Contracts 101 for Enterprising Law Student

     (CN) – A Florida law student neglected the basic requirement of a contract – mutual assent – when he acted on a defense attorney’s “rhetorical” $1 million offer for proof of the state’s timeline in his client’s capital-murder case, the 11th Circuit ruled.
     James Cheney Mason, a prominent Orlando criminal defense attorney, made the remark while speaking to NBC about his client, Nelson Serrano, who was then on trial for killing four people.
     On the day of the murders in Bartow, Fla, a security camera videotaped Serrano exiting and entering the lobby of a La Quinta Inn in Atlanta, Ga., in the morning and evening.
     Convicting Serrano thus required prosecutors to show that he used a 10-hour window to fly from Atlanta to Tampa using an assumed name, commit the murders in Bartow, and then fly back to Atlanta.
     NBC recorded Mason as saying that the state failed to show that his client could have gotten off a plane at Atlanta’s busy airport and arrived at the La Quinta Inn several miles away to appear on the hotel lobby’s security camera in only 28 minutes.
     “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,” Mason said, according to a transcript included in the decision.
     By the time the interview aired, two months after Serrano’s trial ended in a conviction, Mason’s client was sitting on death row.
     But that did not deter Dustin Kolodziej, then a student at the South Texas College of Law, now an attorney in San Antonio. Kolodziej saw the NBC “Dateline” broadcast while exercising one day, and took Mason’s remark seriously.
     He bought a ticket to Atlanta, and used his own cellphone to record himself performing the “challenge” in 19 minutes.
     Kolodziej filed suit for breach of contract when Mason rebuffed his Dec. 15, 2007, letter, demanding the promised payment of $1 million.
     A federal judge dismissed Kolodziej’s action in February, and the 11th Circuit affirmed Friday.
     “We do not find that Mason’s statements were such that a reasonable, objective person would have understood them to be an invitation to contract, regardless of whether we look to the unedited interview or the edited television broadcast seen by Kolodziej,” Judge Charles Wilson wrote for the three-judge panel.
     First of all, the sentence allegedly forming the contract, “I’ll pay them a million dollars if they can do it,” is colloquial, the panel found.
     “The exaggerated amount of ‘a million dollars’ – the common choice of movie villains and schoolyard wagerers alike – indicates that this was hyperbole,” Wilson said.
     And second, Mason’s statement must be read in context – he was giving an interview regarding his representation of a murder suspect, and pointing out holes in the prosecution’s argument, without a clear intention of entering into a serious contract, according to the judgment.
     Mason took no other action to indicate to Kolodziej that the statement was contractual, such as putting aside money in an escrow account, or promoting the video.
     “None of Mason’s surrounding commentary gave the slightest indication that his statement was anything other than a figure of speech,” Wilson said. “In the course of representing his client, Mason merely used a rhetorical expression to raise questions as to the prosecution’s case. We could just as easily substitute a comparable idiom such as ‘I’ll eat my hat’ or ‘I’ll be a monkey’s uncle’ into Mason’s interview in the place of ‘I’ll pay them a million dollars,’ and the outcome would be the same.”
     Nor did Kolodziej ever contact Mason to check whether the offer was serious before purchasing his tickets and recording himself making the trip.
     “Kolodziej may have learned in his contracts class that acceptance by performance results in an immediate, binding contract and that notice may not be necessary, but he apparently did not consider the absolute necessity of first having a specific, definite offer and the basic requirement of mutual assent,” Wilson said. “We simply are driven to ask, as Mason did in his response letter: ‘Why did you not just call?’ Perhaps a jurist’s interpretation of an old aphorism provides the answer: ‘If, as Alexander Pope wrote, ‘a little learning is a dangerous thing,’ then a little learning in law is particularly perilous.'”

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