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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 30, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1882-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GRENIER & MOORE
PRODUCTIONS, INC.,
Plaintiff-Respondent,
v.
CHIPPEWA VALLEY
COUNTRY FESTIVAL,
INC.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
GREGORY A. PETERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Chippewa Valley Country Festival (CVCF) appeals a
judgment awarding Grenier & Moore Productions, Inc., damages based on a
contract.[1] CVCF defended on the contract action and
counterclaimed against Grenier & Moore alleging that Grenier & Moore
and its employee, Mike Lesperance, breached the contract or breached fiduciary
duties created by the contract. Because
the record supports the trial court's findings that CVCF failed to prove the
breach of duties created by any contract, we affirm the judgment.
CVCF sponsored three
music festivals in 1994. It hired
Grenier & Moore to act as a talent buyer for the festivals. Under the terms of the written contract, Grenier
& Moore acted "only as the entertainment negotiator." All contracts with the entertainers had to
be signed by a representative of CVCF.
The terms of the contracts with the entertainers were specifically set
out in the written contract between Grenier & Moore and CVCF.
CVCF eventually sought
to change the provisions of the contracts between it and the entertainers. It requested Lesperance to take care of it
and Lesperance agreed to do so. He
called agents and sent an addendum to the contract to the various performers
seeking their agreement regarding T-shirt concessions and other items CVCF
wanted in the performers' contracts that were not specified in its written
contract with Grenier & Moore. When
several performers refused to sign the addendum, CVCF was required to cut off
sales of the T-shirts.
CVCF also alleges that
Lesperance agreed to include the "Black Velvet Tour" provisions for
Tanya Tucker. Lesperance testified that
he did not agree to the Black Velvet Tour, but rather forwarded Tucker's
request to CVCF. CVCF was ultimately
required to give Tucker seventy-five free one-day tickets in order to get her
to perform. CVCF contends that
Lesperance's agreement to take care of the additional demands of CVCF contained
in the addendum to the entertainers' contracts constituted an oral agreement
modifying its written contract and that Lesperance breached the contract when
he failed to secure the entertainers' agreement to the terms stated in the
addendum and when he negotiated the Black Velvet Tour provisions with
Tucker. It also argues that Lesperance
breached his fiduciary duties to CVCF by his "agreeing to Black Velvet
Tour conditions" and by "failing to get contracts negotiated."
The record supports the
trial court's finding that the written agreement between the parties was not
modified by a subsequent oral agreement.
The initial agreement made Grenier & Moore "negotiators"
for CVCF and CVCF presented no evidence that this status was changed by
subsequent oral agreement. While the
details of the contract CVCF sought with the entertainers may have been
changed, nothing in the alleged oral agreement made Grenier & Moore or
Lesperance a guarantor of CVCF's success in the negotiations. CVCF concedes that Lesperance presented the
entertainers with the provisions CVCF wanted in the contracts. CVCF did not present evidence of an oral
agreement to do more. Because
Lesperance had no authority to agree to the "Black Velvet Tour"
provisions, it appears that he negotiated the best terms Tucker would accept
and presented the result to CVCF for its approval. If the terms did not meet CVCF's requirements, it was free to
reject the contract. Lesperance did
nothing inconsistent with his duties as a negotiator under these circumstances.
CVCF also describes
Lesperance's conduct as a breach of fiduciary duties as its agent. This argument fails for three reasons. First, the duties of the agent are created
by the contract. When an agent is hired
as a negotiator, his duty is to negotiate, not to guarantee the results of a
negotiation. Second, any breach of
Lesperance's duties is actionable in contract, not in tort. To sue in tort, there must be a duty
existing independently of the performance of the contract. Landwehr v. Citizens Trust Co.,
110 Wis.2d 716, 723, 329 N.W.2d 411,
414 (1983). There is no tort liability
for misperformance of a contract unless there would be liability for a
gratuitous performance without the contract.
Id. Third, mere
negligence or unskillfulness is not sufficient to indicate a breach of a
fiduciary duty. There must be gross
mismanagement, gross misconduct, gross unskillfulness or unfaithfulness before
a party forfeits a commission based on breach of a fiduciary duty. Arthur Koening Co. v. Graham Glass Co.,
170 Wis. 472, 473, 175 N.W. 814, 815 (1920); see also 12 C.J.S. Brokers § 69
(1938). CVCF has not met its burden of
proving grounds for forfeiture of the commission.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.