Korman v. Iglesias, 90-0119-CIV.

• Decision Date: 23 June 1993
• Docket Number: No. 90-0119-CIV.,90-0119-CIV.
• Citation: 825 F. Supp. 1010
• Parties: Grecia "Mimi" M. KORMAN, Plaintiff, v. Julio IGLESIAS, Defendant.
• Court: U.S. District Court — Southern District of Florida

825 F. Supp. 1010

Grecia "Mimi" M. KORMAN, Plaintiff, v. Julio IGLESIAS, Defendant.

No. 90-0119-CIV.

United States District Court, S.D. Florida, Miami Division.

June 23, 1993.

Alyssa Reiter, Hicks, Anderson & Blum, P.A., Miami, FL, Murray Sams, Jr., Law Offices of Murray Sams, Jr., Coral Gables, FL, for plaintiff Korman.

William F. Hamilton, Juan C. Enjamio, Holland & Knight, for defendant Julio Iglesias.

ORDER (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

MORENO, District Judge.

THIS CAUSE came before the Court upon the Defendant's Motion for Summary Judgment, the Plaintiff's Cross-Motion for Summary Judgment, and the Report and Recommendation of U.S. Magistrate Judge Barry L. Garber.

THE MATTER was referred to the Honorable Barry L. Garber, United States Magistrate Judge. A Report and Recommendation dated April 27, 1993 has been filed, recommending that the Defendant's Motion for Summary Judgment be granted and the Plaintiff's Cross-Motion for Summary Judgment be denied. Objections to the report have been filed.

THE COURT has conducted a de novo review of the entire record and has been otherwise fully advised in open court. The court finds that the Plaintiff's claims for fraud, civil theft, and constructive trust are barred by the applicable statutes of limitations, as explained fully in Judge Garber's Report and Recommendation. Accordingly, it is

ADJUDGED that United States Magistrate Judge Barry L. Garber's Report and Recommendation is AFFIRMED in its entirety. Based on the report, the objections are OVERRULED. The Defendant's Motion for Summary Judgment is GRANTED, and the Plaintiff's Cross-Motion for Summary Judgment is DENIED.

REPORT AND RECOMMENDATION

GARBER, United States Magistrate Judge.

THIS CAUSE is before the Court pursuant to an Order of Reference entered in this cause on April 27, 1993. The following Report and Recommendation is submitted on the defendant's, Julio Iglesias ("Iglesias"), motion for summary judgment and the plaintiff's, Grecia "Mimi" Korman ("Korman"), cross motion for summary judgment.

BACKGROUND

Korman filed suit against Iglesias for fraud, civil theft and constructive trust on January 16, 1990.¹ Korman alleges that in May 1978 Iglesias asked her to write a Spanish adaption of a French song, "J'ai Oublié de Vivre". (Compl. at ¶ 6). Iglesias allegedly represented that his publisher was in the process of securing a contract from the French publisher and promised to pay Korman a percentage of the royalties for the Spanish version of the song. Id. at ¶ 7.

Korman wrote Spanish lyrics for the French song, titled it "Me Olvidé de Vivir" (the "song") and delivered the lyrics to Ramon Arcusa, Iglesias' music director. Id. at ¶ 8. Korman alleges that in October 1978 Enrique Garea ("Garea"), the director of Iglesias' Spanish recording company, presented her with a contract securing her royalties for the Spanish lyrics she wrote for the song. Id. at ¶ 9. The parties to the contract were Korman and Star Music, a music company of which Iglesias was a principal, and the contract provided for Korman to assign all of her rights to the song in return for a percentage of the royalties. Id. at ¶ 10; (See Korman Depo. at pg. 309). Korman alleges that at the time she executed the contract, which had not been executed by Star Music, that Garea was to take the contract to Spain to have it executed by Star Music and registered with the Spanish Authors Society and that he would mail Korman a copy. (Compl. at ¶ 11; See Korman Depo. at pg. 191). Korman did not keep a copy of the contract. (Compl. at ¶ 11). The song was released in 1979 and included Korman's original title as well as a significant portion of her lyrics. Id. at ¶ 13. Korman alleges the song has been released on phono albums, audio cassettes, laser discs and video cassettes and in printed lyric sheet form and is still distributed worldwide. Id. at ¶ 14. In most of the releases, Korman is credited as one of the authors of the song. Id. at ¶ 13. Korman alleges that she has not received any of the royalties or compensation for the song. Id. at ¶ 14.

Between 1979 and 1987 Korman inquired about the status of both the contract and the royalties. Id. at ¶ 15; (See Korman Depo. at pg. 225). In February 25, 1979, Korman wrote a letter to Garea inquiring about the contract. (Korman Depo. at pg. 225). Korman did not receive any response and unsuccessfully attempted to reach Garea in 1981, 1982, 1983 and 1984. Id. at pgs. 191, 193. In 1980 Korman spoke with Iglesias who told her not to worry about her royalties as she had signed a contract with Garea and that "these things take time...." Id. at pg. 193. Korman inquired from Garea about the contract in either 1984 or 1985 to which he responded that he did not remember anything about the contract. Id. at pg. 194. In January 1985 Korman wrote a letter to Garea inquiring as to royalties and the contract and in February 1985 received a written response from Garea which reads, in pertinent part:

About the information you requested, I really don't know what you're referring to since the song "Me Olvidé de Vivir"— recorded by Julio Iglesias—originally belongs to a French publisher, as it really is a French work, and the publisher in Spain is Ediciones Star, and whatever royalties it might have earned must have been paid by the Society General of Authors in Spain (S.G.A.E.) to the respective parties and if you appear in the Spanish lyrics they must have paid you, or remain in deposit pending claim in S.G.A.E.

This record is not part of our catalog, it is owned by CBS, so I assume that CBS, in Miami, might be able to better inform you.

Id. at Ex. 9.

Korman estimated that she began in 1980 to inquire about the royalties from various entitles and estimated that she had made approximately 50 or 60 inquiries, both written and oral. (Korman Depo. at pgs. 68, 69). One of these entities was the American Society of Composers, Authors and Publishers ("ASCAP"), which sends its members distribution sheets² that reflect the songs on which royalties have accrued and also distributes the royalties to the members. Id. at pgs. 47-51. Korman has been a member of the ASCAP since 1972. Id. at pg. 47. In 1980 Korman became aware that the song had her credits and inquired to the ASCAP about royalties. The ASCAP told Korman that she would have to index the song with them. Id. at pg. 69. Korman indexed the song in both 1980 and in 1990. Id. at pg. 66. Between 1980 and 1990 Korman received the distribution sheets from the ASCAP which did not reflect any royalties accruing to Korman for the song. Id. at pgs. 66-67. In 1992 for the first time Korman received a royalty for the song. Id. at pg. 67.

In 1980 and 1981 the song was being played both domestically and internationally and at this time Korman believed she was entitled to royalties for the song. Id. at pg. 73. In addition to Iglesias, Garea and the ASCAP, Korman made inquiries between 1980 and 1985 to the Spanish society, CBS (who had acquired the rights to Iglesias' songs), Disco CBS, the French Society of Composers and Authors and Publishers and the Harry Fox Agency as she felt that she should have received royalties. Id. at pgs. 214-217, 258. Korman states that despite her inquiries to these entities, she never received an answer as to the status of the royalties. Id. at pgs. 215, 263. In 1986 Korman spoke to Iglesias, who was surprised that she had not received any of the royalties and told her to meet with him at a studio. Id. at pg. 212. When Korman went to the studio, Iglesias gave her his phone number and said to call him at home; however, when Korman called Iglesias at his home she was not able to speak with him. Id. at pg. 213.

In January 1987, SGAE, Society General of Authors in Spain, informed Korman that Garea and Star Music had signed a subpublishing contract with the French publisher which credited Iglesias as the sole author of the song and advised her that the final word on her royalties would have to come from the French society. Id. at Ex. 18. Korman retained counsel who received information from the French Composers' Society on July 6, 1988 stating that according to documentation received from the SGAE that the author of the song was Iglesias. Id. at Exs. 20-21. On July 14, 1988, Korman first saw a copy of the musical adaptation contract that Iglesias and Garea filed with the publishers, which was not the contract that she had signed, and listed Iglesias as the author. Id. at pgs. 315-16; Ex. 27.

Iglesias seeks summary judgment on the claims for fraud, civil theft and constructive trust on the bases that these claims are barred by the statute of limitations. Korman seeks summary judgment on the applicability of the statute of limitations to the civil theft claim.

DISCUSSION

I. STANDARD OF REVIEW

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is mandated

after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The standard for summary judgment is that of a directed verdict, "which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citing Brady v. Southern R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943)). Further, a "party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id., 477 U.S. at 256, 106 S.Ct. at...