This Is Me, Inc. v. Taylor

Decision Date30 September 1998
Docket NumberNo. 97-7150,97-7150
Citation157 F.3d 139
PartiesTHIS IS ME, INC., Plaintiff-Appellant, v. Elizabeth TAYLOR, Zev Bufman, and Zev Bufman Entertainment, Inc., Defendants-Appellees,
CourtU.S. Court of Appeals — Second Circuit

Kenneth J. Chesebro, Cambridge, MA (Robert C. Maland, P.A., Miami, FL, Richard L. Katz, Katz & Mestre, Coral Gables, FL, on the brief) for Plaintiff-Appellant.

Mark Abramowitz, New York City (Gilbert C. Hoover, IV, Parker Chapin Flattau & Klimpl, LLP on the brief) for Defendants-Appellees Zev Bufman and Zev Bufman Entertainment, Inc.

Ira G. Greenberg, New York City (Thomas E. Hone, Edwards & Angell on the brief) for Defendant-Appellee Elizabeth Taylor.

Before: JACOBS and LEVAL, Circuit Judges, and MISHLER, District Judge. *

JACOBS, Circuit Judge:

Actress Cicely Tyson, through her personal services corporation, plaintiff-appellant This Is Me, Inc., agreed to undertake the lead role in a Broadway production of "The Corn is Green" and in a contemplated taping of the production for television, and sues to recover unpaid fees for her services. Several contracts are arguably in issue; some are standard Actors' Equity (sometimes "Equity") form contracts, others are not; all are signed by and on behalf of various persons and entities as producers. At issue is the unpaid portion of a so-called "pay or play" guarantee of $750,000 payable if (as happened) the show closed before Tyson earned $750,000 in salary. Among the sufficiency of evidence issues are (i) whether the various contracts are sufficiently interrelated that they may be read together; (ii) whether the contractual phrase "a contract made in relation to the Play" includes a contract governing the videotaping; and (iii) who is bound in respect of the $750,000 pay or play guarantee.

Elizabeth Taylor, the actress, and Zev Bufman, the Broadway producer, formed a theater group to produce live performances of plays on the legitimate stage and video and television versions of the same plays. They chose "The Corn is Green" as their second production, and cast Cicely Tyson in the lead role. The play soon closed, and the video was never made.

This Is Me, the corporation through which Ms. Tyson provides her services, sued Taylor and Bufman (and Zev Bufman Entertainment, Inc.) under the pay or play guarantee. Plaintiff's arguments convinced the jury, which found Taylor and Bufman personally liable. The district court, however, issued judgment as a matter of law in favor of defendants on the grounds that the individual defendants were not signatories to the only contract that contained the guarantee, and that Tyson's arguments linking Taylor and Bufman to that undertaking are barred by the parol evidence rule.

We conclude that there was sufficient evidence from which the jury could find liability, and we therefore reverse. That evidence consists of the underlying and well-disclosed purpose of the enterprise to produce the play on stage as well as on videotape, the drafting history of the contracts, the contemporaneity of the undertakings, the cross-referencing between and among the contracts, and the background undertakings of the Actors' Equity rules, accepted by all the parties, that bind the individual signatories (as producers), as well as any partnership or venture controlled by them, to employment contracts.

BACKGROUND

Following a prior collaboration as producer and actor, Zev Bufman and Elizabeth Taylor Taylor and Bufman entered into a letter of intent providing that: (i) "[a]ll profits and losses will be shared equally between us;" (ii) the primary purpose of the Group was "the production of legitimate stage plays and television/film versions of such plays;" (iii) the Group would "produce three (3) plays each year;" (iv) it would be "of the essence at this time that we do not consider any play unless we are able to acquire or have an option to acquire the rights to televise such productions;" and (v) Taylor and Bufman would "be co-producers of every project" and would "each consult with the other with respect to all major decisions." Taylor testified that upon receiving the letter of intent, she scratched out the word "losses" on her copy before signing; she maintains that therefore she is not responsible for any losses. The letter of intent contemplated a more formal contract and the formation of a "new corporation" to carry out the venture, but neither eventuality came to pass.

decided to "put a theater group together" to produce plays on Broadway. They agreed generally that Bufman "would take care of the business end of it" and Taylor "would take care of the artistic end of it," specifically by "trying to get people to participate and become involved in the group."

For the Group's second project--a live production and videotape of Emlyn Williams's play, "The Corn is Green"--Bufman and Taylor decided to seek Cicely Tyson's services to star in the play. Taylor took the lead in recruiting Tyson, with whom she had worked before. In several phone calls and a lunch meeting, Taylor played a key role in reconciling creative differences between Tyson and the author of the play regarding whether use of the original screenplay would be appropriate. Throughout these discussions, Taylor referred to Bufman as her partner and noted that they were in this "50-50."

Tyson agreed to appear in the live theater production and the videotape production of "The Corn is Green," and exacted the $750,000 "pay or play" guarantee. The guarantee reflected that Tyson, who was at the height of her career, would have to turn down other opportunities in film, television, and stage, and commit nearly a year to "The Corn Is Green."

An initial contract--later superseded--addressed all the undertakings concerning the stage and videotape performances of the play. This contract (hereinafter the "superseded contract") was dated December 9, 1982, and was executed by Cicely Tyson on behalf of This Is Me and by Zev Bufman on behalf of Zev Bufman Entertainment, Inc. Ms. Tyson also signed an inducement letter to bind herself personally, which is addressed to "Zev Bufman Entertainment, Inc. d/b/a The Elizabeth Theatre Group." 1 The obligations of the superseded contract were afterward bifurcated and expressed in two new contracts executed contemporaneously in August 1983, which provided that they were to be read together to constitute the entire agreement covering This Is Me's services in "The Corn is Green."

* The first of these contracts was a standard Actors' Equity document, a run of the play contract that guaranteed Tyson's weekly salary for the Broadway run, without guaranteeing the length of the run. The producer listed on this contract was an entity called "The Corn Company" and the individual signatory was Zev Bufman.

* The second of these contracts related to the video production, and contained the pay or play guarantee in the amount of the difference between $750,000 and salary paid under the run of the play contract (the "video contract"). This contract was between Zev Bufman Entertainment, Inc. and This Is Me.

Two further undertakings are potentially implicated as well, both of which arise from the efforts of Actors' Equity to protect its members from defaulting producers:

* It is conceded that the relationship between the actors and the producers in this production was governed by the Actors' Equity Association Agreement and Rules * The "Security Agreement" (also an industry standard agreement), signed by Zev Bufman, requires the producer to "promptly pay to the Actors any and all sums due," including sums due under employment agreements "made in relation to the Play," and defines "producer" broadly to "include[ ] the individual, firm, partnership or corporation or any combination thereof producing or controlling the production of said Play."

Governing Employment Under the Production Contract (the "Equity Agreement and Rules"). Bufman testified that "in order to put on a play in an Equity playhouse," he "had to abide by the collective bargaining agreement."

After out-of-town tryouts, "The Corn is Green" had a short run on Broadway, and its closing was unlamented by the critics. The video was never made, and Ms. Tyson received only the weekly salary payments made under the run of the play agreement.

Later, Tyson commenced an arbitration against Bufman, Taylor and Zev Bufman Entertainment, Inc. She won an award of $607,078.86 against Zev Bufman Entertainment, Inc., and at the behest of the individual defendants, agreed to permanently stay the arbitration as against Bufman and Taylor (preserving, however, the right of This Is Me to pursue claims against Bufman and Taylor in court).

The present action followed. The jury found that both Taylor and Bufman were liable to Tyson for "the unpaid balance of the $750,000 she was to receive for performing in the Corn Is Green," but the district court granted judgment as a matter of law dismissing the complaint on the grounds that (1) only the video agreement contained the pay or play guarantee; (2) that agreement unambiguously bound only Zev Bufman Entertainment, Inc.; and (3) the Security Agreement could not be "reasonably read to require anything more than the payments due under the Run-of-the Play[sic] Contract that it was designed to secure." This Is Me appealed; for the reasons that follow, we reverse.

DISCUSSION
I.

Federal Rule of Civil Procedure 50 provides that if a jury returns a verdict for which there is not a legally sufficient evidentiary basis, the district court may either order a new trial or direct the entry of judgment as a matter of law. Fed.R.Civ.P. 50(b). "[T]he same standard that applies to a pretrial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50." Piesco v. Koch, 12 F.3d 332, 341 (2d Cir.1993); see also Advisory Committee Note to 1991 Amendment...

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