Aperia Solutions Inc v. OLB Group Inc
MEMORANDUM OPINION AND ORDER: The Court GRANTS the 143 motion for entry of judgment and DENIES WITHOUT PREJUDICE the motion for new trial. The Court will issue the final judgment in a separate order. As the prevailing party in this breach of contract lawsuit, Aperia is entitled to reasonable attorney fees and costs by statute. The Court further ORDERS Aperia to file a motion for attorney fees and costs within 14 days of this order. (Ordered by Judge Brantley Starr on 6/4/2021) (twd)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
APERIA SOLUTIONS, INC.,
§ Civil Action No. 3:18-CV-03276-X
Plaintiff and CounterDefendant,
Defendant and CounterPlaintiff.
MEMORANDUM OPINION AND ORDER
Aperia Solutions, Inc. sued Evance, Inc. for breach of contract, promissory
estoppel and quantum meruit stemming from alleged non-payment for services.
Evance, Inc. responded with a counterclaim, alleging that it actually overpaid for the
services in question. The Court held a jury trial, and the jury returned a verdict in
favor of Aperia. Aperia filed a motion for entry of judgment based on the verdict [Doc.
No. 143] and Evance, Inc. cross-moved for a new trial [Doc. No. 144]. For the reasons
the below, the Court GRANTS the motion for entry of judgment and DENIES
WITHOUT PREJUDICE the motion for new trial.
The Court summarized the facts of this case in previous orders. The Court
held a jury trial on the parties’ claims. After Aperia’s case in chief concluded, Evance,
Inc. moved for a directed verdict as to the “old-debt,” arguing that Aperia failed to
introduce any evidence showing that Evance, Inc. did not pay the debt incurred by
Evance Processing. The Court granted the directed verdict. At the conclusion of the
case, the jury deliberated and returned a verdict concluding: (1) Evance, Inc. did not
purchase the Agreement; (2) Evance, Inc. ratified the Agreement; (3) Evance, Inc.
failed to comply with the Agreement; (4) $39, 368.57 is the sum of money that would
fairly and reasonably compensate Aperia; and (5) Aperia does not hold money that,
in equity and good conscience, belongs to Evance, Inc. 1
II. Legal Standards
Under Federal Rule of Civil Procedure 58(b)(2)(A), “the court must promptly
approve the form of the judgment, which the clerk must promptly enter, when . . . the
jury returns a special verdict or a general verdict with answers to written questions.” 2
The Supreme Court has ruled that Rule 58 is to be “mechanically applied.” 3
To obtain the extraordinary relief of a new trial, Evance, Inc. has a high
burden: “A trial court should not grant a new trial on evidentiary grounds unless the
verdict is against the great weight of the evidence.” 4 And regarding jury-charge error,
Evance, Inc. must demonstrate: (1) “‘that the charge as a whole creates substantial
and ineradicable doubt whether the jury has been properly guided in its
deliberations’” and (2) the challenged instructions “‘affected the outcome of the
Doc. No. 137 at 14–15, 18.
Fed. R. Civ. P. 58(b)(2)(A).
United States v. Indrelunas, 411 U.S. 216, 222 (1973).
Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th Cir. 1986).
5 Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 505 (5th Cir. 2012) (quoting Navigant
Consulting, Inc. v. Wilkinson, 508 F.3d 277, 293 (5th Cir. 2007)).
The jury’s verdict found that Evance, Inc. ratified the General Services
Agreement and then failed to comply with the Agreement. Evance, Inc. argues that
a new trial is warranted because ratification cannot legally or factually support the
jury’s verdict. The Court addresses these in turn.
Evance, Inc. makes several arguments that Texas law prohibits judgment on
a ratification theory, essentially arguing that the Court erred in instructing the jury
on ratification. Evance, Inc. first argues that ratification is not a cause of action
under Texas Law. But this argument is unavailing because Aperia did not introduce
ratification as an independent theory, only as a defense to Evance, Inc.’s arguments
that Patrick Smith lacked authority to enter into agreements on behalf of Evance,
Evance, Inc. then argues, for the first time, that ratification is legally
inapplicable because Evance, Inc. was not an original party to the General Services
Agreement. But again, the ratification issue presented to the jury was whether
Evance, Inc. ratified Patrick Smith’s agreement to bind the company to the terms of
the General Services Agreement, not whether Evance, Inc. ratified conduct or
agreements made by Evance Processing. The Court concludes that its ratification
instruction was proper under Texas Law.
Evance, Inc. further argues that the terms of the Agreement contradict any
Specifically, Evance, Inc. points to the Agreement’s anti-
assignment provision, which requires written consent of the other party in order to
effectuate an assignment or delegation of rights or duties in the contract. 6 Evance,
Inc. argues it could not legally ratify the Agreement because Aperia never gave its
written consent to such an assignment. Even if that provision does affect ratification,
however, the contractual right is Aperia’s to exercise, not Evance, Inc.’s. If a landlord
and a lessee enter into a lease that contains a provision barring sub-leases, and the
lessee sub-leases the premises anyways, the landlord may exercise his right to void
the sub-lease or he can waive his right and accept the sub-lessee’s payments. But the
sub-lessee, having already occupied the rental property, cannot then claim it owes
the landlord no rent because the original lease agreement prevented subleasing.
Evance, Inc. is the sub-lessee in this analogy; perhaps Aperia could have refused
service to Evance, Inc. on account of the assignment provisions, but Evance, Inc.
certainly does not have that right.
From a factual perspective, Evance, Inc’s argument fails as well. The jury
received a copy of the Agreement in evidence. The Court instructed the jury to
consider all evidence presented in the case, which includes the Agreement and each
of its terms. Evance, Inc. had the opportunity to present its contractual arguments
to the jury. The jury then deliberated and concluded that Evance, Inc. ratified the
contract, which is a de facto rejection of Evance, Inc.’s position.
6 See Plaintiff’s Exhibit 1 at 30.
Evance, Inc. also highlights the provisions prohibiting
amendments or modifications not in signed writings and prohibiting the creation of third-party
benefits as a result of the contract See id. at 30–31. These provisions do not change the Court’s analysis
about whether the Agreement’s terms legally allow or prevent ratification by Evance, Inc. under the
facts of this case.
Finally, Evance, Inc. argues that it did not ratify the Agreement because Mr.
Yakov expressly rejected the Agreement in a meeting with the Aperia sales
representative. 7 But again, Evance, Inc. already presented this argument to the jury.
The Court instructed the jury to consider that evidence along with all other evidence
presented at the trial, 8 which included Mr. Smith’s statements to Aperia as well as
Evance, Inc.’s conduct. The jury deliberated and nonetheless concluded that Evance,
Inc. ratified the agreement.
In sum, the Court carefully reviewed the parties’ briefings, as well as the
arguments and authorities therein, and concludes that the Court properly instructed
the jury in this case, and the jury’s verdict is not against the great weight of the
evidence. Accordingly, the Court DENIES WITHOUT PREJUDICE the motion for
new trial and GRANTS the motion for entry of judgment.
For the forgoing reasons, the Court GRANTS the motion for entry of judgment
and DENIES WITHOUT PREJUDICE the motion for new trial. The Court will
issue the final judgment in a separate order. As the prevailing party in this breach
of contract lawsuit, Aperia is entitled to reasonable attorney fees and costs by
Evance, Inc. also argues that no part of the agreement requires Evance, Inc. to pay Evance
Processing’s past-due debts. However, the Court resolved issues surrounding Evance Processing’s debt
as a matter of law when it granted Evance, Inc.’s directed verdict motion which asserted that Aperia’s
case in chief conclusively demonstrated that Evance, Inc. did pay the old debt incurred by Evance
Processing. After requesting and receiving the Court’s resolution of this issue, Evance, Inc. cannot
turn around now and attempt to revive it again.
Doc. No. 137 at 1–8.
statute. 9 The Court further ORDERS Aperia to file a motion for attorney fees and
costs within 14 days of this order.
IT IS SO ORDERED this 4th day of June, 2021.
UNITED STATES DISTRICT JUDGE
9 TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8); In re Nalle Plastics Family Ltd. P’ship, 406
S.W.3d 168, 172–73 (Tex. 2013).
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