FLAMINGO DOLLARS: Comedy Magicians Mix it Up in Court

Nathan Burton is a pretty successful comedy magician. He is a star headliner at the famous Flamingo hotel casino in Las Vegas and also has appeared on NBC’s The World’s Wildest Magic” as well on America Got Talent. But lately, life has anything but magic for him and his business associates in the world of comedy magic. And now, it is all up to the court to sort the mess out between them: Burton, Mac King, another star comedy magician in Las Vegas and Bill Voelkner, King’s producer.

Here’s what happened: First, Voelkner sues Burton for breach of contract, claiming that he negotiated the deal for Burton’s gigs at Flamingo and that Burton owes him about $173,000 for his work, which he has failed to pay. Voelkner says that amount is his own share of the monies received in ticket sales from Burton’s headlining gigs at the Flamingo, where Burton’s Comedy Magic Show features funny comedy routines, illusions, and dancing show girls. Then Burton files his own counter lawsuit against Voelkner, in which he denied that Voelkner acted as his negotiator for the gigs and accused Voelkner of making false and deceptive claims just so he could unfairly profit from Burton’s earnings.

Burton has been doing his gigs at the Flamingo since April 2008 and Voelkner claims that Burton has only paid him a small fraction of what he has earned since then. Mac King is the headliner at Harrah’s, a sister venue to the Flamingo. So, how will it all end and who is going to win? Well, it is not so easy to untangle these claims but since we are talking about a breach of contract here, a good place to begin is to ask if there was in fact a contract between Burton and Voelkner and if so what the terms of that contract are.

For starters, a contract is quite simply an agreement between two or more people to do something or to refrain from doing something. The agreement is usually an exchange of promises between the two people involved and each promise is the price of the other promise. (This is something lawyers call ‘consideration”). Of course, the agreement could either be written down somewhere or it could be by word of mouth between the parties. As it happens, some agreements are required by a law called the Statute of Frauds to be in writing; in those situations, such agreements will be no good if they are not made in written form. Here, in this lawsuit, it doesn’t look like there was actually a written contract between these two men; but that’s OK, since they don’t have to write it down. Needless to say, it would have made life so much easier for all the parties in this dispute.

So, given that we are most likely dealing with a word-of-mouth situation, here, it means that what was said or done between the parties becomes pretty crucial. By law, for a contract to exist between any two people, both of them must at least have the “intention” to enter into an agreement that they know can be enforced at law. Meaning that agreements reached in a situation where both parties, for instance, are drunk in a barroom or in the bleachers at a ballgame likely won’t be any good because in those situations, they may not have the mental capacity to, in fact, “intend” to make a legally binding agreement.

In our case here, the claim for a breach of contract is based on the idea that Voelkner and Burton had agreed that Voelkner would negotiate the Flamingo gig for Burton in exchange for a share of the ticket monies. Yet, there is a problem here: Burton claims that he never had any “intention” to have Voelkner act as his representative in negotiating the Flamingo deal. If this is true, then the court will probably find that there is no contract between the two of them and so Burton wins.

By the way, the “intention” to make the agreement must be in existence before the job is done, meaning that if Voelkner negotiated the deal for Burton without first telling Burton about it, then too bad for him since he would have offered his services without a contract. In such a case, Burton doesn’t have to pay him because Voelkner would have acted merely as a volunteer or a busybody who did something without being asked. (The law does not make it its business to help busybodies get paid.) In the eyes of the law, Voelkner’s act of negotiating the gig for Burton (without any agreement for him to do so) would be regarded as a “past consideration” which isn’t good enough. What is required for a good contract at law is a “promise-for- a promise” exchanged between the parties before anyone has done anything for anyone.

But there is a situation in which Burton may still be on the hook for some money even though he did not have a contract with Voelkner. This kind of situation would arise where, for instance, it can be shown that at the time Voelkner provided his services to Burton in negotiating the Flamingo gig, Burton knew what Voelkner was doing on his behalf and also knew that Voelkner expected to get paid for his trouble and still went ahead to accept the benefits of Voelkner’s services. In such a case, since there is no contract between the parties, this would not be a breach of contract situation at all and Voelkner will not be paid according to the terms of any contract. Rather Voelkner will be paid the “reasonable value” of his services, in order to prevent what the law calls “unjust enrichment” on the part of Burton.

And there is something else in the case: Burton’s lawsuit makes reference to a statement by Voelkner that he had an understanding with the folks who run Flamingo and its sister venues that no gigs are to scheduled in any of those venues unless they are negotiated by Voelkner himself. Burton also claims that, without any help from Voelkner, he already did have a tentative agreement with “substantive terms” with the folks who ran the Flamingo joint for him to play that venue.

If both claims are true, then Burton may not be sitting so pretty off the hook after all. And again, like the one above, this would not be a breach of contract situation either; it would be something else that won’t be good news for Burton. If, for instance, Burton knew that the folks [Caesar’s Entertainment] who ran the Flamingo and its sister venues already had an agreement with Voelkner to negotiate gigs in those venues only through Voelkner and still proceeded to negotiate his Flamingo gig without the participation of Voelkner, then his actions could make him liable to be sued by Voelkner for wrongful interference with contractual relations.

To be sure, it has to be noted that if this argument is raised in court, it is not clear how it will pan out, considering that Burton has denied that he knew anything about the arrangement between Voelkner and the Caesar’s folks, presumably at the time of Burton’s deal with them for his Flamingo engagement.

In the end, the outcome of this case is rather difficult to predict: Not many details are clear at this point and when the issues are to be sorted out through courtroom litigation, with its ebbs and flows, the odds are never easy to read. Plus, the process leading to a final outcome is often brutal. And the winner doesn’t always feel like a winner. Given all this, the best option for the parties is to explore possible ways of settling the matter out of court and moving forward with the business of making folks laugh.

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