Holloway Lodging LLC et al v. Cushman & Wakefield U.S., Inc.

Filing 60

ORDER ACCEPTING CONCLUSIONS AND RECOMMENDATIONOF THE UNITED STATES MAGISTRATE JUDGE re: 56 Memorandum and Recommendations, denying 52 MOTION for Partial Summary Judgment Declaring Insurance Coverage. The Parties shall submit a Proposed Scheduling Order for all remaining unexpired dates no later than December 10, 2024.(Signed by Judge Drew B Tipton) Parties notified. (kmp4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HOLLOWAY LODGING
(222 BENMAR) LLC and HOLLOWAY
LODGING (16666 NORTHCHASE)
LLC,
Plaintiffs,
v.
CUSHMAN & WAKEFIELD U.S., INC.,
Defendant,
v.
ACE AMERICAN INSURANCE
COMPANY,
Third-Party Defendant.

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November 26, 2024
Nathan Ochsner, Clerk

Civil Action No. 4:22-CV-01745

ORDER ACCEPTING CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the October 11, 2024, Memorandum and
Recommendation (“M&R”) prepared by Magistrate Judge Peter Bray. (Dkt. No. 56).
Judge Bray made findings and conclusions and recommended that Cushman &
Wakefield U.S., Inc.’s (“CWUS”) Motion for Partial Summary Judgment Declaring
Insurance Coverage, (Dkt. No. 52), against Third-Party Defendant ACE American
Insurance Company (“ACE”) be denied.
The Parties were provided proper notice and the opportunity to object to the M&R.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). On October 25, 2024, CWUS objected to the
M&R. (Dkt. No. 57).

First, CWUS contended that Judge Bray erred by ignoring

controlling law that required ACE to prove a material breach of contract. (Id. at 6–7).
Second, CWUS argued that Judge Bray erred by misplacing the burden of proving a
material breach. (Id. at 7–10). Third, CWUS asserted that ACE provided no evidence in
support of its affirmative defense. (Id. at 10–11). Fourth, CWUS contended that Judge
Bray erred in claiming that CWUS did not present undisputed evidence that ACE had
received the expected benefit of the bargain. (Id. at 11–14). Fifth, CWUS argued that
Judge Bray failed to consider Restatement § 241(a) in determining whether a material
breach of contract has occurred. (Id. at 14–17). Sixth, CWUS objected to Judge Bray’s
interpretation of the policy. (Id. at 17–22). Finally, CWUS objected to Judge Bray’s
interpretation of specific caselaw. (Id. at 22–23). On November 8, 2024, ACE responded
to CWUS’s objections. (Dkt. No. 58).
In accordance with 28 U.S.C. § 636(b)(1)(C), the Court must “make a de novo
determination of those portions of the [magistrate judge’s] report or specified proposed
findings or recommendations to which objection [has been] made.” After conducting this
de novo review, the Court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” Id.; see also Fed. R. Civ. P. 72(b)(3).
The Court has carefully considered de novo those portions of the M&R to which
objections have been made and reviewed the remaining proposed findings, conclusions,
and recommendations for plain error. While the Court does not adopt the reasoning by
Judge Bray, the Court agrees with the conclusion—that is, Cushman & Wakefield U.S.,
Inc.’s Motion for Partial Summary Judgment, (Dkt. No. 52), should be DENIED.

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The Parties shall submit a Proposed Scheduling Order for all remaining unexpired
dates no later than December 10, 2024.
It is SO ORDERED.
Signed on November 26, 2024.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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