After making an oral argument before the U.S. Court of Appeals for the Fifth Circuit, most lawyers spend the ensuing months second-guessing their argument and wondering if they’ve answered the judges’ questions.
Yet, Houston solo Patrick Zummo hardly had time to worry about any of those things after arguing K ipp Flores Architects v. Hallmark Design Homes.
“The oral argument in the case was Tuesday morning, November the 5th. And we got the opinion by electronic notification on Thursday the 7th,” said Zummo, who represents plaintiff Kipp Flores Architects (KFA). “I did the oral argument. And then I went on to go to another city to do a deposition. And then, when I get back to the office, we get notice the court has ruled. I’ve never had a case decided that fast.”
Zummo was defending a $3.2 million architectural copyright infringement jury verdict on appeal before the Fifth Circuit.
According to a Sept. 21, 2012, verdict in Kipp Flores, a jury in a U.S. magistrate judge’s court in the Southern District of Texas largely found that defendant Hallmark Design Homes had infringed KFA’s copyright by using KFA’s residential home designs without permission. Jurors awarded KFA $3.2 million in damages. U.S. Magistrate Judge Frances Stacy signed a final order adjudging that Hallmark Design Homes had infringed on KFA’s designs on Oct. 4, 2012. Hallmark Design Homes appealed the verdict to the Fifth Circuit, which heard oral argument in the case this month.
And on Nov. 7, the Fifth Circuit issued a brief per curiam decision, affirming the judgment in the case.
“We have reviewed the briefs, the applicable law, and the pertinent portions of the record and have heard the arguments of counsel,” the decision noted. “The case was well tried by the magistrate judge sitting by consent. There is no error, and the judgment is affirmed.”
“They made two arguments on appeal. First, they said we did not give the jury evidence of what the defendants had built. But, in fact, the jury did have plans” for each of these houses “straight out of the defendants’ files,” Zummo said of his argument before the Fifth Circuit.
“They also made the argument that we had not properly put on evidence of what the defendant’s profits were,” he says. But he said his client based its damages on, and the jury had, “a ledger the defendants had that showed each house that was built and what they sold for,” noting that he provided the Fifth Circuit panel with copies of the evidence presented to the jury.
Zummo believes that providing that evidence to the 5th Circuit helped the appellate judges make up their minds quickly.
“And maybe they thought there was an interesting legal issue and they resolved that before we got there,” Zummo says. “But I don’t know how to speculate anything else.”
R. Brent Cooper, a partner in Dallas’ Cooper & Scully who represents Hallmark Design Homes on appeal, is disappointed in the Fifth Circuit’s decision.
“The question was whether [the plaintiff] had met their burden under the Copyright Act,” Cooper said. “And, fortunately, these issues are still unresolved because the Fifth Circuit chose not to write on them.”