Chevalier Advertising, Inc. v. Ballista Tactical Systems, Inc.

373 P.3d 1211, 278 Or. App. 148, 2016 Ore. App. LEXIS 510
CourtMultnomah County Circuit Court, Oregon
DecidedMay 4, 2016
Docket130608927; A157316
StatusPublished
Cited by2 cases

This text of 373 P.3d 1211 (Chevalier Advertising, Inc. v. Ballista Tactical Systems, Inc.) is published on Counsel Stack Legal Research, covering Multnomah County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chevalier Advertising, Inc. v. Ballista Tactical Systems, Inc., 373 P.3d 1211, 278 Or. App. 148, 2016 Ore. App. LEXIS 510 (Or. Super. Ct. 2016).

Opinion

SHORR, J.

Plaintiff, an advertising and public relations firm, and defendant, a gun accessory maker, became involved in a dispute over their contract for advertising and marketing services. On appeal, defendant challenges the trial court’s decision to grant plaintiffs motion for summary judgment, which the court granted upon concluding that the declarations filed in support of defendant’s opposition to summary judgment were substantively inadequate, procedurally defective, or both.

As explained below, we conclude that, under the circumstances, the trial court abused its discretion in refusing to consider a declaration due to a minor claimed defect that plaintiff first raised on the last day of post-hearing supplemental briefing, which did not permit an appropriate correction or response from defendant and was outside the scope of the narrow issue on which the trial court had allowed supplemental briefing. Thus, the court erred in granting plaintiffs affirmative summary judgment motion on that basis. We further conclude that the court erred in alternatively concluding that the same declaration did not create genuine issues of material fact precluding summary judgment. Accordingly, we reverse and remand for further proceedings.

In reviewing a trial court’s grant of summary judgment, we view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). We describe the facts in accordance with that standard.

In 2012, defendant hired plaintiff to provide marketing and advertising services. Defendant agreed to a $200,000 annual advertising budget, which included a $1,500 monthly fee for public relations services. Plaintiff proceeded to bill defendant about $210,000 for services it purportedly provided in the five months from August to December 2012. Defendant paid plaintiff in full for August but refused to pay subsequent invoices in full because it was dissatisfied with plaintiffs services and billing practices. According to defendant, plaintiff did not provide deliverables consistent [150]*150with the charges, and the charges exceeded the agreed-upon budgets and were not supported by appropriate documentation. Defendant informed plaintiff that it was dissatisfied with the charges and asked for more documentation of the work, but its concerns were never addressed by plaintiff, although defendant contacted plaintiff numerous times and did so as those issues arose. Ultimately, defendant decided to pay plaintiff $120,000 for third-party media bills (many of which plaintiff had already received a 15 percent commission on) but not for the in-house service that plaintiff claimed to have provided. Defendant maintained that much of what plaintiff provided was redundant, based largely on existing marketing materials, lacked any documentation of what service, exactly, had been performed, and that the charges were clearly excessive. Defendant also directly paid a third party’s $17,000 advertising bill, which plaintiff had passed on to defendant but had not yet paid.

Plaintiff brought this action, alleging breach of contract and quantum meruit claims against defendant. Defendant answered that the claims were barred in whole or in part based on plaintiffs prior material breaches of their agreement.

Plaintiff then moved for affirmative summary judgment on the breach of contract claim, asserting that it had a right to payment from defendant based on the contract, its own invoices for its services, and its CEO’s declaration that plaintiff actually performed the services and incurred the expenses for which it billed defendant.

Defendant opposed summary judgment, arguing that, because plaintiff materially breached the parties’ agreement, it was not entitled to payment. In particular, defendant disputed that it owed the amount alleged by plaintiff, and asserted that plaintiff did not have a right to payment in full because plaintiff had failed to comport with defendant’s specific directions about how the payments and work were to be allocated. It also asserted that the service fees plaintiff charged exceeded the agreed-upon estimates.

Defendant submitted two declarations with its memorandum opposing summary judgment: a declaration by [151]*151defense counsel and the declaration of defendant’s retired CEO, Shawn Johnson. Throughout the remainder of this opinion, we refer to the former as “counsel’s first declaration” and to the latter as “Johnson’s first declaration.” Both declarations were “verified copies” of the original documents. Counsel’s first declaration stated, in relevant part, that counsel made the declaration based on personal knowledge, that a “true and correct copy of the executed declaration of Shawn Johnson” was attached, and that Johnson “has mailed me the original, signed declaration, but I have not yet received it,” and “will file the original with the Court as soon as we receive it.”

We quote Johnson’s first declaration in full because it is dispositive of this appeal:

“I, SHAWN JOHNSON, hereby declare as follows:
“1. I am the former CEO of Defendant Ballista Tactical Systems, Inc. (‘Ballista’). I make this declaration based upon personal knowledge about events that occurred while I was CEO of Ballista.
“2. In 2012, Ballista hired Plaintiff Chevalier Advertising, Inc. (‘Chevalier’) to help with a marketing campaign. This campaign involved certain branding services and media advertising. Chevalier and Ballista discussed the services that Chevalier would perform, and Chevalier provided estimates to Ballista based on these discussions. Nevertheless, Chevalier’s billings for the services it allegedly provided greatly exceeded the estimates it had given to Ballista. When Ballista asked for Chevalier to explain the reasons for the excessive charges, Chevalier’s response was incomplete and unsatisfactory.
“3. Not only were Chevalier’s billings beyond the estimates, its work did not meet Ballista’s expectations or requirements. Much of Chevalier’s work was based on marketing materials previously generated by Ballista. While Chevalier promised to improve upon these materials, it ultimately failed to do so; it charged Ballista thousands of dollars, but added little or no value to Ballista’s marketing efforts. Specifically, Chevalier billed Ballista excessive and unjustified charges related to branding work, marketing plan development, creative changes to existing marketing materials, packaging design services, and sell sheet [152]*152production. Chevalier also charged Ballista an excessive marketing fee and improperly billed Ballista for amounts that Ballista had previously paid directly to third parties. Ballista objected to these charges when they were billed and continues to object to them.
“4. After trying unsuccessfully to resolve the billing issue, Ballista informed Chevalier that it would pay only Chevalier’s hard costs—i.e., third party fees related to advertising media. Ballista determined those hard costs to be $120,000 and paid Chevalier accordingly—clearly designating how its payment should be applied. Ballista informed Chevalier that it would not pay any further amounts until Chevalier had properly justified its excessive charges. Chevalier never properly justified these charges as requested. Thereafter, one of Chevalier’s vendors, Personal Defense Network, informed Ballista that it had not been paid by Chevalier.

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Cite This Page — Counsel Stack

Bluebook (online)
373 P.3d 1211, 278 Or. App. 148, 2016 Ore. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chevalier-advertising-inc-v-ballista-tactical-systems-inc-orccmultnomah-2016.