Beach TV Props., Inc. v. Solomon

• Decision Date: 29 March 2018
• Docket Number: Civil Action No.: 15–1823 (RC)
• Citation: 306 F.Supp.3d 70
• Parties: BEACH TV PROPERTIES, INC., et al., Plaintiffs, v. Henry R. SOLOMON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 70

BEACH TV PROPERTIES, INC., et al., Plaintiffs,

v.Henry R. SOLOMON, et al., Defendants.

Civil Action No.: 15–1823 (RC)

United States District Court, District of Columbia.

Signed March 29, 2018

W. James Mac Naughton, W. James Mac Naughton, Esq., Newton, NJ, James A. Allen, Allen Legal, PLLC, Ashburn, VA, for Plaintiffs.

Arthur David Burger, Jackson & Campbell, P.C., Robert A. W. Boraks, Kalbian Hagerty LLP, Washington, DC, Carol Thomas Stone, Jordan, Coyne, LLP, Fairfax, VA, for Defendants.

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I.INTRODUCTION

With the inclusion of a few check marks on a form submitted in 1999, this litigation might have been avoided.In December of 1999, DefendantHenry Solomon, an attorney for PlaintiffAtlanta Channel, Inc.("ACI"), submitted a form on ACI's behalf to the Federal Communications Commission("FCC") without realizing that several key questions on the form remained unanswered.Because the form was incomplete, the FCC dismissed it, thereby blocking ACI's ability to obtain a special license that would have given it preference on the airwaves.Mr. Solomon filed a motion with the FCC asking it to reverse its dismissal of the form, but for twelve years the FCC sat on that motion.In the intervening years, Mr. Solomon retired from the practice of law.After several failed appeals of the FCC's dismissal, ACI filed suit in this Court alleging that Mr. Solomon was negligent when he filed the incomplete form, and now moves for summary judgment as to Mr. Solomon's liability.In his cross-motion for summary judgment, Mr. Solomon argues that ACI cannot recover because its malpractice claim is barred by the statute of limitations, because ACI was contributorily negligent by failing to complete the form itself, and because the far-reaching damage ACI now alleges it suffered was not proximately caused by the submission of the incomplete form.For the reasons set forth below, the Court finds that neither party has met its burden for a finding of summary judgment in its favor, and therefore denies both motions.

II.FACTUAL AND PROCEDURAL BACKGROUND

ACI is a broadcast television business that owns and operates a low power television ("LPTV") station with the call sign WTHC–LD in Atlanta, Georgia.Pl.'s Statement of Material Facts Not in Dispute ("Pl.'s SMF")¶ 18, Pl.'s Mot. Partial Summ. J.("Pl.'s Mot."), ECFNo. 71–1;Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF")¶ 1, Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 76–1.Through this license granted by the FCC, ACI broadcasts "visitor information to hotels in the Atlanta area."Pl.'sSMF ¶¶ 19–20;Def.'s Brief Supp. Mot. Summ. J. ("Def.'s Brief")at 4, ECF No. 76.From 1993 to 2009 and from 2016 to present, ACI has held the FCC license for this channel; from 2009 to 2016, the license was assigned to Beach TV Properties, Inc.("Beach TV").Pl.'s SMF ¶¶ 20–21.Both ACI and Beach TV are owned and operated by Jud Colley and Toni Davis.Id.¶¶ 2–3.

In 1999, Congress enacted the Community Broadcasters Protection Act ("CBPA"), 47 U.S.C. § 336(f), which directed the FCC to award qualified LPTV licensees Class A licenses granting them the same protection and status as full power broadcast television stations in the event of displacement from their assigned broadcast frequency.Pl.'s SMF ¶¶ 23–24;Def.'sSMF ¶ 4.ACI claims that its LPTV station met the qualification criteria for a Class A license, as provided by 47 U.S.C. § 336(f)(2)(A).Pl.'s SMF ¶¶ 25–26.Therefore, in December 1999, Mr. Colley worked with his attorney Henry Solomon, who at the time was employed by the Virginia law firm Haley Bader & Potts, to obtain a Class A license for WTHC–LD, along with several LPTV stations owned by Beach TV.Id.¶¶ 7–8, 29–44.

In order to obtain a Class A license for an LPTV station, applicants must have completed and filed Statements of Eligibility with the FCC by January 28, 2000.See47 U.S.C. § 336(f)(1)(B).The CBPA provided that "[a]bsent a material deficiency, the [FCC would] grant certification of eligibility to apply for class A status."Id.Therefore, in December 1999, Mr. Colley "partially filled out and signed Statements of Eligibility for five (5) LPTV licenses owned by Beach TV and sent them to Mr. Solomon for review and filing with the FCC."Pl.'sSMF ¶ 31.Questions3(a), 3(b), 3(c), and 4 remained incomplete on each form.Id.¶ 32;Solomon Dep. 20:12–21:7, 21:16–21:20, Pl.'s Mot., ECFNo. 72–4.Mr. Colley claims that he sent the forms to Mr. Solomon partially filled out because he"did not know how to provide the appropriate answers to the Qualification Questions on any of the Beach TV Statements."Pl.'sSMF ¶ 32;see alsoColley Dep. 99:13–103:3, 106:21–107:5, Pl.'s Mot., ECFNo. 72–2.Therefore, he"relied on Mr. Solomon to provide the appropriate answers" to the questions he left blank.Pl.'s SMF ¶ 32.A paralegal at the Haley firm filled in the relevant parts of the forms, at which point Mr. Solomon reviewed the forms and submitted them to the FCC on December 28, 1999.Pl.'s SMF ¶¶ 33–34.Around that time, Mr. Colley sent Mr. Solomon a similarly partially filled out and signed form for ACI's LPTV channel, and similarly relied on Mr. Solomon to complete the form.Id.¶¶ 35–36.However, Mr. Solomon submitted this form to the FCC with the boxes for Questions3(a), 3(b), 3(c), and 4 left blank.Id.¶¶ 37–39;see alsoEx. A, Pl.'s SMF, ECFNo. 71–3.The form also contained the incorrect call sign for the LPTV station.SolomonDep. 24:1825:17, ECF No. 72–4.On March 6, 2000, Mr. Solomon switched employers from the Haley firm to the D.C. firm Garvey, Schubert & Barer.SeeDef.'sSMF ¶ 8.

On June 2, 2000, the FCC's Mass Media Bureau ("MMB") accepted Beach TV's Statements of Eligibility, and soon after granted Beach TV's stations Class A licenses.Pl.'s SMF ¶ 42.However, on June 9, 2000, the MMB dismissed ACI's Statement because it was incomplete.Id.¶ 43.Mr. Solomon informed Mr. Colley of the dismissal soon thereafter.SeeColley Dep. 93:14–97:14, Def.'s Mot., ECFNo. 76–3.Mr. Colley told Mr. Solomon that they would "need to do everything possible to get [the] Class A status" for the ACI station.Pl.'s SMF ¶ 45.Therefore, on June 22, 2000, Mr. Solomon filed a Petition for Reconsideration of the Dismissal with the Bureau, which included a correctly filled out, amended Statement of Eligibility.Id.¶ 47.However, on November 20, 2000, the MMB denied the Petition for Reconsideration because ACI's original Statement of Eligibility had been "patently defective."Id.¶ 49.

A few weeks later, on December 13, 2000, Mr. Solomon emailed Mr. Colley about seeking further review of the dismissal with the FCC, and explained that in the meantime, "it d[id] not appear that the station [wa]s likely to suffer any harm as a result of" the dismissal.Id.¶¶ 50–51.Mr. Colley agreed that for the time being, the station was not at risk of displacement, but worried that at some point in the future it could be.Id.¶ 53.Therefore, on December 20, 2000, Mr. Solomon filed an Application for Review by the full FCC of the MMB's denial of ACI's Petition for Reconsideration.Id.¶ 56.The Application languished for twelve long years.It was ultimately denied on November 8, 2012.Id.¶ 57.

During the first few years following the submission of the Application, Mr. Solomon communicated with ACI regarding its status, and in 2004 drafted a letter in support of the Application from U.S. Representative John Lewis of Georgia to be submitted to the FCC.Id.¶¶ 58–60.The last time Mr. Solomon communicated directly with Mr. Colley regarding the Application was in 2008. Id.¶ 60.

Also in 2008, Mr. Solomon began the process of winding down his practice at the Garvey firm due to his advanced age.SeeEx. 25, Solomon Dep., Pl.'s Mot., ECFNo. 72–5.The details regarding how he characterized this change to Mr. Colley remain murky.Mr. Colley summarizes Mr. Solomon's 2009 communications with him regarding this "transition" as follows: that Mr. Solomon told Mr. Colley that he would turn over responsibility for ACI and Beach TV matters to Melodie Virtue, another partner at the firm; that she would become the "front person" for ACI and Beach TV's dealings with the FCC; that Mr. Solomon would act "in the background" as a "consultant"; that Mr. Solomon would remain in Washington, D.C. and would maintain an office at the Garvey firm; that he would continue to perform a limited amount of work for the firm; and that he would continue to work on pro bono matters.Pl.'s SMF ¶ 64.In his deposition, Mr. Solomon said that he could not recall speaking with Mr. Colley or Ms. Davis about his retirement, seeSolomon Dep. 108:2–17, 140:8–22, ECFNo. 72–4, but now claims that he never told Mr. Colley that he"would be the back person regarding legal representation of ACI or any of the other businesses owned by Colley." 2d Solomon Decl. ¶ 8, Def.'s Opp'n, ECFNo. 78–6.

On December 11, 2009, Mr. Solomon forwarded an email to Mr. Colley that contained an image of a "biker bar in Florida."SeeEx. C, Pl.'s Mot., ECFNo. 71–5.The image depicted three motorized scooters parked outside of a convenience store.In the email, Mr. Solomon told Mr. Colley, while referring to the photo: "Not me.Staying in DC forever.Transition will be smooth and I will be around to consult, etc."Id.In response, Mr. Colley joked, "Don't look close, they may have our names on them."Id.The parties have provided no other documentation regarding how Mr. Solomon informed Mr. Colley of his impending retirement.Mr. Colley claims that the email "was the only written communication by Mr. Solomon to Mr. Colley regarding his ‘transition’ at the Garvey Firm."Pl.'sSMF ¶ 69.

Between 2008 and 2011, Mr. Solomon took several steps to wind down his practice.On July 1, 2010, his...