Law School Case Brief
Jennings v. Radio Station KSCS, 96.3 F.M., Inc - 745 S.W.2d 97 (Tex. App. 1988)
The movant must come forward with summary judgment evidence with respect to each element of the affirmative defense. Once the movant establishes a right to a summary judgment, the non-movant in his response must expressly present any reasons seeking to avoid the movant's entitlement, and such reasons must be supported by summary judgment proof to establish a fact issue.
Plaintiff Steve Jennings, a prisoner in the Texas Department of Corrections, brought a suit for alleged a breach of an oral contract against defendants, Radio Station KSCS, 96.3 F.M., Inc. and four disc jockeys, John Hanson, Mike Baker, Jeff Hunter and Jimmy Stewart. Specifically, Jennings' affidavit alleged that 1) that Jennings heard defendants orally offer to guarantee payment of $25,000 to a listener of defendant Radio Station KSCS who caught defendants playing fewer than three songs in a row due to a commercial interruption; 2) that plaintiff accepted the offer by listening to defendant Radio Station KSCS; 3) that defendants interrupted the playing of consecutive songs by giving a five to seven-second commercial advertising of names of songs and singers; 4) that Jennings by letter notified defendants that he had caught Radio Station KSCS playing less than three songs in a row; 5) that plaintiff Jennings never heard defendants' qualifying rules to the contest; and 6) that defendant refused to pay Jennings 25,000. Defendants filed a motion for summary judgment, asserting that the offer specifically provided that the interruption applied "only to commercial announcements -- paid announcements for products, services, or commercial enterprises." The guarantee further provided that musical segments interrupted by "any other kind of announcement, such as a public service announcement, station I.D., time check, or a station promotional announcement, do not qualify under the guarantee." Defendants argued that, as a matter of law, Jennings must take nothing because the interruptions of which he complained were not paid commercial products or services. The trial court agreed and granted summary judgment in favor of defendants. Plaintiff Jennings appealed.
Did a radio listener have sufficient judgment proof to support his motion for summary judgment against a radio station and its disc jockeys?
Yes, as to the radio station; No, as to the individual radio disc jockeys.
The appellate court affirmed the trial court's entry of a summary judgment for defendant disc jockeys John Hanson, Mike Baker, Jeff Hunter and Jimmy Stewart, concluding that the disc jockeys had successfully raised their agency role as an affirmative defense to their individual liability, and because Jennings produced no summary judgment proof that they were not acting as agents on behalf of a disclosed principal; therefore, there was no genuine issue of material fact as to the liability of defendant disc jockeys. However, the appellate court reversed and remanded the trial court's entry of summary judgment for defendant Radio Station KSCS, 96.3 F.M., Inc., concluding that Jennings had raised a genuine issue of material fact as to whether certain interruptions, where defendants advertised the names of the record company's songs and singers upon receipt of records sent to Radio Station KSCS without charge, qualified as a paid commercial interruption as defined in the contest rules.
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