Radio Station KSCS v. Jennings
| Decision Date | 04 May 1988 |
| Docket Number | No. C-7358,C-7358 |
| Citation | 750 S.W.2d 760 |
| Parties | RADIO STATION KSCS, Petitioner, v. Steve JENNINGS, Respondent. |
| Court | Texas Supreme Court |
This case concerns the competency of certain summary judgment evidence. Radio Station KSCS, located in Fort Worth, as part of a promotional scheme, "guaranteed" to play three songs in a row without commercial interruption. The station announced that it would play Steve Jennings, a station listener, claimed the station had interrupted the three songs with a commercial. He sued for the $25,000 guarantee. The trial court granted KSCS a summary judgment. After appeal, the case was remanded to the trial court, which again granted KSCS a summary judgment. The court of appeals once again reversed, holding that a fact issue existed. 745 S.W.2d 97. We reverse the judgment of the court of appeals and render judgment for KSCS.
In the trial court Jennings alleged that the three-in-a-row statements constituted oral offers to guarantee payment of $25,000 to a listener who caught the station playing fewer than three songs in a row due to commercial interruption. Jennings further alleged that he accepted the offer by listening to the station. Jennings claimed that the station interrupted, on several occasions, the playing of three consecutive songs by announcing the names of the songs and singers. Contending that such interruptions were not "commercial interruptions" as defined by the rules of the contest, the station refused to pay Jennings $25,000. 1 Jennings also sued, in addition to the radio station, four employees of the station for breach of an oral contract.
KSCS filed a motion for summary judgment, which was granted by the trial court on the ground that the facts Jennings alleged, even if true, did not state a cause of action. On the first appeal, the court of appeals reversed and remanded for trial. Jennings v. Radio Station KSCS, 708 S.W.2d 60 (Tex.App.--Fort Worth 1986, no writ). The court of appeals reasoned that a cause of action sounding in breach of contract was sufficiently alleged: Jennings relied to his detriment by listening to KSCS () because of the promise.
The appeal at bar arose when the trial court again granted the station's motion for summary judgment. The court of appeals affirmed in part and reversed and remanded in part. The court of appeals held that there was a genuine issue of material fact as to whether interruptions to announce the names of songs and singers qualified as paid commercial interruptions as defined in the contest rules. It is from this holding that the Radio Station brings application for writ of error to this court. 2
Jennings' response to the Radio Station's motion for summary judgment alleged that interruptions to announce the names of songs and singers qualified as paid commercial interruption. Jennings' affidavit controverting the motion for summary judgment provided the basis for this claim:
The records played by the Defendant on the air are sent to the Defendant by or on behalf of the record companies without charge. The receipt of these records is a valuable consideration flowing to the Defendant. Stated differently, the receipt by Defendant of the records from the record companies is, and amounts to, a payment to Defendant. For this payment, the Defendant makes a paid commercial interruption when it advertises the names of the record company's songs and singers. These paid commercial interruptions having occurred after only two songs in a row followed the same type of advertisements following three songs in a row when Defendant purported to play "five-in-a-row" as is shown on the attached Exhibit B, C...
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