Johnson v. Jones

• Decision Date: 20 April 1995
• Docket Number: No. 94-CV-70497-DT.,94-CV-70497-DT.
• Citation: 885 F. Supp. 1008
• Parties: Douglas A. JOHNSON, d/b/a Douglas A. Johnson & Associates, and Professional Management Co., Plaintiffs, v. Theresa C. JONES, Daniel A. Tosch, Progressive Associates, Inc., John C. Uznis and Uznis Deneweth Co., Individually, Jointly and Severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

885 F. Supp. 1008

Douglas A. JOHNSON, d/b/a Douglas A. Johnson & Associates, and Professional Management Co., Plaintiffs, v. Theresa C. JONES, Daniel A. Tosch, Progressive Associates, Inc., John C. Uznis and Uznis Deneweth Co., Individually, Jointly and Severally, Defendants.

No. 94-CV-70497-DT.

United States District Court, E.D. Michigan, Southern Division.

April 20, 1995.

Bernard J. Cantor and Douglas P. Lalone, Harness, Dickey & Pierce, Troy, MI, for plaintiffs.

Carl F. Jarboe, Detroit, MI, William H. Honaker, Bloomfield Hills, MI, for T.C. Jones, J.C. Uznis and Uznis Deneweth Co.

Richard P. Smith, Detroit, MI, for D.A. Tosch and Progressive Associates, Inc., for defendant.

OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

On February 10, 1994, Plaintiffs Douglas A. Johnson (d/b/a Douglas A. Johnston & Associates), and his construction firm Professional Management Co. filed a four-count complaint against Defendants Theresa C. Jones, Daniel A. Tosch, Tosch's architectural firm (Progressive Associates, Inc.), John C. Uznis and Uznis' construction firm (Uznis Deneweth Co.). An amended complaint was entered by order of the Court on October 26, 1994. Count I of Plaintiffs' amended complaint alleges that Defendants infringed Plaintiff Douglas Johnson's copyright to certain technical architectural drawings he prepared for renovation of Defendant Theresa Jones' home. The drawings, for which Johnson holds a certificate of copyright registration, consist of three pages of general floor plan and design layout for the home, as well as two larger and more detailed works, entitled "Demolition Phase I" and "Addition A." Count II alleges that Defendants infringed Johnson's copyright to a design proposal package entitled "Jones Residence Architectural Proposal Package," for which he also holds a certificate of copyright registration. Count III alleges breach of contract.¹ And, Count IV alleges trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1125.

Defendants Theresa C. Jones, John C. Uznis and Uznis Deneweth Co. filed two motions for partial summary judgment on October 31, 1994. The first seeks summary judgment on Counts I and II of Plaintiffs' amended complaint; the second seeks summary judgment on Court IV. Defendants Daniel A. Tosch and Progressive Associates, Inc., filed a concurrence to both motions on that same day. Plaintiffs responded to the motions on December 5, and Defendants replied on December 22. After reviewing the papers filed by the parties and the arguments made by their counsel at a hearing held on March 31, 1995, the Court is now prepared to rule on Defendants' motions. This memorandum opinion and order sets forth that ruling.

II. FACTUAL BACKGROUND

Presented in the light most favorable to the Plaintiffs, the evidence before the Court, consisting primarily of Plaintiff Johnson's deposition testimony, reveals the following. In July of 1993, Johnson, who is an architect, first met with Defendant Theresa C. Jones to discuss the possibility of renovating a home Jones was considering purchasing at 1100 Orchard Ridge Road, Bloomfield Hills, Michigan. Jones' real estate agent had suggested the meeting. Later that month, Jones arranged to purchase the home, and verbally agreed with Johnson to use his services to redesign the home for a fee of 3.5% of construction costs, which were expected to exceed one million dollars. The parties did not discuss construction management at that time.

Subsequently, Johnson prepared a design proposal ("Jones Residence Architectural Proposal Package" — the subject of Count II of Plaintiff's amended complaint), and submitted it to Jones for approval on or about July 25, 1993, with a proposed written contract for architectural services. At the July 25th meeting, the two agreed that Johnson should also manage construction of the renovation for a fee of 14% of construction costs. Thereafter, the parties began to negotiate the terms of a written "design/build" contract.

At deposition, Johnson was questioned about the implications of his failure to discuss construction management at the initial meeting during which Jones' agreed to use Johnson's architectural services:

Q: And did she say yes, I want you to do the architectural work?

A: Yes, right.

Q: It's your contention you had an oral agreement at that point?

A: We had an oral agreement at that point.

Q: Okay. And that would be that you would get 3½ percent and you would do the plans?

A: Yes.

Q: And were you to build the house as well?

A: Not at that time.

Q: No?

A: We hadn't discussed it at that meeting.

Q: All right. So under this particular agreement that you believe you had, she would hire you to do the architectural plans and then she could hire someone else to build the house?

A: No. That wasn't discussed either.

At that time I was hired to do the design work at 3½ percent.

Q: All right.

A: At that time.

Q: What was your understanding of this oral agreement that you believe you had? If she paid you 3½ percent for those plans would she be required to use you to construct the building or could she use someone else to construct the building?

A: At that time she could have used someone else.

(Deposition of Douglas A. Johnson, Brief in Support of Defendants' Motion for Summary Judgment on Counts I and II, Exhibit 1, pp. 72-73).

At the July 25, 1993, meeting Johnson submitted a proposed contract to Jones with the following clause (emphasis added):

The Drawings, Specifications and other documents prepared by the Architect for this Project are instruments of the Architect's service for use solely with respect to this Project, and the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright.... The Architect's Drawings, Specifications and other documents shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others, unless the architect is adjudged to be in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect.

(This is part of a standard form contract prepared by the American Institute of Architects, Form No. B151, entitled "Abbreviated Form Agreement Between Owner and Architect.") Similar language appears in a proposed contract for design and construction work that Johnson submitted to Jones after she asked him to manage construction of the project. Furthermore, throughout contract negotiations, Johnson objected to language in contracts proposed by Jones' attorney that would have vested ownership of the plans in Jones.²

During contract negotiations, both parties began performance. Johnson gathered construction estimates, prepared a general demolition and construction plan as well as cost estimates, completed a first draft and revision of preliminary design drawings for the upper and lower levels and foundation of the home, and prepared detailed architectural construction documents for the first of several proposed phased-in additions. Johnson also prepared a site plan which he submitted to the City of Bloomfield Hills, along with Demolition Phase I and Addition A plans, in order to obtain a construction permit for Jones. Jones apparently approved of the plans, and made payments to Johnson totalling $10,000 (a $5,000 retainer plus an additional $5,000).

After a series of contract proposals, Jones' attorney informed Johnson's attorney by letter dated November 12, 1993, that Johnson's services would no longer be needed. Johnson submitted a final invoice for "Fees Earned To Date" to Jones shortly thereafter.³ The invoice seeks an additional $19,966.98 from Jones for partial completion of the architectural plans. (It does not seek any compensation for construction management services.) To date, Jones has not paid Johnson any amount beyond the initial $10,000. Johnson did not seek return of copies of architectural drawings he had given to Jones. However, he did retrieve an artist's rendering of his proposal for which Jones had declined to pay.

After Johnson's termination, Jones contracted with her co-defendants, architect Daniel A. Tosch and his firm Progressive Associates, Inc., and John C. Uznis and his construction firm Uznis Deneweth Co., to complete the renovation project. According to Plaintiffs, Defendants continued to use and copy architectural plans prepared by Johnson for the renovation, both in their original form and as a base for derivative works. Furthermore, Plaintiffs allege that Defendants Tosch and Progressive Associates cut Plaintiffs' name and seal off drawings which he had submitted to the City of Bloomfield Hills, and replaced them with their own names and seal before re-submitting them to the City.

III. ANALYSIS

A. THE STANDARDS GOVERNING CONSIDERATION OF A MOTION FOR SUMMARY JUDGMENT.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c).

Three 1986 Supreme Court decisions — Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) — ushered in a "new era" in the standards of review for a summary judgment motion. These cases, in the aggregate, lowered the movant's burden on a summary judgment motion.⁴ According to the Celotex Court:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the

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