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‘Flip This House’ opinion flies under the radar

Peter Vieth//April 15, 2011

‘Flip This House’ opinion flies under the radar

Peter Vieth//April 15, 2011

The 4th U.S. Circuit Court of Appeals hears the fewest oral arguments and issues the fewest published opinions of the federal circuit courts. Its decision earlier this week affirming a partnership deal for a TV series raises the question of just what its standard for publishing an opinion might be.

This one appears to have it all – big bucks, prominent attorneys, prominent parties – everything perhaps except a novel legal issue, since the case turns on whether an ambiguous telephone call can be construed as an oral contract. Yet the 49-page panel opinion, followed by a short dissent, is unpublished.

The plaintiff, a South Carolina real estate broker who claimed he came up with the idea for A&E’s  “Flip This House,” was represented by William “Billy” Wilkins, former chief judge of the 4th Circuit. A&E was represented by former U.S. Attorney General Michael Mukasey.

At stake was a $4-million jury verdict for the broker who contended he made a deal to split profits for the reality TV show based on a telephone conversation with a network executive.

The proof of a deal came down to the meaning of one sentence. Richard Davis was pitching his plan to split profits for a show about buying, fixing and reselling homes. On the phone was Charles Norlander of A&E. Davis said he finally persuaded Norlander to bite on the project, as indicated by Norlander’s comment, “Okay, okay, I get it.”

The case turned on whether that one sentence, in the context of a long conversation and A&E’s later development of the show, sealed a deal for a 50-50 split of revenues. The jury said yes. The 4th Circuit majority agreed the evidence was sufficient. Dissenting Judge Allyson Duncan found support lacking.

By Peter Vieth & Alan Cooper

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