Romero v Aveda Corp NY Slip Op 30588(U) February 14, 2005 Supreme Court, New York County Docket Number: /04 Judge: Herman Cahn Cases

Transcription

1 Romero v Aveda Corp NY Slp Op 30588(U) February 14, 2005 Supreme Court, New York County Docket Number: /04 Judge: Herman Cahn Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] ( ( SUPREME COURT JF THE STATE OF NEW YORK COUNTY OF NEW YORK: AS PART 49 L x ROBBY ROMERO, Plantff, -aga'.nst- 1 ndex No.: /04 AVEDA CORPORATON, Defendant ~ x Herman Cahn, J. '[: Plantff ~rngs ths acton to recover F1 L~nhe allegedly prov~ed to defendant Aveda Corporaton and to obta1 FE~ specfc performance of what he alleges was Aveda s oral. YORK NEW agreement to d1ptr1bute chartable donat1ooot.ftfrrcl R~O~~let ts Natve Amercan product lne (Natve Amercan Product Lne or Product Lne) e~clusvely to specfc types of organzatons. Aveda moves to dsmss based on what t contends s an ntegrated and unambguous: wrtten contract that bars plantff's clams, CPLR 3211 (a) (1) and (7). The A.l1ega~ons of the Comp1ant Aveda s alglobal plant-based cosmetc and skn care company. Plan ff Romero, a New York resdent, s the leader of a Natve Amercan rock band, a Unted Natons Ambassador of Youth for the Envron~ent and the founder of Natve Chldren's Survval, a nonlproft organzaton dedcated to creatng 1

3 [* 2] awareness of env~ronmental and human rghts ssues through the arts. Romero cohtends that he provded servces to Aveda leadng to the creaton ~nd development of the Product Lne. He provded sad servces based on the representatons of varous Aveda executves, made over a perod of years, that t would enter nto a wrtten agreem~nt to compensate hm for the servces through a percentage of ownershp or sales of the Product Lne, or otherwse. n partcular, Romero alleges that durng a September 1998 meetng, he presented to Aveda's management the concept for the Natve Amercan Product Lne, whch was n development by Aveda at the tme. Th~ product lne ncluded a shampoo, rnse, "Pure- Fume," aroma can~le and other personal care products that were to be manufactured usng ndgenous, organc and "wld crafted" raw materals and essental ols. Romero clams that based on the representatons of Aveda executves regardng compensaton made at that meetng, lhe contnued hs efforts to develop the Product Lne. 1 The servces Romero clams he provded nclude creatng the Product Lne's mjrketng story, concept, name, mage, art and logo, as well as ts aroma concept and the concept for a product called "Smudge s1ck n a Bottle." n addton, Romero alleges that he worked wjth Aveda's research and development group to develop the fnal aroma for the products, selected Natve 2 ' ~ -...

4 [* 3]. Am ercan. f am 1 es 1 t o h arves t raw ma t era. 1 s, " source d, organze d and delvered rlw materals, ncludng essental ols, to Aveda for research and development and organzed a photo shoot n "Sacred Lands of natve peoples" (Godler Supp. Aff., Exh. A, ' 20). Romero al~eges that despte the promses and representatons of ts executves, Aveda refused to formalze an agreement for tr1ese servces for whch, n the frst cause of acton of the complant, he seeks compensaton. Romero als~ alleges a second oral agreement pursuant to whch, n exchatjge for support Romero had created n the Natve Amercan communty, Aveda agreed to mplement a program through whch any char1able donatons made from the proceeds of sales from the Product Lne would be dstrbuted exclusvely to "ndgenous grass roots organzatons" (Godler Supp. Aff., Exh. A, ~ 21). Romero alleges that Aveda has not fulflled ths promse and n h~s performance. second cause of acton seeks specfc The Consu1t~ng Agreement On May 1, 2001, Aveda entered nto a consultng agreement (Consultng Agre~ment or Agreement) wth Eagle Thunder Enterprses, ncl, the effectve date of whch was January 1, Romero exf cuted the Agreement as presdent of Eagle Thunder. Aveda and Eagle Thunder agreed that Romero would personally: 3

5 [* 4]. 1) provde to Aveda, by October 31, 2001, a mnmum of 1000 klograms of sage, 7000 klograms of cedar, and 1000 klograms of sweet grass, a11 grown organcally and n the Natve Amercan tra d ton;.. 2) perform bublc speakng engagements and make presentatons t~ global journalsts at varous ntervals throughout the t'.erm of the Agreement; 3) provde l"aveda consul tng and advsory servces wth respect to Aveda1' s testng, marketng and educaton of the approved productr, nclusve of conceptual and creatve drecton" {Godl~r Aff., Exh. A, Exh. 1, t [B] [3]); and 4) help to buld smooth relatonshps and consensus wth Natve Amercan \Peoples, representatves and actvsts. For these sbrvces, Eagle Thunder was to be pad $5,500 per month for the term of the Agreement, January 1, 2001 to February 28, 2003, and re~mbursed expenses up to $500 per month. The Agreement conta~s a merger clause, a Mnnesota choce of law provson and a provson prohbtng modfcatons or amendments except by a wrtng executed by the partes. Romero asselts that Aveda launched the Natve Amercan Product Lne undlr the name "ndgenous" n Aprl t conssted of a h r and body cleanser, a "purfyng Pure-Fume Composton" and an aroma candle. 4

6 [* 5] Ana.lyss Aveda argu,s that Romero seeks addtonal compensaton for servces for whch he was already pad, 1 when he s precluded from contradctng, varyng or supplementng the compensaton terms of the n~egrated Consultng Agreement wth parol evdence. t further argu~s that Romero may not clam an mplct contract where an explcft one exsts for the same servces. argues that the ~erger Romero clause n the Consultant Agreement specfcally addresses only the subject matter of the Agreement, and that the 'r serjvces he provded to Aveda concernng the creaton and dev1elopment of the Product Lne were not part of that subject matter. Pursuant to\ Mnnesota law the nterpretaton of a contract s a matter of law (Frst Natonal Bank of Chaska v Shakopee Gravel, nc., 2001 WL *1 [Mnn Ct App 2001]). 2 "The meanng of a contract s to be ascertaned from the wrtng alone, f possble, the duty of the court beng to declare the meanng of what ls wrtten n the nstrument, not what was 1 Romero doe~ not allege that Aveda has not performed ts oblgatons under the Consultng Agreement. 2 Although t11e partes agree that the Consultng Agreement s governed by Mnn sota law, Romero does not concede that Mnnesota law apples here because, he argues, hs clams are based on a separate oral agteement unaffected by the Consultng Agreement's choce of law pr~vson. Notwthstandng that, both partes represent that t ere appears to be no conflct between Mnnesota and New York Law regardng the ssues heren, and the court wll consder that th r posture for ths moton. 5

7 [* 6] ntended to be w1tten" (d., quotng Carl Bolander & Sons, nc. v Unted StockyaEds Corp., 215 NW2d 473, 475 [Mnn 1974]). Only f the language of an agreement s susceptble to more than one meanng wll a court resort to extrnsc evdence (Hoyt v Brokaw, 359 NW2d 310 [MJn Ct App 1984]). "A merger c~ause establshes that the partes ntended ther wrtng to be an ntegraton of ther agreement" (Alpha Real Estate Co. of Roehester v Delta Dental Plan of Mnnesota, 664 NW2d 303, 312 [Mlnn 2003]; see W.R. Mllar Co., 419 NW2d 852 [Mnn Ct App 198S]; Prmex nter. Corp. v Wal-Mart Stores, nc., 89 NY2d 594 [1997)) and bars the ntroducton of extrnsc d h t t d. d' t th ev1 ence, sue as nego a ons or 1scuss1ons ea ng up o e executon of thelcontract, to vary or contradct the wrtng's terms (Alpha Rea Estate Co. of Rochester, 664 NW2d at 311; Prmex, 89 NY2d at 599). Where an express contract exsts there can be no mple1 contract (see Sharp v Laubershemer, 347 NW2d 268, 271 [Mnn 1184]) or quantum merut recovery wth respect to the same subjectjmatter (Clark-Ftzpatrck, nc. v L9ng sland R.R. Co., 70 NY2d 382 [1987)). Notwthstandng the presence of a merger clause, an earler contract wll noj merge or be extngushed by a subsequent contract where tje earler and later contracts deal wth dfferent subjecls (Wattenberg v Wattenberg, 277 AD2d 69 [1st Dept 2002]; Gordln v Patchogue Surgcal Co., nc., 222 AD2d 651 6

8 [* 7] 1 [2d Dept 1995]; 12A NY JUR Contracts 481; W.R. Mllar Co., 419 NW2d at 854). Moreover, "[transactons between two partes sometmes follow each other n rapd successon and t s not always easy to decde whether they have made one complex contract or two successve contracts. f the partes have reduced to wrtng oneof two of such successve parts, leavng the other part µnwrtten, t usually possble to prove the latter by p~rol evdence" (6 Corbn on Contracts 549, at [2002 nterm ed]). The Consultng Agreement s ntegrated as t contans a merger clause that states "[t]hs Agreement embodes the entre understandng of\the partes wth respect to the subject matter hereof and any prevous understandngs are hereby merged" (Godler Aff., Exh. A, ~ +1). Thus, Romero s barred from ntroducng evdence as to any understandngs between the partes pror to ther entry ntothe Agreement, that concern the subject matter of the Agreement~ naturally nclud~d or are closely enough related to t as to be theren (Apple Valley Red-E-Mx, nc. v Mlls- Wnfeld Eng'g S9les, nc., 436 NW2d 121, 123 [Mnn Ct App 1989)), or that would vary or contradct the Agreement's terms. Aveda's arglment for the excluson of parol evdence, and dsmssal, s baded on ts clam that the compensaton term of ::::::::::::::::J~::::::::::::::c::::::::::::::::::::::::a:h::e servces for wh lh Romero seeks compensaton here are part of the 7 '

9 [* 8] \ subject matter of as to be part anr the Agreement or so naturally related thereto parcel of, and therefore nseparable from, the Agreement. Aveda Consultng Agree~ent supports ths argument by characterzng the as broad and encompassng Romero's servces toward the creaton, development, manufacturng, marketng and sales of the Natve Amercan Product Lne. Romero argues that the Consultng Agreement concerns only those servces rlndered on or after January 1, He characterzes hl Consultng Agreement oblgatons as lmted to beng the "face" of Aveda, provdng raw materals needed for the manufacturng of Aveda products and provdng consultng and advsng servces for "approved" products; that s, products not n the creaton lnd development stage. Fnally, Romero argues that whle the p4rtes to the Consultng Agreement are Eagle Thunder and Aveda, t was he, ndvdually, who entered nto the earler agreements wth Aveda. Pursuant to CPLR 3211(a) (1), dsmssal s warranted only f the documentary Jvdence submtted "resolves all factual ssues as a matter of l~w, and conclusvely dsposes of the plantff's clam" (New YorklSchools ns. Recprocal v Guglott Assoc., nc., 305 AD2d 5j3, 564 [2d Dept 2003]; see e.g. Leon v Martnez, 84 NY2d 83, 88 [ 994]). There are dsputed factual ssues concernng the C nnecton between the Consultng Agreement's subject matter a d the servces enumerated n the complant that 8

10 [* 9] cannot be resolvjd at ths early juncture. For example,[ to support ts argument that the Agreement was ntended to cover any work Romero dd from ncepton through sales of the Pro~uct Lne and, perhaps, to.make t appear more lkely that the donsderaton for Romero's earler servces was ncluded as part of the Agreement as well, Aveda argues that the Consultng Agree~ent provdes Romero the opportunty to acheve bonuses based on 1the sales of the Product Lne. Th~ Agreement, however, contan~ no menton of bonuses lnked to the sales of any Aveda product and, n fact, does not even specfcally menton the Nat~e Amercan Product Lne. n addton pursuant to the Agreement, Eagle Thunder was to delver to Aveda jtons of three specfc raw materals, cedar, sage and sweet glass, on or before October 31, Whether ths oblgaton ~as ntended to encompass delveres Romero made of raw materals, such as essental ols, not delneated n the Agreement and made before ts commencement date s a dsputed factual ssue not resolved by the documentary evdence submtted on the moton. Regardng Rdmero's consultng and advsng servces pursuant to the Agreement, Aveda argues that Romero's allegaton regardng the Product Lne's launch date, Aprl 2002, s an admsson that servces provde pursuant to the Consultng Agreement were necessarly nt e development stage of the Product Lne's 9

11 [* 10] progresson.. Th' F ssue,. not conclusvely bsposed however, s also a factual one that s of by the moton papers. Accordngly, j t s ORDERED that] the moton to dsmss s dened. Dated: February 2005 ENTER: FEB NEW YORK COUNTY CLERK'S OFFCE 10