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Queen v. Schultz

United States Court of Appeals, District of Columbia Circuit

April 4, 2014


Argued October 21, 2013

Page 880

Appeal from the United States District Court for the District of Columbia. (No. 1:11-cv-00871).

Steven W. Teppler argued the cause for appellant. With him on the brief was Frazer Walton, Jr.

Jeffrey B. Landa, pro hac vice, argued the cause for appellee. On the brief was John C. Hayes, Jr.

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.


Page 881

Srinivasan, Circuit Judge.

In January 2008, NBC employee Michael Queen approached then-radio talk show host Ed Schultz to ask whether Schultz would be interested in getting into the television business. What happened next is in dispute. Queen says that he and Schultz verbally agreed to become partners in a project to develop a television show starring Schultz as host. Schultz denies any such agreement. Schultz later entered into a contract with the cable television network MSNBC to host " The Ed Show" on weekday evenings, and the show has aired on MSNBC in various timeslots since April 2009. Queen now claims an entitlement to a portion of Schultz's income from " The Ed Show" based on their alleged agreement to co-develop a show. Schultz, disclaiming any agreement, believes that Queen is entitled to nothing.

After the relationship between the two men broke down, Queen sued Schultz in district court, and Schultz responded with counterclaims against Queen for fraud, slander, and libel. On cross-motions for summary judgment, the district court ruled that neither Queen nor Schultz was liable to the other for anything. Queen v. Schultz, 888 F.Supp.2d 145, 175 (D.D.C. 2012). Queen (but not Schultz) appealed, arguing that the district court erred in granting summary judgment to Schultz with respect to Queen's breach-of-contract claim and his breach-of-partnership-duties theory. We disagree with Queen on the breach-of-contract claim but agree with him on the partnership theory. We conclude that there exists a genuine issue of

Page 882

material fact as to whether Queen and Schultz formed a partnership to develop a television show and, if so, whether Schultz is liable to Queen for breach of partnership duties. We therefore remand to enable Queen to present his partnership theory to a jury.


In an appeal from an order granting summary judgment, our review is de novo, and we view the evidence in the light most favorable to the nonmoving party--here, Queen. United States v. Regenerative Scis., LLC, 741 F.3d 1314, 1318 (D.C. Cir. 2014). According to Queen's version of events, in 2007, Queen initially conceived the idea of a television show starring Ed Schultz. At the time, Schultz was a radio talk show host based in Fargo, North Dakota, and had also made guest appearances on various television networks. Before Queen and Schultz ever met or spoke, Queen presented the concept for the show to the then-chief of NBC News' Washington bureau, Tim Russert, and began developing a strategy to promote the idea.

In January 2008, Schultz visited NBC's Washington office building, and Queen and Schultz spoke for the first time. While the parties now dispute what was said in their initial conversation, we must credit Queen's version at the summary judgment stage. According to Queen, he asked whether anyone was working with Schultz " to make a TV show happen." Schultz responded: " No. Now you're it." Beginning in February 2008, Queen worked further on the show idea " with Schultz's specific and enthusiastic approval." Queen Decl. ¶ 5, ECF No. 24-3. Queen taped Schultz's guest appearances on various television shows in order to create a demonstration reel, and he enlisted a former NBC News director, Max Schindler, " to partner with Schultz and [Queen] in the development of the project." Id. ¶ ¶ 5-6. Queen, Schindler, and Schultz then engaged in a series of telephone conversations and e-mail exchanges in which they discussed " ownership percentages" in " the agreed upon partnership." Queen says they " agreed that, in addition to salaries, I would receive 25%, Schindler would receive 25%, and Schultz would receive 50% of income realized by the program after expenses, should it be sold." Id. ¶ 8.

Queen introduced into the record a series of e-mail communications with Schultz in which the two men sought to hammer out the details of their financial arrangement. Schultz does not dispute the authenticity of those e-mails. In one e-mail, on March 5, 2008, Schultz said to Queen: " I will agree to a 50-25-25 percentage formula of profits after expenses of the show. Each of us will have a salary for working on the show although that needs to be figured out." In a reply five days later, Queen asked Schultz to " take a look" at the " tentative agreement" that Queen had attached, adding: " Will this work for you? The sooner we can all agree the better." The attachment, entitled " Partnership Agreement," provided Queen, Schindler, and Schultz with equal interests in the partnership (one-third of profits and losses). The draft agreement also indicated that Queen, Schindler, and Schultz each would receive salaries from the partnership, although the salary amounts remained blank.

As negotiations dragged on, Schindler decided to leave the project. Schindler says in an affidavit that he thought Schultz " would not honor any verbal agreements" because Schultz refused to sign a written contract. Schindler Decl. ΒΆ 3, ECF No. 24-1. Schindler also states that he " warned [Queen] that . . . he should abandon this project with Schultz or he would ...

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