DIANE F. KRAUSZ, Plaintiff,
WENDY KAUFMAN, Defendant Index No. 104174/2008
DECISION and ORDER AFTER NON JURY TRIAL
PRESENT: DEBRA A. JAMES Justice
The non-jury trial of this action for attorney's fees took place on July 18 through July 20, 2012.
FINDINGS of FACTS
The court recapitulates the facts that are not in dispute. Under the Engagement Letter dated November 17, 2005, signed by both parties (the "Engagement Letter"), plaintiff attorney was retained by defendant to represent her in connection with a renewal of her spokesperson contract for the Snapple brand of beverages. Defendant had been a spokesperson for Snapple since 1993 and was commonly known as "The Snapple Lady."
The Engagement Letter began by stating that "you hereby engage my legal services ("I" or "me") in connection with the negotiation and review of your proposed spokesperson contract for 2006 (and possibly future extensions) with the "Snapple" brand." With respect to the fee to be charged by plaintiff for legal services, the Engagement Letter stated in pertinent part
Upon execution of this agreement, you shall pay me a sum equal to five percent (5%) of any and all Gross income earned or received by you, or on behalf of your services and/or activities resulting or deriving from your contract with the "Snapple" brand in any media, now or hereafter known. Notwithstanding the above, to the extent that your compensation includes amounts that are clearly defined as reimbursements of your expenses (including repayment of your staffs' salaries, or your travel and appearances-related expenses), such amounts shall be excluded from the calculation of my fee.
Section 3 (a) of the Engagement Letter further stated-
Despite my reasonable efforts on your behalf, I cannot guarantee the outcome or success of any matter, project or transaction in connection with which I render services. Your obligation to pay my fees and disbursement is not contingent upon the success or outcome of any matter or transaction.
Plaintiff's obligations under the Engagement Letter were to "negotiate and review defendant's proposed spokesperson contract for 2006. There is no dispute that plaintiff negotiated a renewal contract for defendant with Snapple with a two year term ("the Contract"), which was signed by defendant on May 10, 2006, and such signature page was transmitted to Snapple on the next day. What is disputed was whether plaintiff completed the representation contemplated in the Engagement Letter prior to the termination of the attorney-client relationship between the parties, which took place on or about September 20, 2006.
The genesis of the end of the parties' attorney-client relationship was a disagreement between defendant and Snapple about what constitutes an "Appearance" as the term is defined under the Contract. In pertinent part, the Contract provided that defendant "make up to fifty personal appearances per each twelve month period (hereinafter referred to as 'Appearances') to promote the Snapple brand". The Contract defined "Appearances" as "a period of four (4) hours, exclusive of [defendant's] prep and travel time, during which [defendant] gives an interview with the press and/or personally appears in support of a live initiative planned and approved by Snapple with a focus on promoting the Snapple brand." As for defendant's compensation, the Contract stated that "in full and complete consideration of [defendant] entering and fulfilling all of her obligations under this Agreement, Snapple shall pay [defendant] a fee of Five Hundred Seventy Seven Thousand Five Hundred Dollars ($577, 500)" in each of the two years. In accordance with the Contract, Snapple paid defendant her fee in four installments- $350, 000 on May 18, 2006; $227, 500 on August 30, 2006; $350, 000 on March 12, 2007, and $227, 500 on September 7, 2007.
By e-mail on June 21, 2006, plaintiff relayed to Sean Gleason, who had negotiated the Contract on behalf of Snapple, that defendant understood that under the Contact, each individual press interview counted as a single appearance, for example five interviews over a four hour period would count as five of 100 appearances for the two year term. In his reply e-mail, Gleason responded "That is not the contract I signed. If she does 5 interviews- or 500- over the 4-hour period, so long as it stays within the 4 hour time frame, that counts as ONE appearance." Plaintiff forwarded Gleason's response to defendant, who then wrote plaintiff that
I was very worried that they would try to take advantage of this so please check the contract and call me.. Each separate interview ALWAYS counted as an individual appearance...regardless whether it was in the four hour frame or not..that is why I did 100 all the time. I think we were very clear....and it has always been this way in ...