Kolodziej v. James Cheney Mason & J. Cheney Mason, P.A.
| Decision Date | 29 January 2014 |
| Docket Number | Case No. 6:11–cv–859–Orl–36GJK. |
| Citation | 996 F.Supp.2d 1237 |
| Parties | Dustin S. KOLODZIEJ, Plaintiff, v. James Cheney MASON and J. Cheney Mason, P.A., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
OPINION TEXT STARTS HERE
John Armando Boudet, Roetzel & Andress, LPA, Orlando, FL, William David George, Connelly Baker Wotring, LLP, Houston, TX, for Plaintiff.
Louis K. Bonham, Osha Liang, LLP, Austin, TX, Thomas K. Equels, Equels Law Firm, Orlando, FL, Brian Kent Wunder, Osha Liang, LLP, Houston, TX, for Defendants.
This cause comes before the Court on the Motion for Summary Judgment (the “Motion”) filed by Defendants James Cheney Mason (“Mason”) and J. Cheney Mason, P.A. (“Mason Law Firm”) (collectively, “Defendants”). (Dkt. 72.) Plaintiff Dustin S. Kolodziej (“Kolodziej” or “Plaintiff”) filed a Response to the Motion (“Response”) (Dkt. 79) and Defendants filed a Reply to Plaintiff's Response (“Reply”) (Dkt. 85). Oral argument on the motion was held on September 24, 2013. Upon due consideration of the parties' submissions, including deposition transcripts, affidavits, stipulation of facts, memoranda of counsel and accompanying exhibits, and the oral argument of counsel, and for the reasons that follow, Defendants' Motion will be granted.
I. BACKGROUNDA. Undisputed Facts1
The central issue before this Court is whether a unilateral contract was formed between Defendants and Plaintiff Kolodziej. This purported contract arose as a result of a capital murder trial that took place in Bartow, Florida. (Dkt. 89, Joint Final Pretrial Statement (“JFPS”) ¶ 9A; Dkt. 79–3, Deposition of James Cheney Mason (“Mason Dep.”) 10:23–11:11.) Mason, whose law firm is J. Cheney Mason, P.A., was one of the attorneys who represented the criminal defendant, Nelson Serrano (“Mr. Serrano”), in that trial. Id.; Dkt. 72, Ex. 1, Declaration of J. Cheney Mason (“Mason Aff.”) ¶¶ 2–3. Mr. Serrano was accused of murdering four people in central Florida about 60 miles away from Orlando on December 3, 1997. (JFPS ¶ 9B.) The trial attracted heavy media interest and, as a consequence, during the trial, NBC News conducted an interview with Mason regarding the case. (Mason Dep. 21:23–22:2, 22:13–23:2, 33:12–34:2; Mason Aff. ¶ 5; Dkt. 72, Ex. 2, Declaration of William V. Knight, III (“Knight Aff.”) ¶ 3; JFPS ¶ 9I.) During that interview, Mason talked about certain aspects of the prosecution's theory that seemed highly implausible to him. (Dkt. 76, Stipulation, Jt. Ex. 3, NBC News Mason Interview DVD (“Unedited Mason Interview”).)
On the day of the murders, Mr. Serrano could be seen on a security camera at a La Quinta hotel in Atlanta, Georgia several hours before and after the murders had taken place. (JFPS ¶ 9C.) At his trial, Mr. Serrano alleged that he could not have committed the murders in Florida between the times that he was seen on the La Quinta hotel security camera in Atlanta. Id. ¶ 9D. The prosecution's theory of the case was that: 1) on the morning of December 3, 1997, Mr. Serrano slipped out of the Atlanta hotel after having been recorded on the security camera there; 2) he flew by airplane under an assumed name (“Juan Agacio”) from Atlanta to Orlando; 3) he drove from the Orlando International Airport (“Orlando Airport”) to Bartow where he committed the murders; 4) he subsequently drove from Bartow to the airport in Tampa, Florida; 5) he flew from Tampa back to Atlanta on Delta flight number 1272 under another assumed name (“John White”) in a coach seat in Row 30 or 32; and 6) from the Atlanta Hartsfield International Airport (“Atlanta Hartsfield Airport”) where his plane landed, returned to his La Quinta hotel that evening where he once again could be seen on the hotel video camera recording. (Mason Aff. ¶ 3; JFPS ¶¶ 9C, E; Mason Dep. 37:11–24; Unedited Mason Interview.)
The purported unilateral contract was based on Mason's comments during the NBC interview regarding the last part of the prosecution's theory concerning Mr. Serrano's purported travel from the Atlanta Airport back to his La Quinta hotel. See Unedited Mason Interview. The prosecution's theory regarding this last leg of the Serrano trip was that Mr. Serrano was able to travel from the time that his Delta plane landed at the Atlanta Airport (referred to by Defendants as “wheels down”) to his La Quinta hotel lobby in only 28 minutes. (Mason Aff. ¶¶ 3–4; Mot. Hr'g Tr. 9, Sept. 24, 2013; Unedited Mason Interview.) Mason commented during his interview that it was “not possible” for someone to accomplish this trip in the allotted 28 minutes. See Unedited Mason Interview. Just prior to Mason's comments regarding this last leg of the trip, Mason talked about how he believed it was “highly improbable” for Mr. Serrano to have traveled from the Orlando Airport to the crime scene in Bartow and commit all of the murders within one hour and thirty minutes as the prosecution theorized. Id. Mason, in general, expressed his disbelief that anyone could have committed these murders between the two times Serrano was seen on the La Quinta hotel video camera. Id. It was against this backdrop that Mason commented on the last leg of the Serrano trip, as follows: 2
CHENEY MASON, ESQ.:
... And, of course, just as importantly is—is the business of getting back to Atlanta, and getting from—landing in Atlanta and getting to the—to [the] hotel in 28 minutes.
DENNIS MURPHY 3:
Airport hotel.
CHENEY MASON, ESQ.:
Well, no, it's not at the airport. It's five miles away. You—how many times [have] you gone through the airport in Atlanta?
DENNIS MURPHY:
More than I'd like to think.
CHENEY MASON, ESQ:
I mean you know you're going to die there. You're going to be born again and die at the Atlanta Airport. You have to go through Atlanta to go anywhere, right?
DENNIS MURPHY:
What's the old joke about going to Heaven.
CHENEY MASON, ESQ:
Yeah. You go through—through Hartsfield International.
DENNIS MURPHY:
Change at Hartsfield first.
CHENEY MASON, ESQ:
Right. And—and so we know that when you land and—and—in Atlanta, depending on which concourse you're landing in, you're going to have to wait to get off the airplane. Even if you're [in] first class. They usually put the thing behind you so you got to wait till half the plane gets off anyway. You got people boxed in—the lady with the kids in the carriage. Or people getting down their bags. Or the fat one can't get down the aisle.
I mean, whatever the story is, you've got delays in getting off the airplane. So if you've got a landing time, you don't get off the airplane at that time. When—when have you ever gotten off an airplane in Atlanta in less than 10 minutes. It's not going to happen. Then what? Then you have to go from whatever gate you are, down to the middle, to go down the el—the escalators, to catch the subway train to the terminal.
Wait for that. Wait while it stops in the meantime. People getting on and off. Get to that. Go up again, the escalators. Get to where you're in the terminal, out the terminal to ground transportation. And from there to be on the videotape in 28 minutes. Not possible. Not possible. I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State's burden of proof. If they can do it, I'll challenge 'em. I'll pay them a million dollars if they can do it.
DENNIS MURPHY:
If they can do it in the timeline (or time allotted).
CHENEY MASON, ESQ:
Twenty-eight minutes.
...
Can't happen. Didn't happen. So what's the explanation. Somebody else. Does that mean necessarily that Mr. Serrano had nothing to do with any of it? Giving again the argument in the best light of the State and the Jury's suspicion. Not necessarily. But did they prove the case they charged—they proved beyond a reasonable doubt. Absolutely not. Couldn't have happened in that way.
Call me when you're ready for your check.
See Unedited Dateline Transcript.
In October 2006, Mr. Serrano was convicted of the murders and sentenced to death. (JFPS ¶ 9G; Mason Dep. 11:12–16.) Mason's interview with NBC was not broadcast during the trial. (Mason Dep. 21:10–13.) After the trial, however, NBC News featured the Serrano case in a broadcast of its “Dateline” news program (“Dateline Broadcast”). Id. The Dateline Broadcast included an edited version of Mason's interview in the program. The unedited interview did not air at all. (Mason Aff. ¶ 6; Dkt. 76, Stipulation, Jt. Ex. 2, Dateline NBC News Mason Interview DVD (“Edited Mason Interview”).) Neither Mason nor the Mason Law Firm were involved in any of the editing or broadcast decisions concerning the Dateline Broadcast. (JFPS ¶ 9M; Mason Aff. ¶ 6; Mason Dep. 31:14–32:1.) Mason did not see the program when it aired, nor was he aware that NBC had edited his interview until Kolodziej contacted him to demand payment of one million dollars for purportedly performing Mason's “challenge” as presented in the Dateline Broadcast. (Mason Aff. ¶ 6.) After editing, the portion of the interview concerning the last leg of the Serrano trip became: 5
MURPHY: (Voiceover) And the last part of the time line, the defense argued, was even more implausible. In less than half an hour, Serrano would have had to get off a wide-bodied jet, exit Atlanta airport, one of the busiest in the world and arrive back at his hotel five miles away, all in time to be photographed looking up at the surveillance camera.
( [footage of] [a]irplane; inside airplane; airplane; highway; surveillance videotape of Serrano at hotel)
Mr. MASON: I challenge anybody to show me—I'll pay them a million dollars if they can do it.
MURPHY: If they can do that in the time allotted.
Mr. MASON: Twenty-eight minutes, can't happen. Didn't happen.
See Edited Dateline Transcript at 14–15.
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