(Composite image, One Guy from Italy, Papa V and an appeals court ruling)
The One Guy from Italy lawsuit is going to trial.
A claim that Lubbock State District Judge Les Hatch had “a clear abuse of discretion” was rejected more than a week ago by the Court of Appeals for the Seventh District in Amarillo.
If you read our Oct. 20 story about this case, you know how we got here. But succinctly:
- Sal Mazzamuto sold the 50th Street location of One Guy, known for pizza slices and calzone, to Gabe Vitela with a non-compete agreement.
- Sal later leased a building to his brother Girolamo “Jerry” Mazzamuto for use as a pizzeria called Papa V.
- Vitela said that violated the agreement and sued in May 2023.
An attorney for the Mazzamutos asked Hatch to throw the whole thing out. Sal was just a landlord, not a restaurant owner. There shouldn’t even be a lawsuit, the brothers believed.
Hatch disagreed.
The appeals court ruled Mazzamuto wanted an extraordinary thing which should only be given if there is no other solution. Here, there is a solution – the court said – file a normal appeal after the lawsuit is done, not before it ever gets started.
To the question of abusing discretion, that only happens when a ruling is clearly arbitrary and unreasonable, the appeals court said.
Both sides are working on setting a trial date for later this year.
Humpy Dumpty and Alice
Don Dennis, attorney for the Mazzamutos, sent 114 pages to Amarillo, including an imaginary conversation between Alice in Wonderland and Humpty Dumpty.
“‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means what I choose it to mean – neither more nor less,’” Dennis wrote.
Dennis continued to quote a portion of the famous tale by Lewis Carroll.
“‘The question is,’ said Alice, ‘whether you can make words mean so many things.’”
Dennis then offered his own prose, saying Sal only agreed he would not open a food business in Lubbock County.
“When a contract uses the phrase ‘open a food business,’ it should be construed to mean what it plainly says—neither more nor less,” Dennis wrote.
Sal can lease property all he wants. The lawsuit should go away.
A waste of time
But Sal did more than that and the lawsuit should be heard, Vitela’s attorney, Fernando Bustos, wrote.
Sal specifically purchased a restaurant building, then added even more restaurant equipment before leasing it to his brother.
“This was a sweetheart lease,” Bustos told LubbockLights.com.
“This is not a standard arm’s-length lease that one sees typically for the lease of restaurant property in Lubbock,” Bustos said. “It shows that Sal really is an investor in that business and he’s in that business with his brother Jerry.”
In the appeal, Bustos wrote, “Sal’s petition is a waste of this court’s time and should be denied.”
Amarillo said
The appeals court agreed with Bustos that Sal did more than just rent a building for a restaurant.
“The restaurant that was subsequently opened by Sal’s brother sold products that were the same as those Sal had sold under the name ‘One Guy from Italy,’” the ruling said.
The appeals court justices thought it was fair to ask if Sal had a partnership with Jerry.
Next steps
The lawsuit now goes forward with each side making its case.
“This lawsuit really is about interpreting this contract. Sal’s lease to his brother is a big part of it,” Bustos said.
We asked how One Guy and Vitela are doing.
“He’s doing well day-to-day, but once Papa V opened, there was a noticeable downshift in sales. And we’ll present that as evidence in our trial,” Bustos said.
“It’s possible that additional evidence can be gathered,” Bustos said.
Court records
Use the links below to read the court records for yourself.
- Petition for writ of mandamus by Sal and Jerry Mazzamuto
- Response to petition for mandamus by Gabe Vitela
- Ruling to reject mandamus by the court of appeals
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