Shreveport Great Empire Broadcasting, Inc. v. Chicoine

• Decision Date: 04 May 1988
• Docket Number: No. 19572-CA,19572-CA
• Parties: SHREVEPORT GREAT EMPIRE BROADCASTING, INC. d/b/a Radio Station KWKH, Plaintiff-Appellee, v. Dr. Jon K. CHICOINE, D/B/A Chicoine Clinic, Defendant-Appellant. 528 So.2d 633
• Court: Court of Appeal of Louisiana — District of US

Page 633

528 So.2d 633

SHREVEPORT GREAT EMPIRE BROADCASTING, INC. d/b/a Radio Station KWKH, Plaintiff-Appellee, v. Dr. Jon K. CHICOINE, D/B/A Chicoine Clinic Defendant-Appellant.

No. 19572-CA.

528 So.2d 633

Court of Appeal of Louisiana, Second Circuit.

May 4, 1988.

Graves, Daye, Bowie, Beresko & Flowers by David P. Daye, Shreveport, for defendant-appellant.

Cady & Thompson by Tom N. Thompson, Shreveport, for plaintiff-appellee.

Before HALL, MARVIN and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Dr. Jon K. Chicoine, d/b/a Chicoine Clinic, has appealed a Shreveport City Court judgment ordering him to pay the plaintiff, Shreveport Great Empire Broadcasting Inc., d/b/a KWKH Radio Station, $3,314.70 for radio advertising, together with eighteen percent interest from June 10, 1986 until paid, and an attorney fee of twenty-five percent. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiff, KWKH Radio, ran an advertising campaign in late 1985 and early 1986 known as the Community Club Awards (CCA) program. Under this program, certain area businesses agreed to serve as sponsors of the program and signed contracts for radio advertising in conjunction with the campaign. Local civic groups also participated in the program by patronizing the sponsor businesses through various activities, such as making purchases or attending open houses. For this patronage of the sponsors, the clubs would receive "points." The civic clubs could earn "bonus points" by inviting representatives from the sponsor businesses to speak at their group meetings. The speakers hoped to enhance their business through personal appearances at these civic clubs. At the end of a thirteen week period, the civic clubs with the most "points" would receive a cash prize from the radio station.

A sales representative of KWKH, Edward Metoyer a/k/a Mike Mitchell, approached the defendant, a chiropractor who was fairly new to the Shreveport area, regarding participation as a sponsor in the CCA campaign. The defendant was represented by the advertising agency of Galloway, Hudson and Shaw. Cindy Kimball, an employee of Galloway, Hudson & Shaw, was the defendant's account executive. Dr. Chicoine, Metoyer, and Kimball met with Linda Fruge, an employee of KWKH who was in charge of the CCA campaign. The defendant agreed to participate in the CCA Program. On November 12, 1985, the defendant signed an advertising contract with the plaintiff for $3,225, plus interest, in exchange for radio advertising. The plaintiff also signed an "addenda" to the contract in which he was to participate in the CCA sales promotion campaign. Neither document contained an agreement regarding speaking engagements.

The plaintiff ran radio advertisements for the defendant as required by the written contract. Several speaking engagements for the defendant to speak to civic clubs were also arranged. The defendant failed to pay for the radio advertising he received and on November 24, 1986, the plaintiff filed suit in Shreveport City Court to recover $3,314.70, together with eighteen percent interest and an attorney fee of twenty-five percent.

The defendant answered, claiming the plaintiff verbally promised and guaranteed that the defendant would be invited to make personal appearances and speak at civic clubs at least three times per week for the thirteen week duration of the CCA campaign. The defendant claimed this was the primary consideration for signing the written contract and the plaintiff failed to fulfill this part of the obligation. The defendant claimed that only fourteen speaking engagements were provided. The defendant argued that because the plaintiff did not completely fulfill the verbal agreement regarding speaking engagements, the amount owed by the defendant to the plaintiff should be reduced under the theory of quanti minoris.

At trial, the defendant admitted signing the advertising contract, but he said he did not read the contract. The defendant claimed he relied upon Kimball, his advertising agent, to be sure that all the terms of the agreement between the parties were included in the contract. Kimball testified that she never read the contract either, but relied upon the word of a co-employee, the media buyer for the advertising agency, that the contract was a standard advertising contract. Kimball also said she relied upon Metoyer's word that the speaking engagements were included in the contract.

Metoyer and other employees of KWKH testified that speaking engagements were discussed with the defendant, but no promises or guarantees were made to the defendant as to the number of speaking engagements which would be provided.

The trial court found in favor of the plaintiff and ordered the defendant to pay $3,314.70 (which included an accrued finance charge), plus eighteen percent interest from June 10, 1986, together with an attorney fee of twenty-five percent of the principal and interest.

In a written opinion, the city court found that even though the defendant claimed that he entered into the contract in order to obtain speaking engagements, the defendant failed to prove that this was a part of the agreement between the plaintiff and defendant. Therefore, the defendant could not avoid his obligation under the contract on this ground.

The defendant appealed the trial court decision urging numerous assignments of error. The defendant's assignments of error are unclear. However, we perceive the essence of the defendant's arguments to be that the trial court erred in failing to find that the speaking engagements were the principal cause for entering into the contract, and that the plaintiff's verbal promise to provide a specific number of speaking engagements modified the ambiguous written contract. The defendant also argues that because the plaintiff only partially performed the obligation to provide speaking engagements, the amount he is bound to pay the plaintiff should be reduced.

DISCUSSION

The defendant contends that the plaintiff made a verbal promise to provide the defendant with thirty-nine speaking engagements and that this obligation was implicitly included in the ambiguous written contract between the parties. This argument is meritless.

Parol evidence is generally not admissible to vary or contradict the clear and unambiguous terms of an authentic act or written instrument. However, in the interest of justice, parol evidence may be admitted to prove such circumstances as a vice of consent. LSA-C.C. Art. 1848. It has long been recognized jurisprudentially that parol evidence is admissible to show the true cause or consideration for a contract, although the true consideration may be different from that actually recited in the written contract. Smith v. Southern Craft Corporation, 202 La. 1019, 13 So.2d 335 (1943); Love v. Dedon, 239 La. 109, 118 So.2d 122 (1960). Parol evidence is also admissible, between the parties to a written act, to prove want or failure of consideration. Scafidi v. Johnson, 420 So.2d 1113 (La.1982); Gulf States Finance Corporation v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965).

The defendant argues that the written contract concerning participation in the CCA campaign was vague and ambiguous and that the ambiguity should be construed against the plaintiff who drew the contract in order to find that an agreement concerning speaking engagements was included in the contract. The written contract does not reflect an agreement regarding speaking engagements. Further, upon examination of the written contract and particularly the addenda thereto, we find that the agreement is indeed vague regarding how plaintiff was to participate in the CCA campaign. Due to the vagueness of the contract, coupled with the allegation that there was a failure of cause, parol evidence was admissible to explain the agreement contemplated by the parties.

A party who demands performance of an obligation must prove the existence of the obligation. A party who asserts that an obligation is null or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction. LSA-C.C. Art. 1831.

A valid obligation requires, among other factors, consent. Consent may be vitiated by error, fraud, or duress. LSA-C.C. Art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. LSA-C.C. Art. 1949. Error as to a subsidiary motive has no effect on the validity of the contract. Marcello v. Bussiere, 284 So.2d 892 (La.1973); Greater East Baton Rouge KOA, Inc. v. Lamar Corporation, 481 So.2d 654 (La.App. 1st Cir.1985); Dunham v. Dunham, 467 So.2d 555 (La.App. 1st Cir.1985) writ denied 469 So.2d 989, 990 (La.1985).

Cause is the reason why a person obligates himself. A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. LSA-C.C. Art. 1967. Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object, or any other circumstance that the parties regarded, or should have in good faith regarded, as a cause of the obligation. LSA-C.C. Art. 1950.

A contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract where the other party knew or should have known it was the principal cause. Scoggin v. Bagley, 368 So.2d 763 (La.App. 2d Cir.1970); Hoffman v. Craftworld...