Opinion
EP-20-CV-98-KC
2021-09-21
INDEL FOOD PRODUCTS, INC., Plaintiff, v. DODSON INTERNATIONAL PARTS, INC., Defendant/Third-Party Plaintiff, v. Gustavo Deandar, Third-Party Defendant.
Brock Morgan Benjamin, El Paso, TX, for Plaintiff. Kristin Newman, Geffrey W. Anderson, Anderson & Riddle, L.L.P., Fort Worth, TX, for Defendant/Third-Party Plaintiff.
Brock Morgan Benjamin, El Paso, TX, for Plaintiff.
Kristin Newman, Geffrey W. Anderson, Anderson & Riddle, L.L.P., Fort Worth, TX, for Defendant/Third-Party Plaintiff.
ORDER
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE On this day, the Court considered Plaintiff Indel Food Products and Third-Party Defendant Gustavo Deandar's Motion for Summary Judgment ("Indel Motion"), ECF No. 31, and Defendant Dodson International Parts's Cross Motion for Summary Judgment ("Dodson Motion"), ECF No. 33. For the reasons set forth below, the Indel Motion is GRANTED in part and DENIED in part, and the Dodson Motion is DENIED .
I. BACKGROUND
The following facts are undisputed unless otherwise indicated. This case arises out of a contract dispute between Indel Food Products, Inc. ("Indel") and Dodson International Products, Inc. ("Dodson") for the sale of a damaged 2008 Piper aircraft ("Aircraft"). Dodson's Proposed Undisputed Facts ("Dodson PUF") ¶ 1, ECF No. 34. Gustavo Deandar is the owner and President of Indel. Id. ¶ 3. On January 24, 2019, Indel hired Josh Jordan of International Aviation Marketing ("IAM") to market the Aircraft for sale. Dodson PUF ¶ 5; Indel's Proposed Undisputed Facts ("Indel PUF") ¶¶ 1–2, ECF No. 32. The Marketing Agreement gave IAM, through Jordan, exclusive rights to market the Aircraft and to negotiate on Indel's behalf with all prospective buyers. Dodson PUF ¶ 65; Ex. 5 ("Marketing Agreement") at 1.
The Marketing Agreement gives IAM the authority to "undertake a promotional sale, trade or lease effort directed towards [Indel's] AIRCRAFT" and to "negotiate on [Indel's] behalf with all sale, trade or lease prospects." Marketing Ag. 1. The contract provides for five percent commission on the total sale price of the Aircraft. Id. at 2. It reserves for Indel the "final decision to accept, reject or counter all offers for the sale, trade or lease" of the Aircraft. Id.
On April 8, 2019, Jordan began negotiating with Dodson, through its employee Roger Evans ("Evans"), to sell the Aircraft to Dodson. Dodson PUF ¶¶ 6–7. On April 15, 2019, Dodson, through Evans, offered $75,000 for the Aircraft, "as is, where is, subject to an inspection." Id. ¶ 8. The next day, Jordan counteroffered $125,000. Id. ¶ 9. On May 16, 2019, Evans responded that Dodson would raise its offer to $80,000. Id. ¶ 10. On June 13, 2019, Jordan responded that Indel would accept $80,000 if they could close the deal within thirty days. Id. ¶ 11; Indel PUF ¶ 5. Evans responded that he did not know whether Dodson's schedule could accommodate the thirty-day deadline. Dodson PUF ¶ 12. On June 26, 2019, Evans requested to push the acceptance deadline out, and Jordan agreed to extend the deadline by a few days if Dodson would inspect the Aircraft soon after. Dodson PUF ¶¶ 15–16; Indel PUF ¶ 9. Evans agreed. Dodson PUF ¶ 17; Indel PUF ¶ 10. Jordan then sent Evans the Aircraft Purchase Agreement ("APA"). Dodson PUF ¶ 17. On June 28, 2019, Evans, on behalf of Dodson, signed the APA. Dodson PUF ¶ 18. On July 1, 2019, Deandar, on behalf of Indel, signed the APA. Id. ¶ 19. On July 3, 2019, Dodson deposited an $8,000 security deposit in escrow, as required by the contract. Id. ¶ 22.
The APA contains several provisions related to timing. Section 1 requires that Dodson inspect the aircraft within twelve business days of the execution of the agreement by both parties. Dodson PUF Ex. 7 ("APA") ¶ 1. Inspection includes "logbook review and visual inspection of the aircraft." Id. As such, at the time of signing, the inspection deadline was July 18, 2019. Indel PUF ¶ 14. Section 5 requires Dodson to accept or reject the Aircraft within four business days of inspection. APA ¶ 5. Section 4 also specifies that the Aircraft was being sold "as is, where is" and that Indel was "offering no warranties or guaranties of any kind whatsoever." Id. ¶ 4.
On July 22, 2019, Evans inspected the aircraft. Dodson PUF ¶ 27; Indel PUF ¶ 14. The parties dispute whether Jordan was authorized to facilitate this inspection date, which was beyond twelve business days after the date of signing. Compare Dodson PUF ¶¶ 24–25 (citing Dodson PUF Ex. 8 ("Jordan Affidavit.") ¶ 12 (stating that he facilitated the July 22, 2019 inspection "[a]s per Deandar's instructions")) with Indel Resp. Dodson PUF ¶ 24, ECF No. 40 ("Deandar did not authorize Josh Jordan to facilitate an inspection beyond the Purchase Agreement deadline."). Jordan set up the inspection date after confirming with Deandar's mechanic that he would be available on that date because the mechanic was in possession of certain parts of the Aircraft. Dodson PUF ¶¶ 24–25. Deandar was not present for the inspection of the Aircraft, id. , and Jordan did not inform him of the inspection date ahead of time. Dodson PUF Ex. 4 ("Deandar Deposition") at 57:12–18. Hours after the inspection, Deandar emailed Jordan stating that Deandar considered the APA "no longer binding" because the inspection took place "outside of the 12 business days agreed after [they] signed [t]he purchase agreement." Dodson PUF ¶ 30. On July 23, 2019, Deandar emailed Jordan, "I never agreed to the inspection date, it was our mechanic that answered you, look at your emails." Id. ¶ 32.
When Evans inspected the Aircraft, he could not inspect the logbooks and maintenance records because they were not were not available. Id. ¶ 27. Evans told Jordan that he would need to inspect a full copy of the records before Dodson could accept the Aircraft. Id. ¶ 2; Indel PUF ¶ 14. On July 24, 2019, Evans emailed Jordan stating that Dodson was "physically accepting" the Aircraft but still needed the logbooks. Dodson PUF ¶ 33. Evans's email stated that Dodson would need the records by July 26, 2019, which, according to Evans's understanding, was the date that the APA required Dodson to accept or reject the Aircraft. Id. ¶ 34; APA ¶ 5 (requiring Dodson to accept or reject the Aircraft within four business days of inspection). The email explained that Dodson was interested in the Aircraft, but if Dodson did not receive the logbooks by July 26, 2019, Dodson would have to temporarily decline the Aircraft: "Once Friday gets here, by the contract, we will have to decline the aircraft. We would only like to do this temporar[il]y until we see the records. Since we are contractually obligated on this aircraft, please advise how you would like to handle this. We want the aircraft." Dodson PUF Ex. 10 at 13. Jordan then provided partial logbooks to Evans and asked for that to "suffice until Friday" because he would not be able to obtain the entire logbooks until after July 26, 2019. Id. ¶ 35; Indel PUF ¶ 20. Jordan then amended the APA to extend the acceptance timeframe, and Evans signed and returned the agreement. Dodson PUF ¶¶ 36–37.
On August 1, 2019, Evans inquired about the logbooks and Jordan informed him that Deandar no longer wanted to sell the Aircraft. Id. ¶¶ 38–39. A few days later, Evans attempted to accept the Aircraft without inspecting the logbooks, and Jordan reiterated that Deandar did not want to sell. Id. ¶¶ 40–41. After August 5, 2019, no one from Dodson was able to contact Jordan, Deandar, or anyone from Indel, despite several attempts. Id. ¶¶ 43, 46–47.
Separately, at some point in July 2019, a business associate of Judy and/or Maurice Hovious referred the Hoviouses to the Aircraft, which allegedly was still for sale. Dodson PUF ¶ 50. The Hoviouses traveled to El Paso to inspect the Aircraft. Id. ¶ 55. The Hoviouses and Deandar verbally agreed to a price of $165,000, contingent on the Aircraft's propeller and engine passing a full inspection. Id. ¶¶ 57–58. In mid-September 2019, the Hoviouses sent Deandar a letter describing their agreement to purchase the Aircraft for $165,000 and Deandar's guarantee that the Aircraft's title was clear with no liens which Deandar confirmed. Id. ¶¶ 59–60, 88. Because Deandar never provided the logbooks to the Hoviouses, they did not purchase the Aircraft. Dodson PUF Ex. 13 ("Maurice Hovious Affidavit") ¶ 5; Ex. 14 ("Judy Hovious Affidavit") ¶ 5.
On August 13, 2019, Dodson filed a certificate of registration for the Aircraft with the Federal Aviation Administration ("FAA"). Indel PUF ¶ 21. The application included the APA as amended on July 24, 2019, which was signed by Evans but was not signed by a representative of Indel. Id. ¶ 22. On September 11, 2019, the FAA rejected Dodson's application because it lacked "original evidence of ownership or bill of sale signed by the seller." Id. ¶ 23.
On February 20, 2020, Indel filed this action in Texas state court, suing Dodson for breaching the APA by failing to inspect the Aircraft within the timeframe specified in the APA. Indel Original Pet., ECF No. 1-1. On April 9, 2020, Dodson removed the case to federal court. Dodson Not. of Removal, ECF No. 1. On June 12, 2020 Dodson filed a counterclaim against Indel, alleging that Indel breached the APA by failing to provide the Aircraft's logbooks as part of the inspection and violated the Texas Deceptive Trade Practices Act ("DTPA"). Dodson Countercl., ECF No. 9. Dodson then amended the counterclaim to add Deandar as a third-party defendant alleging that Deandar tortiously interfered with Dodson's contract with Indel. See Dodson Am. Countercl., ECF No. 13.
II. DISCUSSION
A. Standard
A court must enter summary judgment "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) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Weaver v. CCA Indus., Inc. , 529 F.3d 335, 339 (5th Cir. 2008). "A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Ellison v. Software Spectrum, Inc. , 85 F.3d 187, 189 (5th Cir. 1996).
"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Wallace v. Tex. Tech. Univ. , 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[,]" or show "that the materials cited [by the movant] do not establish the absence ... of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c).
The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than "conclusory allegations," "unsubstantiated assertions," or "a ‘scintilla’ of evidence." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc. , 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505.
B. Breach of Contract
In their motions for summary judgment, both parties claim that the opposing party materially breached the APA. Indel and Deandar claim that Dodson breached the agreement by failing to inspect the Aircraft within twelve business days of signing, which, in turn, discharged Indel and Deandar from their contractual duties. Indel Mot. 12–15. Dodson claims that Indel and Deandar breached the agreement by failing to provide the Aircraft's logbooks as part of the inspection process. Dodson Mot. ¶ 15.
1. Dodson's late inspection
In response to Indel's claim that Dodson's late inspection materially breached the APA, Dodson argues that time was not of the essence of the agreement, and even if it was, Jordan waived this aspect of the agreement by facilitating and accepting the late inspection date. Dodson Resp. ¶¶ 3–6. Indel argues that Jordan was not authorized to waive the inspection-time provision. Indel Mot. 15–17.
a. Whether time was of the essence
When time is of the essence of a contract, a party's failure to meet contract deadlines is a material breach as a matter of law. See Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 200 (Tex. 2004) (per curiam). "Under Texas law, time is not of the essence of a contract unless the contract explicitly makes it so or the contract is of such a nature or purpose that it indicates the parties’ intention that they must perform the contract at or within the time specified." Childers v. Pumping Sys., Inc. , 968 F.2d 565, 568 (5th Cir. 1992) ; see Kennedy Ship & Repair, L.P. v. Pham , 210 S.W.3d 11, 19 (Tex. App. 2006). That a contract specifies a performance deadline does not, by itself, make time of the essence. See Phoenix Aero Aviation Eng'g, Ltd. v. Trace Engines, L.P. , No. MO-11-CV-007, 2012 WL 13032938, at *7 (W.D. Tex. July 18, 2012) ; Deep Nines, Inc. v. McAfee, Inc. , 246 S.W.3d 842, 846 (Tex. App. 2008). Unless the terms or nature of the contract make clear that the parties intended for time to be of the essence, the issue is for the jury. Ganz v. Lyons P'ship, L.P. , 961 F. Supp. 981, 986 (N.D. Tex. 1997). If the contract terms do not indicate whether time is of the essence, surrounding circumstances may be considered. Laredo Hides Co. v. H & H Meat Prods. Co. , 513 S.W.2d 210, 217 (Tex. Civ. App. 1974) (collecting cases); see also Ganz , 961 F. Supp. at 986 (finding that a jury could conclude that time was of the essence based on the parties’ communications prior to finalizing the contract).
Here, unresolved factual questions about the parties’ agreement preclude summary judgment. Although the APA includes performance deadlines, it does not expressly make time of the essence. And nothing about the nature or purpose of the agreement—to sell a damaged aircraft—indicates that the deal would be time-sensitive. Cf. Kennedy Ship & Repair, L.P. , 210 S.W.3d at 19–20 (finding time was of the essence of a contract to build a ship to be used during a time-limited shrimping season).
Both parties argue that the surrounding circumstances show that they are entitled to judgment in their favor, but the record of the parties’ course of dealing is inconclusive. There is some evidence that Evans knew that time was an important factor in Indel's decision to enter the contract: at his deposition, Evans testified that "from the very beginning, [he knew] that [Deandar] was in a hurry to sell [the Aircraft] and that "time was important to [Indel and Deandar], very important." Evans Dep. 34:01–12. Indel and Deandar state that Deandar lowered the asking price for the Aircraft from $125,000 to $80,000 in order to extract Dodson's promise to close within thirty days. Indel Mot. at 13; Dodson PUF ¶ 11. These facts tend to show that time was of the essence of the APA. On the other hand, before finalizing the APA, Jordan had already extended Dodson's thirty-day acceptance deadline. Dodson PUF ¶¶ 15–16; Indel PUF ¶ 9. This would indicate to Dodson that time was less critical to Indel. In response, Indel and Deandar argue that they accepted this extension only to secure Dodson's promise to inspect the Aircraft sooner. Indel Resp. Dodson Mot. 4, ECF No. 39. Because the parties disagree about the meaning of their course of dealings, there remains a genuine dispute of material fact about whether time was of the essence. See Laredo Hides Co. , 513 S.W.2d at 217. As such, the Court cannot determine whether Dodson materially breached the APA by failing to inspect the Aircraft before the deadline.
b. Waiver of the APA's inspection-time provision
Dodson argues that, even if time was of the essence in the APA, Jordan waived timeliness by facilitating the inspection on July 22, 2019—outside of the twelve-business-day window specified in the APA. Dodson Mot. ¶ 11. In response, Indel argues that Jordan lacked authority to waive the agreement's inspection-time provision. Indel Resp. Dodson Mot. 4; Indel Mot. ¶¶ 15–17.
Even if time is of the essence, timeliness requirements may be waived. Kennedy Ship & Repair, L.P. , 210 S.W.3d at 20 (citing 17090 Parkway, Ltd. v. McDavid , 80 S.W.3d 252, 255 (Tex. App. 2002) ). Waiver occurs when a party's actions "induce[ ] the opposite party to believe that exact performance within the time designated in the contract will not be insisted upon." Laredo Hides Co. , 513 S.W.2d at 218. Acceptance of late performance may create waiver. Kennedy Ship & Repair, L.P. , 210 S.W.3d at 20 (citing Superior Signs, Inc. v. American Sign Servs., Inc. , 507 S.W.2d 912, 915 (Tex. Civ. App. 1974) ).
In this case, Jordan agreed to schedule the inspection three business days outside of the twelve business days allotted for an inspection by the APA. Dodson PUF ¶¶ 24–25. Evidence supports the conclusion that this action induced Evans to believe that the APA was still binding, despite the delay. When Evans requested July 22, 2019 as the inspection date, Jordan confirmed without giving any indication that the agreement was no longer binding. See Dodson PUF Ex. 9 at 152 (Jordan's email to Evans that Jordan had "[c]onfirmed the date" and "22nd is good"). Following the late inspection, both parties conducted themselves as if the APA were still binding. Evans requested that Jordan provide the missing logbooks within four days, the length of time that the agreement allotted Dodson to accept or reject the Aircraft. Dodson PUF ¶ 34. Evans also stated to Jordan that Dodson was "contractually obligated on the aircraft" even after the late inspection. Id. And Jordan acted as though the agreement were still binding by providing Evans partial logbooks and amending the APA to extend the acceptance timeframe. Id. ¶¶ 35–37; Indel PUF ¶ 20. As such, Jordan's acceptance of the late inspection could constitute waiver of the inspection-time provision.
But Indel argues that Jordan lacked authority to waive the provision. Indel Mot. ¶¶ 15–17. An agent's authority to act on behalf of a principal may be actual or apparent. Hester Int'l Corp. v. Fed. Republic of Nigeria , 879 F.2d 170, 181 (5th Cir. 1989). Actual express authority exists "where the principal has made it clear to the agent that he wants the act under scrutiny to be done." Pasant v. Jackson Nat'l Life Ins. Co. , 52 F.3d 94, 97 (5th Cir. 1995) (quoting City of San Antonio v. Aguilar , 670 S.W.2d 681, 683 (Tex. App. 1984) ). Actual implied authority exists when there is some indication from the principal to the agent that the agent has authority or that the action is necessary to accomplish the expressly authorized act. Id.
Apparent authority is based on estoppel and arises from "either a principal knowingly permitting an agent to hold [himself] out as having authority" or when a principal's conduct "lack[s] such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority [he] purports to exercise." Gaines v. Kelly , 235 S.W.3d 179, 182 (Tex. 2007) (quoting Baptist Mem. Hosp. Sys. v. Sampson , 969 S.W.2d 945, 948 (Tex. 1998) ). The principal must have "full knowledge of all material facts ... to establish a claim of apparent authority based on estoppel. Id. To analyze claims of apparent authority, courts look to the conduct of the principal and the reasonableness of the third party's assumptions about the agent's authority. Id. at 183.
Dodson argues that Jordan had actual and apparent authority to facilitate the inspection beyond the twelve-business-day window and thus waive the inspection-timing provision. Dodson Resp. Indel Mot. 12, ECF No. 36. The parties dispute whether the agency agreement between Jordan and Indel authorized Jordan to waive or amend the terms of an executed purchase agreement. The agreement authorizes Jordan to "negotiate on OWNER'S behalf with all sale, trade or lease prospects." Marketing Ag. 1–2. Deandar confirmed in his deposition that he "left the sale, the exclusive sale of the [Aircraft], to [IAM and] Josh Jordan." Deandar Dep. 38:23–39:1. The contract also reserves Indel's right to "accept, reject or counter all offers." Marketing Ag. 1–2.
The Marketing Agreement contains a choice-of-law clause indicating that the laws of Florida govern the contract. Marking Ag. 2. However, the parties have not raised choice-of-law issues and appear to assume that Texas law applies by citing Texas law in their briefing. As such, this Court will apply Texas law. See Access Telecom, Inc. v. MCI Telecomms. Corp. , 197 F.3d 694, 705 (5th Cir. 1999) ("[T]he parties appear to assume without argument that Texas law governs, and so, without deciding, shall we."); Emps. Ins. of Wausau v. Occidental Petroleum Corp. , 978 F.2d 1422, 1430 n.8 (5th Cir. 1992) ("We need not resolve this choice of law issue ... because it has been virtually ignored by the parties."); Kucel v. Walter E. Heller & Co. , 813 F.2d 67, 74 (5th Cir. 1987) (noting that the parties bear the "obligation to call the applicability of another state's law to the court's attention").
Dodson argues that waiving the inspection-time provision was within the scope of Jordan's authority to negotiate under the Marketing Agreement. Dodson Resp. Indel Mot. ¶ 8. Dodson reads the agreement to say that Jordan's negotiation authority extended until the closing documents were finalized. Id. ¶ 11. In Indel and Deandar's view, the phrase "negotiate ... with all sale, trade or lease prospects " only conferred to Jordan the authority to procure a buyer, and once the purchase agreement was executed, Jordan's authority ceased. Indel Mot. 17. As such, Jordan lacked the right to waive, alter, or amend material terms of the APA once it was executed. Neither party cites any legal authority defining the phrase "negotiate ... with ... prospects" in this context or whether it confers to an agent the authority to waive contract terms.
Indel and Deandar cite several cases for the proposition that brokers like Jordan are "special agents" under Texas law and thus lack authority to finalize or waive contract terms. Indel Mot. 16. But these cases are inapt and do not support the broad conclusion that every broker has the same limitations on their authority irrespective of the terms of their agency agreements. See Pasant , 52 F.3d at 97 (explaining that actual authority arises from the principal's communications to the agent).
The parties’ course of dealing does not elucidate the scope of Jordan's authority. Dodson makes the conclusory assertion that "Indel's disregard and indifference led Jordan and Dodson to believe that Jordan possessed ... authority to do whatever was necessary to finalize the Contract." Dodson Reply ¶ 9. But its only factual support for this assertion is that Indel and Deandar did not participate in the negotiations over the Aircraft or actively try to schedule the inspection sooner. Id. This is not enough to conclude that Indel and Deandar's conduct "lack[ed] such ordinary care as to clothe [Jordan] with the indicia of authority." Gaines , 235 S.W.3d at 182. Thus, there is a material dispute about whether Jordan was actually or apparently authorized to waive timeliness, precluding summary judgment on Indel's breach of contract claim. See Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
Indel and Deandar also argue that, because Jordan did not inform Deandar of the July 22, 2019 inspection until after the fact, Deandar did not have "full knowledge of all material facts." Indel Mot. 16–17. As such, he could not have conferred apparent authority to Jordan. See Gaines , 235 S.W.3d at 182. Dodson responds that, as Indel's agent, Jordan's knowledge was imputed to Indel. Dodson Reply ¶ 9. This response begs the question of the scope of Jordan's agency authority. Because there are genuine disputes of material fact related to Jordan's actual express authority under the Marketing Agreement, the Court does not address these arguments.
2. Indel's failure to provide the logbooks
Dodson also claims that Indel and Deandar breached the APA by failing to provide the logbooks as part of the inspection. Dodson Mot. ¶¶ 7, 12, 15. In response, Indel and Deandar argue that Dodson's late inspection was a material breach of the agreement and thus discharged Indel and Deandar's duty to produce the logbooks. Indel Mot. at 12; see Hernandez v. Gulf Grp. Lloyds , 875 S.W.2d 691, 692 (Tex. 1994) ("A fundamental principle of contract law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform."). As discussed, there are unresolved issues of material fact regarding whether Dodson breached the APA by conducting the late inspection and whether Indel, through Jordan, waived the inspection-time provision. As such, the Court cannot determine whether Indel and Deandar's failure to provide the logbooks constituted a breach.
C. Deceptive Trade Practices Act
Dodson also argues it is entitled to judgment on its counterclaim that Indel violated section 17.45(5) of the DTPA by engaging in an "unconscionable action or course of action" with respect to the Aircraft sale, to Dodson's detriment. Dodson Am. Countercl. ¶ 18. To prove a claim under the DTPA, a plaintiff must show that (1) the plaintiff is a consumer, (2) the defendant committed a false, misleading, or deceptive act, and (3) the defendant's wrong caused the plaintiff's damages. Tex. Bus. & Com. Code § 17.50(a) (West 2021); see Villarreal v. Wells Fargo Bank, N.A. , 814 F.3d 763, 768 (5th Cir. 2016).
Dodson claims that Indel committed a false, misleading, or deceptive act under the DTPA by intentionally misrepresenting its intent to sell the Aircraft—indeed, Dodson asserts that Deandar, acting as Indel's agent, never intended to sell it in the first place. Dodson Mot. ¶¶ 19–20. "[A]n individual may maintain claims for both breach of contract and a violation of the DTPA when the plaintiff alleges not only a breach of contract, but also that the other party ‘never intended’ to fulfill the contract in the first place." Malsom v. Match.com, L.L.C. , 540 F. App'x 412, 415 (5th Cir. 2013) (quoting Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 304 (Tex. 2006) ). Dodson asserts that Deandar admitted that he never intended to provide a complete set of logbooks to Dodson. Dodson Mot. ¶ 19. In his deposition, Deandar testified that he did not intend to give Jordan the entire set of logbooks because it was "a lot of pages" and "quite large." Deandar Dep. 54:7–12. But Deandar also stated that he intended to produce at least some of the logbooks and that Jordan never requested that he produce a complete set of logbooks. Id. at 54:03–15. It does not appear to the Court that Deandar's qualified statements about the logbooks establishes Indel's preemptive intent to breach. As such, the Court denies Dodson's request for summary judgment on this matter.
Rather than address Dodson's proffered evidence, Indel argues that a contract for sale "as is" precludes finding causation under the DTPA and other fraud theories because the agreement expressly disavows the buyer's reliance on the seller's representations. Indel Mot. 8 (citing Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd. , 896 S.W.2d 156, 161 (Tex. 1995) ("By agreeing to purchase something ‘as is,’ a buyer agrees to make his own appraisal of the bargain and to accept the risk that he may be wrong.")). However, as Dodson points out, an "as is" provision does not bar DTPA claims in all cases. Dodson Resp. ¶ 16 (citing Prudential Ins. Co. of Am. , 896 S.W.2d at 162 ("[W]e do not suggest that an "as is" agreement can have this determinative effect in every circumstance.")). For example, a buyer is not bound by an "as is" agreement that is induced by fraudulent misrepresentation or concealment or when the seller is entitled to inspect the object of sale but is impaired by the seller's conduct. Prudential Ins. Co. of Am. , 896 S.W.2d at 162. The parties dispute whether these exceptions apply here. See Indel Mot. at 8–9; Dodson Resp. Indel Mot. ¶¶ 16–18.
But the APA's "as is" clause is not relevant to Dodson's claim that Indel never intended to follow through with the contract. Dodson Resp. Indel Mot. ¶¶ 19–20. The purpose of an "as is" clause is to "prevent[ ] a buyer from holding a seller liable if the thing sold turns out to be worth less than the price paid." Prudential Ins. Co. of Am. , 896 S.W.2d at 161. But in this case, Dodson is not complaining that Indel misrepresented the condition or value of the Aircraft. Rather, Dodson complains that Indel misrepresented its intent to follow through with the agreement—that Indel never intended to fulfill its contractual obligations in the first place. Dodson Mot. ¶ 20. By agreeing to an "as is" clause, Dodson did not thereby assume the risk that Indel preemptively intended to breach the contract. Dodson only assumed the risk that the Aircraft would not be worth the price. Thus, the APA's "as is" clause does not preclude finding that Indel's alleged deceptive act caused Dodson's injury. Because Dodson's proffered evidence does not establish Indel's preemptive intent to breach and Indel's "as is" defense fails, summary judgment is precluded. See Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
D. Tortious Interference with a Contract
Finally, Dodson claims that Deandar tortiously interfered with Dodson and Indel's contract by failing to provide the logbooks and by agreeing to sell the Aircraft to the Hoviouses. Dodson Mot. ¶¶ 22–25; Am. Countercl. ¶¶ 26–28. To establish a claim for tortious interference with a contract, a plaintiff must prove "(1) the existence of a valid contract subject to interference; (2) that the defendant willfully and intentionally interfered with the contract; (3) that the interference proximately caused the plaintiff's injury; and (4) that the plaintiff incurred actual damage or loss." Cmty. Health Sys. Pro. Servs. Corp. v. Hansen , 525 S.W.3d 671, 689 (Tex. 2017). In general, corporate agents cannot interfere with contracts between the corporation they represent and third parties as a matter of law. Holloway v. Skinner , 898 S.W.2d 793, 795–96 (Tex. 1995). Corporate agents may only be held liable for acts "performed in furtherance of th[eir] personal interests" rather than the interests of the corporation. Id. at 796. To hold a corporate agent liable for tortious interference with the corporation's contracts, the plaintiff has the burden to show that the agent "acted in a fashion so contrary to the corporation's best interests that his actions could only have been motivated by personal interests." Id.
According to Dodson, Deandar's conduct with respect to the Aircraft exposed Indel to significant liability such that Deandar's actions must have been personally motivated. Dodson Mot. ¶ 25. Dodson states that, by causing Indel to breach the APA with Dodson and then negotiating the sale of the Aircraft with the Hoviouses—while IAM's exclusive Marketing Agreement was still in effect—Deandar exposed Indel to lawsuits from Dodson, Jordan, IAM, and the Hoviouses. Id. Dodson asserts that no corporate officer acting in good faith would have done this, so Deandar's actions must have been personally motivated. Id.
Dodson also accuses Deandar of being personally motivated to keep the Aircraft, despite Indel's interests in selling it. Dodson Reply ¶ 17. Deandar testified that he "fell in love" with the Aircraft and did not want to sell it after the sale to Dodson did not come to fruition. Id. ; Deandar Dep. 65:5–9 ("Well, since I had no ... buyer for the plane [after failing to sell to Dodson] I said, you know, I'm going to reconsider [selling it] and try to fix it. I didn't want to let go of the plane."). From this, Dodson apparently concludes that Deandar did not want to sell the Aircraft to Dodson and thwarted the agreement by not providing the logbooks. See Dodson Reply ¶ 17. Because Indel contracted with Jordan to sell the Aircraft for commission, the corporation was clearly interested in selling the Aircraft. Id. Thus, Dodson asserts, Deandar's interests were not aligned with Indel's, and his conduct was personally motivated. Id.
The proffered evidence of Deandar's alleged personal motivations is insufficient even to raise a genuine issue of material fact, let alone merit summary judgment in Dodson's favor. Dodson's argument that Deandar's breaches of various contracts are not, on their own, enough to show personal motivation or lack of regard for Indel's interests. See Holloway , 898 S.W.2d at 795 ("[A]n officer or director may not be held liable in damages for inducing the corporation to violate a contractual obligation, provided that the officer or director acts in good faith and believes that what he does is for the best interest of the corporation." (quoting Maxey v. Citizens Nat'l Bank , 507 S.W.2d 722, 726 (Tex. 1974) )). Even if Deandar did cause Indel to breach, the fact that a corporate agent induced the corporation to breach its contracts does not necessarily give rise to liability for tortious interference with a contract. See id. In some circumstances, breach may be in a corporation's best interests. See id. at 795 (recognizing that corporations may benefit from abandoning "disadvantageous but valid contracts" (quoting Wampler v. Palmerton , 250 Or. 65, 439 P.2d 601, 606 (1968) )). Indeed, if the purchase agreement with the Hoviouses had gone through, it may have been in Indel's interest to breach the contract with Dodson, since the Hoviouses offered Indel $85,000 more for the Aircraft. Dodson PUF ¶¶ 59–60, 88.
And Deandar's comment that he "fell in love" with the Aircraft does not show he acted in bad faith in his dealings with Dodson. Deandar Dep. 65:5–9. Dodson has taken Deandar's statements out of context. In fact, Deandar testified that, after he considered the deal with Dodson a failure , he wanted to keep the Aircraft. That does not to show that he was personally motivated to breach Indel's contract with Dodson. Rather, Deandar stated that, after July 22, 2019, in his mind, he "no longer had [a] buyer for the plane" and then reconsidered selling it. Deandar Dep. 65:3–5. This does not support Dodson's claim that Deandar breached the APA due to his "love" of the plane, but only that, at some later point, Deandar wanted to keep the Aircraft. Based on this record, no reasonable jury could find that Deandar conduct was "so contrary to [Indel's] best interests that his actions could only have been motivated by personal interests." Holloway , 898 S.W.2d at 796. Thus, with respect to Dodson's tortious interference with a contract claim, Dodson's Motion is denied and Indel and Deandar's Motion is granted.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Indel and Deandar's Motion for Summary Judgment, ECF No. 31, is GRANTED in part and DENIED in part.
The Motion is GRANTED as to Dodson's Tortious Interference claim and DENIED as to Dodson's breach of contract and DTPA claims. Dodson's Tortious Interference claim is DISMISSED .
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment, ECF No. 33, is DENIED in toto.
IT IS FURTHER ORDERED that the Court will issue an Amended Trial Preparation Order separately.