Lawyer Won't Have to Pay Up After Issuing $1 Million Challenge on TV

Here are some things, according to the 11th U.S. Circuit Court of Appeals, that one can say on television without getting into trouble: "I challenge anybody to show me — I’ll pay them a million dollars if they can do it."; "I'll eat my hat if … "; "I'll be a monkey's uncle if … "

As we've covered before, Orlando-based attorney James Mason went on NBC's Dateline to defend his client, Nelson Serrano, accused of killing four people. Mason claimed it was impossible for Serrano to have committed the murders, since it would have required his client to get off a flight in Atlanta's very busy airport and arrive at La Quinta hotel five miles away in less than a half-hour. He challenged anybody to prove the trip could be done in that timeframe, offering a $1 million carrot.

Dustin Kolodziej took him up on it, filmed himself doing the trip, and the aftermath has been many years in a courtroom. The latest development is a ruling on Thursday that confirms that Mason won't have to pay.

In January, Mason won the case on summary judgment, but the trial judge focused heavily on how the Dateline segment was edited, how in fuller context, Mason's unedited words made clear that he was referring to the prosecutors in the case.

In the mind of 11th Circuit Judge Charles Wilson, the lower court judge needn't have even gone that far.

"The case before us involves the potential creation of an oral, unilateral contract," writes Judge Wilson, meaning a spoken promise for another party's performance without any legal obligation to actually perform.

That won't be happening.

"Even removed from its surrounding context, the edited sentence that Kolodziej claims creates Mason’s obligation to pay (that is, 'I challenge anybody to show me — I'll pay them a million dollars if they can do it') appears colloquial," states the opinion. "The exaggerated amount of 'a million dollars' — the common choice of movie villains and schoolyard wagerers alike — indicates that this was hyperbole."

That the apparent $1 million offer wasn't meant to be seriously understood to be real, that it was only a "figure of speech," is further supported by context.

"In the course of representing his client, Mason merely used a rhetorical expression to raise questions as to the prosecution’s case," continues Judge Wilson. "We could just as easily substitute a comparable idiom such as 'I'll eat my hat' or 'I'll be a monkey’s uncle.' ... We would not be inclined to make him either consume his headwear or assume a simian relationship were he to be proven wrong; nor will we make him pay one million dollars here."

The opinion goes on to raise another deficiency in Kolodziej's claim to the money — that the purported unilateral contract lacked definiteness and specificity in the terms. The plaintiff — a law student when he took the challenge — decided what Mason meant and attempted to pursue it, but no telling whether he really accomplished it. For instance, did Kolodziej need to sit in coach class like Serrano did. Kolodziej
purchased a front row aisle seat in first class.

So Mason won't have to pay up $1 million, but according to documents in the case, he has spent more than $250,000 defending the lawsuit that has lasted almost four-and-a-half years. And that only counts the pre-appellate fees and costs. In April, Mason lost a motion to recover this money from Kolodziej, but the trial judge allowed Mason to bring a new motion for legal costs once the appeal was over. Now it's Mason's time to try and collect.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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