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Bow Wow claim

August 28, 2012
By JO ANN BOBBY-GILBERT - Staff Writer ( , Morning Journal News

EAST LIVERPOOL - While students headed back to the classroom Monday, three city school district officials spent the morning in Municipal Court, responding to a small claims suit filed over un-recouped concert ticket proceeds.

During a two-hour hearing before Judge Melissa Byers Emmerling, Superintendent James Herring and Mark Reed, director of buildings and grounds were questioned by complainant Guy Taylor of Pennsylvania Avenue and by Herring's co-defendant Terrance Smitherman of T&T Promotions, as well as by attorney Megan D. Maurer of Pepple & Waggoner, representing the school district, and, at times, by the judge.

Taylor and Smitherman appeared without legal counsel, representing themselves. Also present but not testifying was associate Principal Jay Kiger.

Taylor filed the small claims complaint July 25 against Smitherman and Herring, saying he purchased seven tickets to the concert by rap artist Bow Wow which was canceled by Herring after he said Smitherman failed to secure liability insurance required by the rental contract he signed to use district facilities.

Taylor is asking for $3,000 plus interest since the Nov. 6, 2011 date of the canceled concert.

Although Byers Emmerling said 15 minutes are normally allotted for small claims hearings, she was allowing as much time as necessary for this case, and at one point, granted a recess to contact Reed, who had initially not been called as a witness.

Byers Emmerling asked Taylor why he included East Liverpool High School in his list of defendants and was told because the high school's name was listed on tickets and posters about the concert, because tickets could be purchased at the high school, and because that was the venue for the concert.

He paid $170 for the seven tickets but did not have a copy of them available when asked by the judge.

Asked by Maurer if Herring ever promised to reimburse him for the tickets, Taylor responded, "No, he stayed in his office and wouldn't talk to me. If anybody had said it might take a year or 18 months (to be reimbursed) I'd have waited. I did wait."

Smitherman said during testimony that he and former principal Jack Cunningham planned the concert as "something to do for the kids" and said Cunningham asked what could be done to make it "bigger."

When told pre-event ticket sales, Cunningham told Smitherman he could sell them at the school, and he was there for about two months, selling a total of 250 for $6,550, he testified.

He also testified about meeting with Cunningham and Reed on the Tuesday prior to the event and said nothing was mentioned about insurance but then received a voice mail from Herring on Thursday telling him the concert was canceled because he didn't have the insurance paperwork on his desk.

Smitherman testified that assistant Law Director Tim McNicol and city detectives had determined all the ticket money had gone "back into the show," saying, "I didn't go to Vegas or anything."

According to Smitherman's testimony, he was required to pay $12,500 up front for the performer and $12,500 the day of the concert. When the judge pointed out he had only sold $6,550 worth of tickets, he said walk-up sales at the door were expected to bring in larger sums.

"We knew it wasn't going to be a big money-maker. It was based on having two more concerts," Smitherman said of the deal he made with Cunningham.

He said he "went on the vendors' word" that they would return the money he spent with them, which would have allowed him to return ticket sale proceeds, but that didn't happen.

Smitherman pointed out that, in such cases, a promoter normally has one year to reschedule a concert but the problem has been finding a large enough venue in the city.

During his time on the stand, Reed presented two memos to Herring dated Nov. 1 and 3 indicating he spoke with Smitherman about not being in compliance with the insurance requirement and then recommending to the superintendent that the concert be canceled since it had not been secured.

Smitherman said "absolutely not" when asked if Reed had told him during a Nov. 1 phone conversation he had a noon deadline on Nov. 3 to secure insurance.

He said Herring could have called and said he had a concern and ask him to come into the office, but did not. He had not met Herring prior to yesterday's hearing.

Smitherman advised he had obtained a quote and the insurance policy was to be hand-delivered to Reed on Friday, the day prior to the concert, which he said "was the agreement we made," that he confirmed with the school secretary.

It was noted during the hearing that the rental contract signed by Smitherman and Reed actually says insurance is "strongly recommended," not required and when asked if the defendants had anything saying it is required, Maurer presented the memos from Reed to Herring.

Reed said there were several phone conversations between he and Smitherman regarding the concert and he verbally informed Smitherman insurance was required with a noon Nov. 3 deadline.

Herring denied that the district was a co-sponsor of the event, saying, "They were just renting space."

"So, I just woke up one day and walked into East Liverpool High School and started selling tickets?" Smitherman asked, continuing, "Was someone in the district responsible for making an agreement for (this) concert?"

"Through the rental program," Herring responded.

Herring also denied that the district did any promotion for the concert, but Smitherman said teacher Jason Croxall and Cunningham had created a commercial at the school that was aired on cable television.

Byers Emmerling pointed out that the contract noted those signing would receive a list of rules and regulations but none were attached, saying, "They should have been an addendum to the contract."

Calling the contract "very ambiguous for many different reasons," Byers Emmerling said she needed several things not presented during the hearing, including a copy of the tickets, a copy of the aforementioned rules and regulations and a hard copy of the commercial so she could determine "what was disseminated to the public."

Once received, she will make a decision on the case, although she noted, "I think we can agree, there's no fraud here."



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