The Joke Is on Defendant in Breach of Contract Case

Dec 5, 2008

A federal judge has granted an athlete/performer’s motion for summary judgment in a case where a sponsor failed to live up to the terms of a contract
Plaintiff Les Harrison, aka “Pee Wee” Harrison, had built a career performing comedy basketball, styled in the tradition of the Harlem Globetrotters, when he was approached in September of 2006 by Bruce Thompson, President of Hydrate2O, who offered him a five year contract to play basketball and promote Hydrate2O’s bottled water.
Specifically, Thompson presented Harrison with a document signed by Thompson that was labeled “Letter of Intent.” Harrison signed between the phrase “Upon agreement to the contract please sign below:” and his preprinted name on the document. For Harrison’s services, the contract provided that he would be compensated with an annual salary of $ 120,000 and 50,000 shares of BodyExtreme stock. Harrison began performing the contract on October 1, 2006, working exclusively for Hydrate2O. In return, Hydrate2O compensated him $10,000 a month for the next ten months. Harrison did not receive any of the 50,000 shares of stock.
In August of 2007, Hydrate2O failed to direct deposit Harrison’s scheduled paycheck. “When Harrison asked why he was not paid,” wrote the court, “he was given several answers: the pay dates had changed, there was a computer error, and finally, the defendants were experiencing financial difficulties. Harrison performed his obligations under the contract for the month of August. He then took a job with the Portland Public Schools as a physical education teacher for an annual salary of $34,000.”
Harrison then moved for summary judgment, alleging breach of contract. Specifically, he claimed “that a valid contract was formed between the parties, which the defendants materially breached by failing to pay him for his work.” He sought “contract damages in the amount of $220,558, the remaining amount he would have been paid over the contract term less the amount he has mitigated.”
After initially filing suit, the defendants submitted an Answer and Affirmative Defenses to the complaint. However, they did not respond to Harrison’s later Request for Admissions. They also did not respond to Harrison’s Motion for Summary Judgment, despite the Order to Show Cause issued by the court ordering defendants to appear.
“The evidence before the court is that the parties formed a five year contract under which Harrison would be compensated $120,000 per year and 50,000 shares of BodyExtreme stock in exchange for performing comedy basketball and promoting Hydrate2O,” wrote the court. “Harrison performed under the contract for ten months and was paid $100,000, after which defendants stopped paying him. These facts indicate that there was an offer, acceptance, and consideration, forming a valid contract between the parties, which both sides performed for ten months. Further, Harrison continued working for one month during August, for which he was not compensated. He never received 50,000 shares of BodyExtreme stock. Based on these facts, the only inference that can be drawn is that defendants breached the contract by failing to pay Harrison for his performance.
“Under the contract, Harrison was entitled to an additional $500,000. To mitigate damages, he took a job at a substantially lower salary as a physical education teacher with the Portland Public Schools, and has sought to revive his former Showtime Athletics business (with an anticipated income of $35,000-$40,000 over a 45 month period).
“Through these efforts, Harrison has reasonably mitigated defendants’ breach of contract damages by $279,442. As such, damages in the amount of $220,558 are appropriate.
“Based on the record before the court, the only reasonable inference is that there was a contract between the parties, which was breached when defendants failed to pay Harrison for his continued performance. Thus, Harrison’s papers are sufficient to support the Motion for Summary Judgment and do not on their face reveal a genuine issue of material fact.”
Les Harrison v. Hydrate2O et al..; D. Ore.; No. CV 07-1398-MO, 2008 U.S. Dist. LEXIS 69963; 9/10/08
Attorneys or Record: (for plaintiff) Sonia A. Montalbano, William A. Drew, LEAD ATTORNEYS, Elliott Ostrander Preston, PC, Portland, OR. (for defendant) Bruce Thompson, Eagle, ID.


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