                                                      FILED
                                                         July 29, 1998
INFINITY ENTERTAINMENT CORP,, )
formerly OLYMPUS ENTERTAINMENT,)
                                                       Cecil W. Crowson
INC., and RICCI MARENO, Individually, )
                                                     Appellate Court Clerk
                                      )   Davidson Chancery
       Plaintiffs/Appellants,         )   No. 95-2932-III
                                      )
VS.                                   )
                                      )
DAVID SUTTON, Individually and        )   Appeal No.
d/b/a DAVID SUTTON MUSIC,             )   01A01-9712-CH-00722
TIM HADLER a/k/a TIMOTHY              )
MICHAEL HADLER, ANGELA SAVAGE)
HADALLER, and MARK BERNARD            )
a/k/a) ZYLER BEA,                     )
                                      )
       Defendants/Appellees.          )


                IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE

      APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

             HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



Franklin D. Brabson, Esq., #3890
2806 Natchez Trace
Nashville, Tennessee 37212
ATTORNEY FOR PLAINTIFFS/APPELLANTS


James H. Harris, III, #2731
49 Music Square West, Suite 600
Nashville, Tennessee 37203
ATTORNEY FOR JIM HADLER/DEFENDANTS/APPELLEES

Joe T. Childress, #9929
300 James Robertson Parkway, Second Floor
Nashville, Tennessee 37201
ATTORNEY FOR DAVID SUTTON/DEFENDANT/APPELLEE


                        AFFIRMED AND REMANDED.



                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE

INFINITY ENTERTAINMENT CORP,, )
formerly OLYMPUS ENTERTAINMENT,)
INC., and RICCI MARENO, Individually, )
                                      )                Davidson Chancery
       Plaintiffs/Appellants,         )                No. 95-2932-III
                                      )
VS.                                   )
                                      )
DAVID SUTTON, Individually and        )                Appeal No.
D/b/a DAVID SUTTON MUSIC,             )                01A01-9712-CH-00722
TIM HADLER a/k/a TIMOTHY              )
MICHAEL HADLER, ANGELA SAVAGE)
HADALLER, and MARK BERNARD            )
a/k/a) ZYLER BEA,                     )
                                      )
       Defendants/Appellees.          )



                                    OPINION

       The captioned plaintiffs have filed successive notices of appeal from successive summary

judgment dismissing all defendants.



       On September 21, 1995, plaintiffs filed their complaint alleging in substance the

following:

                       1.      This is a complaint for injunctive relief and for
              damages. Count I states a claim for breach of contract. Count
              II for statutory inducement for breach of contract, Count III
              for common law inducement for breach of contract, Count IV
              for civil conspiracy and Count V for injunctive relief.

                      5.       Infinity Entertainment Corporation formerly
              known as Olympus Entertainment, inc. is in the music and
              entertainment business, including, but not limited to, song
              writing, publishing and the promotion of artists and of the
              artists’ activities and assisting its artists in all ways in
              connection with their careers.

                     8.     From September of 1993 Tim Hadler a/k/a
              Timothy Michael Hadaller signed an Exclusive Management
              Agreement for one year with three pone year options with
              Olympus as per Exhibit “A” attached hereto. Hadler was a
              new comer and unknown artist. In October of 1993, Hadler
              signed an Exclusive Writers Agreement (Exhibit “B”) and a
              Production Agreement (Exhibit “C”).

                                             -2-
               10.     During July and August of 1995, Hadler
       initiated a scheme whereby he would negotiate a release under
       the pretense of leaving the music business to return to his
       home in the state of Washington. On a prior occasion in 1994
       Hadler attempted to raise personal promotion funds for
       himself by plotting with a potential Mississippi investor to
       send funds to his father who would then relay the money to
       Hadler.

       13.    Upon information and belief, Hadler received
       $25,000.00 from Sutton on August 29, 1995 which he
       deposited in his personal account at First Union Bank and
       obtained a $25,000.00 cashiers check to pay for his
       conditional release. David Sutton provided these funds to
       Hadler to procure the breach.

       15.     Songwriter Mark Bernard has breached his Exclusive
       Writers Agreement dated February 6, 1995 (Exhibit “E”) by
       obtaining funding from David Sutton to cut several demos at
       Javelina Studios. Sutton paid the expenses by check to the
       studio and paid the musicians on the session by cash.


On October 23, 1995, Mark Bernard filed the following answer:

               I was an exclusive writer with the Infinity
       Entertainment Corporation. Infinity and I had some
       differences for several months and when David Sutton offered
       to finance some demos and help me financially, I accepted.

               I told Mr. Sutton that I wasn’t really sure whether or
       not I was still under contract with Infinity but he didn’t seem
       to be concerned about it. He was going to pay for the demos,
       hep me some financially, and get one-half of the publishing
       rights on the songs demoed.

              I didn’t think Infinity would care - but obviously they
       do.


On December 5, 1995, Tim and Angela Hadaller filed their answer stating:

               8.      With respect to the allegations contained in
       paragraph 8 of the complaint, Defendant Tim Hadler admits
       that he signed the agreements identified as Exhibits A, B, and
       C to the complaint.

                       AFFIRMATIVE DEFENSES

        1.    The complaint fails to state a claim upon which relief
        can be granted.

        2.    Plaintiffs are estopped from asserting their claims
        against these Defendants because they released Defendant
        Tim Hadler from all contractual obligations to Plaintiffs and



                                     -3-
                accepted as consideration for their release payment from
                these Defendants in the amount of $25,000.00.

                3.     Plaintiffs have received accord and satisfaction in
                that they accepted the sum of $25,000.00 as consideration
                for their release of Tim Hadler from all contractual
                obligations to Plaintiffs.


Otherwise, said defendants denied the allegations of the complaint.



       On December 13, 1995, David Sutton filed his answer stating:

                      15.     Defendant admits that he paid the studio and
               musician expenses and met with Mark Bernard and Thomas
               E. Stewart, Attorney at Law, as stated in Paragraph 15.

                      17.    Defendant admits that he was award that Tim
               Hadler and Mark Bernard had contractual relationships with
               one or more of the Plaintiffs.


Otherwise, said defendants denied all allegations of the complaint and pled the same affirmative

defense as the Hadallers.



       On April 10, 1997, the Hadallers filed a motion for summary judgment.



       On July 7, 1997, plaintiffs filed a response to the summary judgment stating:

                      Plaintiffs have agreed to take a voluntary non-suit as
               to Angela Savage Hadaller, Defendant Timothy Michael
               Hadaller’s wife.

                      Plaintiffs believe the complaint speaks for itself and
               is simple, concise and direct.



       On July 10, 1997, the Hadallers filed an excerpt from their deposition including the

following:

                       Q.      Mr. Hadler, with respect to your obligations
               pertaining to the leukemia project, did you remain available
               after you signed this release to perform those obligations?

                       A.     Yes, I did.




                                            -4-
                         Q.     Okay. Were you ever asked by anybody to do
                 anything with respect to the leukemia project after you signed
                 the release?

                         A.      No.




          On July 18, 1997, the Trial Court entered an order stating:

                         The court finds that there are no allegations of fact
                 before this court against Defendant Angela Hadaller which
                 tend to establish any claim for relief against her.

                         The court construes the Release Agreement to require
                 Mr. Hadaller to pay Plaintiff the sum of Twenty-Five
                 Thousand Dollars ($25,000.00). This is the only condition to
                 the effectiveness of the release and Mr. Hadaller has clearly
                 satisfied that condition. The record before the court does not
                 contain statements from affidavits, from discovery or
                 otherwise which tend to establish a breach of contract by
                 either of the Defendants Hadaller.

                         With respect to the claims for relief based on statutory
                 and common-law inducement to breach, and upon a civil
                 conspiracy, the record before the court is equally devoid of
                 the specific facts from either affidavits or discovery materials
                 that are required by Byrd v. Hall, 847 S.W.2d 208 (1993).
                 Likewise, the “injunctive relief” that Plaintiff refers to in this
                 complaint is a remedy only and is not a ground for relief.

                        It is therefore Ordered that the motion for partial
                 summary judgment is granted and that the defendants
                 Timothy Michael Hadaller and Angela Savage Hadaller are
                 dismissed as parties to this action.


          On August 25, 1997, the Trial Court overruled a motion to alter or amend the order

entered on July 18, 1997.



          On August 27, 1997, Don Sutton filed his motion for summary judgment.



          On September 23, 1997, plaintiffs appealed from the July 18 and August 25, 1997,

orders.




                                                  -5-
       On November 5, 1997, the Trial Court entered “partial summary judgment” in favor of

David Sutton stating:

                       This cause came on to be heard before this Honorable
               Court on the 9th day of October, 1997 upon the Motion for
               Partial Summary Judgment filed on behalf of the Defendant,
               David Sutton, statements by counsel, supporting affidavits,
               evidence, memoranda and the record as a whole;

                       This Court finds that no genuine issue of material fact
               exists regarding Mr. Sutton’s knowledge of the existence of
               an exclusive agreement between Infinity Entertainment
               Corporation and Defendant, Mark Bernard, that same is an
               essential element to proving the existence of a breach of
               contract between Infinity Entertainment Corporation and
               Mark Bernard and that there is no evidence to support
               Plaintiffs’ theory of a conspiracy between Defendants David
               Sutton and Mark Bernard regarding a breach of Mr. Bernard’s
               contractual obligations with Plaintiff.

                      In making its findings, the Court has considered the
               past dealings between the parties, the testimony of Mark
               Bernard, Ricci Mareno and David Sutton, as well as the
               pleading filed in this case; specifically, Paragraph 21 of the
               Answer filed on behalf of the Defendant, David Sutton.


On December 8, 1997, (a Monday), the plaintiffs filed a notice of appeal stating:

                      Comes the Plaintiffs and file this Notice of Appeal
               from a second partial summary judgment from the Chancery
               Court of Davidson County, Tennessee, Part III.


       The appellants present the following issues:

               1.    Did court err in granting summary judgment to
               Defendant, Tim Hadler?

               2.    Did Court err in granting summary judgment to
               Defendant, David Sutton?

               3.      Does Tennessee Rules of Civil Procedure abrogate the
               Plaintiffs’ right to trial by jury?

               4.     Does bench trial by deposition and summary judgment
               deprive parties of their day in court?


                                        FIRST ISSUE

                                  Dismissal of Tim Hadaller




                                              -6-
       The uncontroverted evidence shows that whatever contractual relations existed between

plaintiffs and Tim Hadaller were released and discharged by a written agreement. Plaintiffs

appear to seek rescission of the release for fraud. Defendants offer evidence denying fraud, and

plaintiffs offer no evidence to establish fraud which is not presumed. Hiller v. Hailey, Tenn.

App. 1995, 915 S.W.2d 800; Fowler v. Happy Goodman Family, Tenn. 1978, 575 S.W.2d 496.



       No merit is found in plaintiffs’ first issue.



                                       SECOND ISSUE

                                   Dismissal of David Sutton

       Plaintiffs’ suit against David Sutton was apparently based upon the theory that he

furnished the $25,000.00 consideration for the release of Tom Hadaller and thereby joined in a

conspiracy to defraud plaintiffs. A necessary prerequisite to recovery of damages from David

Sutton is a rescission of the instrument executed by plaintiffs releasing Tim Hadaller. As

heretofore discussed, plaintiffs have not offered evidence to support such rescission and the

release discharged Tim Hadaller. Without rights against Tim Hadaller, plaintiffs have no rights

against any alleged conspirator in connection with the release.



       No merit is found in plaintiffs second issue.



                                        THIRD ISSUE

                                     Right to Trial by Jury

       Decisions granting summary judgment involve only questions of law and therefore do

not invade the province of the jury. Roberts v. Roberts, Tenn. App. 1992, 845 S.W.2d 225.



       No merit is found in plaintiffs’ third issue.



                                       FOURTH ISSUE



                                               -7-
                                        Day in Court

       Plaintiffs have had their day in court and have been defeated by a ruling of law similar

to a directed verdict. Gray v. Amos, Tenn. App. 1993, 869 S.W.2d 925.




       The judgments of the Trial Court are affirmed. Costs of this appeal are assessed against

the appellants. The cause is remanded to the Trial Court for necessary further proceedings.



                             AFFIRMED AND REMANDED.



                                                    _________________________________
                                                    HENRY F. TODD
                                                    PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


____________________________
WILLIAM C. KOCH, JR., JUDGE


____________________________
WILLIAM B. CAIN, JUDGE




                                             -8-
