15

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Justin D. Bihag v. A&E Television Networks LLC, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 27 th day of September, two thousand

sixteen.

PRESENT: R ICHARD C. W ESLEY

,

D EBRA A NN L IVINGSTON

,

G ERARD E. L YNCH

,

Circuit Judges.

__________ ____________

JUSTIN D. BIHAG,

Plaintiff

‐ Appellant,

v. No. 15

‐ 2040

A&E TELEVISION NETWORKS, LLC,

a Delaware Limited Liability Company,

HYBRID FILMS, INC., a New York Corporation,

D & D TELEVISION PRODUCTIONS, INC.,

a New York Corporation, DUANE CHAPMAN,

an individual, BETH ALICE BARMORE

‐ SMITH

CHAPMAN, an individual, DOES, 1 through 10 inclusive,2 Defendants

‐ Appellees

,

PIVOT POINT ENTERTAINMENT, LLC,

a California Limited Liability Company,

Defendant

.

__________ ____________

FOR PLAINTIFF

‐ APPELLANT: Selvoy F. Fillerup, Denver, CO; Peter

M. Johnson, The Johnson Law Firm

LLC, Denver, CO.

FOR DEFENDANT

‐ APPELLEE: David A. Schulz, Cameron Stracher,

New York, NY; Andrew B. Brettler,

Los Angeles, CA.

Appeal from the United States District Court for the Southern District of

New York (Hellerstein, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the District Court is

AFFIRMED.

Plaintiff

‐ Appellant Justin D. Bihag (“Bihag”) appeals from the dismissal of

his claim for breach of contract by the United States District Court for the

Southern District of New York (Hellerstein, J. ) following oral argument on May

27, 2015. Bihag’s claim arose from his participation in the reality television3 program “Dog the Bounty Hunter” (the “Program”) between the years 2004 and

2009. 1

We note at the outset that Bihag has not challenged the District Court’s

dismissal of his claims for promissory estoppel, unjust enrichment, breach of the

covenant of good faith and fair dealing, misappropriation, negligent

misrepresentation, or fraud. Although Bihag asks in his reply brief that his case

“be remanded to be heard on all the claims,” Reply Br. 11, we consider only

Bihag’s claim for breach of contract because “[i]ssues not sufficiently argued in

the briefs are considered waived,” Norton v. Sam’s Club

, 145 F.3d 114, 117–18 (2d

Cir. 1998).

“Under New York law, general releases are governed by principles of

contract law.” Albany Sav. Bank, FSB v. Halpin

, 117 F.3d 669, 672 (2d Cir. 1997)

(citing Mangini v. McClurg

, 24 N.Y.2d 556, 562 (1969)). Whether contractual

language is ambiguous is a question of law, and thus we review the District

Court’s determination of this issue de novo

. See id. (citing Seiden Assocs., Inc. v.

ANC Holdings, Inc.

, 959 F.2d 425, 429 (2d Cir. 1992)). “An ambiguity exists where

the terms of a contract could suggest more than one meaning when viewed

1 We review de novo the District Court’s dismissal of Bihag’s claim. See Guippone v. BH

S&B Holdings LLC

, 737 F.3d 221, 225 (2d Cir. 2013). We assume the parties’ familiarity

with the facts and record below, which we reference only as necessary to explain our

decision.4 objectively by a reasonably intelligent person who has examined the context of

the entire integrated agreement and who is cognizant of the customs, practices,

usages and terminology as generally understood in the particular trade or

business.” Eternity Glob. Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y.

, 375

F.3d 168, 173 (2d Cir. 2004) (internal quotation marks omitted).

Bihag does not dispute that he signed a release containing the following

language:

I expressly release you, your parents, subsidiaries, agents,

employees, licensees and assigns (if any) from and against any and

all claims which I have or may have now or in the future for

invasion of privacy, defamation, misrepresentation, or any other

cause of action arising out of my appearance or participation in the

Program, the disclosure of any confidential or private information

about me (including any medical or financial information), and the

exploitation of all other rights set forth herein.

Appellees’ App’x 39. The release contained the following additional

language above the signature line:

I HAVE READ THIS RELEASE OF LIABILITY, FULLY

UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE

GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT

FREELY AND VOLUNTARILY.

Id. Bihag makes no claim that his agreements to release were not entirely

voluntary.5 We find that the District Court properly rejected Bihag’s arguments that

the releases do not manifest an intent to waive his right to bring this lawsuit or

are too ambiguous to enforce. By their own terms, the releases cover “any and

all claims” arising out of Bihag’s “appearance or participation in the Program.”

Id. Moreover, Bihag acknowledged receiving “good and valuable consideration”

in exchange for signing the releases and he has admitted to receiving at least

$28,000 “for his appearances and contributions to the program.” Id. The

language of the releases is not ambiguous by any stretch. To the contrary, this

language is clear, broad, and dispositive. Bihag is bound by the agreements he

voluntarily signed, which expressly bar the claims he has attempted to assert in

this case.

We have considered Bihag’s remaining arguments and find them to be

without merit. 2 We therefore AFFIRM the judgment of the District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

2 Appellees argue that “[t]he District Court’s order should be affirmed for the

independent reason that Bihag’s claims are barred by the statute of limitations.”

Appellees’ Br. 14. We need not consider this alternative ground for affirmance because

we have already determined that Bihag’s claims are expressly barred by the terms of the

releases that he voluntarily executed.