No contract misrepresentation in McCains' firing, station says

KOCO argues terminating the McCain brothers in 1994 did not result in contract misrepresentation, according to the response the television station filed in Oklahoma County District Court.

KOCO's answer is in response to the McCains' lawsuit filed on July 3, in which the television personalities -- known for their toothy, homespun delivery of news and feature stories -- claimed they were wrongfully terminated from KOCO-TV in August 1994, a year before their contract expired.

"We had a great deal going," said Ben McCain. "If they wanted to let us go, fine, but pay us," said Butch McCain. "We're two guys who grew up on a farm. We feel like we're going up against Goliath with this lawsuit against Gannett," said Ben McCain. 5-Alive News, now simply 5-News, is owned by Gannett Co. Inc. "We were the highest rated show at the time on Channel 5. We had a real following," said Ben McCain. Attorney for the McCains, Mark Hammons, believes his clients are entitled to the last year of pay on the contract -- $91,282 each, damages for emotional distress, consequential damages incurred from their move out of the Oklahoma City area to find work and possible punitive damages. Hammons maintains the brothers' termination was unlawful because KOCO orally told the brothers that their contract was the same as previous contracts, except for adjustments in salary and an absence of a hair styling allowance, when in fact the contract they signed had a new provision that allowed KOCO to terminate them with 60 days' notice. Hammons says Butch and Ben did not read the contract in question before they signed it because of the assurances of Tom Kirby, KOCO's general manager at the time. "They (the McCains) said, `Is there anything different?' and they were told "No," said Hammons. The brothers say they have an affidavit from Kirby that verifies his representations to them. Hammons argues that though the general rule is that agreements that have been reduced to writing are those by which the parties are bound, an exception occurs when a representation is made that the written contract says one thing when it actually says another. KOCO's attorney, Michael Minnis, alleges that "the contract clearly included provisions authorizing termination." In addition, Minnis argues that the McCains' claim should be barred by the statute of limitations because it has been over two years since KOCO gave notice that the brothers were terminated. The McCains' attorney disagrees and contends that the statute does not begin to run until the plaintiffs incurred damages from the fraud, which would allow the McCains to go forward with their claim. "The law is clear on this issue, and I'm not sure where Mr. Minnis is coming from," says Hammons. The plaintiffs' attorney added that if KOCO hadn't tried to enforce its noncompetition clause in addition to the premature termination, the McCains probably would not have filed suit. A similar clause was the basis for a dispute between Robin Marsh of KWTV and her former employer KFOR last year. Besides copies of their contracts, the McCains' petition also includes a memo from Tom Kirby, who wrote, "I can't begin to tell you how happy I am to have you with us for another three years." This sentence, according to the McCains, prevented the television station from terminating them before the three years was up by implying that the new contract and the previous contracts were essentially the same. The McCains' contract provided for each brother to receive $86,500 from Aug. 3, 1992 to Aug. 2, 1993. For the 1994 fiscal year the contract provided for $88,667; KOCO was to pay them $91,282 for the period from Aug. 3, 1994 to Aug. 2, 1995. Hammons says he is confident about his clients' argument and adds they plan to file a motion for summary judgment next week. The duo worked for KOCO for six years and were hosting "Good Morning, Oklahoma" and the noon hour news at 5-Alive at the time of termination. Before going to KOCO they were news anchors at KFOR. They also hosted a local program, Hot Country Hits, which they were trying to syndicate when KOCO let them go. The McCains say they are living in Beverly Hills and have just appeared in Humanoids from the Deep, a movie for Showtime.

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