TRX Integration, Inc. v. Stafford-Smith, Inc.

Filing 76

ORDER denying 58 Motion for summary judgment; denying 62 Motion for summary judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/23/2016.(DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRX INTEGRATION, INC.,
Plaintiff,
v.

Case No. 8:15-cv-880-T-33TBM

STAFFORD-SMITH, INC.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court upon two motions for
summary judgment. Plaintiff TRX Integration, Inc. moves for
summary judgment as to Count I of Defendant Stafford-Smith,
Inc.’s Counterclaim and Count II of the Amended Complaint.
(Doc. # 58). Stafford-Smith moves for summary judgment as to
Counts I and II of the Amended Complaint. (Doc. # 62). Both
parties filed their respective responses (Doc. ## 64, 66) and
replies (Doc. ## 65, 68). For the reasons that follow, the
Court denies both motions for summary judgment.
I.

Background
TRX owns and licenses TRX EnterpriseTM, which is software

designed to meet the needs of companies in the food service
industry. (Doc. # 50 at ¶¶ 2-3). SSI is a corporation that
supplies food-service equipment, such as stoves, cabinets,

1 

and

walk-in

coolers

found

in

commercial

and

industrial

kitchens. (Doc. # 18 at ¶ 3). Sometime in the Spring of 2014,
SSI was referred to TRX and on June 26, 2014, TRX submitted
a proposal to SSI for licensing TRX EnterpriseTM and services
related thereto. (Doc. ## 18 at ¶ 4; 50 at ¶ 5). The proposal
stated:
The following proposal covers these areas:
1) Investment for Software Licensing
a. 60 named users
b. Annual Support on ORACLE and TRX
2) Implementation Strategy and estimates
a. Map current procedures
b. Map TRX procedures
c. Determine custom software
d. Training via Phone and on site
e. Date Conversion
f. Going Live
(Doc. # 62-1 at 3).
The

proposal

laid

out

the

cost

for

licensing

TRX

EnterpriseTM and an estimate for the implementation thereof,
which included training and data migration. (Id. at 4-5). The
proposal also showed that customizations would be determined
during the implementation stage. (Id. at 5).
SSI thereafter executed the Written Agreement to license
TRX

EnterpriseTM

and

TRX

accepted

the

Written

Agreement

through its course of conduct. (Doc. ## 43 at 13, ¶ 4; 44 at
¶ 4; 62-1 at 7-10). The Written Agreement allows TRX to
terminate the Written Agreement, but SSI is not afforded the

2 

same right thereunder. (Doc. # 62-1 at 8, ¶ 4). In addition,
the Written Agreement limits the warranties provided to SSI
to those enumerated in the Written Agreement. (Id. at 8, ¶
6). The parties also entered into an Oral Agreement regarding
the implementation of TRX EnterpriseTM. (Doc. ## 43 at 14, ¶¶
8-9; 44 at ¶ 9; 50 at ¶ 8). On June 30, 2014, SSI paid TRX
$107,500, which accounted for the first installment towards
licensing

EnterpriseTM

TRX

and

a

$15,000

retainer

for

implementation services. (Doc. # 43 at 4, ¶ 15). About a month
later, on August 26, 2014, SSI paid TRX the second and final
installment of $92,500 towards licensing TRX EnterpriseTM.
(Doc. # 43 at 4, ¶ 17).
Furthermore,

under

the

Oral

Agreement,

a

training

company had to be set up as part of the implementation of TRX
EnterpriseTM.

(Doc.

#

51-3

at

38:16-39:10).

As

to

the

establishment of the training company, TRX and SSI had shared
responsibilities. See (Doc. # 51-5 at 230:8-10, 232:6-25).
Relatedly, the implementation team at SSI consisted of
Phyllis

Rowe,

Cassie

Blodgett,

Andy

McHugh,

David

M.

Stafford, Jr., and Sue Grusell. (Doc. # 64-1 at 17, ¶ 9). In
her

affidavit,

Rowe,

the

team

leader

at

SSI

for

the

implementation of TRX EnterpriseTM, stated that between July
13, 2014, and July 16, 2014, TRX sent representatives to SSI’s

3 

headquarters to meet with SSI’s implementation team and to
collect information. (Id. at 17, ¶ 11). Then, on August 12,
2014,

through

August

13,

2014,

TRX

sent

the

same

representatives to SSI’s headquarters to meet with SSI’s
implementation team and to demonstrate TRX EnterpriseTM. (Id.
at 17, ¶ 12). A second demonstration of TRX EnterpriseTM was
set for December of 2014, however, the demonstration did not
go well and Rowe thereafter asked for weekly telephonic
progress meetings. (Id. at 17, ¶¶ 13-14).
The record is unclear as to whether SSI performed its
duties under the Oral Agreement as to the establishment of a
training company. For example, Rowe testified during her
deposition that SSI did not owe TRX any information or work
vis-à-vis the training company at the time SSI terminated the
contract.

(Doc.

#

51-4

at

35:6-13).

Similarly,

Ammon

testified during his deposition that SSI had completed one of
its duties as to the training company; however, he was unsure
if SSI actually informed TRX of that fact. (Doc. # 51-6 at
103:13-104:18). Notably though, later in her deposition, Rowe
stated that, from TRX’s position, SSI still had not completed
all its duties as to the training company. (Doc. # 51-5 at
231:21-233:1). In addition, McHugh stated in his deposition
that, as of the date that SSI terminated the contract, SSI

4 

still owed TRX information necessary for the training company
to be finalized. (Doc. # 51-3 at 232:8-233:11).
Then, on March 12, 2015, SSI sent a letter to TRX
informing TRX that SSI was terminating the contract. (Doc. #
62-1 at 12-13). Thereafter, on March 23, 2015, TRX filed suit
against SSI in the Sixth Judicial Circuit, in and for Pinellas
County, Florida. (Doc. # 2). SSI subsequently removed the
action to this Court on the basis of diversity jurisdiction.
(Doc. # 1). TRX filed an Amended Complaint, which brings two
counts: breach of contract (Count I) and declaratory relief
(Count II). (Doc. # 30). SSI filed its Answer and countersued
TRX for breach of contract. (Doc. # 43). The parties have
each moved for summary judgment and the motions are ripe for
review.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).

5 

An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,

6 

344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

the

than

summary

non-movant’s
a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Although both parties seek summary judgment as to Count
II of the Amended Complaint, “each side must still establish
the lack of genuine issues of material fact and that it is
entitled to judgment as a matter of law.” Chao v. Tyson Foods,
Inc., 568 F. Supp. 2d 1300, 1305 n.1 (N.D. Ala. 2008) (citing
Chambers & Co. v. Equitable Life Assur. Soc’y of the U.S.,
224 F.2d 338, 345 (5th Cir. 1955); Matter of Lanting, 198
B.R. 817, 820 (Bankr. N.D. Ala. 1996)). “The fact that both
parties simultaneously are arguing that there is no genuine
issue of fact . . . does not establish that a trial is
unnecessary thereby empowering the court to enter judgment as

7 

it sees fit.” 10A Wright, Miller & Kane, FEDERAL PRACTICE

AND

PROCEDURE § 2720, 327-28 (3d ed. 1998). The Court, therefore,
will consider each Motion independently. Meridian Constr. &
Dev., LLC v. Admiral Ins. Co., 105 F. Supp. 3d 1331, 1338
(M.D.

Fla.

2013)

(stating,

“with

cross-summary

judgment

motions, consideration of each motion must be undertaken on
its own merits with inferences drawn in favor of the nonmoving
party on each motion”); Chao, 568 F. Supp. 2d at 1305 n.1.
III. Analysis
The threshold issue this Court must decide is whether
the parties entered into two agreements that should be read
independently of each other or whether the two agreements
should be read together as one single contract. After careful
review, the Court determines that the Written Agreement and
the

Oral

Agreement

should

be

read

as

constituting

one

contract.
“Under Florida law, where two or more documents are
executed by the same parties, at or near the same time and
concerning
documents

the
are

same

transaction

generally

or

construed

subject

together

matter,
as

a

the

single

contract.” Clayton v. Howard Johnson Franchise Sys., Inc.,
954 F.2d 645, 648 (11th Cir. 1992); J.M. Montgomery Roofing
Co. v. Fred Howland, Inc., 98 So. 2d 484, 486 (Fla. 1957)

8 

(stating “where an agreement is evidenced by two or more
writings, the writing must be construed together” and noting
that the instruments do not necessarily have to be executed
at the same time) (citation and internal quotation marks
omitted); Dodge City, Inc. v. Byrne, 693 So. 2d 1033, 1035
(Fla. 2d DCA 1997) (stating “[w]hen the parties execute two
or

more

documents

concurrently,

in

the

course

of

one

transaction concerning the same subject matter, the documents
must be read and construed together”).
Upon review of the Written Agreement and Oral Agreement,
the Court determines that the Agreements are to be read as
one contract. Both the Written and Oral Agreements stem from
the same proposal. (Doc. # 62-1 at 3-6). Although the Written
Agreement does not refer to the Oral Agreement, by the same
token, the Written Agreement does not contain an integration
clause. (Id. at 7-10). In addition, the Written and Oral
Agreements were entered into by the same parties and relate
to the same subject. See (Id. at 25-26, 28 (stating, “they
purchased

the

whole

thing.

They

purchased

the

license

agreement, the licenses and then the promise of enhancements,
if you will, that are – will be defined as defined in our
presentation.”)).

9 

With respect to whether the Agreements concern the same
transaction

or

subject

matter,

the

relation

between

the

Written and Oral Agreements is of some consequence. If the
Agreements are interrelated, this would weigh in favor of
finding the Agreements to be one contract. In contrast, if
the Agreements are distinct, that would weigh against finding
the Agreements to be one contract. Thus, the position the
parties

have

interrelated

adopted
is

as

to

noteworthy.

whether

the

Agreements

Unfortunately,

the

are

parties’

respective positions do not tell the Court much.
To begin with, the Court notes that SSI submits TRX
should be estopped from contending the two Agreements are not
interrelated given TRX’s argument in opposition to SSI’s
motion to transfer. (Doc. # 68). However, SSI’s argument was
not raised until SSI filed its reply. As such, the Court
declines to entertain SSI’s submission on this point. See
Allah El v. Avesta Homes, No. 8:11–cv–2192–T–33TGW, 2012 WL
515912, at *3 (M.D. Fla. Feb. 16, 2012) (stating “District
Courts,

including

this

one,

ordinarily

do

not

consider

arguments raised for the first time on reply”); Park City
Water Auth., Inc. v. N. Fork Apartments, L.P., No. 09–0240–
WS–M, 2009 WL 4898354, at *1 n.2 (S.D. Ala. Dec. 14, 2009)
(collecting cases).

10 

To summarize the parties’ respective positions, TRX
argues the Agreements are related (Id. at 15, ¶ 16) but should
not be read as a single contract because they do not concern
the same subject (Doc. # 66 at 8), whereas SSI argues the
Agreements are distinct (Doc. # 43 at 15-16) but should be
read as a single contract because they are interdependent
(Doc. # 62 at 23). To be sure, the Written Agreement concerned
licensing the rights to use TRX EnterpriseTM and the Oral
Agreement concerned implementation and enhancements to that
very same software. See (Doc. ## 18 at ¶ 8; 51-4 at 26:1116). The two Agreements related to the same transaction and
subject

matter——SSI’s

Montgomery
contracts

Roofing
to

be

use

Co.,

“part

of

98
and

TRX

So.

EnterpriseTM.

See

2d

at

486

(finding

parcel

of

the

same

J.M.
two

general

transaction . . .”) (emphasis added); Leon F. Cohn, M.D.,
P.A. v. Visual Health & Surgical Ctr., Inc., 125 So. 3d 860,
863 (Fla. 4th DCA 2013) (finding two contracts “dealt with
the same overarching transaction and should be construed
together as a single contract”) (emphasis added). Because the
Written and Oral Agreements arose from the same proposal,
were entered into by the same parties, and concerned the same
subject matter, they should be construed as one contract.

11 

The analysis does not end there, however. The Court must
next determine whether there was a material breach of the
contract and, if so, which party breached first. See Beck v.
Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999)
(stating, “[t]he elements of a breach of contract action are
(1) a valid contract; (2) a material breach; and (3) damages”
(citing Abruzzo v. Haller, 603 So. 2d 1338, 1340 (Fla. 1st
DCA 1992)); Dickerson v. Cmty. W. Bank, No. 8:10-cv-729-T17AEP, 2015 WL 4879353, at *16 (M.D. Fla. Aug. 14, 2015)
(stating, “[i]n addition, in order to maintain an action for
breach of contract, a claimant must also prove performance of
its obligations under the contract or legal excuse for its
nonperformance”). “A material breach occurs only when an
injured party has sustained a substantial injury due to the
breach.” Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d
1330, 1343-44 (M.D. Fla. 2006). To answer the question of
whether a material breach occurred and, if so, which party
breached first, the Court must know the terms of the contract
as a whole, the terms of which are those memorialized in the
Written Agreement and those of the Oral Agreement.
SSI

does

not

argue

that

TRX

breached

the

Written

Agreement portion of the contract. (Doc. ## 43 at 15, ¶ 16;
62 at 5; 68 at 5 (stating, “[t]o be clear, SSI contends that

12 

TRX substantially breached the implementation contract and
that the licensing contract[, i.e., the Written Agreement,]
was

dependent

upon

or

interrelated

with

the

Ancillary

Services[, i.e., the Oral,] Agreement”)). Thus, the crux of
the matter is which party first breached the Oral Agreement
portion of the contract.
To determine whether there was a material breach of the
Oral Agreement portion of the contract, the Court must first
know the terms of the Oral Agreement. However, the record
does not contain much in the way of what the terms of the
Oral Agreement were. What the record does reflect is that the
parties

agreed

a

training

company

would

have

to

be

established. (Doc. ## 43 at 16, ¶ 18(a); 44 at ¶ 18(a)).
Under the Oral Agreement, and specifically as to the
establishment of a training company, the record shows that
TRX and SSI had shared responsibilities. See (Doc. # 51-5 at
230:8-10, 232:6-25). However, there is a genuine issue of
material fact as to whether SSI fulfilled its obligations
before terminating the contract with TRX. For example, Rowe
testified during her deposition that SSI did not owe TRX any
information or work vis-à-vis the training company at the
time SSI terminated the contract. (Doc. # 51-4 at 35:6-13).
Yet, later in her deposition, Rowe stated that from TRX’s

13 

position, SSI still had not completed all of its duties as to
the training company. (Doc. # 51-5 at 231:21-233:1).
Furthermore, Ammon testified during his deposition that
SSI had completed one of its duties as to the training company
but that he was unsure if SSI actually informed TRX of that
fact. (Doc. # 51-6 at 103:13-104:18). For his part, McHugh
testified that as of the date SSI terminated the contract,
SSI still owed TRX information necessary for the training
company to be finalized. (Doc. # 51-3 at 232:8-233:11). That
SSI’s president, and now CEO, stated it was his “position
that both sides had issues . . . . No one’s lily white in
[sic] either end of,” (Doc. # 51-1 at 13:19-20), only serves
to highlight the importance of answering the question of which
party breached first. But, that is a question which the Court
cannot answer at summary judgment given the issue of material
fact discussed above.
Given this genuine issue of material fact, the Court
cannot grant either motion for summary judgment, because each
motion turns on whether there was a material breach of the
Oral Agreement portion of the contract and, if so, which party
breached first. As shown above, the record is unclear as to
that question and the resultant genuine issue of material
fact precludes summary judgment.

14 

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

TRX

Integration,

Inc.’s

Consolidated

and

Abridged Motion for Summary Judgment (Doc. # 58) is
DENIED.
(2)

Defendant

Stafford-Smith,

Inc.’s

Motion

for

Summary

Judgment (Doc. # 62) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
23rd day of February, 2016.

15