Stelor Productions v. Silvers, et al

Filing 45

Stelor Productions v. Silvers, et al

Doc. 45

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 1 of 10 Jan 18 2005

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION STELOR PRODUCTION, INC., Plaintiff, v. STEVEN A. SILVERS, Defendant. _______________________________ STEVEN A. SILVERS, Counter-Plaintiff, v. STELOR PRODUCTIONS, INC. Counter-Defendant. _______________________________ CASE NO. 04-80954-CIV-HURLEY Magistrate Judge James M. Hopkins

DEFENDANT=S SUPPLEMENTAL BRIEF REGARDING
MOOTNESS OF PRELIMINARY INJUNCTION MOTION The circumstances surrounding this case have changed dramatically, rendering Stelor's motion for preliminary injunction moot. As explained below, the License Agreement on which Stelor has based its request for injunctive relief has been terminated, and as a result the motion for preliminary injunction must be denied. Prior to the lawsuit, Silver advised Stelor on numerous occasions that Stelor was in default of its obligations under the License Agreement.1 After Stelor failed to respond, Silvers gave formal notice of the defaults to Stelor, activating a cure period. See Letter dated November 12,

1

Silvers also filed a counterclaim in this action based on Stelor's defaults, reflecting his intention of terminating the License Agreement unless Stelor cured the defaults.
1
Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134

1 of 10

305-372-1800

Dockets.Justi45/om a.c kb

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 2 of 10

2004, copy attached as Exhibit "A." Stelor has thus had notice of Silvers' intention to terminate the License Agreement for over 60 days. Incredibly, Stelor has failed to cure its defaults. Accordingly, Silvers has formally exercised his right to terminate the License Agreement. See Letter dated January 13, 2005, attached as Exhibit "B." The termination renders Stelor's request for injunctive relief moot. 2 Stelor's complaint sets forth two counts: (i) breach of the License Agreement; and (ii) breach of the Consultant Agreement. Stelor's request for injunctive relief seeks to force Silvers to comply with these agreements, or to prohibit Silvers from "interfering" with alleged rights Stelor has under these agreements. Since neither agreement is now in effect, no basis exists to afford the injunctive relief Stelor seeks. Silvers has already addressed the flaw in Stelor's request to compel specific performance of the Consultant Agreement, which expired by its terms last year.3 The same flaw now applies to Stelor's request to require specific performance of the terminated License Agreement. Simply put, Stelor now has no rights on which to require Silvers to act under the License Agreement. It is hornbook law that, once a contract has ended, the remedy of specific performance is unavailable. . . . [A]s the contract provides, the agreement of the parties has been terminated. The remedy of specific performance necessarily is based upon the theory that there is a contract extant which a court decree may direct to be performed. When, as in this case, the parties have stated in clear language that upon the happening of a certain event their contract is to be deemed cancelled and thereafter the event which they had in mind occurs, any claim for specific performance is inconsistent with the cancellation provisions of the contract.
Even if Silvers had not exercised his right to terminate the License Agreement, Stelor would not be entitled to specific performance in view of its repeated and ongoing breaches. See JNC Enterprises, Ltd. V. ICP1, Inc., 777 So.2d 1182 (Fla. 5th DCA 2001)(plaintiff's own default precluded specific performance); Hooper v. Breneman, 417 So.2d 315 (Fla. 5th DCA 1982)(plaintiff not entitled to specific performance in view of repeated breaches such as failure to make payments when due.)
3 2

Silvers' Memorandum in Opposition to Stelor's Motion for Preliminary Injunction, at p. 5.
2
Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 305-372-1800

2 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 3 of 10

Dillard Homes v. Carroll, 152 So.2d 738, 740 (3d DCA 1963) (quotations and citations omitted. See also, Collins v. Pic-Town Water Works, Inc., 166 So.2d 760, 762 (2d DCA 1964) ("Thus the contract was terminated and was no longer enforceable by injunction or specific performance.") The extraordinary remedy of injunctive relief is particularly unavailable based on a terminated contract, because Stelor's sole remedy is for money damages, and thus it cannot show irreparable harm. For example, in Jacksonville Elec. Auth. v. Beemik Bldrs. & Const., Inc., 487 So.2d 372 (1st DCA 1986), the defendant terminated a construction contract, and the contractor sought an injunction; the court found that, in light of the terminated contract, the contractor's sole remedy rested with damages, and that irreparable harm could not exist. Similarly, in Airlines Reporting Corp. v. Incentive Int'l Travel, Inc., 566 So.2d 1377, 1379 (5th DCA 1990) the court vacated an injunction based on a terminated contract and remanded to determine whether the plaintiff's sole remedy - - money damages - - was available. Once an agreement has expired or terminated, a court cannot, as a matter of law, enjoin a party to perform the agreement. Florida Power Corp. v. Town of Belleair, 830 So.2d 852, 854 (2d DCA 2002) (trial court cannot, by injunction, extend the terms of a contract after its expiration). Granting the relief sought by Stelor would violate this principle, by requiring Silvers to perform what he is allegedly required to do under expired and terminated agreements. Rather than maintain the status quo, such an injunction would radically disturb the status quo, by extending the terms of the agreements beyond their life spans.4

Stelor will undoubtedly dispute Silvers' termination of the License Agreement, but that is an issue for another day and another lawsuit. And, an attempt to enjoin the termination is equally ill suited for injunctive relief. Shearson Lehman Hutton, Inc. v. Meyer, 561 So.2d 1331, 1332 (5th DCA 1990) (injunctive relief not available to prevent termination of agreement as only remedy is damages).
3
3 of 10
Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 305-372-1800

4

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 4 of 10

CONCLUSION Every aspect of the injunctive relief sought by Stelor is grounded on agreements which have expired or terminated. As a matter of law, Stelor cannot obtain injunctive relief based on these agreements, and its motion for preliminary injunctive relief is moot. Respectfully submitted, Adam T. Rabin (Florida Bar No. 985635) [e-mail] DIMOND KAPLAN & ROTHSTEIN, P.A. 200 SE First Street, Suite 708 Miami, FL 33131 T: 305-374-1961 Co-Counsel for Defendant/Counter-Plaintiff s/ Gail A. McQuilkin Kenneth R. Hartmann (Florida Bar No. 664286) [e-mail] Gail M. McQuilkin Florida (Bar No. 969338) [e-mail] KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 T: 305-372-1800 / F: 305-372-3508 Counsel for Defendant/Counter-Plaintiff

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail and E-mail this 18th day of January, 2005, to: Yano Rubinstein, Esq. Summers Rubinstein, P.C. 580 California Street, 16th Floor, San Francisco, California 94104 E-mail: [e-mail] s/ Gail A. McQuilkin
3339/101/248712.1

4
4 of 10
Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 305-372-1800

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 5 of 10

5 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 6 of 10

6 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 7 of 10

7 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 8 of 10

8 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 9 of 10

9 of 10

Case 9:04-cv-80954-DTKH

Document 45

Entered on FLSD Docket 01/19/2005

Page 10 of 10

10 of 10