Ichiban Records, Inc. v. Rap-A-Lot Records, Inc.
| Decision Date | 29 January 1996 |
| Docket Number | 01-95-00085-CV,Nos. 01-94-01235-C,N-T,RAP-A-LOT,s. 01-94-01235-C |
| Citation | 933 S.W.2d 546 |
| Parties | ICHIBAN RECORDS, INC., Appellant, v.RECORDS, INC. andhe-Water, Inc., Appellees, and Willie J. DENNIS p/k/a Willie D., Will Entertain, Inc. d/b/a Wize Up Records, Appellants v.RECORDS, INC. andhe-Water, Inc., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Michael T. Wall, Mary Jo Cantu, Houston, for appellant.
Jennifer B. Hogan, Robert Hoffman, Christina H. Patierno, Terriann Trostle, Houston, for appellees.
Before OLIVER-PARROTT, C.J., and O'CONNOR and TAFT, JJ.
MAJORITY OPINION ON MOTION FOR REHEARING.
Appellant, Ichiban Records, Inc. (Ichiban) and appellees, Rap-A-Lot Records, Inc. (RAL) and N-The-Water, Inc. have filed motions for rehearing. We grant Ichiban's motion for rehearing and overrule RAL's and N-The-Water, Inc.'s motion for rehearing.
In this appeal, we determine whether the trial court abused its discretion in granting a temporary injunction to RAL and N-The-Water, Inc., restraining appellants, Willie J. Dennis p/k/a Willie D. (Dennis), Will Entertain, Inc. d/b/a Wize Up Records (Wize), 1 and Ichiban from engaging in conduct prohibited by the exclusive recording agreement Dennis signed with RAL. We find that it did and reverse and remand.
On October 19, 1994, the trial court held the hearing on RAL's application for temporary injunction. On November 15, 1994, the trial court signed an order enjoining Dennis and Ichiban from violating the terms of RAL's exclusive recording agreement. To appeal the November 15 order, on December 5, 1995, Ichiban filed its cash deposit in lieu of appeal bond, resulting in the creation of appeal number 01-94-01235-CV. On December 7, 1994, the trial court signed an agreed order modifying the November 15 order. On December 28, 1994, the trial court signed an amended order that superseded the November 15 and December 7 orders. On that date, Dennis filed a cost bond on appeal, which stated that it was given for appeal of the November 15 order. This resulted in the creation of appeal number 01-95-00085-CV. Then, on January 10, 1995, Dennis filed the cost bond to appeal the December 28th order, again in appeal number 01-95-00085-CV.
RAL contends that Dennis's appeal should be dismissed because it was not timely filed. It relies on TEX.R.APP.P. 42(a)(3), which provides that in all accelerated appeals from interlocutory orders the bond shall be made within 20 days after the order appealed from is signed. RAL argues that Dennis did not file the cost bond appealing the November 15 order within the prescribed 20 days. 2 RAL also cites TEX.R.APP.P. 43(f), which provides that when an appeal is pending from an interlocutory order, any further appealable interlocutory order of the trial court concerning the same subject-matter may be brought before the appellate court for review on motion. TEX.R.APP.P. 43(f). RAL argues that rule 43(f) permits subsequent orders to be brought before the Court for appellate review only in the proceeding appealing the initial order. RAL's inference then, is that since Dennis' appeal of the initial order was untimely, his appeal of the December 28 order within that same appeal was of no effect.
We agree with RAL that Dennis's cost bond to appeal the November 15 order was untimely because it was filed more than 20 days after the order. TEX.R.APP.P. 42(a)(3). It was therefore of no effect. Dennis' cost bond filed January 10, 1995, to appeal the December 28, 1994, order was timely, however, having been filed within 20 days of the December 28 order. Because Dennis's filing of the cost bond appealing the November 15 order was untimely, rule 43(f) does not apply to this case. See Currie v. International Telecharge, Inc. 722 S.W.2d 471, 473 (Tex.App.--Dallas 1986, no writ) (court held that it had jurisdiction to review an order superseding an original injunctive order despite the fact that appellants had not appealed the original injunctive order). Accordingly, we overrule RAL's motion to dismiss.
We now address the appeal on the merits.
At age 21, Dennis, an aspiring rap artist, desired to start a solo career. On October 15, 1988, he signed an exclusive recording agreement with RAL, the same recording company with which the rap group Ghetto Boys had signed. He also signed an exclusive songwriting agreement with N-The-Water, Inc. RAL and N-The-Water, Inc. were companies owned by James A. Smith. Smith was Dennis's managing agent, who also received 20 percent of whatever compensation Dennis received. Initially, Dennis performed with the Ghetto Boys, but later started working as a solo performer.
The terms of the recording agreement specified that during the term of the agreement, Dennis would:
(1) exclusively render his services as a performing artist for the purpose of making masters 3 for [RAL] and ... deliver the master to [RAL];
(2) not authorize or permit any person ... other than [RAL] to use [Dennis's] legal or professional name or [his] likeness in connection with the advertising or sale of Phonograph Records or blank recording tape or tape recording equipment;
(3) not enter into any agreement which [sic] would interfere with the full and prompt performance of [his] obligations ... and not perform or render any services for the purpose of making, promoting or marketing Phonograph Records or Master Recordings for any person other than [RAL];
(4) not authorize or knowingly permit [his] performances to be recorded for any purpose without an express written agreement prohibiting the use of such recording for making, promoting or marketing Master Recordings or Phonograph Records without [RAL's] express written consent.
Under the agreement, RAL was to pay the recording costs of the masters recorded at recording sessions conducted in accordance with the terms of the agreement in an amount not to exceed a recording budget approved in writing by RAL.
The term of the agreement commenced upon its execution by Dennis. The agreement provided that its term would run for a first contract period, ending nine months after Dennis' completion of an album. It also provided that, at RAL's option, during the first contract period, Dennis would deliver one additional album to RAL. It further provided that Dennis granted RAL nine separate options to extend the contract nine additional contract periods and that each such option should be deemed to be exercised by RAL, to commence immediately upon the expiration of the current contract period, unless RAL gave Dennis notice to the contrary at least 10 days prior to the expiration of the current Contract Period.
Bruce Toval of RAL testified that under the recording contract, for each option period, Dennis is required to deliver one album; that after that, if RAL exercises its option, Dennis is required to deliver another album. He testified that from the start of the contract October 15, 1988, to the time of the hearing on October 19, 1994, Dennis had provided RAL two masters, and that, as far as he was concerned, the contract was still in effect. Toval testified that RAL had spent more than $1,000,000 promoting Dennis's solo career, that he guessed in 1993 Dennis's compensation under the contract was over $100,000, and that over the life of the contract, Dennis had made $500,000.
Toval testified that it first came to RAL's attention sometime in 1993 that Dennis had appeared on the "Sho" album, released by Wize and distributed by Ichiban. He testified that RAL then wrote Ichiban and Dennis and his representative to let him know that he had breached the contract. 4 Ichiban did not respond to RAL's letter, but Dennis's attorney and RAL's attorney unsuccessfully attempted to negotiate a settlement. A week before the October 19 temporary injunction hearing, RAL became aware that Dennis would on October 25, release another CD, "Play Witcha Mama" ("Play"), in his own name. Accordingly, RAL filed suit on October 12, 1994, seeking a temporary injunction prohibiting Dennis and Ichiban from making and distributing unauthorized recordings and performances.
Toval testified that RAL has contracts with Virgin Records (Virgin) to distribute their performers' music, and that if Dennis released his "Play" album on October 25 through an unauthorized distribution company, RAL's reputation would be hurt with Virgin and with new artists it tries to recruit. He also testified that for Dennis to record outside RAL could cause problems with sample clearances. 5
Dennis testified about the deterioration of his relationship with RAL. He testified that RAL refused to pay him money he was owed every accounting period, refused to advance recording costs to him so that he had to pay the recording costs on his RAL album "Going Out Like a Soldier," refused to give him accounting statements, and sent employees to a club where he was working to threaten him with violence. Dennis testified that he gave RAL written notice by certified mail of their breaches of the contract. He testified that he felt like he could make the "Play" album because in January 1994, RAL sent his lawyers a letter saying RAL was going to file suit to enforce the recording contract, and when April 15 came and went, he believed the contract was null and void.
On cross-examination, Dennis testified that Smith showed an interest in Dennis's career, worked in the studio with him, helped him with his music, and provided him with guidance and direction.
Howard Spalding, Dennis's new business manager, testified that to promote the "Play" album there was an ad campaign in the music publications; that recording, producing, and distribution costs in the amount of $750,000 had been incurred by Ichiban in connection with the album; and that pulling the album would result in lost sales of approximately $1,000,000.
Ichiban, which...
To continue reading
Request your trial
-
Curb Records, Inc. v. McGraw
...continue until Curb determined that McGraw had met his contractual obligations. In Ichiban Records, Inc. v. Rap-A-Lot Records, Inc., 933 S.W.2d 546, 552 (Tex. App. 1996), the court declined to enforce by injunction a contract without a specific time limit. Thus, even though McGraw is undisp......