The opinion of the court was delivered by: CONNER
Plaintiff Bob Halloran ("Halloran") commenced this action against defendants Donald W. Ohlmeyer, Jr. ("Ohlmeyer") and Ohlmeyer Communications Company ("OCC") seeking damages for breach of an alleged oral joint venture agreement to produce a televised golf program. The Court has subject matter jurisdiction of this action based upon the diversity of citizenship of the parties. 28 U.S.C. § 1332 (1982). Defendants Ohlmeyer and OCC have moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). For the reasons stated below, defendants' motion is denied.
Plaintiff Halloran is vice president of sports and special events for Caesar's World, Inc., and has been involved in sports broadcasting for more than two decades. Affidavit of Bob Halloran in Opposition to Defendants' Motion for Summary Judgment P3 [hereinafter cited as "Halloran Aff."]. Defendant Ohlmeyer is president of defendant OCC, and has been involved in the production and direction of televised sporting events for many years. Affidavit of Donald W. Ohlmeyer, Jr. in Support of Defendants' Motion for Summary Judgment PP1, 2 [hereinafter cited as "Ohlmeyer Aff."]. Almost all of the remaining facts are in dispute.
Plaintiff's Version of the Facts
Halloran's version of the relevant facts is as follows: He avers that in June 1982 he approached Ohlmeyer to discuss the possibility of producing a television program based on the golf game "skins."
Deposition of Bob Halloran at 21 [hereinafter cited as "Halloran Dep."]. He alleges that during the course of the discussion, he and Ohlmeyer entered into an oral joint venture agreement to produce a "Skins" program and sell it to a television network. Halloran Aff. PP8-11.
According to Halloran, the parties agreed that "each ... would have total involvement in and equal control over the project, with the understanding that each would defer to the other's special expertise." Id. P11. Halloran was to approach potential participants and to develop the show format. Id. P10. Ohlmeyer was to concentrate on interesting a network in purchasing the program. Id. They were to share equally in the profits from the show. Id. P11.
Halloran says that after his meeting with Ohlmeyer, he renewed his earlier contacts with Jack Nicklaus and Tom Watson, two well-known professional golfers, to attempt to secure their participation in a Skins program. Id. P12. In January 1983, Halloran met with Nicklaus in Palm Springs, California, and Halloran alleges that Nicklaus agreed, subject to certain conditions, to participate in the Skins telecast. Id. P13. Halloran states that he informed Nicklaus of Ohlmeyer's involvement for the first time at this meeting. Id.
Later in January 1983, Halloran met with Ohlmeyer "to discuss [their] strategy in light of Nicklaus' acceptance." Id. P14. Halloran avers that Ohlmeyer indicated that Nicklaus's commitment would facilitate the sale of Skins to a network, and that Ohlmeyer agreed to approach NBC. Id.
Halloran claims that he tried unsuccessfully to reach Ohlmeyer for several months. The two next met sometime in May 1983. Halloran contends that it was at this meeting that Ohlmeyer first told him that there were difficulties licensing Skins to a network. Id. P16. Ohlmeyer informed him that because none of the networks was interested in Skins, Ohlmeyer had brought Barry Frank ("Frank") of Trans World Industries ("TWI") into the Skins project as a third partner. Id. Ohlmeyer proposed that they purchase the necessary air time from NBC and produce the Skins program independently. Id.
Halloran states that Ohlmeyer gave him two alternatives: Halloran could either underwrite one-third of the potential two-million-dollar loss from the independent production of Skins or sell his interest to Skins and remain a salaried consultant. Id. P17. Halloran stated that neither of these alternatives was satisfactory, and when Ohlmeyer refused to reconsider, he instituted his action. Id. P18.
Defendants' Version of the Facts
Ohlmeyer's version of the parties' relationship is somewhat different, to say the least. He claims that he first met with Halloran in November 1982. Deposition of Donald W. Ohlmeyer, Jr. at 25 [hereinafter cited as "Ohlmeyer Dep."]. According to Ohlmeyer, all of their discussions concerning the possibility of televising Skins were preliminary. Ohlmeyer Aff. P6. He maintains that "[t]here was no discussion of promotion, production, sharing of revenues or expenses, advertising, or many of the other issue critical to the production of a sports telecast." Id. P7. He avers that at no time did they reach an agreement or form a partnership. Id. He says that they did agree that Ohlmeyer would approach the networks to "ascertain the viability of a license deal for 'Skins,'" and that both Halloran and Ohlmeyer would contact potential participants. Id.
Ohlmeyer contends that after his meeting with Halloran, he contacted ABC and NBC, but neither network was interested in buying Skins. Id. P8. Ohlmeyer maintains that he informed Halloran by phone that the networks were not interested in licensing Skins and told him that the only way to proceed with the project was to buy the air time, sell the advertising, and underwrite the total cost of the production. Id. P9. ...