Summary Judgment Motion Hearing – June 6

On Wednesday, June 6, 2007, Judge C. Weston Houck held a hearing on the Summary Judgment motions of A&E Television Networks and Departure Films.  Today, I received a transcript of the hearing.  For the most part, the hearing seems to have been routine. 

A&E/Departure argues that there was no written contract, that the verbal contract to split profits didn’t contain the terms that Richard Davis and Trademark claim, and that Richard Davis has been inconsistent in even his understanding of the agreement.

Several things of note were decided:

  • The contract issues will be handled under New York law.
  • The defense claims that an oral contract under New York law will fail unless it contains an express termination provision, under Burke, a case that was not fully cited in the hearing and to which my Westlaw account doesn’t provide access.
  • The Court felt that an oral contract did exist between Trademark/Davis and A&E/Departure.
  • If that oral contract is believed by the Jury, then it is enforceable.
  • The Court ruled that issuing partial summary judgment, even if it was determined appropriate, would not reduce the discovery burden, and therefore would be denied in its entirety.
  • The Court declined to restrict discovery information relating to costs and other finances to the view of only the attorneys, ruling that preventing Richard Davis from seeing this information would be fundamentally unfair.
  • The Court believes that discovery should be scheduled to end within four months.

The thing that was a minor point in the hearing, mentioned at the end of the hearing only, but of significant note and concern to your humble webmaster, is the Court’s final message:

One other thing I was not going to mention today, because I just thought it might be best to ignore it, but upon reflection, I think it’s a matter of such seriousness that I do need to mention it.

It’s been brought to my attention that there is a web blog entitled Flip This Lawsuit. I haven’t looked at that blog, I haven’t studied it to see what it says. I have been told what it says.

Now, I’ve never had this happen before, and I consider it a very, very serious matter. At first blush, it appears to me to be an attempt to influence this lawsuit in an improper way. We can’t tell what’s happening there until we draw a jury.

But at some point in time, if I’m convinced that that has been the result of such a blog, in other words, if we have jurors that come in here and they’ve read that blog, and upon reading that, they cannot give the defendants a fair trial, then that is a serious matter, and it will be considered by such as this court. And an appropriate punishment and sanctions will be handed out. I’m not sure what those will be. I think you lawyers know that if you did that, what would happen to you, you would probably be looking for another profession. So that’s how I feel about that.

Now, whether what’s going on that blog is of such a nature that it in and of itself, whether members of the public read it and act on it or not, warrants a sanction by this court, and some sort of obstruction of justice, some sort of contempt of this court, I don’t know. But it’s because of those consequences that I see fit to bring this to your attention. This is a serious matter. This is a serious court. And we will not permit its function to be undermined in such an unseemly fashion.

Now, who is responsible for that blog? I don’t know. It may be that I’ll have to ask the FBI to look into it. It may be I’ll have to ask the U.S. Attorney to get the grand jury to look into it, I don’t know. Those are things down the road. But it seems to me that the information I have certainly shows that the defendants don’t have their name on this blog and that the plaintiff does.

And I would think that good, prudent action on his part would have gotten it off of there a long time ago. And that’s all I’m going to say on that. But when we get to the end of this case at some point, we’ll look at it again and see who is responsible; what the effects are and what action we should take.

But it just felt like that it is such a serious matter and such an unthinkable thing for a litigant to do in this court, that it needed to be commented on. I mean, we are not in Boy Scout camp; we are in serious court here and we don’t do business that way. And I’m not going to permit litigants in this case to do business in that way. Okay?

Thank you very much. We’ll be in recess.

I, of course, have no affiliation with Flip This House, Richard Davis, Trademark Properties, A&E Entertainment Television, or Departure Films.  I don’t work for any of their attorneys, agents, or employees.  The site is supported through my own funds and through revenue generated by advertising on this page.

I’m a fan, and one that was incredibly pissed off by the actions of A&E on the first night of season two.  Not only did they deceive me, as a viewer, about what I was about to see by running only ads for Trademark Properties, but when I went to their website – to the place that they set aside for viewer discussion – I quickly found that my voice, and the voice of others who disliked the new cast or simply wanted to learn more information about the change, were quickly edited with the delete button.  This heavy-handed moderation continues to this day, and I feel it only appropriate to provide a forum for open discussion of not only the lawsuit but also the subsequent developments in both television shows, Flip This House and The Real Estate Pros / The Real Deal. 

I informed all counsel, through email on February 23, 2007 that my website was open to accepting information from any party that they wished to share with this audience.  In that same email, I informed all counsel that I was not affiliated with any of the parties and requested that, if they submitted printed copies of pages from my website, that they include the entirety of the page so as to include the disclaimer which appears at the bottom of each page on this site. 

The information I post here is obtained through the public records of the Court itself.  Any potential juror who wished to learn these things could easily visit the courthouse themselves and check out the file or even read it through PACER in their underwear at home or from nearly any coffee shop in the world.  Unlike traditional media, which filter the information provided and determine what information you deserve to know, I make it a point to report on all possible information by providing you access, for free, to all of the court documents.  In this manner, you can view and decide for yourself what information is relevant – or even just interesting – to you personally. 

The Court’s comments regarding this website are the subject of an item in the Charleston, SC Post and Courier, which you can read online.  The article begins, “Is the Internet weaving its web into America’s court rooms? Not if a district court judge in Charleston has anything to do with it.” 

I’ve pulled new documents from PACER.  They are, as follows:

I will continue to report on developments in the litigation, as well as on both shows, as events unfold.

EDIT – June 15, 2007 – I have removed Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment and the exhibits thereto.  I was informed that this document is actually a sealed document, but because of a filing error was available for public access.  While I don’t believe this trial should continue being conducted behind a veil of secrecy, I do not desire to publish documents that are restricted by the Court’s order. 

20 Comments on “Summary Judgment Motion Hearing – June 6”

  1. Steve in Texas says:

    I read the transcript, interesting. It’s frankly Bizzaro World that the judge
    would say, based on what he was told that the plaintiffs ‘have their name’ on this blog. Unbelievable!

    And barring that, your honor. It’s called Freedom of Speech, which is protected under the 1st Amendment. And, if you’re worried about about undue influence with a potential juror, that’s what ‘Voir dire’ is for. Sheesh

  2. Steve in Texas says:

    From Exhibit 6…


  3. dg says:

    Thanks for all the information, Mark.

    I hope the comments about your site are about whether or not the parties involved in the lawsuit had anything to do with it, rather than it existing at all.

  4. Steve in Texas says:


    I’m sure that’s what it is. Mark has posted some of what are mass emailings about the thier new show etc that anybody can get by singing up at Trademark to get them, I get them as do thousands of others I’m sure. And, by the way, they
    have nothing to do with the lawsuit. Just basically the new show. I can see though (and have seen in the comments) that some assume (wrongly) that the Trademark quoted comments from the emails are unique and/or are addressed to this site, they aren’t.

    I just finished reading the entire deposition (exhibit #6). Wow, what an eye opener. I can see why Davis is pissed, and rightly so in my opinion

  5. Steve in Texas says:

    A litte more to chew on if you’ve read
    the deposition.

    Main Entry: 1part·ner
    Pronunciation: ‘pärt-n&r also ‘pärd-
    Function: noun
    Etymology: Middle English partener, alteration of parcener, from Anglo-French, coparcener — more at PARCENER
    1 archaic : one that shares : PARTAKER
    2 a : one associated with another especially in an action : ASSOCIATE, COLLEAGUE b : either of two persons who dance together c : one of two or more persons who play together in a game against an opposing side d : a person with whom one shares an intimate relationship : one member of a couple
    3 : a member of a partnership especially in a business; also : such membership
    4 : one of the heavy timbers that strengthen a ship’s deck to support a mast — usually used in plural

    Main Entry: part·ner·ship
    Pronunciation: -“ship
    Function: noun
    1 : the state of being a partner : PARTICIPATION
    2 a : a legal relation existing between two or more persons contractually associated as joint principals in a business b : the persons joined together in a partnership
    3 : a relationship resembling a legal partnership and usually involving close cooperation between parties having specified and joint rights and responsibilities

  6. Steve in Texas says:

    Judge Houck owes this web site an apology, in open court. Thankfully, I haven’t been visited by a US Attorney (Loyal ‘Bushie’) yet for commenting here, declared as an enemy combatant, stripped of habeas corpus, and rendered to a secret CIA run prison in Poland or Romania.

    The downside though is that I’ve always wanted to go to Europe and haven’t been there yet ; )


  7. Charlie says:

    Nothing is more amusing than the rantings of a judge in an area where he knows he is impotent. The FBI and U.S. Attorney would laugh at his request to “investigate” a blog.

  8. Steve in Texas says:

    The complete arrogance displayed by A&E
    in the ‘Richard Davis Deposition’ (yes,
    his version) is mind boggling. And it’s the same Richard Davis you see on TV,
    credible, trusting, and etc. It sure
    looks like to me he wants to take this to a jury.

  9. Nikki says:

    Wow, what an arrogant jerk this judge is. Like another poster said, it’s called the 1st Amendment idiot, look it up. Keep up the great blog Mark – it’s super informative & a credit that you’re keeping up with it.

  10. T.V. House Flipping Show Lawsuit…

    For all those fans of house flipping shows on T.V. there is now a website dedicated to discussing a lawsuit…

  11. Mike Voss says:

    Dear God. For a court, for a JUDGE to start talking about penalties and sanctions, grand jury investigation and FBI investigation of a website he clearly states he has NEVER SEEN and has NO PERSONAL KNOWLEDGE OF is beyond irresponsible. It is incompetent. For someone to speak about something of which they do not have personal knowledge is the height of ignorance. Were I a party to that case, I’d be investigating that judge and looking to have him replaced.

  12. Sam says:

    GREAT Blog! I had loved the show, and wondered what the heck was happening, and now I know. Thanks for putting this together and keeping up with it all. Btw, typical judge trying to throw his weight around.

  13. Steve in Texas says:

    Re: “EDIT – June 15, 2007 – I have removed Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment and the exhibits thereto. I was informed that this document is actually a sealed document, but because of a filing error was available for public access. While I don’t believe this trial should continue being conducted behind a veil of secrecy, I do not desire to publish documents that are restricted by the Court’s order.”

    Mark, that being the case please delete my comments on this thread related to the exhibits.


  14. KH says:

    If A&E can continue to profit from shows with Trademark and the other casts while this lawsuit is happening I would be a slap at the Constitution to squelch the new press in covering it.

  15. don zuchowski says:

    So I guess free speech no longer exists in America? Also how does this judge feel about newspapers covering this lawsuit? Isnt this website just like a newspaper article? The comments on this site is just like letters to an editor in a news paper..

  16. donald says:

    I am shocked that a federal judge would make these comments. Add to this the fact that he admitted that he had not viewed the web site, and it makes it even more egregious. The intent was clearly for the those posting on this site to see the threats. I had something similarly off the wall happen in a case that I was working on (although not this blatantly unconstitutional), and it turned out that the defense counsel “off the record” had made some comments to the Judge which were half-truths and resulted in some rather unfortunate comments. I wouldn’t be surprised if something similar didn’t happen here. Obviously the last thing that A&E wants is bad press for them and good press for Trademark.

    It’s ironic when the courts of justice are afraid to have their own work exposed to the public view.

  17. Jim says:

    This may be the most ridiculous thing I’ve ever heard. It would be like trying to stop a small town from gossiping about an upcoming big case.

    “I’m sorry Edna, but it’s off to the lockup for you. I saw you and Gertrude talking about the McWillis case.”

    Yeah, right.

  18. Fools Gold says:

    I wonder if the judge thinks that the court reporter transcribing his comments is attempting to influence his decision? How does holding something up to public view constitute a threat to the administration of justice when our very fundamental concepts are of openness and accountability.

  19. kevin says:

    Did I see a couple of months ago about the new cast of flip this house on A&E being investigated. I believe they were all fakes and had been disbarred from having a real estate license?

  20. Dennis says:

    I just got up to speed on this blog. Yes, there is apparently shenanigans going on in both the Atlanta and San Antonio shows (Sam from Atlanta is accused of Fraud, the Texas gang used an actor for an auction they “held”…seems in the end the buyer backed out and the house was not sold).

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