SCHUCHART & ASSOCIATES, ETC. v. Solo Serve Corp.

• Decision Date: 21 April 1982
• Docket Number: Civ. A. No. SA-81-CA-5.
• Citation: 540 F. Supp. 928
• Parties: SCHUCHART & ASSOCIATES, PROFESSIONAL ENGINEERS, INC. et al. v. SOLO SERVE CORPORATION, et al.
• Court: U.S. District Court — Western District of Texas

540 F. Supp. 928

SCHUCHART & ASSOCIATES, PROFESSIONAL ENGINEERS, INC. et al. v. SOLO SERVE CORPORATION, et al.

Civ. A. No. SA-81-CA-5.

United States District Court, W. D. Texas, San Antonio Division.

April 21, 1982.

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Ted D. Lee, San Antonio, Tex., for plaintiffs.

Donald O. Ferguson, Gardner, Ferguson, Sommers & Dorr, San Antonio, Tex., for Travis-Braun & Associates, Inc.

R. Laurence Macon, Gale R. Peterson, Cox & Smith Inc., San Antonio, Tex., for Ingram Square Ltd., Bernard Lifschutz, Ted McWilliams and Texas Southwest Developers No. 1.

Thomas E. Quirk, Beckmann, Stanard & Olson, P. C., San Antonio, Tex., for Lance, Larcade and Bechtol.

Charles R. Shaddox, Shaddox, Gorham & Good, P. C., San Antonio, Tex., Harvey F. Cohen, Houston, Tex., for Solo Serve Corp.

MEMORANDUM OPINION AND ORDER

SESSIONS, Chief Judge.

This case involves actions for conspiracy to infringe copyright, infringement of copyright, unfair competition, and unjust compensation. Plaintiffs, Schuchart and Associates, Professional Engineers, Inc., and Barry P. Middleman & Associates, Inc., bring this action against Defendants Solo Serve Corporation, Ingram Square Ltd., Bernard Lifschutz and Ted McWilliams, Individually and d/b/a Texas Southwest Developers No. 1, Lance, Larcade and Bechtol, and Travis-Braun & Associates, Inc. All Defendants have been served with summons and complaint and have filed answers in this cause. The Pre-Trial Order was entered by the United States Magistrate on March 12, 1982, and the parties are ready to proceed to trial pending the Court's ruling on Motions for Summary Judgment. The following motions are before the Court and are the subject of this Memorandum Opinion and Order: (1) the Motion of Defendants Ingram Square, Ltd., Bernard Lifschutz and Ted McWilliams, Individually and d/b/a Texas Southwest Developers No. 1 to Dismiss or for Summary Judgment against Plaintiffs, Schuchart & Associates, Professional Engineers, Inc., and Barry P. Middleman & Associates, Inc.; (2) the Motion of Defendants Ingram Square Ltd., Bernard Lifschutz and Ted McWilliams, Individually and d/b/a Texas Southwest Developers No. 1 to Dismiss or for Summary Judgment against cross-claimants Travis-Braun & Associates, Inc.; and (3) the Motion of Lance, Larcade and Bechtol for Partial Summary Judgment against Plaintiffs Schuchart & Associates, Professional Engineers, Inc., and Barry P. Middleman & Associates, Inc. After careful consideration of the parties' motions and responses and the record in this case, the Court now enters the following Memorandum Opinion and Order disposing of the parties' motions.

THE FACTUAL SETTING

The pleadings, depositions, affidavits, and answers to interrogatories on file in this cause establish the following. Defendant Solo Serve Corporation (Solo Serve) operates a number of department stores in the San Antonio, Texas area. In late 1979 or early 1980, Solo Serve entered into an agreement with Walzem Plaza Shopping Center Ltd. for the construction and leasing of a Solo Serve store in the Walzem Plaza Shopping Center (Walzem store). In connection with that agreement, Plaintiffs Schuchart & Associates, Professional Engineers, Inc. (Schuchart & Associates) and Barry P. Middleman & Associates, Inc. (Middleman & Associates) prepared original drawings and specifications for mechanical and electrical work and original architectural drawings and specifications. Schuchart & Associates, a professional engineering firm, prepared the "Walzem Plaza, Solo Serve architectural drawings and specifications for mechanical and electrical work" (mechanical and electrical drawings and specifications), for which Schuchart & Associates obtained copyright registration on September 2, 1980. Middleman & Associates prepared "Middleman architectural drawings and specifications for Walzem Plaza-Solo Serve Retail Store" (architectural drawings and specifications) for which Middleman obtained copyright registration on or about January 8, 1981.¹

Subsequent to Solo Serve's involvement in the Walzem store project, Solo Serve entered into negotiations for the construction and lease of a Solo Serve store in the Ingram Square Shopping Center. On or about February 1980, Solo Serve began discussions with Ingram Square Ltd., a limited partnership, about the feasibility of including a Solo Serve store in the Ingram Square Shopping Center. At the time Solo Serve began discussions with Ingram Square Ltd., the partnership had already signed to the project two substantial tenants, Firestone Tire & Rubber Company and the General Cinema Corporation. Preliminary architectural drawings were already under way when Solo Serve and Ingram Square Ltd. began their feasibility discussions.

Ingram Square Ltd., a limited partnership is comprised of Texas Southwest Developers No. 1, the general partner, Kathleen Friesenhahn, and several individuals named Carr. The general partner, Texas Southwest Developers No. 1, is a partnership comprised of Defendants Bernard Lifschutz and Ted McWilliams, and a third individual named LaConney.² Texas Southwest Developers No. 1 has served as the developer and part-owner of the Ingram Square Shopping Center Project. Ingram Square Ltd. hired the architectural firm of Lance, Larcade & Bechtol to prepare the architectural drawings and specifications for the Ingram Square Shopping Center Project. Travis-Braun & Associates (Travis-Braun) has served as the engineering firm on the project, developing the electrical and mechanical plans and specifications for the project.

Plaintiffs' Second Amended Complaint alleges three causes of action. First, in Count I, Plaintiffs charge infringement of copyright, alleging upon information belief that "Defendants have conspired to and have infringed said copyright by having copied, imitated or transcribed in whole or in part" Plaintiffs' drawings for the Solo Serve store in Walzem Plaza Shopping Center. (Second Amended Complaint, paragraph 19). Additionally, Plaintiffs charge that "after said copying, imitation, or transcription of the aforementioned drawings and specifications, Defendants have knowingly and willfully been continuing to copy, distribute and otherwise use the protected drawings and specifications and have thereby infringed the said copyrights of Plaintiffs Schuchart and Middleman." (Plaintiffs' Second Amended Complaint, paragraph 20). Second, in Count II, Plaintiffs charge unfair competition, alleging that "Defendants, through their agent or employees, in the course of conspiracy with other defendants, willfully and deceptively engaged in unfair competition practices in that the Defendants did not independently create, produce or distribute said architectural and engineering drawings and specifications, but sought to reap where they had not sown by deceptively and fraudulently utilizing the work product of Plaintiffs." (Plaintiffs' Second Amended Complaint, paragraph 26). Third, in Count III Plaintiffs charge that Defendants have been unjustly enriched by their wrongful copying, imitation, transcription and use of Plaintiffs' architectural drawings and specifications and electrical and mechanical drawings and specifications.

The depositions and answers to interrogatories on file establish the following history of the development of the Ingram Square Project. Sometime in 1978, the partnership of Texas Southwest Developers No. 1 approached the architectural firm of Lance, Larcade & Bechtol to provide architectural services on the development of the Ingram Square Shopping Center. Texas Southwest Developers No. 1 reached an oral agreement with Mike Lance of the Lance, Larcade & Bechtol architectural firm to provide basic architectural services at a cost of fifty-five cents ($.55) per square foot of gross, leasable area in the project. Lance hired the engineering firm of Travis-Braun to perform the engineering services on the project.

By late 1978, Ingram Square Ltd. had obtained executed leases for space in the project from two major tenants, Firestone Tire & Rubber Company and General Cinema Corporation. In early 1980, Defendant Ted McWilliams began preliminary discussions with Robert Grimm, president of Solo Serve, about Solo Serve's participation in the Ingram Square Project. Solo Serve expressed an interest in acquiring lease space in the shopping center for a department store of approximately thirty-six thousand (36,000) square feet. Several meetings were held in late February and early March of 1980 at which Ted McWilliams, Robert Grimm and Mike Lance were present. At the initial meeting, the participants discussed the feasibility of Solo Serve's inclusion in the project, since the project was already well under way. Following one of those meetings, in early March 1980, Robert Grimm delivered to architect Lance certain of the drawings prepared by Plaintiffs for Solo Serve's Walzem store. Grimm expressed to Lance Solo Serve's requirement that the layout, quality and construction of the Ingram Square store be substantially similar to the layout, quality, and construction of the Walzem Plaza store. The Walzem Plaza store drawings were to serve as a guideset in the preparation of drawings for the Ingram Square store. The deposition testimony of Mike Lance, Ted McWilliams, Bernard Lifschutz, and Robert Grimm establishes that neither McWilliams or Lifschutz were present when Grimm delivered the Walzem store plans to architect Lance. Moreover, there is no indication that Defendants Ingram Square Ltd., Texas Southwest Developers No. 1, McWilliams or Lifschutz participated in any discussions about the details or preparation of the drawings or specifications for the Solo Serve store in the Ingram Square project.

Shortly after the series of initial meetings between Lance, Grimm and McWilliams, Lance prepared a preliminary sketch of the Ingram Square Solo Serve store. Solo Serve rejected the preliminary...