Before DOMENGEAUX, GUIDRY and STOKER, JJ.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
SOUND DOCTOR RECORDING STUDIO, INC. Plaintiff/Defendant in
Appeal from the Ninth Judicial District Court, Parish of Rapides, State of Louisiana; Hon. Lloyd G. Teekell, District Judge, Presiding. 1980.LA.1881
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DOMENGEAUX
Sound Doctor Recording Studio, Inc. (Sound Doctor) brought this suit on open account against Steve Conn, a musician, song writer, and singer, to recover $ 3,065.00 in expenses allegedly incurred by Sound Doctor on behalf of Conn. Conn reconvened against Sound Doctor alleging that Sound Doctor commercially used, without Conn's permission, certain of his copyrighted tunes, jingles, and/or songs. He further alleged that Sound Doctor ran certain ads, again without his permission, which claimed that Conn was associated with or was working with Sound Doctor at a time when no such relationship existed. Conn claimed these acts by Sound Doctor caused him financial loss, embarrassment, and humiliation, and loss of professional standing to the tune of $ 6,500.00.
After trial on the merits, the court opined that plaintiff, Sound Doctor, was not entitled to recover on open account since there was no agreement to pay a specific sum. It did rule, however, based on La.C.C.P. Art. 862, that "Sound Doctor Recording Studio, Inc., is entitled to market, sell and distribute the musical tunes of defendant (Steve Conn) which were recorded at plaintiff's recording studio, and to recoup therefrom its expenses and such other benefits to which it might be entitled." Judgment was signed February 7, 1980, and the defendant has appealed.
The following facts were indisputably established by the testimony of Steve Conn and Robert Vernon, the president, majority stockholder, and chief sound engineer of Sound Doctor.
In early to mid-1977, Conn and others were asked by Vernon to record musical work at Sound Doctor Recording Studio. Conn (and presumably the others) acceded to this request. Shortly before recording was to begin, Conn asked Vernon "What's in this for you?" or words to that effect, to which Vernon replied "We'll worry about that down the line." After this brief and inconclusive rapport, Conn recorded approximately twelve tunes at the recording studio. These tunes were recorded on a "master tape". At no time did Conn and Vernon engage in any verbal or written agreement regarding any recompense to Vernon or Sound Doctor for recording time given to Conn.
Subsequent to the recording session, Conn participated in a "musical showcase"-an exhibition of local musical talent arranged by Vernon-which was designed to appeal to Mr. Judd Phillips, a representative of Mercury-Phonograph, a recording company, for whose benefit the exhibition was staged.
Later, in June or July of 1977, Vernon and Conn traveled to New York City for the purpose of discussing with Ms. Helena Bruno of Chapel Music, a large publishing company, the possibility of publishing some of Conn's music. Shortly thereafter, while still in New York, Conn inexplicably severed his business relationship with Vernon and Sound Doctor Recording Studio.
Sound Doctor has retained possession of the "master tape" on which are recorded Conn's tunes but it has never been able to secure Conn's oral or written permission to market, sell, or distribute the tunes recorded on this tape.
Nothing has ever been paid to Sound Doctor by Conn for its efforts to record and promote Conn's music. For this reason, Sound Doctor instituted suit on open account hoping to recover for 66 hours of uncompensated studio time with an alleged value of $ 30.00 per hour (or $ 1,980.00), $ 1,000.00 expended on the fruitless trip to New York, and $ 85.00 which represented the cost of the tape.
The trial court correctly held that Sound Doctor was not entitled to recover on open account. Neither party has appealed from that determination. We believe, however, that the lower court incorrectly held that Sound Doctor was entitled under La.C.C.P. Art. ...