Hi Ltd. Partnership v. Winghouse of Florida, Inc., 05-10074.

• Decision Date: 15 June 2006
• Docket Number: No. 05-10074.,05-10074.
• Citation: 451 F.3d 1300
• Parties: HI LIMITED PARTNERSHIP, a Florida Limited Partnership, Hooters of America, Inc., a Georgia Corporation, Plaintiffs-Counter-Defendants-Appellants, v. WINGHOUSE OF FLORIDA, INC., a Florida Corporation, Winghouse of Kissimmee, LLC, a Florida Limited Liability Company, KER, Inc., a Florida Corporation, Winghouse of Orlando, Inc., a Florida Corporation, Winghouse IX, Inc., a Florida Corporation, Winghouse XI, LLC, a Florida Limited Liability Company, Winghouse XII, LLC, a Florida Limited Liability Company, Defendants-Counter-Claimants-Appellees, Terra Nova Insurance Company, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

451 F.3d 1300

HI LIMITED PARTNERSHIP, a Florida Limited Partnership, Hooters of America, Inc., a Georgia Corporation, Plaintiffs-Counter-Defendants-Appellants, v. WINGHOUSE OF FLORIDA, INC., a Florida Corporation, Winghouse of Kissimmee, LLC, a Florida Limited Liability Company, KER, Inc., a Florida Corporation, Winghouse of Orlando, Inc., a Florida Corporation, Winghouse IX, Inc., a Florida Corporation, Winghouse XI, LLC, a Florida Limited Liability Company, Winghouse XII, LLC, a Florida Limited Liability Company, Defendants-Counter-Claimants-Appellees Terra Nova Insurance Company, Defendant.

No. 05-10074.

United States Court of Appeals, Eleventh Circuit.

June 15, 2006.

Peter F. Schoenthaler, Steven G. Hill, Charlene R. Swartz, Hill, Kertscher & Wharton, LLP, Atlanta, GA, for Appellants.

Bradford Allen Patrick, Richard G. Salazar, Hala A. Sandridge, Fowler, White, Boggs, Banker, P.A., Gayle Wrede Kirkpatrick, G. Donovan, Conwell, Jr., Conwell, Sukhia & Kirkpatrick, P.A., Tampa, FL, for Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON, BARKETT and BOWMAN,^* Circuit Judges.

BARKETT, Circuit Judge:

Appellants ("Hooters") appeal from the district court's judgment as a matter of law on their claims of trade dress infringement, trade dress dilution, and unjust enrichment. Hooters also appeals a jury verdict for Ker, Inc. ("Ker"), on its counterclaim alleging that a 1997 settlement agreement barred Hooters from bringing the present suit. The jury awarded Ker $1.2 million in attorneys fees as damages arising from Hooters' alleged breach of that settlement.

Upon careful de novo review of the briefs and record in this case, we find, for the reasons articulated by the district court, that Hooters's trade dress infringement and dilution claims fail as a matter of law. Accordingly, its state-law claim of unjust enrichment must also fail, founded as is it on the proposition that Appellees infringed and diluted Hooters's trade dress.

With regard to Ker's counterclaim, Hooters argues that the alleged 1997 settlement agreement violated Florida's Statute of Frauds and that, for this reason, the district court should have granted its motion for a directed verdict.¹ At trial, Ker argued that its obligations under the oral agreement were fully performed within 90 days, thereby removing the agreement from the Statute. The district court denied Hooters's motion for a directed verdict and submitted the question to the jury. The jury, having been instructed on the defense of full performance without any objection from Hooters, entered its verdict for Ker. Hooters filed neither a motion for judgment notwithstanding the verdict (JNOV) nor a motion for a new trial. On appeal, Hooters argues that the district court erred in submitting the matter to the jury because Ker did not fully perform and the Statute of Frauds barred relief on the counterclaim.

Whatever its merits, we are precluded from considering Hooters's argument. In the recent case of Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., ___ U.S. ___, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006), the Supreme Court explicitly rejected the very rule urged upon us by Hooters, which would allow "a party that has failed to file a postverdict motion ... [to] nonetheless raise such a claim on appeal, so long as that party filed a Rule 50(a) motion prior to the submission of the case to the jury." Id. at 984 (citing Cummings v. Gen. Motors Corp., 365 F.3d 944, 950-51 (10th Cir.2004)). Clarifying that its "cases addressing the requirements of Rule 50" do not permit any relief under such circumstances, the Court held that "a party is not entitled to pursue [even] a new trial on appeal unless that party makes an appropriate postverdict motion in the district court." Id. at 983, 987.

Moreover,...