Radio Picture Show Partnership v. Exclusive Intern. Pictures, Inc., 1-684A141

Decision Date24 September 1985
Docket NumberNo. 1-684A141,1-684A141
Citation482 N.E.2d 1159
PartiesThe RADIO PICTURE SHOW PARTNERSHIP, Roxxon Entertainment Corporation, General Partner and Other Unknown Partners, Appellant, v. EXCLUSIVE INTERNATIONAL PICTURES, INC., Appellee.
CourtIndiana Appellate Court

Dale P. Webster, Sturm & Smith, Vincennes, for appellant.

Jeffrey Kolb, Emison, Emison, Doolittle & Kolb, Vincennes, for appellee.

STATEMENT OF THE CASE

NEAL, Judge.

Defendant-appellants, Radio Picture Show Partnership (Radio), Roxxon Entertainment Corporation (Roxxon), 3622 Limited, Encore Properties, Inc. (Encore), and WEMCO, Inc. (WEMCO), appeal an adverse judgment for breach of contract rendered by the Knox Superior Court, without We affirm.

a jury, in favor of Exclusive International Pictures, Inc. (Exclusive).

STATEMENT OF THE FACTS

A chronological statement of the facts most favorable to support the judgment is as follows: Pursuant to various forms of correspondence occurring between K.A. Green, president of Roxxon, and Eddie Stewart, vice president of Exclusive, including numerous phone calls, letters, and promotional materials, Green sought to employ Stewart's services for the distribution of a film entitled "The Radio Picture Show." Subsequently, Green drafted the contract in question on January 29, 1980, on stationery with a letterhead "Roxxon Program Sales" in California and mailed it to "Mr. Eddie Stewart, Exclusive International Pictures" in Vincennes, Indiana. Green signed the letter "Sincerely, ROXXON PROGRAM SALES, division of THE RADIO PICTURE SHOW PARTNERSHIP, ... K.A. Green, President of Its General Partner, ROXXON ENTERTAINMENT CORPORATION." It was executed "READ UNDERSTOOD AND AGREED: EIP, By Eddie Stewart, Pres. Date 2-4-80." Eddie Stewart returned an executed copy to Green. The body of the executed copy reads as follows:

"This letter will set forth our understanding of the relationship between you, as an independent producers sales representative, and Roxxon Program Sales, division of The Radio Picture Show Partnership, hereinafter referred to as the "Company".

1. You are hereby appointed as a representative for the sale of the Company's products for the following territory, more fully described by State name: DELAWARE; DIST OF COLUMBIA; ILLINOIS; INDIANA; IOWA; KENTUCKY; MICHIGAN; MINNESOTA; MISSOURI ...; NEW JERSEY; OHIO; PENNSYLVANIA; TENNESSEE; VIRGINIA; WEST VIRGINIA; WISCONSIN. [Penned-in, N.Y. N.J. CONN. R.I. MASS. E.S.]

2. It is recognized and agreed that you are not an agent or employee of the Company for any purpose whatsoever, but have contracted to act as an independent representative, and that you will comply with the laws and regulations of the various jurisdictions in your territory in selling the Company's products.

3. You will devote such time, talent and effort as may be necessary to effectively promote and maximize the sale of the Company's product in your territory.

4. You will keep the Company advised of your activity with regards to sales and solicitation of sales and agree not to make any representations, guarantee or warranty with respect to the Company's product, except as is authorized by the Company in its policy, literature and sales material.

5. All exhibition license agreements are subject to the approval and acceptance by the Company at its main office.

6. For services rendered under this Agreement, the Company shall pay you Twenty-Five (25) *********% commission on its Net Sales within stated territory.

For purposes hereof, the term "Net Sales" shall mean the total gross sales less discounts, all allowances and credits granted.

7. Within 20-days after the end of each calendar month following shipment of the products, the Company shall render a report to you, showing the amount of commissions payable and basis on which it was determined. In addition, the report shall show collections due. Each such report shall be accompanied by the payment in full of any commissions due, on collected accounts, for such calendar month.

8. This Agreement may be altered or amended at any time by mutual agreement. This Agreement may be If you approve and accept the provisions of this Agreement, please acknowledge the enclosed copy and return it to me as soon as possible."

terminated by either party by giving thirty (30) days written notice.

Before executing the agreement, Stewart, pursuant to prior consultation and agreement with Green, made the penned in changes in the contract and initialled them, adding to his territory New York, New Jersey, Connecticut, Rhode Island, Massachusetts, and striking out the limitations on Missouri.

Thereafter, Stewart contacted 100 to 120 television stations in his territory, including Indiana stations in Evansville, Fort Wayne, Terre Haute and Elkhart, attempting to sell the film for cash rental. Promotional materials were then sent directly from Radio to those stations solicited. Stewart received a positive response, but prospective buyers indicated a desire to wait until after the NAPTI Convention (a national convention where television programs are viewed, offered and sold). Upon recontact after the convention, Stewart was told by prospective buyers that the film was being offered in his territory on a barter basis by others. (A barter is apparently where a show is traded to a station for advertising time which the seller then markets if he can). Stewart complained to Green on March 25, 1980, and Green told him he had been replaced. However, no notice of termination of the agreement was given to Exclusive in writing pursuant to paragraph 8 until March 25, 1981, when such a notice was given by letter by the law firm of Kaplan, Livingston, Goodwin, Berkowitz and Selvin of Beverly Hills. The notice stated only that the contract had been cancelled on March 31, 1980, and if it wasn't, it was now cancelled pursuant to paragraph 8 of the contract. Litigation had been commenced August 14, 1980.

Radio had given one Raymond Horn an exclusive contract around May or June of 1980 to sell the film in the entire United States, and for his services, Horn received $19,190.00. Among other states in Exclusive's territory where Horn sold the film was Indiana, where it was sold and shown in Terre Haute, Fort Wayne and South Bend. Upon Green telling Stewart that Exclusive had been replaced, Stewart ceased further effort to sell.

Exclusive commenced its suit in Knox County, Indiana, on August 14, 1980, and named Radio, Roxxon and other unknown partners as defendants. Service by registered mail was attempted on Green, Roxxon's president and resident agent in California, who refused service. Alias service, pursuant to Ind. Rules of Procedure, Trial Rule 4.4(B)(2), was subsequently effected by the Secretary of State, and Green accepted that service on September 3, 1980. Radio appeared, filed its answer in (1) denial; (2) lack of jurisdiction; (3) insufficient service of process, and subsequently filed its motion for judgment on the pleading supported by an affidavit of John Brown. Therefore, pursuant to Ind. Rules of Procedure, Trial Rule 12(C), the motion became a motion for summary judgment. The affidavit, as well as other testimony at the trial, revealed that Radio was a California partnership whose general partner was Roxxon, a California corporation and whose president was K.A. Green. A Texas partnership, 3622 Limited, was a limited partner of Radio and John Brown was its president. 3622 Limited was itself a limited partnership, consisting of Encore, the general partner whose president was also John Brown, and WEMCO, a Texas corporation, the limited partner, whose president was Mark Hundall. An entity, Tuffy Corporation, of whom John Brown was president and sole owner, was formed for the sole purpose of succeeding Roxxon as general partner in Radio. The motion for judgment on the pleading was denied.

Exclusive then amended its complaint and named 3622 Limited, Encore and WEMCO as party defendants. Service of process by registered mail was effected on these parties, and John Brown signed the return receipt for 3622 Limited and Encore. Those new parties, 3622 Limited and Encore, filed answer in (1) denial; and (2) lack Sometime in April 1980, Brown, Hundall, Green and Horn attended a meeting in Raleigh, North Carolina where decisions were made concerning the sale of the show. Horn testified that he had further conversations with Green, Brown and Hundall about bartering the show. Horn stated, "[I] could find equally Kenny Green or Hundall or John Brown[, and I] spoke with all of them about the same amount of time." Brown acknowledged that he became involved in selling the advertising time bartered by Horn. He and others went to New York, contacted advertising firms and Brown also contacted advertising firms in Dallas. He conceded that he talked to Horn on numerous occasions, and received money Horn set him. Brown became involved as early as January 1980, but became specifically involved in May. He had the ultimate responsibility to see that the bartered time got sold.

of jurisdiction. John Brown denied that he was a stockholder, director or officer of Roxxon, the general partner in Radio, yet the record shows much activity on the part of John Brown in the affairs of the various companies and partnerships and in the enterprise involved here.

The Tuffy Corporation was owned by Brown, and according to him, was created for the purpose of succeeding Roxxon. There is no explanation of why Roxxon was to be succeeded. He signed Radio's 1980 partnership income tax return which showed a huge loss which in turn was reflected in his other corporations. His only claimed connection to Radio was through Encore, 3622 Limited, and later, Tuffy. Extraordinarily, he claimed that he did not know what happened to Green or Roxxon, who allegedly withdrew July 1, but at other places in the record he recites that part of the information for the income tax return came from Green. H...

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