Top Rank, Inc. v. Gutierrez
| Decision Date | 04 June 2001 |
| Docket Number | No. SA-99-CA-881.,No. SA-99-CA-880-FB.,No. SA-99-CA-987.,SA-99-CA-880-FB.,SA-99-CA-881.,SA-99-CA-987. |
| Parties | TOP RANK, INC. et alia., Plaintiffs and Counterclaim Defendants, v. Armando GUTIERREZ, Individually and d/b/a Armando's Bar-B-Q Inn,<SMALL><SUP>1</SUP></SMALL> et alia., Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs v. Paragon Communications, Inc. d/b/a Time Warner Cable and f/k/a Paragon Cable, Third-Party Defendant. |
| Court | U.S. District Court — Western District of Texas |
JUSTICE, Senior District Judge.
On this day, the court considered Third Party Defendant's Motion for Summary Judgment and Brief in Support (Doc. No. 86), along with numerous related pleadings, Defendant's Motion and Brief for Summary Judgment (Doc. No. 87), along with numerous related pleadings, the Report and Recommendation of the United States Magistrate Judge (Doc. No. 123), Time Warner Cable's Objections to Report and Recommendations of United States Magistrate Judge (Doc. No. 128), and Gutierrez' Response to Time Warner Cable's Objections to Report and Recommendations of United States Magistrate Judge (Doc. No. 129). After reviewing the applicable pleadings and authorities, the Report and Recommendation of the United States Magistrate Judge will be accepted in its entirety.
When reviewing a magistrate's report and recommendation, if no objections are raised, the report and recommendation is reviewed for "plain error or manifest injustice." Rodriguez v. Bowen, 857 F.2d 275, 276-7 (5th Cir.1988). If objections are raised, the district court is to make a de novo review of the portions of the report and recommendation to which objection is made. See 28 U.S.C. § 636(b)(1)(c). Upon making a de novo review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.
Third party defendant, Paragon Communications, Inc., doing business as Time Warner Cable ("Time Warner"), raises three objections to the Report and Recommendation. Time Warner argues that the Magistrate Judge erred in failing to grant its motion to deny the contract claim of defendant and third party plaintiff, Armando Gutierrez ("Gutierrez"). Second, Time Warner objects to the denial of its motion to deny Gutierrez's DTPA claim. Finally, Time Warner objects to the Magistrate Judge's failure to find that Gutierrez's DTPA and breach of contract claims are actually disguised indemnity claims. The portions of the Report and Recommendation to which objections are made will be reviewed de novo, and the rest of the Report and Recommendation will be reviewed for plain error or manifest injustice.
Time Warner argues that the evidence before the court is legally insufficient to establish a contract obligating Time Warner to designate Gutierrez's account as commercial. Time Warner characterizes the only basis for establishing such a contract as Gutierrez's subjective belief that such a contract existed. As the Magistrate Judge found, however, there is ample evidence in the record, including documentary evidence, and depositions from Time Warner's witnesses, that raises a fact issue as to whether a contract existed. Accordingly, granting summary judgment against Gutierrez would be inappropriate. Time Warner's objection is overruled.
Time Warner's first argument is that Gutierrez's DTPA claim is identical to his breach of contract claim, and as such, is not actionable under the DTPA. Time Warner's argument is without merit. The court agrees with the Magistrate Judge's finding that the DTPA "allegation does not restate a breach of contract claim; rather defendant are asserting that AOL/Time Warner, through its actions, falsely implied its authority to provide the fights to a commercial establishment." Report and Recommendation at 39. Such an allegation does not depend on the existence of a contract.
Time Warner's second argument is that the Gutierrez's DTPA claim did not survive his death, which occurred on March 6, 2001. Gutierrez argues that Time Warner's argument was inapplicable at the time the summary judgment was argued and decided, and that it would thus be improper to consider Time Warner's argument in the context of objections to the Report and Recommendation of the Magistrate Judge. This court agrees with Gutierrez. Accordingly, Time Warner's objection to the denial of summary judgment on Gutierrez's DTPA claim is overruled.
The last argument raised by Time Warner is that Gutierrez has simply reframed, as DTPA and breach of contract claims, his real argument that Time Warner should indemnify him, to avoid what Time Warner characterizes as the prohibition against indemnity contained in 47 U.S.C. §§ 553 and 605.
Time Warner's argument is flawed for two reasons. First, Gutierrez's claims stand on their own merit as breach of contract and DTPA claims, and as such, they are distinct from simple indemnity claims. They fit comfortably within the labels he has placed on them, and they do not bear the indicia of disguised indemnity claims. That is, the claims do not track the elements of an indemnity claim. The cases cited by Time Warner, on the other hand, deal with claims that track the elements of prohibited claims.
The second flaw in Time Warner's argument is that indemnity claims under 47 U.S.C. §§ 553 and 605, have not been affirmatively barred. Doherty v. Wireless Broadcasting Systems of Sacramento, Inc., cited by Time Warner, merely stands for the proposition that Congress did not provide for indemnification under 47 U.S.C. §§ 553 and 605, and that the court would decline to create a common law right of indemnification. 151 F.3d 1129, 1131 (9th Cir.1998). It does not stand for the proposition that Congress actively elected to disallow indemnification under the statute. In contrast, the cases cited by Time Warner in support of the proposition that Gutierrez's claims ought to be kept out all deal with claims that were affirmatively barred by the legislature. The rationale for keeping out claims that the legislature wanted to disallow in all forms simply does not apply to a type of claim to which the legislature was simply indifferent. Accordingly, Time Warner's objection in this relation is overruled.
For the foregoing reasons, Time Warner Cable's Objections to Report and Recommendations of United States Magistrate Judge (Doc. No. 128) shall be, and are hereby, OVERRULED, and the Report and Recommendation of the United States Magistrate Judge is ACCEPTED in its entirety. Accordingly, it is
ORDERED that Defendant's Motion and Brief for Summary Judgment (Doe. No. 87) is DENIED. It is further
ORDERED that Third Party Defendant's Motion for Summary Judgment and Brief in Support (Doc. No. 86) is GRANTED in part, and DENIED in part as follows:
Summary judgment as to defendants' breach of implied contract claims is DENIED.
Summary judgment as to defendants' breach of third party beneficiary contract is GRANTED, and defendants' third party beneficiary claim shall be, and is hereby, DISMISSED.
Summary judgment as to defendants' claim that Time Warner made misrepresentations in October 1997 in violation of the DTPA is GRANTED and those claims shall be, and are hereby, DISMISSED.
Summary judgment as to defendants' claim that Time Warner falsely misrepresented its authority to provide the Chavez fight to defendants in 1998 is DENIED.
Summary judgment as to defendants' DTPA claim for breach of implied warranty is GRANTED, and defendants' breach of implied warranty claims shall be, and are hereby, DISMISSED.
Summary judgment as to defendants' claims that Time Warner committed unconscionable acts in violation of the DTPA shall be, and is hereby, GRANTED, and those claims shall be, and are hereby, DISMISSED.
Any relief expressly requested, and not herein GRANTED, shall be, and is hereby DENIED.
It is further
ORDERED that any claims against Joe Basquez shall be, and are hereby, DISMISSED from this civil action. It is further
ORDERED that any claims against Alfredo O. Esquivel, individually and doing business as The New Mug Club, and any claims against Conception Sierra Vazquez, individually and doing business as Pecan Grove, shall be, and are hereby, DISMISSED, without prejudice, for Prostar's failure to prosecute.
Pursuant to the order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge2 and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(I)(B) and rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrates, effective January 1, 1994, in the Western District of Texas, the following Report is submitted for your review and consideration.
The Court has jurisdiction under 28 U.S.C. §§ 1331, 1367, 2201, and 2202.
The procedural history of these three consolidated cases is somewhat complicated. Causes of action were filed against defendants Armando B. Gutierrez d/b/a Armando's Bar-B-Q Inn, (the "Inn") and Armando B. Gutierrez, individually ("Gutierrez" and collectively "defendants"), by three individual plaintiffs — Top Rank, Inc. ("Top Rank") on August 17, 1999;3 Entertainment by J & J, Inc. ("J & J") on August 17, 1999;4 and Prostar, Inc. ("Prostar") on September 8, 1999 (collectively "plai...
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