Johnson v. Jones

• Decision Date: 29 March 1996
• Docket Number: No. 94-CV-70497-DT.,94-CV-70497-DT.
• Citation: 921 F. Supp. 1573
• Court: U.S. District Court — Eastern District of Michigan
• Parties: Douglas A. JOHNSON d/b/a Douglas 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.

921 F. Supp. 1573

Douglas A. JOHNSON d/b/a Douglas 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.

March 29, 1996.

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Douglas P. Lalone, Troy, MI, for plaintiffs.

Carl F. Jarboe, Detroit, MI, for Defendants Jones, Uznis and Uznis Deneweth Co.

Richard Smith, Detroit, MI, for Defendants Tosch and Progressive Associates.

OPINION AND ORDER SETTING FORTH THE COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROSEN, District Judge.

I. INTRODUCTION

This copyright infringement/breach of contract action was tried by the Court without a jury May 15-22, 1995. In his Amended Complaint, Plaintiff Douglas Johnson, an architect, alleges that Theresa Jones, the owner of a home located at 1100 Orchard Ridge Road in Bloomfield Hills, Michigan, breached a contract she had entered into with him to design and remodel her home. Johnson also alleges that, without his authorization, Mrs. Jones, Daniel Tosch, another architect, and John C. Uznis, a builder, copied and used his copyrighted architectural drawings and information contained in his copyrighted architectural proposal package in violation of the federal Copyright Act, 17 U.S.C. § 101, et seq. He further alleges that the Defendants copied his drawings, removed his name from them and replaced it with Mr. Tosch's company name, in violation of the Lanham Act, 15 U.S.C. § 1125.¹

During the course of the five-day bench trial, the Court heard the testimony of Plaintiff Douglas Johnson; Defendants Daniel Tosch, John C. Uznis, and Theresa Jones; and Timothy Stoepker, an attorney with Abbott, Nicholson, Quilter, Essahaki & Youngblood law firm. The Court also received into evidence numerous architectural drawings, blueprints, photographs and documents.

Having heard the testimony of the witnesses and the oral arguments of counsel, and having reviewed and considered the exhibits submitted at trial, the Court makes the following findings of fact and conclusions of law. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted.

II. FINDINGS OF FACT

1. Plaintiff Douglas Johnson is a licensed architect and builder² whose principal place of business is located in Rochester Hills, Michigan. Mr. Johnson conducts his architectural business under the name "Douglas Johnson & Associates", and conducts building management services under the name of "Professional Management Co."

2. Defendant Daniel Tosch is also an architect licensed in the State of Michigan. He has been an architect since 1971 and is the owner of Defendant Progressive Associates, Inc., an architectural firm based in Bloomfield Hills, Michigan.

3. Defendant John C. Uznis is a licensed builder. He owns Defendant Uznis Deneweth Co., which is a building/contracting firm based in Huntington Woods, Michigan. Mr. Uznis has been a builder for more than 25 years.

4. Defendant Theresa Jones is the owner of a home located at 1100 Orchard Ridge Road in Bloomfield Hills, Michigan. Mrs. Jones is an experienced business woman who owns and operates a large automobile dealership. She also has a Ph.D. degree in nursing.

5. Mr. Johnson testified that he first met Mrs. Jones on July 3, 1993. Johnson had received a telephone call from George Bell, a real estate agent, who informed him that Mrs. Jones was considering purchasing the Orchard Ridge house and remodeling it. (Mr. Johnson was a friend of Mr. and Mrs. Bill Fredricks who then owned the house, and Johnson had previously done some architectural drawings for renovating the structure which the Fredricks had left at the house for the real estate people to use in presenting the house for sale.) Mr. Bell asked Johnson to meet with Mrs. Jones and show her the drawings he had done for the Fredricks.

6. At this initial meeting, Johnson walked through the house with Mrs. Jones and described to her the plans that he had prepared for Mr. Fredricks. Mrs. Jones told him what she would like to do with the house and he showed her how the house could be remodeled to her specifications.

7. At this first meeting, Mrs. Jones asked what Johnson's architectural fees would be on a renovation project such as the one contemplated by her. Mr. Johnson testified that he told her his fees for architectural services would be 3½% of the total cost of construction for that type of project.

8. Mr. Johnson and Mrs. Jones had several subsequent meetings in early July. On an number of these occasions, the parties met at the Orchard Ridge house. On July 15, 1993, Johnson met with Mrs. Jones at her request at the house. Johnson brought with him to this meeting an architectural proposal and a standard AIA (i.e., American Institute of Architects) "Abbreviated Form of Agreement between Owner and Architect" which called for payment of 3½ percent of construction costs for architectural fees.

9. Article 6 of the AIA form contract which Johnson gave to Mrs. Jones was captioned "Use of Architect's Drawings, Specifications and Other Documents." Section 6.1 provided:

6.1 The Drawings, specifications and other documents prepared by the Architect for this Project are instruments of the Architect's services 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 copyright. The Owner shall be permitted to retain copies, including reproducible copies of the Architects' Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project. The Architect's Drawings, Specifications or 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.

10. Johnson testified that he gave the AIA contract to Mrs. Jones for her consideration on July 15, 1993. (As of that date, Mrs. Jones had not purchased the house; she was still arranging financing. She did not close on the purchase of the house until early August.) He also gave Mrs. Johnson his Architectural Proposal Package for an addition to, and remodeling of, the Orchard Ridge house.

11. As of July 15, 1993, Johnson had not made any drawings of the property for Mrs. Jones and Mrs. Jones did not pay Johnson anything as of that date.

12. Mrs. Jones, however, wanted to get the renovations started as soon as she took over ownership of the Orchard Ridge house and made it clear that she wanted the renovations completed and to be moved into the house by December 1994. Johnson testified that following the July 15 meeting, he had a series of subsequent meetings with Mrs. Jones that were "kind of fast and furious."

13. Because Mrs. Jones was anxious to speed up the process, later in July, 1993, the real estate agent handling Mrs. Jones' purchase of the house asked Johnson for a recommendation for a surveyor to do a mortgage survey. Mr. Johnson arranged for a mortgage survey to be done by Glenn Heil. He also had Heil do a topographical survey at the same time so that they would have an accurate site plan to insure that any renovations done on the Orchard Ridge house would be in compliance with the City of Bloomfield Hills new ordinance regarding building setbacks. Johnson testified that Mrs. Jones authorized him to hire Mr. Heil and bills for his services were sent directly to Mrs. Jones.

14. On July 25, 1993, Johnson delivered to Mrs. Jones his "Design Development Program", which contained a program outline, design-development schematics and an overall building schematic for an addition to, and remodeling of, the Orchard Ridge house. Johnson had expected to pick up a signed copy of the AIA contract at that time, but Mrs. Jones informed him that "her attorney was busy doing something else" and that she had not had time to get to the contract, either. However, Mrs. Jones did pay Johnson a "retainer" of $5,000 at that time, and Johnson testified that he believed that he was "hired" as to do the architectural work on the house as of that payment. (Johnson stated that Mrs. Jones had told him shortly after their meeting on July 15th when he gave her his architectural proposal and the AIA contract that she wanted to hire him as the architect, but that he did not believe he was actually hired until she paid him the $5,000 retainer on July 25th.) Johnson testified that he did not have any reason to believe at that time that Mrs. Jones was not going to sign the contract he had given her.

15. On August 10, 1993, Johnson again met with Mrs. Jones. He gave her at this meeting a "Preliminary Construction Budget Analysis" setting out a construction estimate of the project and a projected cashflow for the construction. He also gave Mrs. Jones some architectural drawings that he had done for the renovations.

16. At that August 10 meeting, Mrs. Jones stated that she wanted Johnson to handle the renovation as a "design/build," under which Johnson would serve not only as the architect but also as the general contractor, rather than solely as an architect. Johnson told her that he would get a copy of the AIA contract for doing a design/build and would deliver it to her. Johnson testified that as of this point in time, it was his understanding that the AIA standard architect's agreement which he had previously given to Mrs. Jones was "null and void."

17. Johnson did, in fact, deliver to Mrs. Jones an AIA "Standard Form of Agreements...