all concert performers by June 16, 1980.

Based on this representation, Fox, on his own behalf and through his agents, contracted with various performers and with light and sound crews at a cost of approximately $125,642. Because Fox was required to protect the stadium field from damage, he also made arrangements to rent a field cover at a cost of $17,979.79.

Mathias prepared a written contract dated June 10, 1980, which he first presented to Fox on June 13, 1980. The terms and conditions of this contract differed significantly from the requirements set forth in Deese's notes. The written contract contained charges and additional expenditures never previously discussed, including clean-up costs (traditionally borne by the City out of its rental fee), an additional payment to the City of 3% on all ticket sales, and a $25,000 deposit for City Police security. On numerous occasions, Fox requested Deese to remove these new conditions; Deese, however, refused to do so, and on or about June 19, 1980, he told Fox that any changes would have to be made by Mathias.

Had Fox been aware of these additional requirements prior to committing himself to pay approximately $143,000, he would have either cancelled the concert or held it elsewhere. By this time, however, Fox was not in a position to change his plans due to the commitments and expenditures he already had made. Thus, Fox was in a position from which he could not retreat and ultimately was forced to agree to the new requirements.

Additionally, Mathias represented to Fox that it was City policy to pay the City's staff double time on July 4th, and time and a half on July 5th. This representation was incorrect, and Mathias knew or should have known it was not City policy. Relying upon Mathias' misrepresentation, Fox agreed to this pay provision in the written contract, which resulted in an overcharge to Fox of $3,173.42.

Beginning on June 16, 1980, and thereafter, Mathias also repeatedly assured Fox that concert tickets were on the computer, ready for sale. Tickets were not placed on sale, however, until on or about July 1, 1980, just three days before the concert. Relying upon Mathias' assurances, Fox spent $27,000 for advertising. Because tickets were not ready for sale as represented by Mathias, this expenditure was wasted.

Mathias was supposed to have had the contract prepared by June 6, 1980; however, he intentionally delayed its preparation and did not present the contract to Fox until June 13, 1980. On June 16, 1980, Fox went to Mathias in an attempt to get him to execute the contract. Mathias, however, refused to sign the contract and referred Fox to Deese. On June 19, 1980, Deese referred Fox back to Mathias, and on that date, Fox again approached Mathias in an effort to get him to execute the contract. Mathias, however, suggested that they wait until they could get all parties together, including Joseph Baldacci, who ran the Richmond Concessionaire.

On June 23, 1980, Fox met with defendants Mathias, Deese, Johnson, and Fulton. Baldacci and two other men were also present at the meeting. At that time, Mathias purportedly signed the contract and gave it to Fox. Mathias, in fact, did not sign the contract, specifically intending to delay again the date that the tickets were to be placed on sale. At the time of this meeting and in the presence of the above individuals, Mathias further purported to contact Audrey Booth at the Richmond Coliseum and order her to place the tickets on sale. Actually, Mathias did not contact Booth at that time.

Shortly after the June 23, 1980 meeting, Fox again approached Mathias. Mathias, however, refused to deal further with Fox and referred him to Johnson. Johnson signed the contract on June 24, 1980, but did not place the tickets on sale through the Ticketron outlets until approximately three days prior to the concert.

Fox asserts that each individual defendant was acting in his individual capacity and not within the scope of his employment. Based upon the foregoing factual allegations, Fox asserts the following claims in his amended motion for judgment:

Count I

In Count I, Fox claims that he relied upon Deese's representations that Fox could hold the concert at City Stadium on July 4 and 5, 1980, if Fox complied with the terms and conditions set forth in Deese's handwritten notes. Relying upon these representations, Fox made certain financial commitments. Thereafter, Fox was advised that he would have to comply with additional requirements. Had Fox known of these additional requirements before he made the commitments, he would not have held the concert at City Stadium. By the time he learned of these new terms and conditions, however, he was unable to change his plans because of the obligations he had assumed.

Fox asserts that Deese "knew or should have known" of the additional requirements before Fox made the commitments. However, Deese "maliciously and in reckless disregard of [Fox's] rights, failed to disclose these facts to [Fox]." Fox alleges that Deese's acts amounted to "constructive and/or actual fraud, deceit or misrepresentation" and resulted in Fox sustaining economic loss of $137,500. Fox also seeks punitive damages of $100,000.

Count II

In this count, Fox claims that Mathias represented to him that as of June 16, 1980, concert tickets were on sale. This representation was false; tickets were not placed on sale until July 1, 1980. Relying upon Mathias' representation, Fox expended approximately $27,000 in needless advertising.

Mathias also represented to Fox that it was City policy to pay the staff double time on July 4 and time and a half on July 5. This representation was false. Relying upon this misrepresentation, Fox, to his detriment, agreed to pay an additional sum of $3,173.42.

Fox alleges that Mathias knew or should have known that these representations were false. Consequently, Fox claims compensatory damages of $30,173.42 and punitive damages of $25,000.

Count III

In Count III, Fox claims that Mathias, in an attempt to "either sabotage the concert and/or reduce the number of attendees, ... maliciously and intentionally interfered with [Fox's] contract with the City ... and [Fox's] prospective economic advantage." To support this claim, Fox alleges, inter alia, that Mathias intentionally delayed the preparation and execution of the contract, and intentionally delayed placing the tickets on sale. As a result, Fox claims compensatory damages of $637,500 and punitive damages of $250,000.

Count IV

Count IV is a contract claim against the City. In this count, Fox claims that he was required to pay the salaries of 149 police officers for each concert day at a total cost of $32,520.78. In the written contract dated June 10, 1980, Fox had agreed to pay "all cost of City Police personnel for a minimum of 60 officers (more if required)." Fox asserts that "implicit in this provision is the requirement that the number of officers used will be selected in good faith based on the projected number of concert attendees based on...