iFreedom Direct v. First Tennessee Bank National

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 4, 2013
Elisabeth A. Shumaker
Clerk of Court
iFREEDOM DIRECT, f/k/a New
Freedom Mortgage Corporation,
Plaintiff-Appellant,
No. 12-4164
v. (D.C. No. 2:09-CV-00205-DN)
(D. Utah)
FIRST TENNESSEE BANK
NATIONAL, successor-in-interest to
First Horizon Home Loan Corporation,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit
Judge.
In this diversity case, Plaintiff iFreedom Direct Corporation (“iFreedom”)
appeals from the district court’s judgment entered after a jury verdict in favor of
defendant First Tennessee Bank National Association (“First Tennessee”) on
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
iFreedom’s claim for breach of contract. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm.
I. Background
In August 2006, iFreedom and First Tennessee’s subsidiary, First Horizon
Home Loan Corporation, entered into an Asset Purchase Agreement (“APA”) in
which iFreedom sold its retail and wholesale mortgage loan operations to
First Tennessee. In the APA, the parties agreed on a purchase price consisting of a
lump-sum payment, as well as the possibility of additional “Earnout Payments.” See
Aplt. App., Vol. I at A62-63. The Earnout Payments were contingent on the former
iFreedom employees meeting certain threshold targets for loan production.
In August and November 2007, First Tennessee made Earnout Payments to
iFreedom for both retail and wholesale loan production. In 2008, First Tennessee
decided to sell the mortgage operations to MetLife Bank National Association
(“MetLife”). After the sale to MetLife, First Tennessee attempted to make an
Earnout Payment of $220,588 to iFreedom, but iFreedom refused to accept it.
In March 2009, iFreedom filed a lawsuit against First Tennessee, bringing
claims for breach of contract and breach of the covenant of good faith and fair
dealing. First Tennessee moved for summary judgment on iFreedom’s complaint.
The district court denied the motion, concluding there were disputed issues of
material fact as to whether: (1) iFreedom waived the non-assignment provision in the
APA, (2) the non-assignment provision applied to First Tennessee’s sale to MetLife,
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and (3) the sale or assignment caused any damages. The case proceeded to a jury
trial.
At the close of evidence, First Tennessee and iFreedom both moved for
directed verdicts. The district court granted in part First Tennessee’s motion,
concluding that First Tennessee was entitled to judgment in its favor for any alleged
breach of §§ 2.5(b), 4.5, 5.6, and 10.1 of the APA. The court denied the motion as to
First Tennessee’s alleged breach of § 10.5 (the non-assignment provision). The
district court also granted in part and denied in part iFreedom’s motion, directing a
verdict on First Tennessee’s affirmative defense of estoppel, but denying it as to the
waiver defense. The jury ultimately determined that First Tennessee had not
breached § 10.5. This appeal followed.
II. Discussion
iFreedom contends that the district court erred in five ways during trial by:
(1) giving only part of iFreedom’s proposed jury instruction on assignment;
(2) rejecting one of iFreedom’s proposed jury instructions; (3) directing a verdict in
favor of First Tennessee on several claims; (4) using an improper special verdict
form; (5) denying a directed verdict on First Tennessee’s affirmative defense of
waiver and instructing the jury on the waiver defense.
A. Jury Instructions
We review for abuse of discretion the district court’s refusal to give a
proposed jury instruction. See Zokari v. Gates, 561 F.3d 1076, 1090 (10th Cir.
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2009). We review de novo whether the instructions as a whole accurately informed
the jury of the governing law. See id. The parties agreed in the APA that the
agreement would be governed by Texas law.
iFreedom alleged that First Tennessee breached the non-assignment provision
in § 10.5 of the APA when it sold its mortgage operations to MetLife. That section
states in relevant part: “No Party hereto may assign any of its rights or obligations
hereunder to any other Person, without prior written consent of the parties . . . .”
Aplt. App., Vol. I at A86. First Tennessee asserted there was no breach of § 10.5
because it retained its rights and obligations to make the Earnout Payments to
iFreedom.
iFreedom proposed the following jury instruction on assignment:
The word “assignment” means the transfer or setting over of
property, or some right or interest from one person to another. The
person who “assigns” something generally loses all control over the
thing that is assigned and can do nothing to defeat the rights of the
person to whom the thing is assigned.
Id. at A209. First Tennessee objected to the instruction, arguing that it was
unnecessary and inapplicable to the facts of the case. The district court kept the first
sentence of the instruction, but declined to include the second sentence, explaining
that the instruction was “adequate” as is. Aplee. Supp. App. at SA242-43. iFreedom
contends that the district court erred in not giving its full instruction.
We see no abuse of discretion in the district court’s decision not to include the
second sentence of iFreedom’s proposed instruction on assignment. The first part of
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the instruction provides the general definition of “assignment” as found in Texas law.
See Johnson v. Structured Asset Servs., LLC, 148 S.W. 3d 711, 721 (Tex. Ct. App.
2004) (“The word ‘assignment’ has a comprehensive meaning and in its most general
sense means the transfer or setting over of property, or some right or interest.”). The
second sentence relates to the rights of the parties after an assignment takes place.
Because the dispute in this case was whether First Tennessee breached the
non-assignment provision in § 10.5 when it sold its mortgage operations to MetLife,
the jury did not need to be instructed on the legal rights of the parties post-
assignment because it was not deciding any issue about those rights in this case.
Accordingly, the district court acted within its discretion in instructing the jury on the
general definition of assignment.
iFreedom also contends that the district court erred in not giving the following
proposed instruction: “Whenever one party to an agreement has relied on the skill,
character or credit of the other party to the agreement, the law will not permit one of
the parties to substitute for himself another person in whom the opposite party may
not repose an equal trust or confidence.” Aplt. App., Vol. I at A156. First Tennessee
objected to the instruction as inapplicable to the facts of this case.
iFreedom cited to Lancaster v. Greer, 572 S.W.2d 787, 790 (Tex. Civ. App.
1978), as the basis for this jury instruction. See Aplt. App., Vol. I at A156. In
Lancaster, the court was considering the assignability of an earnest money contract
that was silent on assignment. See Lancaster, 572 S.W.2d at 789 (“Nowhere does the
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contract authorize assignment, nor does the contract prohibit assignment.”). In
determining whether the contract could be assigned, the court explained the general
rule that all contracts are assignable, but noted an exception for credit contracts
because they “involve a relationship between the seller and buyer of personal
confidence and trust.” Id. at 790. The court further explained that such contracts are
not assignable unless the original contracting party consents, and it was “undisputed
that Greer did not consent to the assignment.” Id. The court therefore held that the
earnest money contract at issue in that case was not assignable.
This case is distinguishable from Lancaster and the other cases iFreedom cites
in its opening brief that relate to the same legal proposition prohibiting the
assignability of a contract involving personal trust and confidence without the
original contracting party’s consent.1 Here, there was express language in
Section 10.5 prohibiting the assignment of any rights or obligations under the
contract without the other party’s consent, and the jury’s task was to decide whether
First Tennessee had breached that provision. Accordingly, there was no need for
1
See, e.g., Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp.,
823 S.W.2d 591, 596 (Tex. 1992) (internal citations omitted) (“As a general rule, all
contracts are assignable. An exception to this rule is that a contract that relies on the
personal trust, confidence, skill, character or credit of the parties, may not be
assigned without the consent of the parties.”), superseded by statute on other grounds
as recognized in Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,
225-26 (Tex. 2002)); Peniche v. Aeromexico, 580 S.W. 2d 152, 156 (Tex. Ct. App.
1979) (“The evidence establishes that the contract before this court was based upon
the personal trust, acquaintance and confidence that existed between [the contracting
parties], and hence was one for personal services. This being true, the contract could
not be assigned without an agreement of the parties.”).
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iFreedom’s requested instruction about the non-assignability of a contract involving
personal trust and confidence. Although iFreedom argues in its opening brief that
there is a distinction between assignment and delegation, and that its proposed
instruction related to an alternate common law theory prohibiting the delegation of
obligations under a contract involving personal trust and confidence, the case it
presented to the district court does not support this alternate theory. Under these
circumstances, the district court acted within its discretion in refusing to give
iFreedom’s proposed instruction.
Finally, we have reviewed the jury instructions as a whole and conclude that
they adequately stated the governing law. Accordingly, we find no reversible error
involving the jury instructions.
B. Directed Verdict
iFreedom argues that the district court erred in granting First Tennessee’s
motion for a directed verdict on its claims that First Tennessee breached certain
representations and warranties in the APA. “We review a district court’s grant of a
motion for directed verdict de novo.” Tanberg v. Sholtis, 401 F.3d 1151, 1156
(10th Cir. 2005).
iFreedom contends that First Tennessee breached representation and
warranties in §§ 4.5, 5.6, and 10.1 of the APA when it sold its mortgage business to
MetLife in 2008. But we agree with the district court that the plain language of the
APA supports First Tennessee’s position that the representations and warranties in
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§ 4.5 were made as of the date of the Agreement and did not represent a continuing
obligation on its part after the closing date, § 5.6 pertains to the period before
closing, and § 10.1 is a contractual statute of limitations.
Article 4 of the APA begins with First Tennessee stating that it “represents and
warrants to the Seller and Shareholder as of the date of this Agreement as follows,”
and in § 4.5, it makes all of its representations and warranties in the present tense.
Aplt. App., Vol. III at A507-08 (emphasis added). There is no language indicating a
continuing obligation to maintain the representations and warranties in § 4.5 after the
closing. See id. Section 5.6 is in Article V, “Closing Covenants,” and is an
obligation to give notice of any changes in the representations and warranties during
the period between the signing of the agreement and the closing date. See id. at
A509-10. The APA has separate articles for closing covenants and post-closing
covenants, see id., and iFreedom did not assert a breach of any of the post-closing
covenants. The district court’s interpretation that § 5.6 required notice of changes
before closing is further supported by First Tennessee’s compliance certificate in
which it certified that: “The representations and warranties made . . . in Article IV of
the Agreement were accurate in all material respects as of the date of the Agreement
and are accurate in all material respects as of the date of this Certificate.” Aplee.
Supp. App. at SA031.
Finally, we, like the district court, read § 10.1 as a contractual statute of
limitations that allows a claim for breach to survive for three years from the closing
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date if a party discovers that representations and warranties made in the APA as of
the closing date were not accurate. Accordingly, we see no error in the district
court’s decision to grant First Tennessee a directed verdict on iFreedom’s claims for
breach of §§ 4.5, 5.6, and 10.1 of the APA.
C. Special Verdict Form and Waiver Defense
iFreedom contends that the district court used a flawed special verdict form
because it “was not adjusted to the claims in the case, and did not even permit the
jury to award amounts that [First Tennessee] admitted it owed but had failed to pay.
Instead, the verdict form erroneously asked only if [First Tennessee] had breached
the non-assignment provision in the Freedom APA.” Aplt. Br. at 48. We disagree.
The only claims that remained after the district court’s oral ruling on directed verdict
were the alleged breaches of §§ 2.5(b) and 10.5, and iFreedom admitted it was only
seeking damages for breach of § 10.5, see Aplee. Supp. App. at SA231.2 The district
court specifically asked if iFreedom had a breach of contract claim for failure to pay
“the earnouts,” and iFreedom’s counsel responded, “No.” Id. at SA233-34. We see
no abuse of discretion in the district court’s use of the special verdict form.
iFreedom also asserts that the district court erred in not directing a verdict in
its favor on First Tennessee’s affirmative defense of waiver and including the waiver
defense on the special verdict form. We need not resolve these issues because any
2
In its written order, the district court also granted the motion for directed
verdict on § 2.5(b). See Aplt. App., Vol. II at A374.
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alleged error is harmless. See Fed. R. Civ. P. 61 (“At every stage of the proceeding,
the court must disregard all errors and defects that do not affect any party’s
substantial rights.”). The jury did not reach the question of waiver on the special
verdict form because it found that First Tennessee had not breached the contract.
See Aplt. App., Vol. I at A350. Although iFreedom argues that the failure to grant
the directed verdict on the waiver defense “negatively influenced the jury in its
deliberations on Freedom’s claims,” Aplt. Br. at 49, it has pointed to no authority to
support its position. In a similar situation where a party argued that an erroneously
submitted claim “tainted” the jury even though the jury did not find against the party
on that claim, we held that any alleged error in submitting to a jury a claim that
resulted in no damages should be disregarded. See Strickland Tower Maint., Inc., v.
AT&T Commc’ns, 128 F.3d 1422, 1430 (10th Cir. 1997). We see no reversible error
in the district court’s denial of the directed verdict on the waiver defense and its
decision to include it on the special verdict form.
III. Conclusion
We affirm the judgment of the district court.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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