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11/15/89 John W. Koester, v. Weber

November 15, 1989

JOHN W. KOESTER, PLAINTIFF-APPELLANT

v.

WEBER, COHN AND RILEY, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

550 N.E.2d 1004, 193 Ill. App. 3d 1045, 140 Ill. Dec. 879 1989.IL.1785

Appeal from the Circuit Court of Cook County; the Hon. David G. Lichtenstein, Judge, presiding.

APPELLATE Judges:

JUSTICE CERDA delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CERDA

Plaintiff, John W. Koester, appeals from the dismissal of his action for breach of oral agreement, interference with prospective economic advantage, misappropriation of property, and fraud. Defendants Weber, Cohn & Riley, Inc., and Brown and Portillo, Inc., cross-appeal from the denial of their motion for sanctions against plaintiff for the filing of his second amended complaint. In dispute is the applicability of the parol evidence rule in the interpretation of a document entitled "Model Release."

Plaintiff's second amended complaint alleged that Weber, Brown's advertising agency, orally agreed with plaintiff that he would pose for photographs for use in advertising for Brown's Fried Chicken, which was a restaurant business owned by Brown, and that the photographs would be used exclusively in the newspaper media on a one-time basis and would not be used after a year. It was alleged that defendants breached their agreement by reproducing plaintiff's likeness in newspaper advertising for Brown's. Plaintiff also brought a count for interference with prospective economic advantage based on defendants' failure to consent to plaintiff working for competitors. A count for tortious misappropriation of property was based upon the reproduction of plaintiff's photograph in advertising. A count for common law fraud alleged that defendants represented that plaintiff's photographs would not be reproduced other than pursuant to their oral agreement and that plaintiff relied on this representation.

Defendants moved to dismiss the second amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) on the basis that plaintiff had signed a model release that provided defendants with the right to reuse plaintiff's photograph for an unlimited period in any medium. The motion also requested sanctions because plaintiff had made the same allegations that had required dismissal of his first two complaints.

The affidavit of Virginia La Vone, an employee of Weber, which was filed in support of defendants' earlier motion to dismiss the first amended complaint, had averred that all the terms of the agreement between plaintiff and Weber were contained in the model release except for the specific compensation terms. The model release stated in part:

"For and in consideration of my engagement as a model by Don Levey Studio [name is handwritten in a blank], hereafter referred to as the photographer, on terms or fee hereinafter stated, I hereby give the photographer, his legal representatives and assigns, those for whom the photographer is acting, . . . the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own or a fictitious name, on reproductions thereof in color, or black and white made through any media by the photographer at his studio or elsewhere, for any purpose whatsoever; including the use of any printed matter in conjunction therewith.

I am to be compensated as follows:

I have read the foregoing release, authorization and agreement before affixing my signature below, and warrant that I fully understand the contents thereof.

[plaintiff's ...


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