## Facts

- Yessup Touring II, LLC (Yessup) acted for the services of the band Van Halen in arranging a potential 2004 concert date at Oriole Park at Camden Yards.
- On April 27, 2004, Baltimore Orioles, Inc. (Orioles) sent Yessup an offer for Van Halen to perform at Oriole Park on September 1, 2004, with a $1,000,000 minimum guarantee.
- On April 28, 2004, the Orioles sent a second “firm offer” with the same terms as April 27, except it increased the minimum guarantee to $1,500,000.
- On June 9 or 10, 2004, Yessup claimed it orally accepted the April 28 offer during a telephone conversation; the parties disputed whether acceptance and contract formation occurred.
- After the June 9 or 10 call, Yessup informed the Orioles it wanted a $750,000 deposit; the parties disputed whether the Orioles agreed to pay that deposit.
- On June 9, 2004, the Orioles sent a third offer containing the same terms as the April 28 offer, except it stated Van Halen would cover the cost of the opening act.
- Yessup alleged it never received the June 9 offer.
- On June 24, 2004, Yessup sent a confirmation letter to the Orioles, but the letter included several terms that were not included in the Orioles’ April 28 offer (and were also not included in the June 9 offer described by the Orioles).
- The parties continued communicating after June 24.
- On July 26, 2004, the Orioles sent Yessup a final letter indicating the concert would not go forward.
- Yessup sued the Orioles for breach of contract and breach of an implied-in-fact contract, contending the parties had entered a binding agreement.
- The Orioles moved for summary judgment, arguing Yessup could not establish the required elements of its claims because the parties never reached mutual agreement on a definite proposal.

## Issues

1. Whether the record, viewed in Yessup’s favor, showed a genuine dispute of material fact on whether the Orioles’ April 28 offer was accepted and formed an enforceable contract for the September 1, 2004 concert.
2. Whether disputed terms and competing communications (including the requested deposit, opening-act costs, and additional terms in Yessup’s June 24 letter) defeated mutual assent or made the alleged agreement too indefinite as a matter of law.
3. Whether a reasonable factfinder could find an implied-in-fact contract based on the parties’ communications and conduct even without a final signed writing.
4. Whether the Orioles were entitled to summary judgment under Rule 56 on Yessup’s express-contract and implied-in-fact contract claims.

## Decision

- The court denied the Orioles’ motion for summary judgment.
- The court found that disputed facts regarding the negotiations, the alleged oral acceptance, and the parties’ later communications created triable questions on contract formation and mutual assent.
- The court allowed Yessup to proceed on both express-contract and implied-in-fact contract theories because a factfinder could conclude the parties reached a binding agreement.
- The decision did not resolve whether a contract ultimately existed or what damages, if any, were owed; it held only that the Orioles were not entitled to judgment as a matter of law on the record presented.

## Legal Principles

- A contract requires mutual assent to the material terms; assent may be shown through words and conduct, including oral acceptance.
- An agreement is not unenforceable solely because some terms remain disputed; whether the parties agreed to enough terms to form a contract can be a fact question.
- An implied-in-fact contract may arise when the parties’ conduct and communications show an intent to contract, even if a final integrated writing is not executed.
- Summary judgment is improper where reasonable factfinders could differ on what was offered, whether it was accepted, and whether the parties’ later communications altered, rejected, or confirmed the alleged agreement.

## Conclusion

Because the negotiations included an alleged oral acceptance of the Orioles’ April 28 “firm offer,” later disputed terms (including a deposit request and opening-act costs), and continuing communications culminating in the Orioles’ July 26 cancellation letter, the court held that genuine disputes of material fact remained on whether an express or implied-in-fact concert contract was formed, and it therefore denied summary judgment.


Yessup Touring II, LLC F/S/O Van Halen v. Baltimore Orioles, Inc., 2005 WL 6124309 (2005)