Peter Currin et al. v. A.E. Entertainment (2011)

JUDGMENT AFTER HEARING IN DAMAGES

In this matter, the plaintiffs, Peter Currin and David Currin, bring a breach of contract claim against A.E. Entertainment.   The plaintiffs allege that they entered into a contract with A.E. Entertainment to act as the plaintiffs' publicist.   The defendant failed to appear and was defaulted.   The court conducted a hearing in damages on May 16th and 23rd 2011.  “A default admits the material facts that constitute a cause of action ․ and entry of default, when appropriately made, conclusively determines the liability of a defendant ․ Accordingly, the entry of default against the defendant commands the rendering of judgment in favor of the plaintiff ․ Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled ․ At a minimum, the plaintiff in such instances is entitled to nominal damages.”  (Citations and internal quotation marks omitted.)  Abbott Terrace Health Center, Inc. v. Parawich, 120 Conn.App. 78, 86–7 (2010).  “A judgment of default normally requires a two step process.   The first step is the entry of a judicial ruling of default, which constitutes a technical admission by the defendant of the truth of the facts alleged in the complaint ․ The second step of the process is the hearing in damages, in which the plaintiff must still prove how much of the judgment prayed for in his complaint he is entitled to receive ․ Thus, in both equitable and legal actions, the plaintiff must establish his right to relief to the court's satisfaction, even though some issues may have been laid at rest by the default.”  (Citations and internal quotation marks omitted.)  Ratner v. Willametz, 9 Conn.App. 565, 755–6 (1987).

The essence of the plaintiffs' claim is that they instituted litigation in federal court in 2007 against various parties relating to their claim that those parties had copied, and profited from, a song to which the plaintiffs owned the copyright.   The plaintiffs claim that various persons conspired against them during the pendency of that action.   The plaintiff, Peter Currin, entered into a contract with the defendant in April 2008, hiring the defendant to act as the plaintiffs' publicist.   The plaintiffs allege that the defendant, A.E. Entertainment, although hired by the plaintiffs to publicly expose the conspiracy against them, did not, and, in fact, the plaintiffs claim, took part in that conspiracy and covered it up.   The plaintiffs claim that as a result of A.E. Entertainment's actions, their federal lawsuit, and therefore their claimed right to collect from the defendants in that case, was lost.   In their complaint they claim that the alleged breach “caused the Currins injury and damages to their civil action filed in Federal 2nd District Court, loss of legal fees, legal research fee, loss of national and international exposure which resulted in the loss and injury of over 250 million dollars, back and future royalties, compounded interest under Title 28 Statue 1961, interest allowance, book deal regarding possibly the largest copyright case in United States History, etc.”   In their Amendment to Motion for Judgment and Order of Payments dated May 11, 2011, the plaintiffs request that judgment be entered against A.E. Entertainment in the amount of $150,000 out of the $250 million.

At the hearing in damages the court expressed its concern that the plaintiffs could not prove that the breach of the contract by A.E. Entertainment caused the plaintiffs' loss of the damages sought in the federal lawsuit, as well as the other damages they claimed.   Indeed, the court cannot conclude, from the evidence presented, that if the plaintiffs had received the publicity they sought, the result of the federal lawsuit would have been different.  “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed ․ The Restatement (Second) of Contracts divides a [plaintiff's] recovery into two components:  (1) direct damages, composed of the loss in value to him of the other party's performance caused by its failure or deficiency;  3 Restatement (Second), Contracts § 347(a) (1981);  plus (2) any other loss, including incidental or consequential loss, caused by the breach ․ Id., § 347(b).  Traditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself ․ Although there is no unyielding formula by which damages are calculated, it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach.”  (Citations and internal quotation marks omitted.)  Sullivan v. Thorndike, 104 Conn.App. 297, 303–4, cert. denied, 295 Conn. 907 (2007).   The court finds that the damages claimed here by the plaintiffs, even though it is only a small percentage of the damages that they claim would have flowed to them if they had been successful in the federal action, are too speculative and remote.   In addition, the evidence was insufficient to establish that such damages would be a consequence of the defendant's alleged breach of contract.

The complaint in this matter also alleges that the defendant breached the contract when it failed to perform and failed to secure an agreed upon performance regarding the world news network CNN. In their complaint the Currins seek as a remedy that the “court command the defendant A.E. Entertainment to carry out the contract they entered into establishing the granting of money damages would be inadequate remedy for the contract breached” and “execution of Specific Performance regarding the World News Network CNN.” “Specific performance is an equitable remedy permitting courts to compel the performance of contracts for the sale of real property, and certain other contracts, pursuant to the principles of equity ․ It has long been established that the court cannot enforce specific performance of an agreement whose terms are indefinite and uncertain.”  (Citations and internal quotation marks omitted.)  Hill v. Raffone, 103 Conn.App. 737, 742, 744 (2007).   There is nothing in the agreement between the parties that indicates specifically that A.E. Entertainment would secure publicity for the plaintiffs on CNN. In fact, the contract provides that:  “The parties realize that there may be times when Artist [Peter Currin] will desire that Publicist [Anthony Embry Public Relations] perform certain work and that Publicist will not perform the desired work or may not even commence to perform the desired work.”   Although there is some evidence that the defendant was in the process of arranging some exposure of the plaintiffs on CNN, there is no evidence that the defendant guaranteed such a result or that it had any control over CNN such that it could ensure such a result.   Thus an order of specific performance is not appropriate in this case.

Therefore judgment shall enter in favor of the plaintiffs and against the defendant in the amount of $3,000, which is the amount the plaintiffs paid A.E. Entertainment for its services.

Jane S. Scholl, J.

Scholl, Jane S., J.