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Darryl Donley and Oliver Baines D/B/A Krimson Entertainment v. Keyshia Cole

March 21, 2011

DARRYL DONLEY AND OLIVER BAINES D/B/A KRIMSON ENTERTAINMENT, PLAINTIFFS-RESPONDENTS,
v.
KEYSHIA COLE, DEFENDANT-APPELLANT, AND IDOL MAKERZ ENTERTAINMENT, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10232-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2011

Before Judges Grall, LeWinn, and Coburn.

Defendant, Keyshia Cole, a popular singer of some renown, appeals from the February 5, 2010 order denying her motion to vacate a default judgment obtained against her by plaintiff, Krimson Entertainment (Krimson)*fn1 , in the amount of $144,936. For the reasons that follow, we affirm the denial of defendant's motion to vacate, but modify the amount of the judgment.

We summarize the pertinent factual background from: (1) the pleadings; (2) the testimony of Krimson's principal, Baines, at the proof hearing; and (3) defendant's testimony at a hearing on her motion to vacate, which the judge determined was necessary in order to assess the credibility of defendant's claims.

On May 4, 2006, Krimson entered into an oral agreement with defendant, Idol Makerz Entertainment (Idol Makerz), which Krimson believed was Cole's booking agent, for Cole to perform a concert at the Selland Arena in Fresno, California on July 28, 2006. Baines testified that he had learned "[t]hrough the [I]nternet . . . that Idol Makerz was an approved booking agent for . . . Cole." Idol Makerz sent Krimson a contract and Baines sent back a $15,000 deposit. The contract was never signed, but Baines testified that Idol Makerz had orally agreed to its terms.

Baines further testified that Krimson made arrangements for Cole and her manager, Manny Halley, to fly from Atlanta, Georgia to Fresno on the day of the concert. During that day Baines received a series of phone calls from Halley re-scheduling Cole to later flights and, ultimately, canceling her appearance.

Krimson filed suit in December 2007 against Cole and Idol Makerz, alleging breach of contract, fraud and unjust enrichment. The latter two claims were against Idol Makerz only and were based on allegations that it had fraudulently represented itself as Cole's agent, had refused to refund the $15,000 deposit and, therefore, had been unjustly enriched.

Krimson served the summons and complaint at Idol Makerz' place of business in Cranford, with the intent of serving both the agent and Cole. When Krimson sought a proof hearing, however, the judge denied the request finding that Cole had not been properly served because she had been "served in her personal capacity at her place of business, not her residence."

On September 9, 2008, Krimson served Cole at her residence in Alpharetta, Georgia, by personally serving "Mrs. Cole," Cole's "[m]other/[c]o-resident." On December 26, 2008, Krimson filed a request for entry of default against Cole; a copy of that request was mailed to Cole at the same Georgia address. On January 29, 2009, Krimson filed a notice of motion for a hearing on damages, again serving Cole with that motion at the Georgia address. The judge ordered a proof hearing to be held on March 27, 2009; a copy of that order was also sent to Cole's Georgia address.

In addition to describing his contacts with Idol Makerz and the conversations with Halley, Baines testified that Krimson had spent $23,817 in non-refunded out-of-pocket expenses, such as transportation for Cole and Halley, marketing, promotions, and arrangements for light, sound and opening acts. In addition, Krimson claimed $79,000 in "lost revenues" based on its projection that, historically, Cole "sells out [seventy-nine] percent of her venue."

Using a formula that multiplied the ticket prices by the number of seats available at each price and then taking seventy-nine percent of that figure, the judge calculated $75,459 in lost revenues. Baines also claimed that Krimson would have received a net profit of $10,000 from a scheduled after-concert party. The judge added to those figures Krimson's $23,817 in out-of-pocket expenses and the $15,000 deposit to Idol Makerz, and calculated ...


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