Niche Music Group, LLC v Orchard Enters., Inc.

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Niche Music Group, LLC v Orchard Enters., Inc. 2019 NY Slip Op 31760(U) June 19, 2019 Supreme Court, New York County Docket Number: 650100/2018 Judge: O. Peter Sherwood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49 -------------------------------------------X NICHE MUSIC GROUP, LLC, DECISION AND ORDER Index No.: 650100/2018 Plaintiff, -against- Motion Sequence No.: 001 THE ORCHARD ENTERPRISES, INC. and SONY MUSIC ENTERTAINMENT, INC., Defcndants. ------------------------------------------X 0. PETER SHERWOOD, .J.: I. FACTS As this is a motion f(x summary judgment, these are the undisputed facts taken from the parties· 19-a Statements of Undisputed Material Facts (SUMF, NYSCEF Docs. No. 25. 28). Disputed facts are noted. The Independent Online Distribution Alliance (TODA) provided digital distribution solutions to the independent music community. JODI\ also licensed music catalogs for digital distribution. Joker's Wild Productions (JWP). which held rights to a catalog of m.:ordcd music. entered into a Digital Distribution Representation Agreement (the Agreement) with !ODA on January 7, 2004. Plaintiff Niche Music Group LLC f/k/a Naked Voice Records (Niche) is the successor-in-interest to JWP's rights an<l obligations under the Agreement. Defendant The Orchard Enterprises. Inc. (The Orchard) is the successor-in-interest to IODA 's rights and ohligations under the Agreement. The Agreement is valid and enforceable. The Orchard is \\'holly-owned by defendant Sony Music Entertainment, Inc (Sony). The Agreement "covers the entire catalog of IJWB'sl music ... that jit] has the right to license"' (SUMF. ~i 13. quoting Agreement, attached as Exhibit A to McCrady An:§ 1). Pursuant thereto, JWB "grants to IODA a world\vide right ... to ... licens[e] the Catalog ... to third party digital music services ... and ... collect, administer, and distribute royalties from such digital music services'' (id. ~ 14, quoting Agreement § 2). !ODA was to provide various distribution services and reports to JWB and was entitled to a percentage of royalties IODA received on .JWB's behalf. The agreement also contains a limitation of damages provision and entitles the· prevailing party to attorneys' fees and costs. The agreement continues until terminated by either party. 1 2 of 10 [*FILED: 2] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 Under the Agreement The Orchard, for Niche, distributed the music of nonparty the Society for the Preservation of Encouragement of Barber Shop Quartet Singing in America, ~ncorporatcd. also known as the Barbershop Harmony Society (BlIS). Niche (by its predecessor Naked VoiCl: Records) ohtaincd the rights to distribute this music by an agreement with BHS dated March 22, 2007 (First BHS Agreement) (SUMF, ~ 26). There was also a 2011 agreement for the distribution of sheet music (the Second BHS Agreement). Bl IS is not a party lo the Agreement. On September 30, 2014, BHS sent Niche a letter terminating an agreement as of December 31. 2014. The parties dispute \vhether the intention was to terminate the First BHS Agreement or the Second liHS Agreement (SUMF,, 27-28). The September 30 letter refers to the Second BHS Agreement. However, it is undisputed that on December 3, 2014, BHS"s entered into a Digital Distribution Agreement directly with The Orchard (0/BHS Agreement) for distribution of BBS recorded music catalog and that on January 2, '.20 l 5, Niche's general counsel sent an email to The Orchard advising that nonparty 111 IS had "elected to take their catalog elsewhere for digital distribution and they have just terminated their contract with us" (id.~ 29). He also requested The Orchard to instruct all vendors to take BHS's audio recordings down from their services. He noted he cxpeded a lag in the removal of the rernrdings and provided The Orchard with payments and royalty statements through May 15, 2015 (iJ., ~ 30). The Orchard claims it did not collect any royalties for Bl IS music under the O/BHS Agreement before January' 2015 (id,~ 32). The Orchard claims fillS earned about $23,000 in royalties between January 2015 and December 2018, which (had it been earned pursuant to the Agreement) would have resulted in $19,550 paid to Niche. with 60% going to BHS (id.. ~: 33). The parties agree that Janice Bane of BHS and Jason Pascal of The Orchard were introduced via email on August 29, 2014 (id., iJ 41). The parties dispute the significance of their subsequent conversations, but The Orchard states BBS terminated its relationship with Niche on September :rn, 2014, to he effective Oeeember 3L 2014. Niche argues BHS only terminated the Second HHS Agreement \vhich covered sheet music licensing. In the First Amended Complaint (Complaint NYSCEF Doc. No. 003), plaintiff asserts claims for: 1 ) Breach of Contract for breach of the Agreement: 2) I3rcach of the Covenant of Good Faith and Fair Dealing by attempting to induce BllS and others to breach their contracts with Niche and contract directly with The Orchard; and 2 3 of 10 [*FILED: 3] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 3) Tortious Intcrtercnce \vith Contractual Relations for inducing BHS and others to breach their contracts with Niche and contract directly with The Orchard. n. DISCUSSION a. Standard for Summary Judgment The standards for summary judgment arc well settled. Summary judgment is a drastic remedy whid1 \viii he granted only when the party seeking summary judgment has established that there arc no triable issues of fact (see CPLR 3212 [b ]: Alvarez r l'rospect Hosp .. 68 NY2d 329 [1986}; Sillman v Twe11tie1h Centwy-Fox Film Corporation. 3 NY2d 395 [l 957]). To prevail. the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidcntiary proof in admissible form, which may include deposition transcripts and other proof annexed to an attorney's ailinnation (see Alvarez v Prospect Hosp .. supra; Olan t' Farrell Unes. 64 NY2d I 092 l t 985 J: Zuckerman v City <if New York, 49 NY2d 557 119801). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers (see Winegrad v New York Univ. Med. Ctr .. 64 NY2d 851 ( 19851 ). Once the initial showing has been made, the burden shifls to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidcntiary proof in admissible fom1 sufficient to require a trial of material issues of fact (see Km~fma11 v ,'i'ilver. 90 NY2d 204, 208 11997 I). Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see Negri v Stop & Shop. 65 NY2d 625 11985 J) and summary judgment should be denied where there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders. v Ceppos. 46 NY2d 223, 231 [ 19781), bald, conclusory assertions or speculation and "I al shadowy semblance of an issue" arc insufficient to defeat a summary judgment motion (SJ. ('apa!in Assoc. v (i/obi: Mfg. Corp., 34 NY2d 338, 34 l L19741: see Zuckerman v Ciry o(l\'ew fork. supra: Ehrlich v American M<minger Greenhouse Mfg. Corp.. 26 NY2d 255, 259 [1970]). Lastly. "la] motion fi)r summary judg1ncnt should not be granted where the fads are in Jispute, where conllicting inferences may be drawn from the evidence. or where there arc issues of credibility" (Rui: v Gr(tfin. 7l AD3<l 1112 r2d Dept 20 I OJ, quoting Scott v Long Is. Power Auth.. 294 AD2d 348 12d Dept 2002]). 3 4 of 10 [*FILED: 4] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 b. Claims against Sony Plaintiff Niche admits the breach of contract claim and the claim for breach of the implied covenant of good faith and fair dealing fail as against Sony (Opp at 10). Niche has not presented any arguments against Sony as to the Third Cause of Action. Accordingly, the Third Cause of /\ction as against Sony shall be dismissed as abandoned. The entire complaint shall be dismissed as against Sony. c. Breach of Contract Claim against The Orchard To sustain a breach of contract cause of action. plaintiff must show: (I) an agreement: (2) plaintiff's performance; (3) defendant's breach of that agreement; and (4) damages (.\·l'e Furia \' Furia, 116 AD2d 694, 695 [2d Dept 1986 I). '"The fundamental rule of contract interpretation is that agreements are construed in accord vvith the parties' intent ... and '[t]he hest evidence of \Vhat parties to a written agreement intend is what they say in their writing· . . . . Thus, a written agreement that is dear and unambiguous on its face must be enforced according to the plain terms. and extrinsic evidence of the parties' intent may be considered only if the agreement is an1biguous [internal citations omitted]" (Riverside S'oufh Planning C'orp. v CRP/Exteil Riverside/,/', 60 AD3d 61, 66 [I st Oepl 2008]. afld 13 NY3d 398 I2009]). Whether a contract is ambiguous presents a question of law for resolution by the courts (id. at 67). Courts should adopt an interpretation of a contract which gives meaning to every provision of the contract, with no provision lei! \Vithout force and effect (see Nlf I 4 FK Corp. v Bank One Trus! Co, NA., 37 AD3d 2T2 l l st Dept 200Tj). It is undisputed that the Agreement is valid and enforceable as between Niche and The Orchard. and that plaintiff has performed. The alleged breaches arc as set forth below. Repre_~~Dl~!!ion with SoundExchange. The Orchard is alleged to have improperly represented Niche's content \Vith SoundExchange and withheld royalties owned Niche for that content. However. plaintiff acknowledges funds were released (lannacchione aff NYSCEf Doc. No. 30. ~I 18 [rep011ing he \vas informed that, atkr some delay, all Niche tracks at SoundExchange were released by The Orchard and that amounts deducted by The Orchard had been credited!). Plaintiff has not pied or sho\vn evidence of any damages from this alleged breach. Accordingly. this claim fails. Failure to Deliver Content for the BHS 75 111 Anniversaiy Release. The Agreement obligates The Orchard to coordinate promotional opportunities with Niche (Opp at 14, citing Agreement, ~L but likely meaning~ 3 [d] [''At Licensor's request, [The Orchardj will assist [Niche) in the 4 5 of 10 [*FILED: 5] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 promotion ol' the Catalog within the various licensed digital music services through active and passive methods. and will use commercially reasonable efforts to coordinate promotional opportunili1:s \Vith !Niche] by way of traditional oHlinc media advertising means'']). No admissible evidence has been provided (nor arc there any specific statements in the Ruic 19-a Stutcmcnt) supporting the conclusory assertion that del~ndants failed to timdy provide such content, or the tacit assumption that Niche requested content related to the BHS 75th Anniversary. in the first place (set.' Complaint.~! 26, Opp at 14-15. SUMF ~ 61). As far as plaintiff requests discovery on this issue, evidence of their request and delendanf s alleged failure would be within plaintiff's control. This portion of the claim is n.~jected. Failure tp use Commcrciallv Reasonahle Efforts to Coordinate Promotional Opportunities Regarding Opt-Outs. Niche claims The Orchard's decision not lo provide Niche with the financial terms it negotiated with digital distributors constitutes a breach of the Agreement by failing to use commercially reasonahle elforts to coordinate promotional opportunities (Opp at 15). Plaintiff cites Section I of the Agreement, but presumably means section 3(d). quoted above. This section of the Agreement does not apply here, as the conduct complained of has nothing lo do with "coordinaqingl promotional opportunities with [Niche! by way of traditional oftlinc media advertising means." No breach or the contract (of either section I or section 3) has been shown here. lnducirrn 111 JS to Breach the First BHS Contract. Plaintiff claims stealing BHS as a client is a breach of section 3(d) of the Agreement, because plaintiff cannot promote Niche's catalog while taking its client. The Agreement docs not contain a non-compete provision. Had the parties intended such a provision, they could have included one. further, under California lavv, ·'covenants not to compete in contracts other than for sale of good\\ill or dissolution of partnership are void'' ( Kolani r 0/uska, 64 Cal App 4th 402, 406 [Cal Ct App 1998 ]). This po11ion of the claim fails. Faihire to Promote the Niche Catalog. Niche claims The Orchard failed to promote the catalog, as required by section 3(d) of the Agreement, by inducing a breach of the First BHS Agreement. This is merely another attempt to read in a non-compete agreement It. too, fails. Failing to Encourage Product Features. Niche makes no specific arguments ahout this claim, but asserts it needs discovery. CPLR 3212(1) provides that ""lslhould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist s 6 of 10 [*FILED: 6] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 but cannot then be stated. the court may deny the motion or may order a continuam.:e to permit affidavits to he obtained or disclosure to be had .... '' No such showing has been made, or even alleged as to what precisely Niche maintains The Orchard failed to do. This daim must he dismissed. d. Breach of Covenant of Good Faith and Fair Dealing II is well settled that within every contra<.:t is an implied covenant of good faith and fair dealings (see 511 IV 23:!11d Owners Corp. vJcnnifer Realty Co., 98 NY2d 144, l 53 J2002 I: Dalwn v J:'d11l'. /'es! ing Sen·., 87 NY 2d 3 84. 389 j 1995 i). The implied covenant ''embraces a pledge that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (511 ~V. 23211d Owners Corp .• 98 NY2d at 153 !internal quotatinn marks omitted I: see also 6243 .Jericho Really Corp. v .AutoZone. Inc.. 7 l /\D3d 983. 984 [2d Dept 20101: Jforan \'Erk, 11 NY3d 452, 457 [2008]). A breach of the covenant is a breach of the wntrm:t itself(see Boscoral Operating I.LC r Nautica Apparel, Inc .. 298 AD2d '.DO. 331 l l st Dept 2002 i). The covenant of good faith and frtir dealing is breached when a party acts in a manner that. although not expressly forbidden by the contractual provision. would deprive the other party of the benefits of the agreement Sorenson 1· (.\'Ct' 51 I W. 232nJ Owners Corp , 98 N Y2d at 153: !Jridge ( 'apita! Corp. 52 AD3d 265. 267 [I st Dept 2008]). The covenant encompasses any promises that a reasonable person in the position of the promisee would be justiticd in understanding were included (see 51 I W. 23Jnd Owners Corp.. 98 NY2c.1 at 153: Ochal v fr/. Tech. Corp.. 26 AD3d 575, 576 13d Dept 20061). However. the obligations imposed hy an implied covenant or good faith and fair dealing arc limited to obligations in aiJ and furtherance of the explicit terms of the parties' agreement (see 'frump 011 Ocean. LU· 1 1 .'-itate. 79 AD3d 1325. 1326 13d Dept 2010]). The covenant cannot be construed so broadly as to nullify the e.-;pn:ss terms Capilal !11n. LLC or a contract. or to create independent contractual rights (see I' hoe nix 7 1· Ellington Mgt. Group, L.LC.. 51AD3d549. 550 list Dept 2008]: 76 Third Ave. J.u· r Urt'hle & Finger. LI!'. 8 AD3d 75. [1st Dept 2004L ,C...'NS' Bunk. N.1'. ,. <'itihank. N.A. 7 AD3J 35:2. 355 [I st Dept 20041: Fesseha v TD Waterhouse Inv. Servs .. lnc .. 305 AD2d 268. I l st Dept 2003 j). lo establish a breach of the implied covenant. the plaintiff must allege facts that tend to show that the Defendants sought to prevent performance of the contract or to \Vithhold its bendits from tht: plaintiff(s!:'e A i'cntine Im•. ,Hgml.. Inc. v Can. Imperial Bunk o(Com1111111ica1ions inc., 265 i\D2d 513. 51412d Dept 1999]). 6 7 of 10 [*FILED: 7] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 Niche argues The On:hard breached the covenant of good faith and fair dt::aling by competing fr1r business with Niche (Opp at 14). This is yet another allempt to read a 11011-1.:xistent but, in any event. prohibited mm-competition clause into the Agreement. Niche has not shown that the The Orchard sought to prevent performance of the contract or withheld its benefits from the plaintiff. This claim also fails. c. Tortious Interference To prove a claim for tortious interference with contract, the plaintiff must show: (1) the existence of a valid contract: (2) defendant's knowledge or the contract; (3) defendants' intentional procurement or the third-party's breach without justification; (4) actual breach of the contract; and (5) damages caused by breach of the contract (Lama Holding Co. v S'milh Barney, 88 NY2d 413. 424 11996] ); Km11os. Inc. v A VX ('mp., 81 NY2d 90 [ 1993 J). The contract alleged to he interforcd with is the First BHS Agreemt:nl. It is undisputed it was a valid and enforceable contract before HHS sent the termination letter. It is also undisputed The Orchard knew about the First BHS Agreement. It is disputed whether the termination letter was effective in terminating that agreement. Niche argues that signing BHS while km.nving that Niche was the only other distribution channel available was improper (Opp. Br. At p. 19, NYSCEF Doc. No. 27). It cites no ]av.-· in support. As noted above, non-competition agreements are unenforceable. The termination letter, dated September 30, 20 l 4 (attached as Exhibit C to McCrady aff. NYSCEF Doc. No. 21 ), states: ··As provided in Section 7 of the Prinlcd Music Distribution Agreement dated January I, 2011 ... fBHS J hereby tenninates the tenn of the Agreement effective at the end or the current Agreement term on December 31, 2014. '' (emphasis added). The Jetter \Vas attached to an e-mail, which stated: .. Attached you will !ind a letter terminating our agreement .... Given our pending amendment and automatic renewal upon us. we feel this is the best way to move fonvard \Vi th our relationship as we continue to evaluate our next steps \Vith [Niche I and any other potential business partner." (sec NYSCEF Doc. No. 24) 1 In December 2014, The Orchard and BHS signed a distribution agreement (set' O/BHS Agreement attached as Exhibit B to McCrady aff, NYSCEF Doc. No. 21 ). Subsequently. on January 2. 2015, Jonathan Clunics. general counsel of Niche acknowkdged that: All hough not ncn~ssary to the court's decision. it appears that RHS made the change bemuse it was dissatisfied with the <>crvicc Niche was providing, (see NYSCF.F Doc. No. 24, Ex. J). 7 8 of 10 [*FILED: 8] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 "One of our major artists \Vi th a significant number of releases [BI IS] has dectc<l to take their catalog elsewhere for digital distribution and they have just terminated their contract with us·· He instructed The Orchard to have the HHS recorded music removed from the various online services (attached as Exhibit D to Mc Crady aff, NYSCEf Doc. No. 21 ). On a motion t"lx summary judgment, the court must carefully scrutinize the motion papers in a light most favorable lo the party opposing the motion and give that party the benefit of every favorable inference. Summary judgment should be denied where there is any doubt as to the existence or a triable issue of fact. I kre. the September 20, 2015 letter, read in isolation. provides for termination of the sheet music agreement only. However. emails provided by nonparty BHS reveals it was dissatisfied \Vith Niche and wanted lo sever its lies (see NYSCEF Doc. No. 24). The conduct of BI IS and Niche shows conclusively that the parties understood that HHS intended to terminate the agreement governing the digital catalog of its music. Specifically, along with the tennination notice, BITS allached an email a expressing its plan to ''evaluate our next steps with INichel and any other potential husiness on December 3, 2014. BHS took that ·'next step" when ii entered into an agreement with The Orchard f(x distribution of music in its digital catalog. Understanding the intentions of HHS. on January 2, 2015, the general counsel of Niche confirmed to The Orchard that BI IS had '·elected to take their catalog elsewhere for digital distribution and have just tem1inated their contract with [Nichef') (SLJMF ii 29). 2 Niche has not sufficiently alleged, let alone provided admissible evidence, that The Orchard intentionally procured RI !S's breach of the First BI IS Agreement without justification. Then: is other evidence to demonstrate that The Orchard did not procure any alleged breach by Bl IS, much less procure it by improper means (see :!Rf-.P Fifty-Seventh. /IC 1· PA1GP Assoc., LP, l 15 AD 3d 402 fl st Dept 2014 j). In response to an intc1TOgatory that Niche .. [ I]dcntify all persons with knowledge of any person who allegedly induced the breach of the 131 IS Agreement" Niche conceded that "Niche docs not allege that anyone induced the breach of the BHS agreement. Accordingly. Niche is not aware of any person with kmmledge or any person who induced the breach of the BllS Agreement" (NYSCEF Doc. No. 24, Ex. C, Plaintiffs O~jections and 1'csponses to Defendants' hrst Set of Interrogations. Interrogatory No. 7). The "BHS Agreement". a dclined tl:rm. is the BHS audio agreemL·nt dated March 22. 2007, reterrcd to in this Decision and Order a~ "First BHS Agn:ernenf' (sel' id, at Interrogatory No. I). ln a Supplemental Response, Niche clarified that it never received "proper notice for the termination nf thc First 131 IS f Agreement]. Accordingly, the First 131 IS [Agreement] remains in force ... [It] was breached in early 2015 when [BHSj switched companies to the The Orchard for the publication of digital music'· (sec id .. Ex. E. at Supplemental Respon5e to Interrogatory 7). It adds that ·'Niche believes that The Orchard induced thi<; breach and it is this breach that is central to Niche's daim against defendants" (id.). Notably, Niche has not identified any focts tending to show that The Orchard induced BHS to commit the error that resulted in failure of 131 IS to provide "proper notice''. 8 9 of 10 [*FILED: 9] NEW YORK COUNTY CLERK 06/20/2019 03:55 PM NYSCEF DOC. NO. 35 INDEX NO. 650100/2018 RECEIVED NYSCEF: 06/20/2019 While the Court of Appeals has noted that "'mere status as plaintiffs competitor is not a legal or financial stake in the breaching party's business that permits defendant's inducement of a hreach of contract[ .... I existing contractual relationships do[] not negate a competitor's right to solicit business, when:: liability is limited to improper inducement of a third party to breach its rnntrw..:C (White Plains Coat & Apron Co .. Inc. v Cintas Corp., 8 NY3d 422, 426-27 [2007]). While plaintiff makes vague. conclusory allegations of The Orchard having used Niche's proprietary infomrntion to ohtain BHS's business, it alleges nothing specific and fails to provide any admissible evidence on this point. Nothing in Niche's Agreement with The Orchard restrains BHS from '"tak[ing] its catalog else\vhcrc''. The motion for summary judgment seeking dismissal of the First. Set:ond and Third causes of action shall he granted and the hreat:h of contract, breach of the covcant of goo<l faith and fair dealing and lortious interference with contract claims shall be dismissed. lt is hereby ORDFRED that the molion for summary judgment of defendants The The Orchard Enterprises, Inc., (Motion Sequence Number 001) is GRANTED: and it is farther ORDERFD that the nnnplaint against defendant Sony Music Entertainment. Inc., is DISMISSED for the reasons stated above: and it is further ORDERli:D that the complaint of plaintiff Niche Music Group. LLC is hereby DIS.MISSED in its entirety and the Clerk of the Court is directed to enler judgment against plaintiffNichc Music Group. LI ,C and in fovor of defondants Sony Music Entertainment. Int:., and The Ort:hard Enterprises. Inc .. together with costs and disbursements to be taxed in an amount calculated by the Clerk upon presentation of a proper bill of costs. This constitutes the decision and order of the court. DATED: ENTER, .June 19, 2019 9 10 of 10

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