Court Rejects Tuff City’s Appeal

In June, we reported on Smokey Johnson and Wardell Quezergue’s ongoing lawsuit with Tuff City Records to get paid their share as writers of “It Ain’t My Fault.” At that point, the parties were arguing over legal fees that Tuff City claimed to have spent defending Johnson and Quezergue’s copyright - which Tuff City holds 50 percent of – in a case against Silkk the Shocker. Last December, Judge Ethel Simms ruled on this issue in favor of Johnson and Quezergue, writing, “the Defendants [Tuff-N-Rumble] have failed to submit any credible evidence for said attorney fees.” Tuff-N-Rumble filed for reconsideration, which the judge rejected March 6, 2009. Since then, Tuff-N-Rumble has appealed the decision. 

Today, the court ruled on the appeal and found in favor of Johnson and Quezergue as well. In the ruling, the court reviewed the case:

Tuff City attempted to pay the musicians only a minimal amount of the proceeds from their song, alleging a deduction of $99,546.21 in legal fees from the musicians’ earnings on their song.  Tuff City offered no documentation in support of this deduction except a half page computer printout of fees purportedly accrued by a law firm.  

At stake, though, was more than $99,546.21:

The musicians allege that Priority Records, the exclusive distributor for No Limits Records, has sold more than three million records and CDs of the plaintiffs’ song “It Ain’t My Fault” and, additionally, that pursuant to a licensing agreement with No Limit, Sony included the musicians’ song on Mariah Carey’s Rainbow CD which has sold in excess of 3 million units. 

The Silkk the Shocker’s version of “It Ain’t My Fault” was a hit, and Mariah Carey sampled his track. Since Johnson and Quezergue own the song with Tuff City, they’re entitled to royalties from the song’s use on Carey’s album.

Tuff City contended that it had documents that proved that it had spent money on the Johnson/Quezergue case, so the legal fees could be justifiably deducted from accrued royalties. In the judgment, this claim is recapped thusly:

After a hearing in December 2008, the trial court granted partial summary judgment in favor of the musicians on January 5, 2009, finding that Tuff City failed to submit any credible evidence for the claimed attorneys’ fees. Tuff City filed a motion for reconsideration, submitting that after the December 2008 hearing evidence had been discovered “which Tuff City could not, without [sic] due diligence, have obtained before the hearing.” Tuff City asserted that its in-house counsel responsible for locating any and all documents supporting Tuff City’s claim had abruptly left its employ in November 2006 and his replacement passed away from cancer in November 2008 as Tuff City was preparing its opposition to the musicians’ motion. In support of its motion for reconsideration,  Tuff City attached the following documents: (1) Invoice #19302 from the law offices of Cobrin & Gittes dated January 1, 2000, showing a balance due of $6,069.64 for professional services rendered 12/01/99 through 12/31/99 for professional services (but with no notation as the subject matter of the services rendered);  (2) Invoice #19304 from the law offices of Cobrin & Gittes dated January 1, 2000, showing a balance due of $9,029.34 for professional services rendered 12/01/99 through 12/31/99 (again with no notation as to the subject matter of the services rendered); and (3) a Quick Books extract from the law office of Cobrin & Gittes listing invoice numbers and amounts for various accounts (again with no notation as to the subject matter underlying the various invoices; (4) affidavit by the owner and President of Tuff City stating that these documents were only discovered in a cross-search of business records after the December 2008 hearing and that the documents were related to payments made by Tuff City to the law firm of Corbin & Gittes for the legal service of Oren J. Warshavsky in connection with the enforcement, defense and settlement of the pertinent copyright claims. 

Tuff City filed a supplemental memorandum in support of its motion for reconsideration with another affidavit from the owner and President of Tuff City stating that he had uncovered additional evidence of payments made by Tuff City to the  law offices of Corbin & Gittes and attaching copies of 7 checks: (1) Check No. 1012, date October 13, 1198, in the amount of $1500.00 (but no notation referencing either a legal matter or invoice number);  (2) Check No. 1037 dated October 30, 1998, in the amount of $2000.00 (but no notation referencing either a legal matter or invoice number); (3) Check No. 1072 dated November 23, 1998, in the amount of $500.00(but no notation referencing either a legal matter or invoice number); (4) Check No. 1086 dated December 2, 1998, in the amount of $500.00 (but no notation referencing either a legal matter or invoice number); (5) Check No. 1088 dated December 3, 1998, in the amount of $500.00 (but no notation referencing either a legal matter or invoice number); (6) Check No. 1124 dated December 29, 1998, in the amount of $1500.00 ((but no notation referencing either a legal matter or invoice number); and (7) Check No. 2485 dated December 29, 2001, in the amount of $15,000.00 (but no notation referencing either a legal matter or invoice number). 

The burden of proof, according to the decision, was on Tuff City to demonstrate that these documents of expenditures genuinely documented money spent on Johnson and Quezergue’s case:

[T]he mere existence of a scintilla of evidence in support of the non-moving party’s position is insufficient; there must be evidence on which the jury could reasonably find for that party.  Id. (emphasis the court’s).

In their analysis, the court shows a touch of wit as it finds on the side of Johnson and Quezergue, writing:

We have reviewed the documents submitted by Tuff City in opposition to the plaintiffs’ motion, as well as the documents submitted in support of its motion for reconsideration but find that Tuff City has failed to sustain its burden on motion for summary judgment. Tuff City claims it incurred legal expenses on behalf of the musicians but nothing in the computer printout, invoices, cancelled checks, or Quickbook extract submitted by Tuff City makes any reference to actions taken on behalf of the musicians in this case. Accordingly, “It Ain’t My Fault” if Tuff City’s documents are insufficient to sustain their burden on summary judgment. 

The court recognized that Tuff City had at least one other lawsuit ongoing at the time of the Johnson and Quezergue suit with No Limit Records over Silkk the Shocker’s “It Ain’t My Fault,” implying that the legal bills could have stemmed from another case.

In conclusion, the court writes sternly:

On the basis of this record, it is difficult to perceive any scenario wherein Tuff City could legitimately deduct the legal fees from the monies due to the musicians and, accordingly, because there is no genuine issue of material fact to be resolved as trial, partial summary judgment on this issue is appropriate. The issue of Tuff City’s fiduciary responsibility to the musicians is not before us and we cannot, of course, comment on the morality of a corporation choosing to withhold the substantial funds due to two elderly musicians who lost everything in Hurricane Katrina. We do note, however, that the circumstances of this case are very disturbing.

This doesn’t end Johnson and Quezergue’s lawsuit against Tuff City – Tuff-N-Rumble, officially – but it removes one of Tuff-N-Rumble’s rationales for failing to pay them their due royalties.