Opinion
No. X07 CV 03 4029537 S
October 26, 2007
MEMORANDUM OF DECISION
I
In the present case, the plaintiffs, Auto Glass Express, Inc. (Auto Glass), and Ed Steben Glass, Inc. (Ed Steben), filed separate actions in small claims court against the defendant, Hanover Insurance Company. Ultimately, eleven cases, one brought by Auto Glass and ten brought by Ed Steben, were removed to the Superior Court and then consolidated for trial on the complex litigation docket. The plaintiffs allege breach of contract claims arising from services provided by the plaintiffs to the defendant's insureds for which the plaintiffs were allegedly not fully compensated.
The ten docket numbers in the cases brought by Ed Steben are as follows:
X07 CV 00 4032033, X07 CV 004032034, X07 CV 01 4032031,
X07 CV 01 4032032, X07 CV 01 4032035, X07 CV 01 4032036,
X07 CV 01 4032037, X07 CV 01 4032038, X07 CV 01 4032039 and X07 CV 02 4032040.
The facts asserted in these cases are essentially undisputed. In letters sent by the defendant's third party administrator, Safelite Glass Corporation (Safelite), the defendant set forth the prices it would pay the plaintiffs, and other glass repair and replacement shops in the geographic area, for their services on its insureds' motor vehicles. These prices were adjusted approximately twice a year. When the prices changed, Safelite would send a letter, by facsimile or mail, to the glass shops, including the plaintiffs, informing them of the change. The plaintiffs acknowledged receiving these letters.
Several of the defendant's insureds went to the plaintiffs to have the glass repaired or replaced on their motor vehicles. The repairs or replacements were covered by the insureds' automobile insurance policies with the defendant. The plaintiffs replaced or repaired the glass and obtained an assignment of proceeds from each insured. Subsequently, the plaintiffs submitted invoices for the glass repair work to Safelite for amounts higher than what the defendant had stated that it would pay in its periodic pricing letters. Safelite paid the plaintiffs according to the amounts set forth in the letters. The plaintiffs promptly negotiated the checks they received from Safelite.
Auto Glass' assignments, in relevant part, provided that the insured "assign any and all claims in connection with this automobile glass installation against [the] insurance company and all policy proceeds due for this installation to Auto Glass (See plaintiffs' Exhibit [Exh.] 2.) Ed Steben's assignments provided similarly for all proceeds to be assigned to Ed Steben and, if the insurance company failed to pay Ed Steben, the insured agreed to pay Ed Steben directly. (See, e.g., plaintiffs' Exh. 18.) Later, Ed Steben had some customers execute further assignments retroactively and eventually changed the language of the assignments so that the insured agreed to "assign any and all claims in connection with this automobile glass installation . . . including [the] right to sue . . . (See, e.g., plaintiffs' Exhs. 18 and 27.)
Auto Glass was paid $3,064.91 below the amount billed on approximately eighteen invoices for work completed on June 7, 2002 to March 27, 2003. (See plaintiffs' Exh. 12.) Ed Steben was paid $9,747.78 below the amount billed on over eighty invoices for work done from April 5, 2000 to July 23, 2004. (See plaintiffs' Exh. 36.)
The plaintiffs filed complaints alleging breach of the insurance policies. In the defendant's amended answer and special defense to the plaintiffs' substituted complaint, the defendant denied the allegations and asserted special defenses, including accord and satisfaction and implied contract.
The defendant also asserted a defense of collateral estoppel, which it has since withdrawn.
On July 20 and July 21, 2004, the court, Sferrazza, J., conducted an evidentiary hearing and, subsequently, issued a memorandum of decision finding that the defendant had proven by a preponderance of the evidence all of the elements of accord and satisfaction. See Auto Glass Express, Inc. v. Hanover Ins. Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 03 0083842 (September 14, 2004, Sferrazza, J.) (37 Conn. L. Rptr. 872). The plaintiffs appealed and, on December 26, 2006, the Appellate Court reversed the decision of the trial court, rejected the special defense of accord and satisfaction and remanded the cases for further proceedings on the plaintiffs' breach of contract claims. See Auto Glass Express, Inc. v. Hanover Ins. Co., 98 Conn.App. 784, 796, 912 A.2d 513 (2006), cert. denied, 281 Coin. 914, 916 A.2d 55 (2007). This court heard oral argument on these cases on August 29, 2007.
The complex litigation X07 docket was transferred to Hartford in August of 2006.
Because these matters were fully tried in July of 2004, the parties agreed that it was unnecessary to present further evidence to the court.
II
The plaintiffs argue that the insurance policies constituted express agreements between the parties. Specifically, they argue that they became parties to the insurance policies because the insureds' assigned to them the right to payment for the auto glass replacement and repairs. The policies, in relevant part, provide that the "limit of liability for loss will be . . . the . . . [a]mount necessary to repair or replace the property with other property of like kind and quality." They assert that the defendant breached its policies because it did not pay the plaintiffs the amount necessary to repair or replace the insureds' auto glass with other auto glass of like kind and quality. The defendant argues, on the other hand, that unilateral contracts were created as a result of the pricing letters that the defendant caused Safelite to send to the plaintiffs and the work subsequently performed by the plaintiffs for the defendant's insureds. This court agrees with the defendant.
A
"A unilateral contract is one in which the offeror invites acceptance of his promise not by a reciprocal promise, but by performance. Another way of stating the same point is that, in such a contact, there is no mutuality of obligation between the parties." Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13 n. 4, CT Page 18165 662 A.2d 89 (1995).
The distinction between bilateral and unilateral contracts is perhaps becoming obsolete. "Traditional contract doctrine has distinguished between those contracts where each party promises some performance and those where only one party promises performance, the consideration from the promisee being actually given and being something other than a promise. The former contracts are called bilateral, the latter unilateral. Although the distinction is still generally recognized by the courts, and although the first Restatement drafters accepted the distinction as fundamental, the drafters of the Restatement Second have taken the position that the distinction was conducive to confusion, and that use of the terms is to be avoided. Nevertheless, even the drafters of the Restatement Second recognize that some promises by their terms seek a performance rather than a return promise, though they consider the principal value of the distinction between bilateral and unilateral contracts to be the emphasis it has given to the fact that a promise may be binding on the promisor even though the promisee is not bound by any promise. The Restatement Second retains this value in its section on option contracts. While it is true, therefore, that in some cases a promise may not readily be characterized as clearly bilateral or clearly unilateral, either because it shares components of each or because it is subject to the frailties of human language, it nevertheless remains worthwhile to classify contracts in accordance with what the promisor is seeking from the promisee when he or she make his or her promise." 1 S. Williston, Contracts (4th Ed. 2007) § 1:17, pp. 61-63.
In the present case, the defendant-promisor impliedly sought performance, rather than a return promise, from the plaintiffs-promisees. Thus, this case is evaluated using the law as to unilateral contracts. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 13 ("[t]o determine the contents of any particular implied contract of employment, the factual circumstances of the parties relationship must be examined in light of legal rules governing unilateral contracts").
In the present cases, before any of the assignments of the proceeds of the insurance policies, the defendant caused Safelite to send regularly by mail or facsimile pricing letters to the plaintiffs. The plaintiffs argue that the pricing letters were not offers. "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." 1 Restatement (Second), Contracts § 24 (1981). Stated another way, "[a]n offer is a clear, unambiguous expression of the terms under which someone is willing to enter into a contract." Saye v. Howe, Superior Court, judicial district of Fairfield, Docket No. CV 02 0392393 (October 24, 2004, Wolven, J.), citing 1 A. Corbin, Contracts (Rev. Ed. 1996) § 1.11, p. 28, aff'd, 92 Conn.App. 638, 886 A.2d 1239 (2005). The letters here clearly and unambiguously stated: 1) the prices that the defendant would pay; 2) the prices superceded any prior pricing agreements; and, 3) "[b]ills that are accurate and are not more than this pricing structure will be paid promptly as submitted."
Kurt Muller, president of Auto Glass, and Robert Steben, president of Ed Steben, testified that their businesses were informed of the prices the defendant would pay starting in 1999. (Trial Transcript [Tr.], July 20, 2004, p. 83, lines 6-9 and p. 160, lines 24-26.) The first pricing letter to Ed Steben was dated January 27, 2000; (Defendant's Exh. 3); and the first invoice Ed Steben disputes, which does not include an assignment, was for work completed on April 5, 2000. (Plaintiffs' Exhs. 19 and 36.) As to Auto Glass, the first pricing letter was also dated January 27, 2000; (defendant's Exh. 4); and the first invoice it disputes, containing an assignment, is on work performed on June 7, 2002. (Plaintiffs' Exh. 12.)
The letters, as offers, invited acceptance, not by a reciprocal promise by the plaintiffs, but by their performance. Nothing in the letter requested that the plaintiffs perform or bound them to do so. Therefore, there was no mutuality of obligation between the parties.
"[A]n offer imposes no obligation upon either party, until it is accepted by the offeree, according to the terms in which the offer was made." Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 256, 550 A.2d 1061 (1988). The plaintiffs accepted the offers by their performance every time they installed or repaired the glass in the insured's motor vehicles. Each performance was a separate unilateral contract. See Cascade Auto Glass, Inc. v. Progressive Casualty Ins. Co., 135 Wash.App. 760, 769, 145 P.3d 1253 (2006) (finding that auto glass shop created "binding unilateral contracts each time it repaired or replaced auto glass" for insurance company's insureds after receiving insurance company's pricing letters), review denied, 161 Wash.2d 1012 (2007).
The plaintiffs argue, however, that there was no unequivocal acceptance in these cases. "It is axiomatic that to create a contract there must be an unequivocal acceptance of an offer . . . The law, however, does not require an express acceptance . . . Acceptance may be shown by acts or conduct indicating assent to an offer . . ." (Citations omitted.) Pleines v. Franklin Construction Co., 30 Conn.App. 612, 616-17, 621 A.2d 759 (1993).
In the present case, the plaintiffs manifested acceptance by performing the repair and replacement work and the defendant recognized its contractual obligations by paying the plaintiffs. "[A]cceptance of an offer creates a valid contract." Alstom Power Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 612, 849 A.2d 804 (2004). Thus, the plaintiffs' acceptance created valid unilateral contracts.
"Moreover, regardless of actual intent, if the offeree's conduct leads the offeror reasonably to conclude that the offer is being accepted, acceptance has taken place as a matter of law." Pleines v. Franklin Construction Co., supra, 30 Conn.App. 617. "Whether the conduct of an offeree can lead the offeror reasonably to infer acceptance is a question of fact for the trial court." Id.
In Pleines, the plaintiff gave the defendant an estimate for the construction of a patio, but the defendant did not award the job to the plaintiff because the price he quoted was too high. Id., 614. Later, the defendant asked the plaintiff to begin work immediately without agreeing to a price. Id. The plaintiff submitted an invoice to the defendant prior to construction based upon a price per square foot, but the defendant contended that the plaintiff was to be paid by the hour and consequently did not pay the plaintiff the full amount that was due. Id. The court found that, "[w]hile the patio was being built, no one suggested that [the price] per square foot was too high a price or that the plaintiff was to be paid on an hourly basis." Id., 617. Therefore, in finding an express contract between the parties, the court held that "[t]he evidence was sufficient to support a trial court finding that the defendants by their words, acts and conduct led the plaintiff reasonably to conclude that they had accepted the plaintiffs offer, thus creating a contract for construction of the patio at [the price] per square foot." Id.
In the present case, Mark Annis, assistant controller of network operations for Safelite, testified that the defendant joined Safelite in 1999. (Trial Transcript, [Tr.], July 21, 2004, p. 91, lines 3-5.) Annis further testified, that upon a glass shop's first repair for an insured, Safelite would pay the amount invoiced and then send out notification of an insurance company's rates to the shop. (Tr., July 21, 2004, p. 96, lines 26-27, and p. 97, lines 1-2.) According to Annis, this program was called "first bite" and Safelite has the program for other insurance companies in addition to the defendant. (Tr., July 21, 2004, p. 97, Lines 9-11.)
Kurt Muller, president of Auto Glass, and Robert Steben, president of Ed Steben, testified that their businesses were informed of the prices the defendant would pay starting in 1999. (Tr., July 20, 2004, p. 83, lines 6-9 and p. 160, lines 24-26.) Safelite continued to send by mail and facsimile updated pricing letters to the plaintiffs, on or around January and May of each year, containing the prices the defendant would pay. (See defendant's Exhibits [Exhs.] 3 and 4.) Therefore, both businesses were on notice of the prices that the defendant would pay before the work at issue here was started or completed. (See plaintiffs' Exhs. 12 and 36; see also Tr. July 20, 2004, p. 160, lines 17-27.)
Muller further testified that he knew from experience the letters represented the amount the defendant would pay and did pay. (Tr., July 20, 2004, p. 84, lines 16-21.) The plaintiffs continued to accept business from the defendant's insureds. (Tr., July 20, 2004, p. 84, lines 24-26; see also plaintiffs' Exh. 36.) Steben testified that the adjusted payments from Safelite were always consistent with the pricing letters. (Tr., July 20, 2004, p. 162, lines 10-12.)
Both plaintiffs promptly negotiated the checks from Safelite and little evidence suggests that they contested the amounts received. The court finds, therefore, that the plaintiffs by their acts and conduct led the defendant reasonably to conclude that the plaintiffs had accepted the defendant's offers creating new contracts for glass repair and replacement on the insureds' vehicles at the prices contained in the letters. In sum, unilateral contracts existed between the parties at the prices contained in the pricing letters.
The plaintiffs point to a letter dated April 2, 2002 that Auto Glass sent to a claims supervisor of the defendant. In the letter, Auto Glass states that although it did "not agree with the pricing set forth" in the pricing letter, dated January 21, 2002, it would continue to "honor our customer's choice and perform the work requested." (Plaintiffs' Exh. 5.) The letter further states that Auto Glass "intend[s] to bill you at a fair and reasonable rate and expect[s] to be paid the full amount of our invoice . . ." The letter ends with Auto Glass stating that it is "willing to negotiate with your company to set a fair price . . .?Perhaps this letter was an offer to negotiate or a counteroffer. See 1 Restatement (Second), supra, § 39 (1) (defining counteroffer as "an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer").
Nevertheless, the parties did not negotiate. Instead, the defendant, though Safelite, sent out another pricing letter dated April 29, 2002, which could also be considered a counteroffer. Auto Glass did not respond, but, rather, manifested its acceptance by performing repair and replacement for the defendant's insureds. Indeed, the payments that Auto Glass disputes in the present case are on work completed on or after June 7, 2002 — two months after its April 2, 2002 letter and approximately one month after the April 29, 2002 pricing letter. (See plaintiffs' Exh. 12.) Therefore, the April 2, 2002 letter does not show a lack of acceptance because Auto Glass' performance manifesting assent continued despite the letter.
Additionally, this court is mindful that the plaintiffs might have briefed an argument that suing the defendant, especially bringing another suit after the first suit was filed and after the subsequent glass repairs, constitutes something less than full acceptance of the defendant's offer and hence that no contract resulted. See 1 Restatement (Second), supra, § 53. Such an argument was not briefed, however, by the plaintiffs and is, therefore, considered waived. See Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." [Citation omitted; internal quotation marks omitted.]).
This conclusion is supported by caselaw in other jurisdictions. In Cascade Auto Glass, Inc. v. Progressive Casualty Ins. Co., supra, 135 Wash.App. 763, the parties originally signed an express pricing agreement. Thereafter, the insurance company hired Safelite to administer its claims. Id. Safelite in subsequent letters purporting to supercede any prior pricing agreements advised the glass shop of pricing changes. Id., 763-64. The glass shop sued the insurance company alleging that the insurance company "breached the pricing agreement as well as the assigned insurance policies that required `fair' payment for `necessary' repairs." Id., 764. The trial court granted the insurance company's partial motion for summary judgment on the claim for breach of the pricing agreement. Id.
The plaintiffs cite to Minnesota case law where decisions in similar cases have been rendered for the glass shops. See, e.g., Glass Service Co., Inc. v. Progressive Specialty Ins. Co., 603 N.W.2d 849 (Minn.App. 2000). Minnesota has, however, a statute that makes it an unfair settlement practice for an insurer to fail to pay the insured's chosen vendor based on a competitive price that is fair and reasonable. Minn. Stat. § 72A.201, subdivision 6 (14). The plaintiffs do not argue, and research does not reveal, that Connecticut has a similar statute.
On appeal, the issues were whether the superseding letters terminated the original pricing agreement and whether the insurance company was still liable to the glass shop for breaching the individual insurance contracts. Id. The court found that the express agreement could be unilaterally modified by the superseding pricing letter because it was terminable at will. Id., 768-69. The court also found that the pricing letters were offers of new unilateral contracts, that the glass shop accepted the insurance company's offers each time it performed glass repair and that, consequently, the glass shop was entitled to payment on each job according to the insurance company's offers. Id., 769.
As to the breach of the insurance policies, the court found that the insurance company did not breach the policies. Id., 770. "The parties intended the original pricing agreement to set the fair amount Progressive contractually owed its insureds. Progressive also offered the updated terms as fair and reasonable prices for the market . . . Cascade accepted the prices as fair when it performed work in exchange for the payment Progressive offered. When Progressive terminated the old pricing agreement and offered new terms, the resulting contracts could only be understood as also satisfying Progressive's obligation to its insureds to pay a reasonable amount for repairs." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, although there was no original, express agreement, the defendant offered the pricing letters as "fair and reasonable for the market." (Defendant's Exhs. 3 and 4.) Moreover, the Appellate Court has determined that "[t]he evidence demonstrates that the defendant's rates were based on the National Auto Glass Specifications and were in accord with reasonable commercial standards." Auto Glass Express, Inc. v. Hanover Ins. Co., supra, 98 Conn.App. 790. The plaintiffs accepted the prices as fair when they performed the work in exchange for the payment offered. As a result, with each new pricing letter, the pricing contained in the previous letter was terminated and, after acceptance by performance, the resulting contracts could only be understood as satisfying the defendant's obligation to pay a reasonable amount for repairs.
Additionally, at trial, evidence was presented about the many other glass shops in Connecticut that dealt with the defendant, (Defendant's Exhs. 1C, 1D, 1E, 1F and 1G.) Annis testified that three types of shops performed work for the defendant's insureds — Safelite-owned shops, Safelite network shops and non-network shops. (Tr., July 21, 2004, pp. 91-96.) Annis explained that Safelite network shops, also known as affiliate shops, sign a contract with Safelite "agreeing to participate in the program at the insurance company's rates" and could opt out of a particular insurer's pricing. (Tr., July 21, 2004, p. 93, lines 8-12 and lines 25-27 and p. 94, line 1.) Annis also testified that no network shop in Connecticut ever opted out of the defendant's pricing. (Tr., July 21, 2004, p. 94, lines 2-4.) Furthermore, James McSheffrey, the defendant's national claims director, testified that he received only two letters from Connecticut glass shops, other than the plaintiffs in this case, contesting the pricing. (Tr., July 21, 2004, p. 54, lines 8-13.) McSheffrey further testified that once the pricing was explained to these shops, they accepted the defendant's pricing. (Tr., July 21, 2004, p. 54, lines 14-20.) Thus, aside from the plaintiffs, all other Connecticut glass shops seem to have accepted the defendant's pricing without protest.
Arguably "reasonable" amounts would be more than what the plaintiffs were entitled to under the policies as they called for payment of amounts "necessary" to replace with like kind and quality. "Webster's Third New International Dictionary defines the term `necessary' as [something] that cannot be done without: that must be done or had: absolutely required: essential, indispensable . . ." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 336-37, 857 A.2d 348 (2004). "Reasonable," on the other hand, is generally defined as "moderate." Webster's Third New International Dictionary.
Additionally, in Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co., 141 Idaho 660, 663, 115 P.3d 751 (2005), the court construed insurance policy language similar to that in question here. In the Idaho case, the policy expressly stated that the limit of the insurance company's liability was the cost of repair or replacement agreed upon by the insurance company or an estimate based upon the prevailing, competitive rate. Id. The auto glass shop argued that the phrase "cost of repair or replacement using parts of like kind and quality" was ambiguous. Id. The court found that the policy language "using parts of like kind and quality" was a liability limiting mechanism, stating that Farm Bureau is not obligated to pay for more superior parts or even exactly the same manufactured parts as originally existed on the vehicle; it must only pay for parts of like kind and quality." Id. Furthermore, the court explained, "The policy cannot be reasonably interpreted to mean that Farm Bureau is obligated to pay whatever Cascade charges for glass repair so long as the parts are of like kind and quality. Obviously, if this were the case, Cascade could charge unreasonable labor rates for the glass-work and yet claim that the insurance company is obligated to pay the entire invoice because like kind and quality parts were used." Id. The court concluded that the auto glass shop was paid the full amount that the defendant indicated it would pay and that there was no breach of the insurance contract. Id., 664.
Similarly, the policy in question here, in relevant part, provides that the " limit of liability for loss will be . . . the . . . [a]mount necessary to repair or replace the property with other property of like kind and quality." (Emphasis added.) This clause by its clear and unambiguous language is a liability limiting mechanism.
Additionally, "an offeror is the master of his offer, and therefore, is not obligated to make an offer on any terms except his own." Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 256. Like the plaintiff in the Idaho case, the plaintiffs as offerees in the present cases had three choices once they received the defendant's pricing letters and each time they elected to do the work for the defendant's insureds: they could do the work for the insureds and take payment in the amount that the defendant had stated it would pay; they could take payment from the defendant and bill the difference to the insured; or they could refuse to perform services for the defendant's insureds. See Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co., supra, 141 Idaho 664. The plaintiffs here chose the first option. They accepted the defendant's insureds, made the repairs and were paid the full amounts that the defendant indicated, in advance, that it would pay in its pricing letters. Consequently, the plaintiffs have been paid all the money, in accord with reasonable commercial standards, to which it was entitled and there is no breach of contract.
Indeed, Ed Steben's assignments expressly provided for this. See footnote 2.
It is noted that the plaintiffs argue in their briefs that, if the defendant was permitted to unilaterally set prices, it would force the plaintiffs to take this third option, i.e., to refuse to do the work for the defendant's insureds. The plaintiffs argue that such a result would be a de facto violation of Connecticut's anti-steering statute, General Statutes § 38a-354(b). The statute provides that, "No insurance company doing business in this state, or agent or adjuster for such company shall require any insured to use a specific person for the provision of automobile physical damage repairs, automobile glass replacement, glass repair service or glass products unless otherwise agreed to in writing by the insured." This argument does not support the plaintiffs' breach of contract actions here.
The plaintiffs assert that they took a fourth option — to accept the amount paid and sue for the difference. As stated above, the plaintiffs have not briefed this argument so it is deemed abandoned. See footnote 9. Additionally, taking this so-called fourth option does not diminish the fact that unilateral contracts were formed upon acceptance, i.e., by completing the repair or replacement work for the defendant's insureds while on advance notice of the rates that the defendant would pay.
Furthermore, it is noted that the plaintiffs were in the best position to minimize its perceived damages before they occurred. The defendant could not prevent the filing of serial lawsuits as, pursuant to § 38a-354(b), it could not prohibit its insureds from going to the plaintiffs for the repairs. Nevertheless, to the extent that there was a dispute about prices over several years, the record is devoid of any contacts between the parties other than the April 2, 2002 letter.
III
For the above reasons, this court finds that the plaintiffs have not sustained their burden to prove that there was a breach of contract and judgment therefore enters for the defendant.
Accordingly, judgment is also rendered for the defendant in the Ed Steben cases. See footnote 1.