Nexstar gets second shot at recovering damages from former newscaster

David Yates Jul. 2, 2008, 1:27pm

A past Southeast Texas media personality who left the area to pursue bluer oceans in Florida may come home soon, thanks to Beaumont justices granting Jennifer Gray's former employer Nexstar Broadcasting a new trial.

In 2007, Nexstar Broadcasting, better known as KBTV NBC 4, appealed a judgment rendered in a lawsuit filed against former employee Jennifer Gray for breach of contract and against Gray's subsequent employer, KTBS Inc., for interference with the contract.

According to court documents, two years ago a jury awarded Nexstar $1 in nominal damages from Gray on the breach of contract claim, and $2,000 in actual damages from KTBS on the tortious interference with the contract claim.

Judge Gary Sanderson, 60th District, had granted Gray a declaratory judgment, ruling that a liquidated damages provision in the contract was an unenforceable penalty as a matter of law, and further ruled that Nexstar was not entitled to attorneys' fees and awarded attorneys' fees instead to Gray.

The court granted KTBS's motion for judgment notwithstanding the verdict on the ground that there was no evidence of damages and rendered judgment that Nexstar take nothing from KTBS, states court documents.

On June 26 justices on Texas' Ninth Court of Appeals reversed and remanded Judge Sanderson's judgments and ordered a new trial.

"We reverse the trial court's judgment," states the memorandum opinion. "The cause is remanded for a new trial."

As many local residents may remember, Gray started her career as a morning meteorologist at KBTV in 2003. Two years later, she joined KTBS in Shreveport, La.

In 2007, Gray moved to Florida and joined the WTVJ NBC 6 team, where she "is now fulfilling her dream to forecast in South Florida," according to the media station's Web site.

"Gray was originally hired by Nexstar as a reporter in 2003 and signed an employment contract," the opinion states.

"In 2004, Gray signed another contract with Nexstar as an on-air performer for a term of employment from April 11, 2004, to May 31, 2006. The contract contained a provision titled 'Remedies and Procedure for Remedying Disputes,' which stated:

"In the event Employee elects to breach this Agreement and leave employment prior to the conclusion of the term, the Company may accept as liquidated damages for said breach the amount of $10,000. In the event the Company determines that the liquidated damages amount described above is insufficient to cover all of its damages, the Company may seek to obtain additional compensatory and consequential damages by pursuing an action under paragraph 7(a) herein."

In February 2005, Gray gave notice that she would be resigning from her position. Nexstar sent her a letter reminding her of her continuing obligations under the contract. The letter informed Gray she would have to pay $10,000 if she left her employment. Nexstar learned that KTBS was interested in hiring Gray and sent KTBS a letter stating that Gray was still under contract, the opinion states.

Gray stopped appearing as an on-air performer for Nexstar in March 2005. Within two weeks of Gray's departure, she began working for KTBS.

Nexstar's lawsuit against Gray sought "liquidated damages from Gray and/or all actual and consequential damages proximately caused by her breach of contract." Gray filed a counterclaim seeking a declaratory judgment that the liquidated damages provision in the contract was an unenforceable penalty as a matter of law, the opinion states.

"The trial court found that the liquidated damages provision in the employment contract was an unenforceable penalty," the opinion states.

"The jury awarded Nexstar $1 in nominal damages from Gray for the breach of contract. Nexstar and Gray stipulated to the amount of reasonable attorney's fees, but not to entitlement to attorney's fees. The trial court awarded Gray attorney's fees. "

In its appeal, Nexstar argued the trial court erred in granting the declaratory judgment, because Gray had simply re-asserted an affirmative defense as a request for declaratory judgment, and that liquidates damages was not an "unenforceable penalty."

Nexstar also contended the trial court erred in awarding Gray attorney's fees because Gray asserted the declaratory judgment counterclaim merely to recover attorney's fees that were otherwise not recoverable.

The trial court did not err in failing to award $10,000 as "liquidated" damages. Issue two is overruled.

Following the actual trail, Judge Sanderson found no evidence to support the $2,000 damage finding and signed a judgment notwithstanding the verdict.

"There is legally sufficient evidence in this record of some damages, however," the opinion states.

"Though this record may not support an award of all of the costs of finding a replacement, the jury could reasonably conclude some of the costs incurred in covering Gray's job duties, hiring a freelance reporter, and finding a replacement on short notice could have been avoided if KTBS had not interfered with the contract.

"On this record, a coherent judgment cannot be rendered. A new trial is required."

Nexstar is represented by attorney William L. Davis.

Gray is represented by attorney Wyatt D. Snider and KTBS is represented by attorney Scott Louis Zimmer.

Appeals case No. 09-07-00364-CV
Trial case No. B174-467

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