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Radio Networks LLC v. Baisden Enterprises, Inc.

United States District Court, N.D. Texas, Dallas Division

June 20, 2017

RADIO NETWORKS, LLC, Plaintiff/Counter-Defendant,
v.
BAISDEN ENTERPRISES, INC., and MICHAEL BAISDEN, Defendants/Counter-Plaintiffs,
v.
CUMULUS MEDIA, INC., Counter-Defendant.

          AMENDED MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge.

         On June 13, 2017, the court issued a memorandum opinion and order in which it, among other things, granted in part and denied in part Plaintiff/Counter-Defendant Radio Networks, LLC and Counter-Plaintiff Cumulus Media, Inc.'s Motion for Partial Summary Judgment; and denied Defendants/Counter-Plaintiffs Baisden Enterprises, Inc. and Michael Baisden's Motion for Summary Judgment. See Mem. Op. & Order (Doc. 194). On June 14, 2017, Baisden Enterprises, Inc. (“BEI”) and Michael Baisden (“Baisden”) (sometimes collectively, “Defendants”) filed their twenty-two page Emergency Motion for Reconsideration of Limited Summary Judgment Findings and Motion for Oral Argument (Doc. 196) (“Motion for Reconsideration”), contending that the court erred in granting summary judgment on Counts One through Three of their Counterclaim in favor of Radio Networks, LLC (“Radio Networks”) and Cumulus Media, Inc. (“Cumulus”) (sometimes collectively, “Plaintiffs”).[1] In support, BEI and Baisden argue that “certain findings in the SJ Order mistakenly rely on incorrect facts and/or law.” Mot. for Reconsideration 1.[2] After considering the motion, related briefing, competent summary judgment evidence, and applicable law, the court concludes that reconsideration of its June 13, 2017 memorandum opinion and order is not warranted with respect to Counts One and Three, but it is warranted with respect to Count Two of BEI and Baisden's Counterclaim. Accordingly, the court grants in part and denies in part the Motion for Reconsideration.

         With respect to Counts One and Three, notwithstanding BEI and Baisden's arguments in the Motion for Reconsideration, the court concludes that they nevertheless have failed to raise a genuine dispute of material fact. BEI and Baisden's brief supporting reconsideration on these counterclaims is replete with arguments previously made in their earlier opposition to Radio Networks and Cumulus's Motion for Partial Summary Judgment. The court already decided these issues in a lengthy memorandum opinion and order in which it carefully considered the parties' respective arguments and the extensive record presented on summary judgment, as well as applicable law. The court set forth its reasoning in its memorandum opinion and order, and the court is satisfied that it correctly decided Radio Networks and Cumulus's Motion for Partial Summary Judgment in granting summary judgment in their favor on Counts One and Three of BEI and Baisden's Counterclaim.[3]Otherwise stated, no argument advanced by BEI and Baisden in their Motion for Reconsideration persuades the court that its prior decision with respect to these two counterclaims is incorrect.

         With respect to Count Two, however, the court concludes that BEI and Baisden have established a genuine dispute of material fact as to whether Radio Networks and Cumulus breached the parties' November 2008 Agreement. In light of the court's decision to grant the Motion for Reconsideration with respect to Count Two of BEI and Baiden's Counterclaim, the court hereby vacates its June 13, 2017 memorandum opinion and order and substitutes this amended memorandum opinion and order in its place.[4]

         Before the court are: Defendants/Counter-Plaintiffs Baisden Enterprises, Inc. and Michael Baisden's Motion for Summary Judgment (Doc. 121), filed November 18, 2016; Plaintiff/Counter-Defendant Radio Networks, LLC and Counter-Plaintiff Cumulus Media, Inc.'s Motion for Partial Summary Judgment (Doc. 168), filed November 18, 2016; Radio Networks, LLC and Cumulus Media, Inc.'s Motion to Exclude Testimony of C.D. Shamburger, Jr. (Doc. 125), filed November 18, 2016; and Radio Networks, LLC and Cumulus Media, Inc.'s Motion to Exclude Testimony of Spencer Brown, Esq. Relating to Audits (Doc. 128), filed November 18, 2016. Having considered the motions, responses, replies, record, evidence, and applicable law, the court denies Defendants/Counter-Plaintiffs Baisden Enterprises, Inc. and Michael Baisden's Motion for Summary Judgment (Doc. 121); grants in part and denies in part Plaintiff/Counter-Defendant Radio Networks, LLC and Counter-Plaintiff Cumulus Media, Inc.'s Motion for Partial Summary Judgment (Doc. 168); denies as moot Radio Networks, LLC and Cumulus Media, Inc.'s Motion to Exclude Testimony of C.D. Shamburger, Jr. (Doc. 125); and denies as moot Radio Networks, LLC and Cumulus Media, Inc.'s Motion to Exclude Testimony of Spencer Brown, Esq. Relating to Audits (Doc. 128).

         I. Background Facts

         Radio Networks provides radio programming for various radio stations in the United States. Radio Networks is a subsidiary of Cumulus. Baisden is a radio personality and from 2008 to 2013 was the talent for a radio talk program produced by BEI, known as The Michael Baisden Show. Baisden is the sole owner and member of BEI. In 2008, BEI and Radio Networks entered into an agreement for the production and delivery of The Michael Baisden Show. This lawsuit arises from a contractual dispute between the parties over whether Radio Networks overpaid BEI and Baisden $1, 000, 000 during the final fifteen-month period of their agreement.

         On May 21, 2014, Radio Networks filed this action to recover the alleged $1, 000, 000 overpayment. On January 20, 2016, Radio Networks filed its First Amended Complaint (Doc. 86), the operative pleading in this case, suing BEI and Baisden for: (1) breach of contract (Count One); (2) restitution and money had and received (Count Two); and (3) fraudulent transfer under the Texas Business and Commerce Code § 24.005 (Count Three). Radio Networks seeks judgment in the amount of $1, 000, 000, exemplary damages, pre- and postjudgment interest, costs, and attorney's fees. Disagreeing about the deal's specifics, and the amount of money to which they were entitled during the final fifteen-month period of their agreement, BEI and Baisden responded by joining Cumulus as a Counter-Defendant, [5] offering a number of affirmative defenses, and asserting counterclaims against Radio Networks and Cumulus for: (1) breach of contract for refusing to match offers BEI received from a competing radio network in or around March 2013 (Count One); (2) breach of contract for not allowing BEI to complete an audit of the revenues and expenses relating to the distribution of the Program (Count Two); (3) breach of contract for failing to use commercially reasonable efforts to obtain distribution of the Program (Count Three); (4) breach of contract for failing to engage in good-faith negotiations for a potential extension of the Agreement (Count Four); and (5) tortious interference with prospective business relationships (Count Five). Defs.' Sec. Am. Ans., Joinder, and Countercl. (Doc. 87). BEI and Baisden seek actual and compensatory damages, lost profits, pre- and postjudgment interest, costs, and attorney's fees. In addition, BEI and Baisden seek a declaratory judgment that a noncompete covenant in the parties' agreement is unenforceable.

         Following discovery, the parties filed motions for summary judgment that present overlapping facts, legal issues, and arguments. Radio Networks and Cumulus move for partial summary judgment on their claim against BEI and Baisden for restitution and money had and received (Count Two), and also move for summary judgment on all BEI and Baisden's counterclaims.[6] BEI and Baisden move for summary judgment on all of Plaintiffs' claims, as well as on their own affirmative defenses of statute of limitations, statute of frauds, the parol evidence rule, ratification and/or waiver, and excuse due to prior breach. BEI and Baisden also seek summary judgment on their request for attorney's fees and costs for having to defend against Plaintiffs' breach of contract claim. BEI and Baisden have filed objections to certain evidence upon which Plaintiffs rely to support their Motion for Partial Summary Judgment and to oppose Defendants' Motion for Summary Judgment.[7] Both summary judgment motions have been fully briefed and are ripe for determination, as are Defendants' objections. The court now sets forth the evidence, viewed in the light most favorable to the nonmoving party, and draws all reasonable inferences in the nonmoving party's favor. See Celotex v. Catrett, 477 U.S. 317, 323 (1986).[8]

         On November 12, 2008, BEI and Radio Networks entered into an agreement for the production and delivery of radio programs (the “Programs”) featuring Baisden (the “Agreement”). In connection with the Agreement, Baisden signed a personal guarantee (the “Guarantee”), agreeing to “be personally bound by all . . . provisions [of the Agreement] . . . and personally guaranteed the obligations of [BEI]” under the Agreement. Baisden Guarantee (Pls.' Summ. J. App. 28) (Doc. 130).[9] The Agreement was amended by the parties three times: May 4, 2010; July 9, 2010 (the “July 2010 Amendment”); and March 9, 2011.

         Among other things, under the Agreement, Radio Networks agreed to pay BEI a specific “Guaranteed Amount” (as defined in the Agreement) for each year of the term of the Agreement, subject to certain limitations. Specifically, under Paragraph 3(b) of the July 2010 Amendment, BEI was to receive:

[T]he greater of Five Million Dollars ($5, 000, 000) for each of the first three contract years (or cycles) and Seven Million Two Hundred Fifty Thousand Dollars ($7, 250, 000), for the fourth cycle of fifteen months (the “Guaranteed Amount”) or (i) forty percent (40%) of “Net Program Income” in the first contact year or (ii) fifty percent (50%) of Net Program Income in the second and third contract years and the fourth cycle of fifteen months.

July 2010 Amendment ¶ 3(b) (Pls.' Summ. J. App. 42). Thus, for the final fifteen-month period of the Agreement, from January 2012 to March 2013 (the “Final Contract Period”), Radio Networks agreed to compensate BEI in an amount equal to the greater of (1) a specific guaranteed amount of $7, 250, 000 (“Guaranteed Amount”) or (2) fifty percent of “Net Program Income” for the Final Contract Period (as defined by the Agreement). Id. The first $1, 000, 000 of the $7, 250, 000 Guaranteed Amount was to be paid to BEI as an advance within two business days of the July 2010 Amendment, with the remaining $6, 250, 000 to be paid in fifteen monthly installments from January 2012 through March 2013. Id.

         The Agreement also required Radio Networks to provide a statement each quarter setting forth the Net Program Revenue and Program Expenses for the preceding six-month period. Defendants' share of Net Program Income, if any, was to be paid to them at the time that Radio Networks provided these statements. Any statement to which Defendants did not raise an accounting objection in writing within twelve months was deemed “incontestable” under the Agreement. Agreement ¶ 3(e) (Pls.' Summ. J. App. 18).

         The Agreement gave Defendants the “right to audit [Radio Networks'] books and records relating to the distribution of the [Michael Baisden] Programs” once during each twelve-month period of the Agreement. Id. Any “such audit [was] to be conducted during normal business hours at [Radio Networks'] offices upon not less than 30 days' prior written notice.” Id. Only one audit was permitted for each twelve-month period, and the scope of any audit that Defendants chose to perform was limited to that preceding twelve-month period that was“not yet incontestable.” Id. The Agreement required Defendants to provide their auditor's report to Radio Networks. Id.

         Pursuant to the Agreement, Radio Networks paid Baisden and BEI the $1, 000, 000 advance for the Final Contract Period in July 2010. Radio Networks began paying the remaining amounts owed when the Final Contract Period commenced in January 2012, and paid Defendants the full $7, 250, 000 over the remainder of the Final Contract Period, rather than only the remaining $6, 250, 000 of the Guaranteed Amount.

         On March 1, 2013, Radio Networks requested that Defendants return the overpayment. BEI did not deny that there was an overpayment, but it requested an audit for the Final Contract Period pursuant to paragraph 3(e) of the Agreement. Pursuant to the Agreement, Defendants were permitted to conduct an audit of Radio Networks' financial records relating to the distribution of the Program in June 2013. The parties agreed that the audit was to occur at Radio Networks' offices on June 12 and 13, 2013. In advance of the audit, BEI asked Radio Networks to make certain documents available that BEI wanted to review in connection with the audit. Radio Networks provided the majority of the documents requested. BEI conducted the audit at Radio Networks' offices in Dallas on June 12-13, 2013.

         Thereafter, Brian Kaefer (“Kaefer”), who had been retained by BEI to participate in the audit, prepared a report of his findings, which was not at the time provided to Plaintiffs. On August 8, 2013, BEI provided a different report than Kaefer's that listed several “follow-up questions” and requested additional documentation. Radio Networks responded to some, but not all, of Defendants' additional inquiries and demanded on several occasions that Defendants return the $1, 000, 000.

         Following Radio Networks' demands to return the overpayment, BEI made the following transfers to Baisden: $500, 000 on July 12, 2013; $100, 000 on July 15, 2013; and $20, 000 on August 8, 2013. Defs.' Resp. to Second Interrogs. No. 3 (Pls.' Resp. App. 613-614) (Doc. 136-1). After Radio Networks filed this lawsuit, BEI made additional transfers to Baisden, as follows: $20, 000 on December 1, 2015; $20, 000 on December 17, 2015; and $40, 000 on February 5, 2016. Id.

         II. Applicable Legal Standard

         Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

         The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         III. Analysis

         A. Radio Networks and Cumulus's Motion for Partial Summary Judgment

         Radio Networks and Cumulus seek summary judgment on their claim for restitution and money had and received (Count Two). In addition, Radio Networks and Cumulus move for summary judgment on all of BEI and Baisden's counterclaims.[10]

         1. Motion for Summary Judgment on Count Two (Money Had and Received)

         Radio Networks and Cumulus argue they are entitled to summary judgment on their claim for money had and received, which they plead in the alternative to their breach of contract claim. In support, they contend that “the undisputed facts show that Baisden and BEI received a $1 million overpayment for the Final Contract Period, which they had no legal right to retain. Equitable principles plainly require the return of the mistaken overpayment.” Pls.' Partial Summ. J. Br. 17 (Doc. 124). In response, Defendants argue that this case involves a convoluted set of accounting issues, leading to a factual dispute as to, among other things, whether they were entitled to be paid more than the Guaranteed Amount, pro rata, in any of the fifteen payments they received during the Final Contract Period.

         “A claim for ‘money had and received' is equitable in nature.” Plains Exploration & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 302 n.4 (Tex. 2015) (citation omitted). “Money had and received is a category of general assumpsit to restore money where equity and good conscience require refund.” Id. (quoting MGA Ins. Co. v. Charles R. Chesnutt, P.C., 358 S.W.3d 808, 813 (Tex. App.-Dallas 2012, no pet.)). “An action for money had and received arises when the defendant obtains money which in equity and good conscience belongs to the plaintiff.” Amoco Production Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). To recover on a claim for money had and received, no showing of wrongdoing is required. Id. Instead, a claim for money had and received “looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another.” Plains Exploration, 473 S.W.3d at 302 n.4 (citation omitted). Because a claim for money had and received is based on equitable principles, its central purpose is “to prevent unconscionable loss to the payor and unjust enrichment to the payee.” Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 837 (Tex. App.-Dallas 2008, pet. denied). Thus, to prevail on a claim for money had and received, a plaintiff is only required to “show that a defendant holds money which in equity and good conscience belongs to him.” Plains Exploration, 473 S.W.3d at 302 n.4 (quoting MGA Ins., 358 S.W.3d at 814). Further, “[a]n action for money had and received may be founded upon an express agreement or one implied in fact, but it is not dependent on either.” City of Harker Heights v. San Meadows Land, Ltd., 830 S.W.2d 313, 317 (Tex. App.-Austin 1992, no writ); see also Hewlett-Packard Co. v. Benchmark Electronics, Inc., 142 S.W.3d 554, 565 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (internal citations omitted) (“[T]he right to recovery under a count of money had and received exists independent of the parties' agreements. Nevertheless [it] may arise out of-or be founded on-the agreement.”).

         Viewing all evidence in the light most favorable to BEI and Baisden, as the nonmoving parties, the court determines that BEI and Baisden have raised a genuine dispute of material fact as to whether they hold money which, in equity and good conscience, belongs to Plaintiffs.

         As previously stated, under Paragraph 3(b) of the July 2010 Amendment to the Agreement, BEI was to receive,

[T]he greater of Five Million Dollars ($5, 000, 000) for each of the first three contract years (or cycles) and Seven Million Two Hundred Fifty Thousand Dollars ($7, 250, 000), for the fourth cycle of fifteen months (the “Guaranteed Amount”) or (I) forty percent (40%) of “Net Program Income” in the first contact year or (ii) fifty percent (50%) of Net Program Income in the second and third contract years and the fourth cycle of fifteen months.

July 2010 Amendment § 3(b) (Pls.' Summ. J. App. 42). Under the Agreement and the July 2010 Amendment, the Guaranteed Amounts were paid to BEI “in equal monthly installments commencing January 1, 2009.” Any share of “Net Program Income” was to be paid quarterly. Agreement ¶ 3(e) (Pls.' Summ. J. App. 18). The summary judgment evidence before the court is inconclusive with respect to whether, based on Plaintiffs' complex accounting system and numerous errors and misallocations, the Net Program Income during any quarter in the Final Contract Period may have been greater than the Guaranteed Amount for that time frame, thereby affecting Defendants' overall compensation for the Final Contract Period. While it appears doubtful to the court based on the evidentiary record before it that more than the Guaranteed Amount was owed to BEI and Baisden, the court cannot rule out this possibility on a motion for summary judgment. Whether Defendants were owed more during any particular quarter of the Final Contract Period is an issue of fact to be resolved by a jury.

         In sum, the disputed material facts surrounding the amount and timing of payments preclude summary judgment in Plaintiffs' favor on their money had and received claim. Accordingly, the court will deny Radio Networks and Cumulus's Motion for Partial Summary Judgment on their claim for money had and received claim (Count Two).[11]

         2. Motion for Summary Judgment on BEI and Baisden's Counterclaims

         The court now turns to Plaintiffs' Motion for Partial Summary Judgment with respect to BEI and Baisden's counterclaims for: (1) breach of contract for refusing to match offers BEI received from a competing radio network in or around March 2013 (hereinafter, the “Obligation to Match Counterclaim”) (Count One); (2) breach of contract for not allowing BEI to complete an audit of the revenues and expenses relating to the distribution of the Program (hereinafter, the “Accounting Counterclaim”) (Count Two); (3) breach of contract for failing to use commercially reasonable efforts to obtain distribution of the Program (hereinafter, the “Satellite Radio Counterclaim”) (Count Three); (4) breach of contract for failing to engage in good-faith negotiations for a potential extension of the Agreement (hereinafter, the “Good-Faith Negotiations Counterclaim”) (Count Four); and (5) tortious interference with prospective business relationships (Count Five), as well as their request for summary judgment on their declaratory judgment claim seeking a declaration that a noncompete covenant in the Agreement is unenforceable. See Defs.' Sec. Am. Ans., Joinder, and Countercl. (Doc. 87).

         The court first addresses Defendants' contractual counterclaims. Under Texas law, “[t]he essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009) (quoting Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)). “In construing a written contract, [the] primary objective is to ascertain the parties' true intentions as expressed in the language they chose.” Plains Exploration, 473 S.W.3d at 305. Thus, a contract must be interpreted as a whole “to give meaning to all of its terms, ” so that none is rendered meaningless, superfluous, or contradictory. In re Isbell Records, Inc., 586 F.3d 334, 337 (5th Cir. 2009); accord Plains Exploration, 473 S.W.3d at 305; Ewing Constr. Co. v. Amerisure Ins. Co., 420 S.W.3d 30, 37 (Tex. 2014).

         If a contract “is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe it as a matter of law.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered.” Id. at 394 (citation omitted). “Courts interpreting unambiguous contracts are confined to the four corners of the document, and cannot look to extrinsic evidence to create an ambiguity.” Texas v. Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (citation omitted). A contract is not ambiguous simply because the parties advance different interpretations. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). “[I]f the contract [, however, ] is subject to two or more reasonable interpretations after applying the pertinent construction principles, the contract is ambiguous, creating a fact issue regarding the parties' intent.” Plains Exploration, 473 S.W.3d at 305 (citation omitted).

         Finally, a court should avoid when possible “a construction [that] is unreasonable, inequitable, and oppressive.” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987); see also Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 222 (Tex. App.-Fort Worth 2005, no pet.) (stating that when interpreting a contract, a court should avoid, if possible, “a construction that is unreasonable, inequitable, or oppressive, or would lead to an absurd result.”).

         a. Obligation to Match Counterclaim (Count One)

         In Count One of their Counterclaim, BEI and Baisden contend that Cumulus and Radio Networks breached the Agreement by declining to match a third-party offer for Baisden's services and by preventing Defendants from accepting the offer. See Countercl. ΒΆ 26. Cumulus and Radio Networks argue they are entitled to summary judgment on Defendants' Obligation to Match ...


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