Belle City Amusements, Inc. v. Doorway Promotions, Inc.

936 N.E.2d 243, 2010 Ind. App. LEXIS 1948, 2010 WL 4148526
CourtIndiana Court of Appeals
DecidedOctober 22, 2010
DocketNo. 35A05-0912-CV-711
StatusPublished
Cited by14 cases

This text of 936 N.E.2d 243 (Belle City Amusements, Inc. v. Doorway Promotions, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belle City Amusements, Inc. v. Doorway Promotions, Inc., 936 N.E.2d 243, 2010 Ind. App. LEXIS 1948, 2010 WL 4148526 (Ind. Ct. App. 2010).

Opinion

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Belle City Amusements, Inc. ("Belle City") appeals the trial court's judgment in favor of Doorway Promotions, Inc. ("Doorway") on Doorway's breach of contract claim.

We affirm in part, reverse in part, and remand.1

ISSUE

Whether the trial court properly awarded Doorway damages on its breach of contract claim.

FACTS

Belle City provides and operates carnival rides and concessions at fairs and festivals in several states. Doorway is an event promoter and has been in business for approximately thirty-five years. James Amstutz is the president of Doorway.

As a promoter, Doorway "promote[s] or coordinatel[s] special events for a wide variety of non-profit organizations," including the Three Rivers Festival (the "Festival") in Fort Wayne. (Tr. 10). Doorway's "contract with the [Festival] makes [Doorway] the official midway" provider for the Festival. (Tr. 90).

On or about January 31, 2007, Doorway entered into a lease with the Board of Trustees for the Allen County War Memorial Coliseum (the "Coliseum"). Doorway agreed to lease a portion of the Coliseum's parking lot from July 9, 2009, through, and including, July 18, 2009, for a total of ten days, for the purposes of erecting a midway during the Festival. Doorway agreed to pay the Board of Trustees $2,400.00 "for each event day or 15% of the gross Box Office receipts, whichever is greater ...." (App.39) (emphasis omitted). Thus, Doorway was obligated to pay rent in the amount of at least $24,000.00 for use of the Coliseum during the Festival in 2009.

[246]*246On July 27, 2007, Belle City and Doorway entered into an agreement (the "Agreement"), whereby Belle City agreed to "present a complete midway," including "food, game and merchandise concessions," for the 2008 and 2009 Festival. Doorway agreed to provide the midway site, namely the "Allen County War Memorial Coliseum Parking Lot," for the Festival. (App.34). Belle City, however, agreed to "be responsible for all trash pick-up and trash containers, portable toilet facilities and police security" at the midway site and also agreed to "reimburse Doorway for all direct costs involved with event security and clean-up." (App.34).

The Agreement further provided as follows:

[Belle City] will pay Doorway 30% of the gross receipts for the first $100,000.00 from rides and shows, after applicable taxes (if any), and 35% of all ride and show receipts over $100,000.00.... [Belle City] also agrees to pay Doorway $5,000.00 or $140.00 each for food, game and merchandise concessions, whichever is greater.
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[Belle City] will provide a cash settlement to Doorway on the following schedule:
2008
1) Monday, July 14, 2008, for July 10-13, plus Advertising & Concessions;
2) Friday, July 18, 2008, for July 14-17;
3) Saturday, July 19, 2008, for July 18 & 19;
4) Payment on receipt of invoice for all security and lot clean-up fees, plus any other costs due Doorway not covered by payments 1-8.
2009
1) Monday, July 13, 2009, for July 9-12, plus Advertising & Concessions;
2) Friday, July 17, 2009, for July 13-16;
3) Saturday, July 18, 2009, for July 17 & 18;
4) Payment on receipt of invoice for all security and lot clean-up fees, plus any other costs due Doorway not covered by payments 1-8.
Doorway will have promotions and advertising tie-ins with local media, etc., and other types of promotion. [Belle City] will provide $9,000.00 for advertising....

(App.35). Finally, the Agreement provided as follows: "This contract is non-assignable by [Belle City] unless agreed to in writing by Doorway." (App.34) (emphasis added).

Following the 2008 Festival, a representative from Belle City informed Amstutz that Belle City wished to be released from the Agreement for the 2009 Festival. Shortly thereafter, in July of 2008, Belle City entered into a contract to operate a fair in Lexington, Kentucky. In September of 2008, Belle City's counsel sent a letter to Doorway advising that Belle City "hereby gives [Doorway] notice of its termination of the [Agreement] relating to the [Festival] scheduled next July, 2009." (Ex. 5). On or about October 13, 2008, Doorway's counsel sent a letter to Belle City's counsel, indicating Doorway's refusal to release Belle City from the Agreement.

On February 283, 2009, Doorway filed a complaint against Belle City for breach of contract. Doorway filed an amended complaint on March 2, 2009. Doorway alleged as follows:

2. The Agreement is not assignable and requires Belle City ... to present a complete midway at the ... Coliseum on July 10-19, 2008 and July 9-18, 2009. ...
3. In reliance on said Agreement, Doorway entered into a lease agreement [247]*247with the Board of Trustees of the ... Coliseum to lease the facilities for the dates of the midway events. In further reliance on the Agreement, Doorway expended time, incurred expenses, and did forego other business opportunities with the full expectation that Belle City would comply with its contractual obligations to furnish the midway events as set forth in the Agreement. Doorway remains obligated under the lease agreement with the Board of Trustees to pay rent and make other expenditures.
4. During the midway event in July, 2008, a petroleum spill occurred at the leased facility requiring clean-up costs of not less than $6,200.00, which clean-up costs are the direct responsibility of Belle City. Demand has been made upon Belle City to pay said clean-up costs, and Belle City has refused to do so .
5. By letter dated September 11, 2008, Belle City notified Doorway ... that it repudiated and unilaterally terminated the Agreement and would not be performing its obligations under the Agreement for the July 9-18, 2009 event.

(App.28-29). Accordingly, Doorway sought damages "in an amount not less than $50,000.00" for "lease payments, promotional and media and related expenses, clean-up costs, lost opportunities and lost profits .." (App.29). Subsequently, "around the first of April" of 2009, Doorway cancelled the Festival's midway for 2009. (Tr. 92).

Belle City filed its answer and affirmative defense on April 27, 2009. Belle City admitted that it notified Doorway that it was terminating the Agreement; denied that the Agreement was not assignable; and asserted that Doorway failed to mitigate damages by "disregard[ing]" Belle City's offer "to find another entity that could provide services for the July 9-18, 2009, 'midway event' ...." (App.26).

On November 12, 2009, the parties filed a pre-trial stipulation, stipulating to the following:

. 1. [Belle City] repudiated and breached the Agreement between [Doorway] and [Belle City], dated July 27, 2007, which is attached to [Doorway]'s Amended Complaint by canceling and failing to perform the complete midway at the [Coliseum] on July 9-18, 2009.

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936 N.E.2d 243, 2010 Ind. App. LEXIS 1948, 2010 WL 4148526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belle-city-amusements-inc-v-doorway-promotions-inc-indctapp-2010.