Medallion Homes Gulf Coast, Inc. v. Tivoli Homes of Sarasota, Inc. et al

Filing 38

ORDER: Defendants Tivoli Homes of Sarasota, Inc., Nicole Duke, Michael Duke, Jason Kubisiak, and Start to Finish Drafting, L.L.C.'s Motion for Summary Judgment 29 is GRANTED. The Clerk is directed to enter Judgment in favor of Defendants and thereafter to CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 11/5/2015. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MEDALLION HOMES GULF COAST, INC.,
Plaintiff,
v.

Case No. 8:14-cv-3117-T-33JSS

TIVOLI HOMES OF SARASOTA, INC.,
NICOLE DUKE, MICHAEL DUKE,
JASON KUBISIAK, and START TO
FINISH DRAFTING, L.L.C.,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendants
Tivoli Homes of Sarasota, Inc., Nicole Duke, Michael Duke,
Jason Kubisiak, and Start to Finish Drafting, L.L.C.’s Motion
for Summary Judgment (Doc. # 29), filed on August 14, 2015.
On August 25, 2015, Plaintiff Medallion Homes Gulf Coast, Inc.
filed a Response in Opposition to the Motion (Doc. # 30), to
which Defendants replied on September 4, 2015. (Doc. # 37).
The Court grants the Motion as explained below.
I.

Background
A.

The Dukes’ Failed Relationship with Medallion

Michael and Nicole Duke are a married couple who reside
in “the Hammocks,” a deed restricted community in Sarasota,
Florida. (Nicole Duke Dep. Doc. # 31 at 12).

In 2012, the

Dukes became interested in downsizing, but still wanted to
live in the Hammocks community.

In February of 2013, the

Dukes purchased a vacant lot with an address of 7988 Megan
Hammock Way, Sarasota, next door to the property that they
owned at 7992 Megan Hammock Way, Sarasota, Florida.

After

reviewing advertisements from various builders, the Dukes
visited a Medallion model home.

The Dukes expressed an

interest in the “Santa Maria VIII,” a Medallion model home.
(Id. at 15). The Dukes put down a $10,000.00 payment for
Medallion to construct a modified version of the Santa Maria
VIII at 7988 Megan Hammock Way, Sarasota, Florida. (Id. at
16).
However, the Hammocks required Medallion to come before
an Architectural Review Committee prior to constructing the
home.

(Id. at 17-18). A meeting was set; but, Medallion’s

representative failed to appear.

(Id. at 18).

Mrs. Duke was

“extremely upset” and felt it was “extremely rude” for the
Medallion representative to miss the meeting.

(Id. at 26).

Ultimately, after a “formal vote,” the Hammocks Architectural
Review Board forever barred Medallion from building a home in
the Hammocks community. (Id. at 22).

Shortly thereafter,

Medallion returned the $10,000.00 deposit to the Dukes. (Peter
Logan Dep. Doc. # 35 at 54).
B.

The Dukes Contract with Tivoli

The Dukes still desired to downsize their residence,
2

especially as Mr. Duke suffered from multiple strokes, which
left him impaired.

(Nicole Duke Dep. Doc. # 31 at 26-27).

Another Hammocks resident recommended that the Dukes consider
Tivoli Homes of Sarasota, Inc. as their builder. (Id. at 28).
Soon thereafter, the Dukes entered into a contract with Tivoli
for the construction of their new home. (Id. at 33-34).
During her deposition, Mrs. Duke admitted that she brought the
marketing brochure of the Medallion Santa Maria VIII home to
her meetings with Tivoli, however, Tivoli refused to utilize
those materials. (Id. at 34). Instead, Tivoli provided Mrs.
Duke with various Tivoli floor plans and made it clear that
Tivoli would not “build from someone else’s plan.” (Id. at 3742).
Tivoli retained Start to Finish Drafting, LLC, an entity
owned by Jason Kubisiak, to draft building plans for the new,
custom home for the Dukes. (Id. at 31-32). Kubisiak explained
that in his meetings with the Dukes, Mrs. Duke referred to the
Medallion marketing materials for the Santa Maria VIII, to
Tivoli floor plans, and to other materials she retained from
past building projects (as Mrs. Duke had previously worked
with builders to construct prior residences). (Kubisiak Dep.
Vol. I Doc. # 33 at 30; Kubisiak Dep. Vol. II Doc. # 34 at
38).
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After multiple drafts, Kubisiak completed a final version
of the building plans, and the Dukes’ home was constructed.
(Kubisiak Dep. Vol. II Doc. # 34 at 38).
2014,

On December 15,

Medallion filed the present copyright infringement

action against Tivoli, Start to Finish Drafting, Kubisiak, and
the Dukes. (Doc. # 1).

At this juncture, Defendants jointly

move for the entry of summary judgment in their favor. The
motion is ripe for the Court’s review.
II.

Legal Standard
Summary judgment is appropriate if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
4

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
5

Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However, if the non-movant’s response

nothing

“more

allegations,”

proper, but required.

than

summary

a

repetition

judgment

is

of
not

his
only

Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
III. Analysis
To support a claim of copyright infringement, Medallion
must prove its ownership of the copyright to the works and
copying by Defendants. Original Appalachian Artworks, Inc. v.
Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982). In Donald
Frederick Evans & Associates, Inc. v. Continental Homes, Inc.,
785 F.2d 897, 903-04 (11th Cir. 1986), the court explained
that “copying by defendant” can be proved by establishing a
defendant’s access to the copyrighted work and that the
defendant’s work is substantially similar to the plaintiff’s
work.
Medallion indicates that it “is the owner of a technical
drawing and architecture plan entitled ‘Santa Maria,’ created
in 2003" and that “Medallion received from the Register of
Copyrights

a

Certification

of

Registration,

registration

number V Au-601-492 and V Au601-495 for the Santa Maria
technical drawings and architectural plan.” (Doc. # 1 at ¶¶ 8,
6

13). Defendants do not challenge Medallion’s ownership of the
copyright or the validity of the copyright. (Doc. # 37 at 3).
In addition, it is not contested that Defendants had access to
the Santa Maria VIII advertising brochure. (Doc. # 29 at 5).
Thus, the Court will focus its attention on whether the Dukes’
home is substantially similar to Medallion’s copyrighted
architectural work in the Santa Maria VIII.
In determining substantial similarity in a copyright
infringement

action

involving

architectural

works,

the

Eleventh Circuit has instructed “not all copying constitutes
infringement, however, and therefore we have emphasized that
the substantial similarity analysis must focus on similarity
of

expression,

i.e.,

material

susceptible

of

copyright

protection.” Intervest Constr., Inc. v. Canterbury Estate
Homes,

Inc.,

554

F.3d

914,

921

(11th

Cir.

2008).

The

protection provided to compilations, such as floor plans, is
“thin.” Id.

And, “the variety of ways a two-story rectangle

can be divided into three bedrooms, two baths, a kitchen, a
great room or living room, closets, porches, etc. is finite.”
Howard v. Sterchi, 974 F.2d 1272, 1275 (11th Cir. 1992).
Thus, with respect to architectural compilations, “modest

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dissimilarities are more significant than they may be in other
types of art works.” Id.
Furthermore, “A court can find that floor plans are
visually similar with the same general layout yet find their
dissimilarities

significant.”

John

Alden

Homes,

Inc.

v.

Kangas, 142 F. Supp. 2d 1338, 1345 (M.D. Fla. 2001). That was
the case in the Intervest case and is also the case here.
Although there are many similarities between the Dukes’ home
and the Santa Maria VIII, the dissimilarities, which are
discussed in detail below, are dispositive. See, e.g., Bldg.
Graphics, Inc. v. Lennar Corp., 866 F. Supp. 2d 530, 544
(W.D.N.C. 2011)(“a court can find designs to be visually
similar with the same general layout and nonetheless find the
dissimilarities significant enough to preclude a finding of
infringement.”); Intervest, 554 F.3d at 916, 921 (describing
the common elements across the two floor plans at issue as
four bedrooms, a two-car garage, living room, dining room,
family room, foyer, kitchen, two bathrooms, a nook, and a
porch, but holding that no reasonable jury could find the two
floor plans “substantially similar,” even though each had a
similar overall layout.).

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In this case, Kubisiak, the individual who created the
building plans for the Dukes’ residence, provided detailed
deposition testimony highlighting some of the key differences
between the Dukes’ residence and Medallion’s Santa Maria VIII.
He has also provided an affidavit with further analysis on
this point. It is not necessary to repeat each and every
difference itemized by Kubisiak, but the Court notes some
salient points of comparison.
To begin, the Dukes’ home is a “mirror image” of the
Santa Maria VIII, such that “the plans have an opposite
layout” with all of the “rooms on the opposite side of the
hose.” (Kubisiak Aff. Doc. # 29 at 17).

In addition, the

Dukes’ living area is 2,953 square feet, while the Santa Maria
VIII’s living area is 2,615 square feet. (Id.). Likewise, the
Dukes’ garage is 559 square feet, as compared to the Santa
Maria VII’s garage, which is 724 square feet. (Id.).

In

addition, a room by room comparison reveals other important
differences.

In the master suite bedroom, the Dukes include

two windows, a pocket door entrance, and two hinged closet
doors, while the Santa Maria VIII only has one window,
utilizes a hinged entrance door, and features four double
bifold closet doors. (Id.).

The master suit bathroom in the

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Dukes’ residence also differs from the Santa Maria VIII with
respect to the placement of the bathroom fixtures and the
types of doors utilized. (Id. at 18).
Moving on, the Court notes that the Santa Maria VIII
includes two separate garage areas (a one car garage and a
separate two car garage), while the Dukes’ residence only
features a two car garage. (Id. at 18-19). Rather than having
two separate garage spaces, the Dukes instead include a hobby
room that is a finished, air conditioned space with a niche
area directly outside of the entrance door and includes three
arched windows. (Id. at 18).

In addition, while both homes

similarly feature a two car garage, the Court notes that the
those garages are not the same size, and differ with respect
to the inclusion of attic access at the Dukes’ residence, and
the number and placement of windows and doors.

(Id. at 18-

19).
The Court’s analysis of the front porch and front door
area

also

differences.

shows

various

stylistic

and

architectural

For their front entrance, the Dukes utilize a

54" round transom window over 2'8" outswing double doors,
while the Santa Maria VIII includes a double door with no
mention of a transom window. (Id. at 19).

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In addition, the

Dukes’ porch does not extend to the garage and includes two
pillars as compared to the Santa Maria VIII, which extends to
the

garage

and

includes

three

pillars.

(Id.).

These

differences extend to the great room, breakfast nook, den, and
dining room, as the Dukes utilize different ceiling types and
ceiling heights than the Santa Maria VIII. (Id. at 20).
Further, the Dukes include other details, such as plant
ledges, more doors, and different window types. (Id.).
The Dukes’ kitchen also differs from the Santa Maria VIII
kitchen with respect to the layout of the cabinets, the
inclusion of a custom kitchen pantry, the location of the
dishwasher, and the placement of the refrigerator. (Id.).
Similarly, the guest bedrooms and bathrooms were designed by
the Dukes to suit their individual needs and differ from the
Santa Maria VIII.

For example, the Dukes’ pool bathroom

includes a linen closet, while the linen closet featured in
the Santa Maria VIII is located outside of the bathroom in a
hallway. (Id. at 21).

In addition, a comparison of the two

homes reveals that the toilets and other bathroom fixtures are
placed in different locations within the pool bathrooms.
(Id. at 21). Likewise, the Dukes’ guest bathroom contains two
sinks, while the Santa Maria VIII’s guest bathroom only

11

contains one sink. (Id. at 22).

The guest bedrooms in the

Dukes’ residence also include features such as a bay window,
a custom niche, pocket doors, additional closets, and shelving
that is not included in the Santa Maria VIII. (Id. at 22).
The
others,

Court
are

determines

substantial.

that
The

these differences, among
Court

acknowledges

that

Medallion has provided the affidavit of George Merlin, an
architect.
the

Tivoli

Notably, Merlin indicates: “It is my opinion that
final

construction

drawing

is

substantially

architecturally similar to the Medallion Santa Maria VIII
copyrighted drawings.” (Doc. # 30-1). But Merlin renders this
conclusion after acknowledging specific differences between
the two homes, such as the Dukes’ addition of a bay window to
one

guest

room,

“a

slight

change

at

the

front

covered

entrance, and converting the single car garage into a hobby
room.” (Id. at 3). Merlin also takes account of the different
placement of the kitchen cabinets at the Dukes’ home as well
as of the fact that “the shower and toilet are interchanged
with each other” when comparing the Dukes’ master bath and the
Santa Maria VIII master bath. (Id.).

Merlin also takes note

of variations made by the Dukes concerning entry ways. (Id.).
Merlin’s statement that the homes are substantially similar is

12

belied by his own description of the many differences between
the two homes and by the record as a whole.
Peter

Logan,

Medallion’s

Corporate

Representative,

likewise glossed over the differences presented between the
Dukes’ home and the Santa Maria VIII.

During his deposition,

counsel for Defendants pressed Logan to provide specific
details regarding the similarities between the Dukes’ home and
the

Santa

Maria

VIII.

Despite

being

given

multiple

opportunities to provide a specific answer, Logan generally
indicated: “The rooms were laid out the same.” (Logan Dep.
Vol. II Doc. # 36 at 15).
In this case, there are more than “modest dissimilarities”
between the protectable elements of the Santa Maria VIII and
the Dukes’ residence.1 Howard, 974 F.2d at 1276. The Court
finds

that,

at

the

level

of

protected

expression,

the

differences between the designs are so significant that no
reasonable fact finder could determine that the works were
substantially

similar.

The

Court

accordingly

grants

Defendants’ Motion for Summary Judgment.
Accordingly, it is
1

“Spacial depictions of rooms, doors, windows, walls,
etc.” are not protected. Intervest, 554 F.3d at 920. “[O]nly
the original, and thus protected arrangement and coordination
of spaces, elements and other staple building components
should be compared.” Id. at 919.
13

ORDERED, ADJUDGED, and DECREED:
(1)

Defendants Tivoli Homes of Sarasota, Inc., Nicole Duke,
Michael

Duke,

Jason

Kubisiak,

and

Start

to

Finish

Drafting, L.L.C.’s Motion for Summary Judgment (Doc. #
29) is GRANTED.
(2)

The Clerk is directed to enter Judgment in favor of
Defendants and thereafter to CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 5th

day of November, 2015.

Copies:

All Counsel of Record

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