Brecheen v. News Group, L.P.
105 So. 3d 1011
La. Ct. App.2012Background
- Brecheen and Louisiana Sports Enterprises, Inc. (d/b/a Louisiana Football Magazine) sue The News Group, L.P. (TNG) for breach of a Confidential Settlement and Release Agreement arising from a prior distribution-dispute.
- Settlement agreement (effective Oct 3, 2003) provided 1,500 magazines per issue, a 5-year term, 60% of cover price, and distribution to approved stores with specific terms.
- Trial court granted partial summary judgment on pre-Oct 10, 2003 damages due to res judicata; directed verdict against bad-faith and unfair-trade claims.
- Jury found TNG breached by unreasonably delaying payments, with $194,000 in lost profits and $7,636.23 in other sums owed from Aug 7, 2004.
- Judgments entered (June 4, 2010; March 14, 2011) awarded damages and costs; appealed by both sides; post-trial motions followed.
- Matter remanded for reconsideration of reasonable attorneys’ fees under contract provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of Settlement Agreement | LSE breached by TNG’s failure to distribute per terms | LSE/TNG distribution obligations not met by publisher/store list issues | TNG breached; distribution not followed by responsible party. |
| Damages for misdistribution | Lost profits and diminished value due to breach were proven | Damages were speculative and improperly calculated | Damage award upheld; remittitur/adjustment not warranted here. |
| Comparative fault instruction | Not applicable; contract governed; no fault shared | Fault should be apportioned under Article 2008 | No reversible error; proper jury instructions sustained. |
| Interest accrual | Interest from date of judicial demand appropriate | Interest should run only from obligation accrual | Interest awarded from date of judicial demand and from due date proper. |
| Attornies’ fees under Settlement Clause 5.3 | Fees should be reasonable under contract; not contingent | Fees based on contingent agreement should control | Remanded for determination of reasonable fees; vacated prior 40% award. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (admissibility of expert testimony standard; governs reliance on experts)
- State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439 (La. 1992) (great deference to jury factual findings; standard of review for damages)
- In Re Gramercy Plant Explosion at Kaiser, 927 So.2d 492 (La.App. 5 Cir. 2006) (context for appellate review of complex damages and causation)