United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
BTU Marketing LLC and Montigo Del Ray Corporation, seek
summary judgment on all three of Plaintiff, Gas Products
Corporation's ("GPC") remaining claims.
GPC's claims arise out of Defendants' alleged scheme
to obtain the contact information of GPC's customers and
sell products directly to them. The Court finds that disputed
issues of fact remain on each of GPC's causes of action.
Montigo seeks summary judgment on its counterclaim for breach
of contract, which arises out of GPC's failure to pay for
goods Montigo delivered to GPC. Because GPC does not dispute
Montigo's evidence supporting the counterclaim, the Court
enters judgment in favor of Montigo on this claim.
the Court grants in part and denies in part Defendants'
Motion for Summary Judgment.
evidence submitted by the parties reveals the following facts
viewed in the light most favorable to GPC, who is the
non-moving party in this matter.
Defendant Montigo Del Ray Corporation ("Montigo")
is a fireplace manufacturer started by DanBinzer in
approximately 1984. Dep. of DanBinzer, June 29, 2017,
10:20-11:5, ECF No. 42-1.
Montigo produces off-the-shelf and custom-designed
fireplaces. Id. at 33:14-34:7. The custom-designed
products are called "C-View fireplaces." Mot. for
Summ. J. 3; Dep. of Ray Scott, March 17, 2017 ("Scott
dep."), 40:17-:18, ECF No. 42-2.
Montigo uses manufacturer's representatives to sell its
fireplaces. Mot. for Summ. J. 3; Scott dep. 37:1-40:18.
duties of manufacturer's representatives include finding
purchasers of Montigo's products and ordering the
fireplaces for customers in a given geographic region. Mot.
for Summ. J. 3; Scott dep. 37:9-:16.
Montigo paid its manufacturer's representatives a five
percent commission on all sales within a given
representative's region. Mot. for Summ. J. 3; Scott dep.
After Ray Scott formed Plaintiff GPC in the 1980s, GPC became
a manufacturer's representative for many companies
selling a variety of gas-related products. Mot. for Summ. J.
3-4; Scott dep. 8:6-9:25.
generally employed between one and two individuals other than
Mr. Scott. Scott dep. 237:25-41:12, ECF No. 45-2.
of these individuals, T.J. Hines, worked for GPC as an
independent contractor. Id. at 239:9-:19. Mr. Hines
assisted with GPCs general sales. Id. at 19:16-20:7.
1999 or 2000 GPC became Montigo's manufacturer's
representative for Colorado, Wyoming, Montana, and Utah. Mot.
for Summ. J. 4; Scott dep. 34:1-36:5.
non-custom fireplaces, Montigo would generally ship the
product to the customer and then collect payment from GPC.
Scott dep. 53:12-15, ECF No. 42-2.
such, GPC had a credit line with Montigo that changed
throughout the parties' business relationship.
When GPC ordered a C-View fireplace for a customer, it filled
out a Montigo form with the customer's shipping and
contact information. Scott dep. 40:10-42:9; ECF No. 45-2. At
the time of the order, GPC paid Montigo a deposit. Scott dep.
53:23-54:10. Montigo collected the remainder of the balance
before shipping the custom fireplace. Id.
asserts the parties agreed that if GPC submitted a C-View
order form, Montigo would not sell directly to that customer.
Id. at 169:18-:24.
According to GPC, in approximately 2001, it began warehousing
Montigo's products. Scott dep. 45:6-46:1, ECF No. 45-2.
This allowed GPC to deliver the product directly to
distributors, retailers, and home builders. Id.
Additionally, it permitted GPC to install the product for
customers located near its warehouse. Id. at 46:6-:
When GPC began warehousing Montigo's fireplaces, it
agreed that it would no longer sell any other
manufacturer's products. Scott dep. 18:21-:25.
maintained a list of all the customers to which it sold
products. Scott dep. 140:9-: 19. The list included the
customer's name, ID, telephone number, and type of
product purchased. Id. at 141:2-42:10.
list included customers that purchased products from GPC both
before and after GPC began doing business with Montigo.
Id. at 31:22-32:5.
approximately 2009, GPC began to struggle financially. Mot.
for Summ. J. 5; Scott dep. 56:21-:25, ECF No. 42-2. As a
result, GPC maintained past due balances with Montigo, which
reached up to $110, 000.00. Mot. for Summ. J. 5; Scott dep.
According to GPC, it agreed to pay an extra ten percent on
every order it had with Montigo to reduce its past due
balance. Scott dep. 67:22-:25.
June 2012, Montigo formally terminated GPC as its
manufacturer's representative. Mot. for Summ. J. 5; Scott
dep. 180:3-7; ECF No. 42-9. However, GPC continued selling
Montigo's products as a general distributor and customer.
Scott dep. 171:1-: 12; ECF No. 42-9.
Defendant BTU Marketing, LLC ("BTU"), which is
owned by Dave Fredericks, replaced GPC as Montigo's
manufacturer's representative. ECF No. 42-9; Scott dep.
181:1-:25; Dep. of Dave Fredericks, June 27, 2017
("Fredericks dep."), 22:18-: 19, ECF No. 42-3.
September 20, 2012, Mr. Scott sent an email to Scott Baron, a
Montigo employee, to voice his concern about BTU selling
C-View fireplaces in the Colorado market. ECF No. 42-11.
Also in September 2012, Mr. Fredericks met with Mr. Scott to
discuss the relationship between GPC and BTU. Fredericks dep.
113:7-:25; Scott dep. 209:3-:18. According to GPC, Mr.
Fredericks told Mr. Scott that BTU would not "go after
[GPC's] customers, period." Scott dep. 209:17-: 18.
claims it subsequently began noticing it was losing
customers. Scott dep. 211:5-:7.
According to GPC, Mr. Scott contacted Mr. Fredericks in 2015
regarding GPC's decline in sales. Scott dep. 211:5-:20.
Mr. Fredericks told Mr. Scott that Montigo was giving
GPC's customer information to BTU and telling BTU to
"go get them." Id. at 216:14-:19.
stopped purchasing products from Montigo in May 2015. ECF No.
42-20, at 79. After making a payment to Montigo on May 18,
2015, GPC had a remaining accounts payable balance of $9,
March 17, 2016, Montigo sent GPC a letter attempting to
collect GPC's outstanding balance. ECF No. 15.