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South Texas Law Grad Sues to Collect Defense Attorney’s Million Dollar Challenge to Disprove Client’s Alibi

By: Luke Gilman | Other Posts by
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The current job market for lawyers calls for some ingenuity. Dustin Kolodziej didn’t stop at sending out resumes. In the course of defending Nelson Serrano criminal defense attorney Cheney Mason claimed it was impossible for his client to have committed the murders in Florida and be in Atlanta motel 28 minutes later where he was captured on a security camera. In an interview on national television, he stated “I challenge anybody to show me, I’ll pay them a million dollars if they can do it.” Kolodziej went to Florida with a video camera and retraced the alleged flight of the suspect and clocked himself in at under the 28 disputed minutes. Mason has refused to make good on the challenge, contending that it was obviously a joke and no reasonable person could believe the offer was seriously made.

Dustin Kolodziej has filed a lawsuit in Houston federal court seeking $1 million dollars from prominent Orlando attorney Cheney Mason for a supposed challenge Mason issued on a nationally broadcast news magazine show.

In 1997, wealthy businessman Nelson Serrano gunned down four people in Florida and was sentenced to death nearly a decade later. His attorney, Cheney Mason, argued Serrano couldn’t have committed the crime in the time and place police said.

“I challenge anybody to show me, I’ll pay them a million dollars if they can do it,” Mason said during an interview with Dateline NBC in 2006. “Twenty-eight minutes. Can’t happen. Didn’t happen.”

Kolodziej, a recent graduate of the South Texas College of Law in Houston, claims he retraced Serrano’s route from Atlanta to Orlando and back completing the disputed final leg of the trip in the allotted time. He videotaped the entire journey and sent the proof to Mason hoping to collect $1 million.

“He’s told at that point, it’s a joke, ridiculous,” said Kolodziej’s attorney David George. ” Dustin proved him wrong, he (Mason) needs to pay,”

I’m not sure I would put a lot of money on Kolodziej’s chances of recovery, but at the very least it makes a good contract hypo. The complaint contends that:

Mason made an offer of a unilateral contract when he issued the challenge. Kolodziej accepted that contract when he performed the challenge. The contract is supported by valid consideration. Therefore, Mason and Kolodziej entered into a contract. Mason breached the contract when he refused to pay Kolodziej.”

A unilateral offer seeks performance rather than a mutual promise and is accepted when a party performs the acts sought. Kolodziej has at least a facially valid argument. A quick search turns up a number of cases in which a courts have held that an advertised offer of a reward for the performance of a specified act is a proposition submitted to all persons who might accept and comply with its conditions, and that until it was accepted it might be withdrawn, but that when accepted it, it became a binding contract, between the proposer and the acceptor who had performed the service or done the act required. Minton v F.G. Smith Piano Co., 36 App DC 137 (1911). Where the act requested results in a benefit to the offeror, the performance of the act is sufficient consideration to support the contract. Dorman v Publix-Saenger-Sparks Theatres, Inc., 184 So. 886 (1938) (expectation of increased attendance for theater owner sufficient for binding unilateral contract in suit to recover a bank night prize).

When Mason promises to pay a significant sum if anyone can disprove his client’s alibi, he is ‘putting his money where his mouth is’ in attempt to signal to the public his fervent belief in the innocence of his client in a manner that is predicated on the public believing his statement. To the extent that inculcating that belief has value to him as an attorney and in his representation of his client, it’s difficult to believe it was intended as a joke rather than to reinforce the seriousness of his assertion. Having obtained the benefit of his attempt to convince the public of his client’s alibi, why shouldn’t he bear the risk of a member of the public taking him up on his offer? Why wouldn’t that be a reasonable expectation on the part of the public? Mason staked the credibility of his statement on the public understanding that he could risk such a high sum because he considered the risk of anyone accomplishing it so low.

Perhaps as a matter of public policy we should choose not to enforce such a contract so that criminal defense attorneys can zealously proclaim their clients innocence. Still there’s a difference between claiming a client has an air-tight alibi and saying “I challenge anybody to show me, I’ll pay them a million dollars if they can do it…. Twenty-eight minutes. Can’t happen. Didn’t happen.”

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Category: contracts (and other hasty decisions), law in houston

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