MacMillan Co. v. IVOW CORP.

• Decision Date: 25 June 1980
• Docket Number: Civ. A. No. 73-323.
• Citation: 495 F. Supp. 1134
• Court: U.S. District Court — District of Vermont
• Parties: MacMILLAN COMPANY v. I.V.O.W. CORPORATION and William Szirbik, Individually.

495 F. Supp. 1134

MacMILLAN COMPANY v. I.V.O.W. CORPORATION and William Szirbik, Individually.

Civ. A. No. 73-323.

United States District Court, D. Vermont.

June 25, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Philip R. Rosi, Kristensen, Cummings, Rosi & Murtha, Brattleboro, Vt., for plaintiff.

Peter Banse, Rutland, Vt., for defendants.

Rolf M. Sternberg, Hoosick Falls, N. Y., for defendant I.V.O.W. Corp.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HOLDEN, Chief Judge.

The plaintiff MacMillan Company has brought this action against the I.V.O.W. Corporation to recover compensatory and punitive damages incurred as a consequence of the defendant's unauthorized use of certain plans, prepared by MacMillan, for the construction of an addition to a shopping center owned by I.V.O.W. MacMillan contends that the defendant's improper use of its plans infringed MacMillan's common law copyright in the plans, and unjustly enriched I.V.O.W. at the expense of the plaintiff. The court's jurisdiction is invoked under 28 U.S.C. § 1332 (1970).

At the close of the evidence the plaintiff moved to join William Szirbik, in his individual capacity, as a defendant in the action under Fed.R.Civ.P. 20(a). A corporate officer can be held liable for a tort in which he personally participated and the person wronged may proceed against him, although the corporation may also be liable. New England Acceptance Corp. v. Nichols, 110 Vt. 478, 488, 8 A.2d 665 (1939). William Szirbik was personally involved in the tortious conduct of the corporation and was a joint tortfeasor with the corporation. He was the only officer of the defendant who appeared as a witness at the trial. He was present as the corporate representative of the defendant at the counsel table and actively participated throughout the entire proceeding. It appears that William Szirbik will not be prejudiced by his joinder, albeit at a late stage of the proceedings. His joinder may well obviate the necessity for further litigation of the same issues. See C. Wright and A. Miller, Federal Practice and Procedure § 1688. The plaintiff will be permitted to join William Szirbik as a defendant. Cf. H. M. Kolbe Co. v. Shaff, 240 F.Supp. 588 (S.D.N.Y.1965).

From the evidence presented to the court, sitting without a jury, the court finds the facts which follow. The defendant I.V. O.W. is a Vermont corporation with its principal place of business in Manchester, Vermont; it owns and operates a shopping center at that location.

During the early months of 1972 the principal local officers of I.V.O.W., William Szirbik, treasurer, and Virginia Szirbik, president, actively explored the project of constructing an addition to the existing shopping center. Mr. Szirbik has had extensive experience over many years as a building contractor. In recent years he has been engaged as a real estate developer in the area of Manchester, Vermont. After answering advertisements from several "pre-engineering" structural steel contractors in the spring of 1972, the defendant received responses from Etbro Construction Company of Rutland, Vermont, and the plaintiff, a New Hampshire corporation with its principal place of business in Keene, New Hampshire.¹

William and Virginia Szirbik met initially with Robert Ettori of Etbro Construction in April of 1972 to discuss plans and a cost proposal for construction of the shopping center addition. The expansion contemplated at that time was limited to the construction of a single store of approximately 10,000 square feet for lease to the Ben Franklin Store. At the meeting the Szirbiks presented Ettori with the written specifications and layout designs for the Ben Franklin Store and some rough hand-drawn sketches of their concept of the project. (Plaintiff's Exhibit 27.) Following that brief meeting, Robert Ettori and the Szirbiks did not meet again to pursue the project until November 25, 1972.

In May of 1972, in response to the solicitation of I.V.O.W., Allan McAnney, vice president of the MacMillan Company, first met with the Szirbiks at the offices of I.V. O.W. in Manchester, Vermont, to discuss the construction project. The prior consultation with Ettori was not disclosed. McAnney, an architectural draftsman by training, was a member of the "pre-engineering" division at MacMillan, which publicized and marketed a building system under which the structural steel manufacturer offers standard-sized, pre-cut—"pre-engineered" —building components. A pre-engineered structure was suggested by McAnney to the Szirbiks to meet the needs of I.V.O.W. at the lowest possible cost. At the meeting the Szirbiks expressed interest in pursuing the construction of a pre-engineered addition to the shopping center. In their discussions with McAnney they conveyed their general notions concerning how they envisioned an enlarged shopping center could be accomplished. McAnney was also given a plot plan of the shopping center, prepared by an architect, Fritz Dillman, in 1966, and a set of the specifications and layout designs for the Ben Franklin Store. As a result of this meeting McAnney was led to believe that I.V.O.W. wanted the plaintiff to propose plans for an addition to the shopping center and to submit a price for the proposed project to I.V.O.W.²

Immediately after that meeting McAnney conducted an inspection of the building site and made some preliminary measurements of the building which was occupied by "Super Duper" Market, adjacent to the area of the proposed addition. After McAnney had worked up some sketches of a proposed addition for I.V.O.W., the "Super Duper" chain indicated its desire to expand its existing store, changing the criteria for the project. This required further consultations between McAnney and William Szirbik to accomplish solutions to a number of problems incident to the proposed project. The defendant required the structure to be located on a site that would avoid encroachment into the parking area within the property boundaries; a roof design that would minimize the tenant's heating costs, yet remain compatible in appearance with the existing stores in the shopping center; and a roof design to allow for snow and rain drainage to guard against accumulations. Preliminary drawings, presenting McAnney's resolution of these problems, were submitted to I.V.O.W. on August 11, 1972 (Plaintiff's Exhibit 2).

At a meeting early in September with the Szirbiks, Allan McAnney made an effort to reach a firm agreement on the final project plans and to confirm the business relationship between the parties. It was the general policy of MacMillan to prepare a preliminary layout and price for a prospective client without cost, but not to proceed beyond that point without compensation. McAnney prepared a commitment letter (Plaintiff's Exhibit 3) based on his layouts and a price estimate for the project as it was planned at that point in time. It was his purpose to have Szirbik approve this arrangement which would have committed I.V.O.W. to absorb any further costs incurred by MacMillan in preparing final drawings and specifications.³ The dimensions of the addition, however, were again changed by I.V.O.W. at that meeting. Since the commitment letter was based on plans which did not include those changes, it was withheld and not submitted to Szirbik for signature. Its contents, nonetheless, were discussed with Mr. Szirbik and he offered no objection to the proposal.

Since the Szirbiks indicated to McAnney that MacMillan was the only builder being considered for the project and that I.V.O.W. was satisfied with MacMillan's proposal, McAnney understood that I.V.O.W. was seeking a negotiated price contract. Consequently, he did not press for a written commitment from I.V.O.W. to pay for the cost of final plans and specifications.

At this point in time the acts and representations of the defendant's treasurer induced McAnney to justifiably believe that MacMillan Company would be engaged to provide the materials and perform the construction work necessary to complete the addition to the shopping center. On the strength of this understanding, MacMillan undertook and completed the final plans and specifications.

Within several weeks McAnney prepared and submitted to I.V.O.W. further working drawings, including the most recent changes in the project. Some delay in preparing the final drawings was interposed when it was discovered that the plot plan, provided by Szirbik to McAnney, was inaccurate. Another survey was done by Stewart Dauchy to establish accurately the rear lot line. While awaiting MacMillan's final proposal, William Szirbik submitted copies of the preliminary plans to prospective tenants and to a bank for their approval.⁴ By letter dated October 30, 1972, William Szirbik requested additional copies of the plans for the tenants and the bank. McAnney complied. In this letter Szirbik also urged:

I hope you are progressing with the plans and proposal with which you can undertake the initial construction phase. Just as soon as you can, get the proposal to us so we can act and get approval.

(Plaintiff's Exhibit 4.)

At some time early in November, McAnney completed his final working drawings of the proposed addition and submitted them to I.V.O.W. (Plaintiff's Exhibit 7). The drawings, characterized by two of the architects testifying in the case as working drawings, embodied MacMillan's unique and innovative solution to the several problems posed by the project. The final plans proposed a pre-engineered, flat-roofed steel structure with a false roof (giving the illusion of a peaked roof so as to appear compatible with the existing buildings in the center). The proposal consisted of six separate drawings: (1) a plot plan and roof plan; (2) the foundation plan; (3) the floor plan; (4) cross-sections of the roof facade; (5) exterior elevations and (6) cross-sections of the walls of the building.⁵ These plans were sufficiently detailed as to permit...