Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

تمرين 5

Whalen v. Villegas 968 N.Y.S.2d 343 (2013)
Restaging the Wedding as a Contract Remedy
Facts
Stephanie Spector and Jacob Whalen (collectively "Whalen" or plaintiffs) were married on August 20, 2011. They had contracted with Unique Vision Studios (Unique/defendant) in writing for Unique to provide 10 hours of photography at their wedding, as well as photo retouching and prints.
Unique took wedding photos on a digital camera, recorded on a memory card. The photographs were supposed to be transferred from the memory card in the camera to Unique's computer for color correction and retouching. Unique employees believed that they had downloaded the photos from the memory card to computer, but did not verify the transfer. When Unique employees began to look at the photographs to retouch the images and do the color corrections, they discovered that the photographs were not on the computer. Unique had re-used the memory card and shot over some of the pictures taken of Whalen's wedding, thus losing many of the photographs.
Spector and Whalen sued to recover damages for breach of contract and moved for summary judgment.
Judicial Opinion
HIRSH, Judge
Whalen seeks to recover damages for the costs they claim they will incur to re-shoot the lost wedding photos including $4748 to rent the catering hall at which the wedding and reception were held for 4 hours and food for 50 people, $1200 for flowers, $1884 or tuxedos for the groom, groomsmen the bride's father and the ring bearer, $700 for fittings for the bridal party, $1990 for hair and make-up, $1957 for travel expenses and $2440 to pay another photographer to shoot the pictures.
The travel expenses include costs that will be incurred to fly members of the bridal party who do not live in New York to New York. Whalen never had the lost photos re-shot.
Since the contract was breached, the court could grant summary judgment to Whalen on the issue of liability. However, the court cannot determine based upon the pleadings and/or the papers submitted in support of the motion for summary judgment against whom summary judgment should be granted because neither the complaint nor the papers submitted indicate the type of business entity Unique was.
The complaint alleges and the answer admits Nina and Alex Villegas are the owners of Unique. However, ownership does not necessarily equal personal liability. If Unique was a corporation and Nina and Alex were the owners of the shares of the corporation or Unique was a limited liability company and Nina and Alex were the members of the limited liability company, Nina and Alex would not be personally liable for the contractual obligations of Unique.
If Unique was a partnership at the time in question, Nina and Alex would be personally liable for Unique's contractual obligation. The court cannot determine who is liable to Whalen.
Even if the court were to grant summary judgment on the issue of liability, issues remain on damages. In determining whether the agreement is one for the provisions of goods or the provision of services, the court must determine the predominant purpose of the agreement. The agreement in question is an agreement in which the provision of photographic services predominates.
No goods, wedding pictures, would be available for sale or could be provided to Whalen, their parents or guests unless and until the photographic services are properly and timely performed.
Whalen must provide the trier of fact more and better proof of these damages and what the actual damages are that specifically relate to the lost photos. Before the court can award damages for the limousine and hair and make-up expenses, Whalen must establish which expenses were incurred specifically for the lost photographs as opposed to those expenses that would have been incurred in any circumstance for the their wedding.
In actions for breach of contract, consequential damages can be awarded if the damages plaintiff seeks to recover were fairly within the contemplation of the parties at the time the contract was made and can be proved with reasonable certainty. The costs to re-take the now lost wedding photographs were within the contemplation of the parties [in their] agreement.
The court questions whether posed wedding photographs can be retaken more than one and a half-years after the wedding or whether photographs of a cocktail hour, wedding reception, first dance, the bride and groom cutting the cake, the bride tossing the bouquet, etc. can ever be re-staged or re-taken. Even if the pictures are re-taken, Whalen would always know these photographs were not really photographs of their wedding.
The damages Whalen seeks to recover are the estimated costs Whalen may incur in re-shooting the lost photographs. These damages are speculative and may never be incurred. Damages are award[ed] in breach of contract actions to compensate plaintiff for actually incurred damages or damages that can be proven with a reasonable degree of certainty.
Stated differently, if the court were to award Whalen the costs it expects to incur for re-shooting the lost photographs, Whalen would be receiving compensation for damages and expenses they did not and may never incur.
Accordingly, plaintiffs' motion for summary judgment is denied.
Case Questions
1. Explain whether the contract is governed by UCC or common law.
2. Discuss the liability issue the court faces with Unique's business structure.
3. Why is the lack of a re-shoot significant?