Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc.

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NOT DESIGNATED FOR PUBLICATION

No. 118,456


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STECKLINE COMMUNICATIONS, INC.,
Appellant,

v.

JOURNAL BROADCAST GROUP OF KANSAS, INC.,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed
October 5, 2018. Reversed and remanded with directions.

William P. Tretbar and Adam R. Burrus, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of
Wichita, for appellant.

Jay F. Fowler and Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for appellee.

Before GREEN, P.J., PIERRON and BUSER, JJ.

PER CURIAM: This is a summary judgment case involving a contract dispute
between two companies in the radio broadcasting industry: the plaintiff, Steckline
Communications, Inc. (SCI), and the defendant, Journal Broadcast Group of Kansas, Inc.
(JBGK). In 2003, SCI's predecessor-in-interest, Mid-America Ag Network, Inc. (MAAN,
Inc.) entered into a written agreement with JBGK to settle prior litigation. Under the
agreement, MAAN, Inc. agreed to provide programming for broadcast over a radio
station owned by JBGK for a period of 15 years. JBGK agreed to broadcast the
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programming, as well as the advertising sold by MAAN, Inc. for air during the
broadcasts.

In 2005, the written settlement agreement was assigned by MAAN, Inc. to SCI,
and SCI began furnishing content to JBGK under the agreement. In June 2012, JBGK
stopped broadcasting the programming and advertising which SCI had by then been
providing for seven years. SCI sued JBGK for breach of the 2003 agreement.

JBGK moved to dismiss SCI's action, asserting that SCI lacked standing because
JBGK never consented to the assignment of MAAN, Inc.'s rights. In March 2014, the
trial court granted JBGK's motion to dismiss. The trial court based its dismissal of SCI's
action on the failure of MAAN, Inc. to obtain JBGK's consent to the assignment of the
agreement as required by its terms. The trial court's decision was affirmed by this court
but eventually reversed by our Supreme Court in Steckline Communications, Inc. v.
Journal Broadcast Group of Kansas, Inc., 305 Kan. 761, 388 P.3d 84 (2017). Our
Supreme Court held that SCI had pled facts which, if proven, were sufficient to establish
that JBGK was equitably estopped to contest SCI's standing to bring this action. Thus, it
remanded this case for further proceedings.

On remand, JBGK moved for summary judgment. The trial court granted JBGK's
motion and held that SCI had failed to prove the elements of an equitable estoppel claim.
In making its decision, the trial court concluded that SCI's evidence offered to prove that
JBGK "knew or should have known" about the assignment was "ambiguous" and,
therefore, SCI had failed to properly establish a claim of equitable estoppel.

On appeal, SCI asserts that this case was not ripe for summary judgment and that
the issue of whether JBGK knew or should have known of the assignment to SCI should
have been decided at trial. JBGK responds by asserting that SCI failed to establish the
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elements of equitable estoppel and that the trial court was the proper entity to decide
whether SCI had standing to assert a claim for equitable estoppel.

Because there is a disputed issue of material fact and the trial court failed to weigh
the evidence in favor of SCI, the nonmoving party, we reverse and remand for trial.

Factual Background

In 1977, Larry Steckline formed Mid America Ag Network (MAAN) and later
created Mid America Ag Network, Inc. (MAAN, Inc.) with the goal of producing market
reports and other radio programming for those in the agricultural community. MAAN,
Inc.'s principle asset was MAAN.

In 1992, MAAN, Inc.'s board of directors elected Larry's son, Greg Steckline, to
replace an existing board member. At that time, the board also appointed Greg to serve as
MAAN, Inc.'s vice-president. Greg served as MAAN, Inc.'s vice president and as a
minority stockholder until 2005.

In 2003, MAAN and JBGK settled a lawsuit. Larry, as the president of MAAN,
and Douglas G. Kiel, vice chairman of JBGK, executed the settlement agreement on
behalf of the parties. SCI was not a party to the settlement agreement. The term of the
agreement was 15 years; beginning June 9, 2003, and lasting until June 9, 2018. The
agreement provided, "[e]ffective August 1, 2003, this 2003 [a]greement will represent the
sole and entire agreement of the parties related to any radio station or other asset of
JBGK and its affiliates or to MAAN and its affiliates." Paragraph 14 of the agreement
stated:

"Binding Effect; Assignment. This 2003 Agreement shall be binding upon and inure to
the benefit of the successors, heirs and assigns of each party, provided, however, that
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MAAN shall not assign this 2003 Agreement, or any interest therein, to any Wichita
radio broadcast competitor of JBGK, without the prior written consent of Douglas G.
Kiel or Stephen J. Smith (or their respective successors), which consent may be withheld
by them in their sole discretion; and . . . neither party shall assign this 2003 Agreement
without the prior written consent of the other party, which consent shall not be
unreasonably withheld."

Paragraph 16 of the agreement stated: "Amendment. This Agreement shall only be
amended or altered through a written agreement signed by an authorized officer of each
party. No future course of conduct shall be interpreted to amend or modify the express
terms of this 2003 Agreement."

Under the agreement, MAAN agreed to provide programming and content to
JBGK for broadcasting on KDFI-FM and KFTI-AM (now known as KLIO-AM). MAAN
was entitled to the revenue from the advertising sold during the programming it provided
to JBGK. With respect to the content furnished by MAAN, paragraph 4 of the agreement
provided:

"Compliance with Federal Communications Commission Requirements. MAAN
shall ensure that the programming and commercials it provides . . . complies in all
respects with the Communications Act of 1934, as amended; all rules, regulations and
policies of the FCC (collectively, the 'FCC Requirements'); and all standards of
acceptance imposed by JBGK uniformly on providers of content or advertisements. If
JBGK determines, in its reasonable discretion, that MAAN's programming or
commercials do not comply with any of the FCC Requirements or JBGK's standards of
acceptance, JBGK shall notify MAAN of its determination. MAAN must promptly and
completely correct such issues. MAAN agrees that it shall not promote in its content or
advertisements any . . . information or content which is indecent or offensive under
contemporary community standards."

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Additionally, paragraph 5B stated: "Each program and commercial unit [provided by
MAAN] shall have an audio quality and fidelity at least as good as other programs
broadcast by JBGK."

SCI acquired the right to operate MAAN in 2005. At that time, Greg owned and
operated SCI. Neither Greg nor SCI owned MAAN, Inc. A document produced by SCI
during discovery titled, "Joint Action of Directors and Stockholders by Written Consent
in Lieu of Special Meeting," provided that MAAN would "assign all of the rights,
property and obligations described on Exhibit A" to a "New Corporation in exchange for
all of the issued and outstanding shares of capital stock" in MAAN. MAAN authorized
the "New Corporation" to be formed "under the name Steckline Broadcasting, Inc., or
under such other name as Gregory Steckline may determine." Exhibit A authorized the
assignment of "Business/Advertiser Contract, Contacts, Etc.," as well as "Affiliate
Contracts." MAAN never formally informed JBGK of any assignment of rights by
MAAN to SCI while JBGK continued to perform under the 2003 settlement agreement
between MAAN and JBGK. Still, SCI maintained that JBGK was aware of the
assignment by other means.

After the sale of the MAAN, Inc. assets, Greg asked Larry several times to contact
Kiel to help resolve issues that had arisen between KFDI/KFTI and Greg's operating
entity. In discussing the particular issues with Kiel, Larry always made clear that he was
calling on behalf of Greg, whose company then owned MAAN. Kiel would generally
give Larry the name of a JBGK employee that Greg should contact. Larry would then
relay the contact information to Greg. Often that contact was Eric McCart, because
McCart was the sales manager and, later, the general manager of the KFDI/KFTI stations
owned by JBGK.

McCart once contacted Greg asking whether Greg, as owner of the sports radio
station KGSO, was going to broadcast all the Kansas State games on that station. Greg
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declined, explaining that he could not do so because JBGK had the exclusive contractual
right under the 2003 settlement agreement to broadcast that programming over its air for
15 years.

In November 2009, SCI purchased a Wichita radio station known as KQAM-AM
1480. KQAM-AM was an affiliate of MAAN. News stories reporting the transaction
were published by the Wichita Eagle and the Wichita Business Journal on November 16,
2009. The headline of the story published by the Wichita Eagle read: "Steckline buys
KQAM 1480." The article referred to SCI and Greg Steckline and MAAN, but did not
refer to Larry. The headline of the article published by the Wichita Business JBGK read:
"Steckline buys Disney Radio Station." Again, the article did not refer to Larry but did
refer to SCI, Greg, and MAAN. The trial court, however, stated that the articles did not
mention MAAN but the articles do refer to "Mid America chain of networks" and "Mid
America Ag News."

In 2010, Larry changed the name of MAAN, Inc. to LS Media, Inc., in part
because of the confusion that had arisen from MAAN separating from MAAN, Inc. after
the asset sale to SCI.

SCI often communicated with representatives of JBGK by e-mail correspondence.
From 2005, when he bought MAAN and the Kansas State inventory, until 2012, Greg
frequently e-mailed employees of JBGK at KFDI/KFTI. The e-mails sent by Greg have
an automatic signature block with information that he is the president of SCI. The
signature block also contains the MAAN logo, along with logos of four other radio
stations owned by SCI.

Even after SCI acquired the right to operate MAAN in 2005, the source of
programming provided to KLIO was still identified as MAAN until 2012. Then, an
incident occurred on June 29, 2012, in which inappropriate language was broadcast
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during the time slot provided for MAAN. The parties continue to dispute the unresolved
facts of who was responsible for the incident and whether there were other prior ongoing
problems between the parties. Following the incident, JBGK stopped broadcasting
programming pursuant to the agreement.

Other allegedly problematic content in MAAN's programming (provided by SCI)
began in mid-2011 and lasted through June 29, 2012. JBGK documented more than 43
times when the quality of MAAN's content resulted in broadcasted periods of "dead air."
During depositions, Greg stated that JBGK "had . . . months and months and months of
opportunities to cancel this [contract] due to breach of contract."

On July 10, 2012, JBGK's senior vice president sent a letter to MAAN addressed
to Greg requesting that MAAN explain the June 29 problematic broadcast. The letter also
gave notice that the problematic broadcast constituted a breach of the 2003 settlement
agreement. Next, on August 2, 2012, following the completion of the respective internal
investigations, JBGK sent another letter to MAAN addressed to Kent A. Meyerhoff, one
of the attorneys who represented MAAN when it entered into the 2003 settlement
agreement. This letter notified MAAN that the problematic broadcast constituted an
incurable breach of the 2003 settlement agreement and that JBGK was terminating the
agreement. Beginning June 29, 2012, JBGK stopped broadcasting content and
advertisements provided by MAAN.

On December 5, 2012, SCI, referring to itself as MAAN's "predecessor-in-
interest," sued JBGK to recover damages stemming from JBGK's termination of the
settlement agreement. JBGK answered SCI's complaint and asserted a counterclaim
against SCI seeking an order from the court requiring SCI to indemnify JBGK for any
damages or costs, including attorney fees, it might incur as a result of the June 29
problematic broadcast. SCI answered JBGK's counterclaim, denying responsibility for
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any act of omission creating an obligation to indemnify JBGK and stating that no
statutory or contractual authority existed for JBGK's demand for attorney fees.

Following the close of discovery and after the parties had submitted an agreed
pretrial order, SCI moved for partial summary judgment on the liability portion of its
claim against JBGK and on JBGK's counterclaim against SCI. In its supporting
memorandum, SCI argued it was entitled to judgment as a matter of law because JBGK
breached the settlement agreement when it unilaterally determined that the June 29
problematic broadcast was an incurable breach and terminated the settlement agreement
without providing SCI an adequate period of time to cure any shortcomings in its
performance. SCI also argued it was entitled to judgment as a matter of law against
JBGK's claim for attorney fees because paragraph 12 of the settlement agreement did not
apply to SCI's breach of contract claims against JBGK.

On January 21, 2014, JBGK responded to SCI's motion for summary judgment,
arguing the problematic broadcast was not correctable and that it had given SCI adequate
notice and opportunities to correct any deficiencies in its content over the year preceding
JBGK's termination of the settlement agreement. JBGK raised the defense that SCI was
not entitled to enforce the settlement agreement because MAAN did not seek JBGK's
consent before MAAN assigned the agreement to SCI in 2005. Finally, JBGK defended
its attorney fees claim on the basis that the broad language of paragraph 12 of the
settlement agreement presented a question of fact.

The trial court held a hearing on SCI's motion for summary judgment in January
2014. The trial court denied SCI's motion on the issue of breach of the settlement
agreement and granted SCI's motion on the issue of attorney fees. In doing so, the trial
court held that SCI lacked standing to sue.

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JBGK then moved to dismiss under K.S.A. 60-212(b)(6). The trial court held a
hearing on the matter. Following oral argument, the court dismissed SCI's claim for lack
of standing. The trial court also dismissed the remainder of JBGK's counterclaim for
indemnification. As a result, all remaining claims asserted by SCI and JBGK were
extinguished. SCI appealed.

This court concluded that SCI had failed to show that MAAN's assignment of
rights was valid. Steckline Communications, Inc. v. Journal Broadcast Group of Kansas,
Inc., No. 111,651, 2015 WL 4366489, at *5-6 (Kan. App. 2015) (unpublished opinion),
rev'd 305 Kan. 761, 388 P.3d 84 (2017). Thus, this court held that SCI lacked standing to
sue under the settlement agreement. SCI filed a petition for review before our Supreme
Court, which was granted.

In holding that SCI had established standing through a claim of equitable estoppel,
our Supreme Court stated the following:

"SCI asserted well-pled facts that JBGK, by its silence at the time of the assignment,
induced SCI into believing that it had consented to the assignment of the agreement; that
JBGK received several years of service from SCI pursuant to the terms of the agreement;
that SCI rightfully relied on that course of conduct; and that SCI would be prejudiced or
harmed by permitting JBGK to void the agreement by objecting to the assignment 7 years
later.
"Viewing the well-pled facts in a light most favorable to SCI, and resolving any
factual disputes in SCI's favor, we find that SCI has sufficiently pled standing via
equitable estoppel. In other words, if SCI can continue to prove the factual basis of its
estoppel claim, JBGK will be prevented from asserting its contractual right to consent in
writing to the assignment of the contract. Without the requirement of written consent
from JBGK, there is nothing before us today demonstrating that the assignment from
MAAN, Inc. to SCI was ineffective, and SCI has standing to assert claims for breach of
the contract." 305 Kan. at 771.

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On remand, JBGK moved for summary judgment. SCI responded to JBGK's
motion and also moved for partial summary judgment in relation to JBGK's defense
based on lack of standing. JBGK also filed a reply in support of its motion for summary
judgment.

The parties agree, with few exceptions, that the trial court adopted the correct
uncontroverted and controverted facts from the parties' filings. The trial court found as
follows:

"1. The facts alleged in the Statement of Uncontroverted Facts in Defendant's
Memorandum in Support of Summary Judgment in paragraphs 15, 20, 26, 29, 31, 32,
43[,] 51, 52, 53, and 54 are controverted.
"2. The facts alleged in the Statement of Uncontroverted Facts in Defendant's
Memorandum in Support of Summary Judgment in paragraphs 1-14, 16, 17, 18, 19, 21,
22, 23, 25, 27, 30, 33-42, 44, 45, 46, 47, 49, 50, 55, 56, 57, 58, and 59 are
uncontroverted.
"3. With respect to the facts alleged in paragraph 48 of the Statement of Uncontroverted
Facts in Defendant's Memorandum in Support of Summary Judgment, the Court finds
that there is no support provided for either contention and the statement will be
disregarded for purposes of this motion.
"4. The facts alleged in the Statement of Uncontroverted Facts in Plaintiffs Response to
Motion for Summary Judgment in paragraphs, 64, 76, 78, 86, 90 and 93 are controverted.
"5. The facts alleged in the Statement of Uncontroverted Facts in Plaintiffs Response to
Motion for Summary Judgment in paragraphs 60, 61, 62, 65, 66, 68, 69, 70, 71, 75,
77,79, 80, 81, 82 (which appears twice) 84, 85, 87, 89, 91 and 92 are uncontroverted.
"7. With respect to the facts alleged in paragraph 63 of the Plaintiffs Statement of
Additional Uncontroverted Facts the court finds it is uncontroverted the parties
communicated by email."

The uncontroverted facts adopted by the trial court come from two documents.
Paragraphs 1 through 59 are listed in JBGK's motion for summary judgment. Paragraphs
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60 through 92 are listed in SCI's cross-motion for summary judgment. The
uncontroverted facts adopted by the trial court are listed as follows:

"1. 'This case is traceable to prior litigation in this District and the settlement
agreement that resolved it.' In 1998 the radio station involved in this case, call sign
KLIO-AM or KLIO (then KFDI-AM) was owned by JBGK's predecessor in interest,
which entered into an affiliation agreement with Mid America Ag Network, Inc.
"2. Pursuant to the 1998 affiliation agreement, Mid America Ag Network, Inc.
(MAAN) furnished KLIO with agricultural market reports and other Mid America Ag
Network-produced programming for broadcast. MAAN did not charge the stations a fee
for providing the programming. Instead, JBGK's predecessor in interests (which for
simplicity's sake will be referred to as JBGK) agreed to broadcast advertising that MAAN
sold direct to advertisers for broadcast along with the Mid America Ag Network
programming. MAAN retained 100% of the proceeds generated from its ad sales.
"3. In 2002, 'MAAN [was] a company engaged in the business of producing and
broadcasting news, sports and weather programs for radio and television stations.'
"4. Disputes between JBGK and MAAN arose.
"5. Under the express language of the 1998 Affiliation Agreement, unless the
parties mutually agreed to terminate the contract, there was no date of termination.
"6. One of MAAN's two stockholders (the other being Greg Steckline), and its
President in 2002, Lawrence (Larry) Steckline (Greg Steckline's father), testified that in
his view, the 1998 Affiliation Agreement was intended to continue into perpetuity and
that JBGK could not get out of its obligations under the 1998 Affiliation Agreement
unless he 'agreed to let them out.'
"7. JBGK took the position that the [1998 Affiliation Agreement] was not
enforceable, and in 2002 it removed MAAN programming and advertising spots from its
broadcasts.
"8. As a result of JBGK's actions, in 2002, MAAN commenced a civil action,
Mid America Ag Network, Inc. v. Journal Broadcast Group of Kansas, Inc., District
Court of Sedgwick County Case No. 02 C 1528, against JBGK, and JBGK asserted a
counterclaim against MAAN in the same proceeding.
"9. At issue in the 2002 litigation, on which JBGK filed a motion for partial
summary judgment, was whether the 1998 affiliation agreement was for an indefinite
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term of duration that would continue in perpetuity and was, therefore, terminable at will
under Kansas law.
"10. JBGK's motion for partial summary judgment in the 2002 litigation was
denied.
"11. Thereafter, in June of 2003, JBGK settled with MAAN and the terms of that
settlement were memorialized in the 2003 Settlement Agreement. The parties to the 2003
Settlement Agreement were JBGK and 'Mid America Ag Network, Inc., a Kansas
corporation including all of its related and affiliated persons and entities (including, but
not limited to, Mid America News Network) (collectively "MAAN").'
"12. The parties entered into the 2003 Settlement Agreement because they
wished to enter into a full settlement of the 2002 litigation, and they filed a Journal Entry
of Dismissal with prejudice and executed mutual releases.
"13. Steckline Communications, Inc. was not a party to the 2003 Settlement
Agreement, and it was not entitled any [sic] benefit from the settlement agreement.
"14. Pursuant to the 2003 Settlement Agreement, MAAN—defined in the
agreement to include 'all of its related and affiliated persons and entities' as of 2003—
agreed to provide programming and advertising to be broadcast at very specific times
over two of JBGK's radio stations, including KLIO's call sign predecessor, KFTI-AM
(formerly known as call sign KFDI-AM).
. . . .
"16. Pursuant to the 2003 Settlement Agreement, MAAN was entitled to all
revenue resulting from its sale of advertising for broadcast in conjunction with its
programming.
"17. MAAN was not required by any provisions of the 2003 Settlement
Agreement to purchase or pay for the commercial time it was given under the terms of
the 2003 Settlement Agreement.
"18. '[R]adio stations make money from the sale of advertising.'
"19. JBGK was also obligated by the 2003 Settlement Agreement to make cash
payments to Mid America Ag Network, Inc. for four years after the 2003 Settlement
Agreement was executed. It was obliged to pay a so-called 'rights fee' for the MAAN
programming, 'with $33,750.00 payable in each of the first four calendar years of this
2003 agreement by January 31 of each year beginning in 2004. Upon payment of the
fourth payment in 2008, JBGK shall have a fully-paid-up license for such programming
for the remainder of the term.'
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. . . .
"21. With regard to Mid America Ag Network, Inc.'s ability to assign the 2003
Settlement Agreement, or rights thereunder, the 2003 Settlement Agreement provided:
"'This 2003 Agreement shall be binding upon and inure to the benefit of
the successors, heirs and assigns of each party, provided, however that
MAAN shall not assign this 2003 Agreement, or any interest therein, to
any Wichita radio broadcast competitor of JBGK, without the prior
written consent of Douglas G. Kiel or Steven J. Smith (or their respective
successors), which consent may be withheld by them in their sole
discretion; and . . . neither party shall assign this 2003 Agreement
without the prior written consent of the other party, which consent shall
not be unreasonably withheld.'
"22. Steckline Communications, Inc. (SCI) is a competitor to JBGK. During the
relevant time, it operated two radio stations in the Wichita market, KGSO and KQAM,
which compete for advertising and advertising revenue with JBGK.
"23. The benefits JBGK received from the 2003 Settlement Agreement were the
dismissal of the 2002 lawsuit and the substitution of the 2003 Agreement for the terms
and conditions in the 1998 'perpetual contract.' ('Whereas, the parties are currently in
litigation . . . and Whereas, the parties wish to enter into a full settlement of the litigation
and clearly define the terms for a new relationship under which they will work together in
the future.').
. . . .
"25. JBGK did not receive any of the revenue for the sale of ads accompanying
the MAAN programming, or for the sale of air time to MAAN, pursuant to the terms of
the 2003 Settlement Agreement.
. . . .
"27. In fact, SCI's control over the times specified in the 2003 Agreement
detrimentally impacted the value of KLIO both from a programming standpoint and from
the standpoint of JBGK's ability to compete with MAAN or SCI for advertising revenues.
. . . .
"30. Greg Steckline operates Mid America Ag Network.
. . . .
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"33. In the pretrial order, plaintiff admitted that Steckline Communications, Inc.
(SCI) now owns and operates the business known by the trade name Mid America Ag
Network.
"34. Greg Steckline owns SCI.
"35. Greg Steckline, testifying as a corporate representative (a K.S.A. 60-
230(b)(6) witness) for SCI testified that Mid America Ag Network is a d/b/a of SCI.
"36. Neither Greg Steckline nor SCI owns Mid America Ag Network, Inc.,
which still exists; however, its name has been changed to LS Media.
"37. On air, the source of the programming provided to KLIO from 2003-2012
continued to be identified as 'Mid America Ag Network.'
"38. 'Mid America Ag Network, Inc. did not seek or obtain [JBGK's] approval
prior to assigning the settlement agreement to SCI's predecessor.'
"39. MAAN was obligated under the 2003 Settlement Agreement to provide
programs and commercials with an audio quality and fidelity at least as good as other
programs broadcast by JBGK, and to deliver those programs and commercials to JBGK
via satellite or ISDN facilities.
"40. MAAN was obligated under the 2003 Settlement Agreement to provide
programs and commercials which complied in all respects with the Communications Act
of 1934, as amended; all rules, regulations and policies of the FCC; and all standards of
acceptance uniformly imposed by JBGK on its content providers.
"41. MAAN was also obligated under the 2003 Settlement Agreement not to
promote in its content or advertisements any content which is indecent or offensive under
contemporary community standards.
"42. After notification by JBGK that it determined that MAAN's programming or
advertising did not comply with JBGK's acceptance standards, MAAN was obligated
under the 2003 Settlement Agreement to 'promptly and completely' correct any
noncompliance.
. . . .
"44. The requirement that MAAN shall not promote in its content or
advertisements illegal gambling or lotteries, tobacco products, or information or content
which is indecent or offensive under contemporary community standards is set out in a
separate sentence of ¶ 4 of the 2003 Settlement Agreement. That sentence comes after
the sentence in the contract that requires MAAN to promptly and completely correct any
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issue concerning content which does not comply with any of the FCC Requirements, or
with JBGK's uniformly imposed standards of acceptance.
"45. When Greg Steckline was asked about the repeated instances of MAAN's
failure to deliver programming with adequate audio quality and fidelity to JBGK before
June 29, 2012, he testified as follows:
"Q. [Fowler, attorney for JBGK] Let's talk about some of the issues
that you were having. By the way, have you reviewed the e-mail
communications from Journal Broadcasting regarding the
performance issue?
"A. [Greg Steckline, pursuant to K.S.A. 230(b)(6)] Yes.
"Q. When did you do that?
"A. Over the weekend.
"Q. And I take it you saw that there were repeated instances of failure to
deliver signal, correct?
"A. Most of that was on Mid America Ag Network.
"Q. Well, your ability to have access to KLIO was a result of an agreement
that related to the Mid America Ag Network, correct?
"A. Yes.
"Q. In fact, that's who the agreement was with, Mid America Ag Network,
[c]orrect?
"A. Yes.
"46. SCI stated in the pretrial order that 'The Mid America Ag Network
produces and distributes news and information programming and market reports, for
broadcast.'
"47. In the pretrial order, SCI also stated: 'The radio programming Mid America
Ag Network produces and distributes consists primarily of news and information of
interest to listeners involved in agriculture and agribusiness, including farmers, ranchers
and businesses that provide goods and services to farmers and ranchers. It also produces
and distributes daily market reports as well as general news and sports programming.'
. . . .
"49. When asked about quality failures with the 2-minute Mid Ag report content
furnished to KLIO, Steckline defined the Mid Ag report as: 'Programming provided by
the Mid America Ag Network.'
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"50. After this case was filed, SCI produced a document titled 'Joint Action of
Directors and Stockholders by Written Consent in Lieu of Special Meeting Mid-America
Ag Network, Inc.,' dated August 4, 2005, which is attached as Exhibit G.
. . . .
"55. The duration of JBGK's obligation to broadcast Mid America Ag Network's
programming and advertising, pursuant to the 2003 Settlement Agreement was through
June 9, 2018.
"56. There were more than 43 instances between mid-2011 and June 29, 2012 in
which JBGK gave MAAN notice of quality and fidelity failures in the content delivered
to JBGK's station, KLIO, by Mid America Ag Network.
"57. Many of these 43+ instances were 'dead air' failures.
"58. In the radio industry, even one instance of a failure to deliver programming
that results in 'dead air' is too many:
"Q. [Fowler] How many times is it acceptable not to broadcast,
initiate a 6:30 program on time?
"A. [Steckline] how many times?
Mr. Tretbar: Object to form.
"A. Do what?
"Q. [Fowler] Yeah, how many times is acceptable?
"A. One.
"Q. How many times, at least up until Exhibit 42 in the year—less
than a year, had you, Mid America Network/Steckline
Communications, failed to deliver that program at 6:30?
"A. Well, I'm finding out there's more than I anticipated or knew of.
"Q. Quite a few more, apparently?
"A. Yes.
. . . .
"Q. How many times did you tell me earlier in the deposition was too many
for the failure to deliver a program?
"A. Say what?
"Q. How many times did you tell me earlier in the deposition—
Mr. Tretbar: I think he said once, counsel. And you know that he
did.
"A. Yes.
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"Q. [Fowler] One time is too many?
"A. Absolutely.
"Q. So this is another of those ones, Exhibit 53?
"A. Are you being a smart ass?
"Q. I'm just trying to ask questions, sir.
Mr. Tretbar: Well, then ask a new question.
"Q. [Fowler] how many times are we—
"A. One.
"Q. —up to?
All right. One time is too many, correct?
"A. Correct.
"Q. All right. How many times are we up to?
"A. I have no idea.
"59. Greg Steckline stated: 'They [JBGK] had, from the looks of it, months and
months and months of opportunities to cancel this [contract] due to breach of contract.'"
"60. In November of 2009, SCI purchased a Wichita radio station known as
KQAM-AM 1480. News stories reporting the transaction were published by the Wichita
Eagle and the Wichita Business Journal on November 16, 2009.
"61. The Wichita Eagle story, published under the headline 'Steckline buys
KQAM 1480,' does not refer to Larry Steckline or Mid America Ag Network, Inc. It
states in part:
"Steckline Communications has purchased KQAM AM 1480 radio in
Wichita from Radio Disney.
"The station . . . will move to the KGSO studios at Maize and Kellogg,
owner Greg Steckline said in a news release. The station will carry news,
talk, sports and business as the flagship of Steckline's Mid America Ag,
news and sports networks . . . .
"Steckline owns radio stations in Garden City, Scott City and Guymon,
Okla., along with the Mid America chain of networks which provides
programming to 37 stations in Kansas, Oklahoma and Nebraska."'
"62. The Wichita Business Journal story, published under the headline 'Steckline
buys Disney Radio station,' does not refer to Larry Steckline or Mid America Ag
Network, Inc. It states in part:
18

"Steckline Communications Inc. has purchased AM 1480 KQAM radio
in Wichita. . . .
"Greg Steckline, president of Steckline Communications, says the
company wasn't aggressively looking for new stations. . . .
"Steckline Communications also owns KIUL AM and KGGS AM CP in
Garden City, KYUL AM in Scott City and KGYN in Guymon, Okla.
"It also has the Mid America Ag, News and Sports Networks, which
provides programming to 37 radio stations in Kansas, Oklahoma and
Nebraska."
"63. SCI often communicated with representatives of Journal by means of email
correspondence.
. . . .
"65. In May of 2010, Journal voluntarily changed the format of the programming
broadcast over KLIO-AM 1070 from 'classic country' to 'oldies.'
"66. As early as 2011, Journal began to consider the possibility of changing the
format yet again, to broadcast the programming of ESPN Deportes, which provides
Spanish-language sports programming to a network of affiliate broadcasters. It eventually
made this switch at some point after the broadcast of the 'Grammar Lesson' audio over its
air in June, 2012.
. . . .
"68. Journal's former general manager acknowledged that programming is
essential in broadcasting, and that it would be 'catastrophic' for a radio station to go
without programming.
"69. Larry Steckline incorporated Mid America Ag Network, Inc., ('MAAN,
Inc.'), in 1978, in part, to 'conduct and operate a radio and television agricultural
reporting network; to broadcast, disseminate, distribute, transmit, retransmit, receive, or
collect by electronic, electrical, or other means, farm and agricultural news and markets,
commodities, grain and livestock reports and agricultural forecasts. . . .' This reporting
network was called the Mid America Ag Network ('MAAN').
"70. To acknowledge the contribution of Greg Steckline to the business, in 1992
the MANN, Inc., Board of Directors elected Greg to replace an existing board member.
At that time, Greg was also appointed to serve as Vice-President.
"71. From 1992 until 2005, Greg Steckline was the Vice-President of MAAN,
Inc., and a minority shareholder.
19

"72. The principle asset of MAAN, Inc., was MAAN. MAAN was a contract-
based affiliation and relationship between MAAN, Inc., and various radio stations
throughout Kansas, Oklahoma, Nebraska and Colorado that broadcast the MAAN's
agricultural-business reports. Another asset of MAAN, Inc., was the exclusive contractual
right to broadcast Kansas State University sports programming, which was carried by
multiple radio stations. The source of the programming was identified as the Mid
America Sports Network.
"73. At one time, approximately fifty affiliated radio stations throughout Kansas,
Oklahoma, Nebraska, and Colorado carried MAAN programming, consisting of
agricultural and agribusiness reports that featured reporting and commentary by Larry
Steckline. These reports attracted a significant audience. In exchange for the MAAN
programming, that was provided to the stations at no cost, MAAN had the right to sell a
specified number of advertising spots in or near the agricultural reports. All other
adjacent spots were sold by the stations to sponsors who found value in having their spots
air in close proximity to the agricultural reports. The stations frequently promoted the
agricultural reports on their airwaves and that they were members of the Mid America Ag
Network, as reasons for sponsors to advertise and listeners to tune in.
"74. In 1991 the National Association of Farm Broadcasters contracted with a
marketing research firm who surveyed Kansans. Eighty-one of the 196 respondents
named Larry Steckline as the agricultural broadcaster upon whom they depended
regularly for relevant market reports and news. The second most mentioned broadcaster
was named by only 17 respondents.
"75. Among the stations affiliated with MAAN were KFDI-FM and KFTI-AM,
predecessor stations to those involved in the current litigation. Approximately three years
after the Wisconsin-based Journal Broadcast Group purchased KFDI-FM and KFTI-AM,
it attempted to terminate the contracts between the stations and Mid America Ag
Network, Inc., that obliged the stations to carry MAAN programming. In 2002, with
litigation pending in Sedgwick County District Court, Journal's CEO, Doug Kiehl and
Larry Steckline entered into settlement negotiations.
. . . .
"77. Doug [Kiel] and Larry Steckline agreed to the terms of settlement in June
2003. The settlement agreement provided in part that KFTI had the right and obligation
to broadcast Kansas State sports programming in the Wichita-metropolitan area subject to
certain terms and conditions. Journal had the right to sell eight 30-second advertising
20

spots during the games and MAAN, Inc., retained the right to sell the remaining
advertising.
. . . .
"79. In 2004, MAAN, Inc., sold the Mid America Sports Network and the rights
to Kansas State programming to Learfield Communications, Inc., but retained the rights
to the advertising inventory in the Wichita-area broadcast during games by affiliate,
KFTI.
"80. The sale of MAAN, the Kansas State sports inventory and other the assets of
MAAN, Inc., to an entity owned and controlled by Greg Steckline was consummated in
May 2005.
"81. In an unrelated transaction, Greg Steckline purchased an AM radio station
licensed in Wichita to broadcast sports programming. This station was assigned the call
letters 'KGSO.'
"82. After his purchase of KGSO and MAAN, Greg Steckline contacted Eric
McCart of Journal to inquire whether he intended to air Kansas State sports programming
other than football games that were gratuitously offered by the university, e.g., men's
baseball, spring football scrimmage, on KFDI/KFTI. McCart said he did not want to
broadcast that programming."

Because of a numbering error, there were two paragraph 82s and no paragraph 83
in SCI's response.

"82. After the sale of the MAAN, Inc., assets, Greg Steckline asked Larry
Steckline on several occasions to contact Doug [Kiel] to assist in resolving issues that had
arisen between KFDI/KFTI and Greg Steckline's operating entity. In discussing the
particular issue with Mr. [Kiel], Larry Steckline always made clear that he was calling on
behalf of Greg, whose company now owned MAAN and the Kansas State sports
inventory. Mr. [Kiel] would generally give Larry Steckline the name of a Journal
employee that Greg should contact. Larry Steckline provided Greg with that information.
"84. Frequently, the name given by Mr. [Kiel] to Larry Steckline, which was then
relayed to Greg Steckline, was Eric McCart. Mr. McCart was the sales manager and,
later, the general manager of the KFDI/KFTI stations owned by Journal.
21

"85. After the sale of MAAN and the Kansas State sports inventory, Eric McCart
telephoned Greg Steckline and asked whether Greg, as owner of sports radio station
KGSO, was going to broadcast all the K-State games on that station. Greg declined,
explaining that he could not do so because Journal had the exclusive contractual right
under the 2003 settlement agreement to broadcast that programming over its air for 15
years.
. . . .
"87. In October 2010, Larry Steckline changed the name of the corporation he
established and retained a controlling interest in after most of its assets were sold to SCI
from Mid America Ag Network, Inc., to LS Media, Inc. He did this in an effort to
diminish confusion that had arisen because MAAN was no longer owned by MAAN, Inc.
"88. From 2005, when he bought MAAN and the K-State inventory, until this
litigation commenced in 2012, Greg Steckline frequently emailed employees of Journal at
KFDI/KFTI. The emails sent by Greg Steckline have an automatic signature block with
information that he is the president of Steckline Communications, Inc. Greg's email
signature block also has a logo of the Mid America Ag Network, along with logos of four
radio stations (KGSO, KQAM, KGYN and KIUL) owned by Steckline Communications,
Inc.
"89. The technologies used by radio stations to receive programming from
outside sources, to produce programming internally, and to broadcast programming have
evolved. In general, the broadcast of radio programming is much more 'automated' than it
was in the earlier years of the industry. Much of the programming broadcast is
prerecorded, and fewer employees are required to see that it is broadcast. For example,
Journal typically has only one employee on duty at the facilities from which its six radio
stations broadcast simultaneously after six p.m. until the following morning.
. . . .
"91. SCI acknowledges that some of SCI's transmissions of programming and
advertising to Journal for broadcast over KLIO-AM did not begin on schedule and/or was
interrupted during the period preceding June 29, 2012, as a result of which KLIO-AM
listeners encountered 'dead air' until the transmission of SCI's programming was
commenced or restored, or employees of Journal took steps to broadcast alternative
programming.
22

"92. Although SCI believes that some of the problems involving the delivery of
the Mid America Ag Network programming were attributable to Journal, it acknowledges
that it was responsible for most of them."

In its appellate brief, SCI incorrectly listed facts 24, 28, and 48 as having been
adopted by the trial court as uncontroverted facts but the trial court did not accept those
facts as uncontroverted. Moreover, the trial court did not address facts 24 or 28, and
specifically found that fact 48 should be disregarded for lack of evidentiary support.

The trial court granted JBGK's motion for summary judgment and held that SCI
had failed to establish the elements of an equitable estoppel claim. In making its decision,
the trial court concluded that SCI's evidence offered to prove that JBGK "knew or should
have known" about the assignment of MAAN's rights under the 2003 settlement
agreement was "ambiguous" and, therefore, SCI failed to properly establish a claim of
equitable estoppel:

"It is clear from the Supreme Court's prior opinion that equitable estoppel
requires the party asserting the doctrine to establish the elements unambiguously, in this
case that would include the knowledge of the sale of MAAN to a competitor, SCI in
violation of the settlement agreement.
"In this case, SCI is alleging JBGK knew or should have known of the
assignment of the settlement by MAAN to SCI. To demonstrate JBGK's knowledge or
that they should have known they allege the following:
"1. Reports in local newspaper and periodicals about the sale of MAAN to Greg
Steckline;
"2. Statements from Larry Steckline to Doug Kiel, President about the sale of
MAAN to his son Greg Steckline and his intent to do so; and
"3. Emails from various persons at SCI to JBGK regarding the 'dead air' issues.
"However, the deposition of Larry Steckline calls into the question just how clear
the actual sale of MAAN to SCI was to JBGK. He testified at his deposition that no
details of the transaction regarding the sale of MAAN were divulged to the media. Mr.
Steckline testified the press releases only indicated he was selling his interest in MAAN
23

because that was all the media needed to know. He also acknowledged the media release
could have caused the media and business world to be under the impression that Greg
Steckline bought MAAN. This does not support the plaintiff['s] theory that JBGK should
have known from these releases that SCI, a competitor, actually purchased MAAN.
"The same is true regarding Larry Steckline's statements to Doug Kiel. Mr.
Steckline testified in his deposition he only indicated to Mr. Kiel that his son Greg was
buying MAAN. No specifics were given about the sale. Without details of the transaction
divulged to Mr. Kiel, there could be various interpretations of how the sale was made.
This does not support the plaintiff['s] theory that JBGK should have known from these
statements to Mr. Kiel that SCI, a competitor, actually purchased MAAN.
"Finally, SCI alleges the emails sent from Greg Steckline, Brad Streeter, Jay
Sanderson and Ron Metzinger should have put JBGK on notice of the sale of MAAN to
SCI. The problem with the Plaintiff['s] argument is that even though Steckline
Communications was noted in their signature sections, Greg Steckline and Brad Streeter
still used the "MAANradio" email address when communicating with personnel at JBGK.
Also, Jay Sanderson and Ron Metzinger continued to identify their employment with Mid
America Ag Network when communicating with JBGK personnel. The email
correspondence does not provide unambiguous evidence that JBGK knew or should have
known of the sale to SCI.
"Even taking all the evidence and the deposition of Larry Steckline into the light
most favorable to the Plaintiff it is difficult to establish JBGK's knowledge or
constructive knowledge of the sale of MAAN to SCI, a competitor in violation of the
2003 settlement agreement between MAAN and JBGK. This is a necessary element to
establish SCI's equitable estoppel argument. Therefore the defendant has met its burden
and summary judgment is granted on this issue."

Did the Trial Court Err in Granting Summary Judgment?

SCI states that this court's standard of review is de novo because the trial court
denied this issue on summary judgment. SCI also argues that summary judgment was
improper because there was a disputed material fact which should have been submitted to
a jury. Specifically, SCI argues that a jury should have decided whether JBGK knew or
should have known that MAAN assigned its rights under the 2003 settlement agreement
24

to SCI. JBGK responds by asserting that because it is within the trial court's discretion to
apply the principles of equitable estoppel, this court's review of the trial court's decision
is limited to an abuse of discretion standard. JBGK also argues that SCI failed to prove
the elements of equitable estoppel and summary judgment was, therefore, properly
granted.

The parties both correctly detail the standards of review for summary judgment
and equitable estoppel. JBGK correctly states that according to this court's decision in
Fleetwood Enterprises v. Coleman Co., 37 Kan. App. 2d 850, 161 P.3d 765 (2007), if
there are no material facts in dispute, the trial court has discretion whether to invoke the
equitable estoppel doctrine. When that is the case, an appellate court's review is limited to
an abuse of discretion standard. 37 Kan. App. 2d at 864-65. Still, as SCI points out, on
appeal, this court applies the same rules and when it finds that reasonable minds could
differ as to the conclusions drawn from the evidence, summary judgment must be denied.
Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016).
Moreover, equitable estoppel generally involves questions of fact and when the facts are
disputed or when necessary facts come from ambiguous documents, summary judgment
is inappropriate and the factual dispute must await resolution at trial. Dunn v. Dunn, 47
Kan. App. 2d 619, 639, 281 P.3d 540 (2012) (citing Bowen v. Westerhaus, 224 Kan. 42,
48, 578 P.2d 1102 [1978]; Safeway Stores v. Wilson, 190 Kan. 7, 12, 372 P.2d 551
[1962]).

Summary Judgment

"'Summary judgment should not be used to prevent the necessary examination of
conflicting testimony and credibility in the crucible of a trial.'" Stechschulte v. Jennings,
297 Kan. 2, 14, 298 P.3d 1083 (2013) (quoting Esquivel v. Watters, 286 Kan. 292, 296,
183 P.3d 847 [2008]). Additionally, "'[a] court should be cautious in granting a motion
for summary judgment when resolution of the dispositive issue necessitates a
25

determination of the state of mind of one or both of the parties.' [Citation omitted.]"
Foster v. Judilla, No. 108,676, 2013 WL 5736059, at *5 (Kan. App. 2013) (unpublished
decision) (quoting Brennan v. Kunzle, 37 Kan. App. 2d 365, 378, 154 P.3d 1094, rev.
denied 284 Kan. 945 [2007]).

The standard governing cases that arise on appeal from summary judgment is
often recited:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied. [Citations omitted.]"'" (Emphases added.) Armstrong, 305 Kan. at 24.

The trial court granted JBGK's motion for summary judgment against SCI,
precluding its equitable estoppel claim. As explained by our Supreme Court, if SCI had
established the elements of equitable estoppel, JBGK would be estopped from making the
argument that the contract between MAAN and JBGK didn't allow assignment without
consent.

In its motion for summary judgment, JBGK listed the following as an
uncontroverted fact:

"28. JBGK was not informed of any assignment of rights by Mid America Ag
Network, Inc., to SCI (or its predecessor company), in 2005 or thereafter, and JBGK was
26

not aware of any assignment at any time while it was performing under the 2003
Settlement Agreement."

In its response to JBGK's motion for summary judgment, SCI stated: "It is
uncontroverted that [MAAN, Inc.] did not ask [JBGK] for approval of its plan to assign
the Settlement Agreement to SCI's predecessor-in-interest prior to doing so. Controverted
to the extent this paragraph asserts that [JBGK] was not aware of the assignment at any
time." The trial court did not address whether this fact was uncontroverted, controverted,
or immaterial in its memorandum decision. Yet the trial court correctly explained that
SCI needed to prove that JBGK knew or should have known MAAN, Inc., assigned its
rights under the 2003 settlement agreement to make a claim of equitable estoppel.

Equitable Estoppel

"Equitable estoppel is the effect of the voluntary conduct of a party whereby the
party is precluded, both at law and in equity, from asserting rights against another party
relying on such conduct." Petty v. City of El Dorado, 270 Kan. 847, 853, 19 P.3d 167
(2001). Because "[t]here is no definite rule governing estoppel which can be applied to
every situation," each case must be determined on its own individual facts. Safeway
Stores v. Wilson, 190 Kan. at 12.

"'A party asserting equitable estoppel must show that another party, by its acts,
representations, admissions, or silence when it had a duty to speak, induced it to believe
certain facts existed. It must also show it rightfully relied and acted upon such belief and
would now be prejudiced if the other party were permitted to deny the existence of such
facts. [Citations omitted.]'
. . . .
"The party asserting equitable estoppel will not prevail 'where facts are
ambiguous or subject to more than one construction.' Rockers v. Kansas Turnpike
Authority, 268 Kan. 110, 116, 991 P.2d 889 (1999). Needless to say, equitable estoppel
27

cannot exist if any essential element is missing or is not satisfactorily proved." 305 Kan.
at 769-70.

The trial court denied SCI's claim for equitable estoppel based on a lack of proof
that JBGK "knew or should have known of the violation of the contract." Specifically, the
trial court held that SCI's claim failed because SCI relied on "ambiguous evidence" to
prove that JBGK knew or should have known about the assignment.

In support of its factual basis for its estoppel claim, SCI provided the trial court
with the following: (1) reports from a local newspaper and periodical about the sale of
MAAN, (2) statements from Larry to Kiel about the sale of MAAN, (3) and e-mails from
various persons at SCI to JBGK regarding "dead air" issues. SCI also provided the trial
court with evidence that JBGK continued to work with SCI under the terms of the
settlement agreement for seven years before it claimed that SCI was not a party to the
settlement agreement because the agreement required MAAN to obtain JBGK's
permission before assigning its rights under the settlement agreement.

The trial court first addressed the newspaper articles. The newspaper articles
submitted to the trial court referred to the sale of KQAM 1480 to "Steckline
Communications" and "Steckline Communications, Inc." Both articles also included
quotes from Greg. The trial court noted that in Larry's deposition, he testified that he did
not provide the media with the specifics of the sale of MAAN. Also, Larry testified that
the media may have assumed that the sale was to his son, Greg. From this, the trial court
found that this does not support SCI's theory that JBGK should have known from the
media releases that SCI, JBGK's competitor, purchased MAAN. Here, although a close
question, we conclude that a jury must be allowed to decide this material issue of fact.
Moreover, the trial court did not weigh the evidence in favor of the nonmoving party,
SCI.

28

The articles unequivocally show that SCI purchased KQAM, a competitor station
to JBGK. The articles also stated that SCI also owned MAAN, "which provide[d]
programming to 37 radio stations in Kansas, Oklahoma and Nebraska." While it is
unknown whether JBGK read these articles, the articles unambiguously show that
MAAN was owned by a new company. The articles, therefore, provided direct evidence
of the sale of MAAN to another party. Moreover, the settlement agreement required
JBGK's consent to any assignment of the contract, not simply an assignment to a
competitor. It would be reasonable to believe that JBGK was put on notice that the
settlement agreement had been assigned to SCI because SCI was now providing content
to JBGK. This inference is particularly evident when considered with the fact that JBGK
continued to work with SCI under the terms of the settlement agreement for at least seven
years.

Next, the trial court considered the statements from Larry to Kiel, the then
president of JBGK. While the statements did not provide direct notice that MAAN
assigned its rights under the 2003 settlement agreement to SCI, they provided
unambiguous proof that MAAN was sold to another entity. In his affidavit, Larry stated
that "[w]hile not in writing, [Larry] delivered to [JBGK], via [Kiel], express notice that
the assets of MAAN, Inc., would be purchased by an entity owned and controlled by
Greg Steckline." This shows that Larry notified Kiel that MAAN, Inc. was selling its
assets. Once put on notice of the sale, it would be reasonable that JBGK would
investigate if MAAN had assigned its rights under the 2003 settlement agreement to
another party in violation of the settlement agreement. The fact that Greg was Larry's son
does not supersede the notice or knowledge that another entity would be purchasing
MAAN, Inc. assets.

Then, the trial court addressed the e-mails between SCI employees and JBGK
employees. The e-mails from various persons at SCI to JBGK regarding "dead air" issues
also provided unambiguous proof that JBGK knew or should have known about the
29

assignment. The e-mails included interaction between several different SCI employees
and JBGK. Most SCI employees still used "MAANradio" e-mail addresses but also
included "Steckline Communications" in their signature boxes. In particular, Greg's
signature box read: "Greg Steckline, President, Steckline Communications, Inc." Greg's
signature box also included an SCI logo as well as a MAAN logo. While the continuous
e-mail communication evidence by itself was a weak inference that JBGK knew or
should have known of the sale and the assignment to SCI, that inference, however, must
be drawn by a jury after trial, not by the trial court on summary judgment, where all
evidence must be interpreted favorably to the nonmoving party.

Here, because the trial court improperly construed conflicting evidence against the
nonmoving party, SCI, we reverse and remand for trial.

Reversed and remanded for trial.