Universal Truckload, Inc. v. Dalton Logistics, Inc ( 2020 )

Case: 17-20725 Document: 00515257170 Page: 1 Date Filed: 01/03/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-20725
January 3, 2020
Lyle W. Cayce
UNIVERSAL TRUCKLOAD, INCORPORATED, Clerk
Plaintiff - Appellant
v.
DALTON LOGISTICS, INCORPORATED; HESS CORPORATION;
HELMERICH & PAYNE INTERNATIONAL DRILLING COMPANY,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, STEWART, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Universal Truckload appeals an adverse judgment following a jury trial.
Because Universal Truckload fails to demonstrate reversible error, we
AFFIRM.
I.
Appellee Dalton Logistics is a shipping broker. Dalton spearheads its
clients’ large-scale shipments of heavy-duty freight such as oil-field equipment
and rigs. Two of Dalton’s former clients—Helmerich & Payne International
Drilling Co. and Hess Corporation—are co-appellees in this appeal. H&P and
Hess hired Dalton to coordinate the transportation of disassembled oil rigs.
Dalton outsourced the trucking to appellant Universal Truckload. Dalton owed
Universal Truckload $1.9 million for the trucking services it provided. Dalton
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never paid Universal Truckload for its services and Universal Truckload sued
Dalton, H&P, and Hess.
On the surface, this case seems simple: Party A provided shipping
services to Party B, and Party B never paid. But many of the key issues in this
case turn on another part of the story. In response to Universal Truckload’s
lawsuit, Dalton counterclaimed, alleging that Universal Truckload had
promised to purchase Dalton but never fully finalized the deal, instead
stringing Dalton along for over a year. Dalton says that it entered into the
shipping contracts with H&P and Hess entirely at Universal Truckload’s
direction and that Universal Truckload had even told Dalton not to pay the
debt owed to Universal Truckload on these projects. Dalton complains that it
spent all of its cash—burning every last asset—at Universal Truckload’s
direction with constant assurances that the purchase would soon be finalized.
Dalton’s legal theory, successful at the district court, was promissory estoppel:
Dalton spent millions in reliance on the ultimately broken promise that
Universal would take over soon. The facts comprising Dalton’s counterclaim
are detailed below.
In March of 2013, Dalton lost a lucrative contract. Without that
business, Dalton struggled financially. Dalton’s executives had to decide
whether they should restructure the entire company to stay afloat or take the
profits and unwind the company completely. Dalton’s executives settled on the
latter. President Dick Meredith and Vice President of Operations Jack Robison
planned to take their profits, close their operations in North Dakota, and
return to Texas. As part of closing shop, Dalton contacted Universal
Truckload, whom they regularly worked with, and told Universal Truckload to
take its trucks out of North Dakota because Dalton would no longer be needing
them. However, instead of taking the trucks back, Universal Truckload’s
president, Marc Limback, expressed interest in buying Dalton. Dalton was
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open to the idea but told Universal Truckload that the deal would need to
happen quickly because Dalton lacked the cash sufficient to last long on its
own.
Dalton, who had “already shut [the] company down,” “cranked it back
up” at Universal Truckload’s request. Universal Truckload sent Dalton an
Indication of Interest Letter and then Don Cochran, president of Universal
Truckload’s parent company, and Limback came to North Dakota in April to
see Dalton’s operations in person. Dalton claims that since the initial
conversation regarding purchasing Dalton, Limback and Cochran were in
near-constant communication with Dalton about the purchase, routinely
giving assurances that a deal would be finalized soon.
On May 31, 2013, Universal Truckload officers met with Dalton officers
in Detroit, Michigan. Dalton alleges that at this meeting, it reminded
Universal Truckload that time was of the essence considering Dalton’s
dwindling financial resources. Dalton alleges that Universal Truckload
responded to this with an offer to buy Dalton for $25 million, but Universal
Truckload claims that this agreement was never made.
Shortly after the May 31 meeting, Universal Truckload became
embroiled in internal political upheaval. A new merger left the old officers—
who had promised to purchase Dalton—at odds with the new officers—who
allegedly did not want the deal. Dalton claims that it continued to remind
Cochran that it was running low on cash and needed the deal done quickly and
that Cochran continually reassured Dalton that the deal was almost finalized.
These assurances that the deal would eventually work out allegedly continued
for months, all while Dalton continued to deplete its resources to keep the
company operational for Universal Truckload’s promised buyout.
In August 2013, Dalton sent financial statements to Universal
Truckload. Three weeks later, Universal Truckload sent Dalton an Asset
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Purchase Agreement offering $10.3 million upfront with a potential two-year
earn-out totaling $24.3 million. Dick Meredith called Cochran to object to the
new terms and Cochran agreed that this was not the deal Universal Truckload
and Dalton had struck in May. Cochran assured Dalton that he would be able
to get the executives at Universal Truckload to agree to get something done.
In early 2014, Cochran allegedly urged Dalton to “[i]ncrease [its]
revenue” by “getting outside help, other cranes, other trucks and so forth, to be
able to . . . help us do more rigs.” Dalton did not have enough cash to pay
Universal Truckload for trucks so Universal Truckload increased Dalton’s
credit limit and provided the trucks on credit.
Eventually, after eighteen months, Universal Truckload executives
overruled Cochran, demanded Dalton repay the $1.9 million, and called
Dalton’s bond. At this point, Dalton had no money to repay Universal
Truckload as it had been paying to keep the company afloat for over eighteen
months. Dalton, which was valued at $5.7 million in April of 2013, now had
no assets, and instead owed Universal Truckload $1.9 million.
Universal Truckload sued Dalton, H&P, and Hess to recover the unpaid
bills. It brought the same claims against each defendant, alleging breach of
contract, breach of quasi-contract, and breach of a sworn account. It argued
that all defendants were liable for Dalton’s debt under theories of equitable
subrogation, agency, and ratification. Dalton counterclaimed alleging breach
of contract and, in the alternative, promissory estoppel.
Hess moved for summary judgment on all of Universal Truckload’s
claims against it. The district court granted Hess’s motion and determined that
Universal Truckload’s breach of contract claim failed as a matter of law
because Universal Truckload failed to present any evidence that Hess
consented to the terms of a shipping contract with Universal Truckload.
Universal Truckload’s other claims against Hess also failed as Universal
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Truckload “failed to cite, nor [could the district court find], a single case holding
that a shipper is liable to a carrier of freight without some sort of contract
existing between the parties.”
Universal Truckload’s claims against H&P were partially dismissed at
summary judgment. On H&P’s motion, the district court dismissed Universal
Truckload’s claims alleging H&P was liable to Universal Truckload for the
loads Universal Truckload subcontracted out. The remaining claims—
regarding the loads Universal Truckload moved itself—proceeded to trial. At
the close of a week-long trial, the jury found that Universal Truckload had no
contract with H&P, and therefore, Universal Truckload could not recover from
H&P.
All of Universal Truckload’s claims against Dalton, and Dalton’s
crossclaims against Universal Truckload, proceeded to a jury trial. The jury
found that Dalton should recover under a promissory estoppel theory. Dalton
was awarded $5.7 million in reliance damages—the difference between the
amount of cash it had on hand before Universal Truckload’s promise and the
“zero” balance in its bank account when Universal Truckload called its bond.
The jury awarded Universal Truckload the $1.9 million in freight charges that
Dalton owed. The court, however, concluded that the $1.9 million was incurred
in reliance on Universal Truckload’s promises and therefore awarded Dalton a
$1.9 million offset against Universal Truckload’s breach of contract claim.
II.
Universal Truckload raises four issues on appeal, asking this court to:
(1) reverse the judgment for Dalton because there was not sufficient evidence
to support Dalton’s claim of promissory estoppel; (2) reverse the district court
determination that the $1.9 million awarded to Universal Truckload for breach
of contract be offset because it was entered solely in reliance on Universal
Truckload’s promise; (3) reverse the judgment in favor of H&P and award
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Universal Truckload the freight charges for Universal Truckload’s
transportation of H&P’s freight; and (4) reverse the grant of summary
judgment in favor of Hess and award Universal Truckload the freight charges
owed by Hess. 1
A.
The jury awarded $5.7 million to Dalton. After the jury verdict,
Universal Truckload sought a JMOL reversing that award. The district court
denied that motion and now Universal Truckload asks this court to reverse the
district court’s denial of the JMOL, in effect reversing the jury verdict.
Universal Truckload advances three arguments for reversal. First, Universal
Truckload asserts that it never promised to purchase Dalton. Second, even if
it did promise to purchase Dalton, Universal Truckload claims Dalton’s
reliance on the promise was unreasonable. And third, even if Dalton had a
viable promissory estoppel theory, Universal Truckload contends that there
was insufficient evidence that Dalton spent $5.7 million in reliance on
Universal Truckload’s promise. Because there was sufficient evidence to
conclude Universal Truckload made a promise, Dalton reasonably relied on the
promise to its detriment, and that reliance caused Dalton $5.7 million in
damages, we affirm the district court’s denial of the JMOL and the jury verdict
on Dalton’s promissory estoppel claim.
The parties contest the standard of review applicable to the challenge of
the denied JMOL. Universal Truckload argues that it preserved this issue in
1We have subject-matter jurisdiction under 28 U.S.C. § 1332 because the amount in
controversy is over $75,000 and the parties are diverse. Plaintiff-Appellant Universal
Truckload is a Michigan corporation with its principal place of business in Michigan.
Defendants-Appellees are all citizens of other states. Dalton is a Texas corporation with its
principal place of business in Texas. Hess is a Delaware corporation with its principal place
of business in New York. And H&P is a Delaware corporation with its principal place of
business in Oklahoma.
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the district court through its Rule 50(a) motion and renewed Rule 50(b) motion.
It therefore asks this court to review its arguments de novo. See Foradori v.
Harris, 523 F.3d 477, 485 (5th Cir. 2008) (explaining that this court reviews
“de novo the district court’s denial of a motion for judgment as a matter of law,
applying the same standard as the district court” (quoting Int’l Ins. v. RSR
Corp., 426 F.3d 281, 296 (5th Cir. 2005)). However, in its Rule 50(a) motion,
Universal Truckload did not challenge any promissory estoppel theories. Its
Rule 50(a) motion pertained to: insufficient evidence of a valid contract,
insufficient evidence of benefit-of-the-bargain damages, and insufficient
evidence of reliance damages. After the verdict, in its Rule 50(b) motion,
Universal Truckload raised arguments about promissory estoppel. But, we
have explained that a “Rule 50(b) motion is technically only a renewal of the
Rule 50(a) motion,” and therefore, the movant “cannot assert a ground that
was not included in the original motion.” In re Isbell Records, Inc., 774 F.3d
859, 867 (5th Cir. 2014) (alterations and internal quotation marks omitted)
(quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)).
Dalton correctly asserts that Universal Truckload’s arguments that a promise
was not made or reasonably relied upon, raised for the first time in the Rule
50(b) motion, are not preserved. We therefore review them for plain error. See
Seibert v. Jackson Cty., 851 F.3d 430, 435 (5th Cir. 2017).
Universal Truckload’s argument that there was insufficient evidence to
support the $5.7 million jury verdict was preserved in its Rule 50(a) motion
and renewed in its Rule 50(b) motion. It is therefore reviewed de novo. Streber
v. Hunter, 221 F.3d 701, 730 (5th Cir. 2000). However, the standard under
which it is reviewed is itself deferential to the trial court, drawing “all
reasonable inferences and resolv[ing] all credibility determinations in the light
most favorable to the nonmoving party.” Foradori, 523 F.3d at 485; see also id.
(noting that “unless there is no legally sufficient evidentiary basis for a
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reasonable jury to find as the jury did” this court must uphold the verdict
(internal quotation marks and citation omitted)); Seibert, 851 F.3d at 434–35.
1.
Under the Erie doctrine, this court must apply substantive state law in
diversity jurisdiction cases. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
Here, the parties agree that Texas law applies. The elements of promissory
estoppel in Texas are: “(1) a promise, (2) reliance thereon that was foreseeable
to the promisor, and (3) substantial reliance by the promisee to his detriment.”
J.D. Fields & Co. v. U.S. Steel Int’l, 690 F. Supp. 2d 487, 503–04 (S.D. Tex.
2009); see also MetroplexCore, L.L.C. v. Parsons Transportation, Inc., 743 F.3d
964, 977 (5th Cir. 2014). Universal Truckload’s first argument goes directly to
prong one: that there was no promise made.
Dalton argues that Universal Truckload promised to purchase Dalton on
May 31, 2013. Universal Truckload argues the promise never happened, and
that Dalton’s own actions make that clear. At trial, Dalton’s president
admitted that for nearly two years after the alleged promise was made
Universal Truckload never sent Dalton any paperwork formalizing the
agreement and Dalton did not ask for any written agreement. And though
Dalton says that an initial payment of $18 million was promised at the May
meeting and due in August 2013, there is no evidence that Dalton ever
complained about not receiving a past due payment. Universal Truckload
asserts that Dalton’s consistent failures to enforce or formalize the alleged
promise prove that a promise was never made.
In contrast, Dalton points to Universal Truckload’s post-promise
conduct. The record on appeal shows that Universal Truckload’s leadership
had a “running dialog” about the takeover with Dalton leadership for over a
year. Universal Truckload repeatedly asked Dalton to “hang in there,” and
assured Dalton that it would “get something done.” Universal Truckload even
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went so far as to “float[] alternative deal structures” and instruct “Dalton not
to repay the $1.9 million of debt it had incurred at Universal Truckload’s
behest” and “[k]eep [those] dollars” because the parties would “finalize the
dollars at closing.” Dalton maintains that this post-promise conduct, coupled
with the initial promise in the May 2013 meeting, was more than enough
evidence for a jury to conclude that Universal Truckload had promised to
purchase Dalton.
We considered similar facts in MetroplexCore. There, an engineering
firm bid for a contract to build a passenger rail line in Houston. 743 F.3d at
968. The lead contractor repeatedly assured MetroplexCore, the plaintiff, that
it would be included in the project if the defendant’s bid got accepted. Id. at
970. The defendant regularly reassured MetroplexCore by saying “our
commitment to you is still in play,” “we are still committed to MetroplexCore
being on the management team,” and “we are going to live up to our
commitment to you,” among other reassurances. Id. at 970–71. When
MetroplexCore was not included in the project, it sued the lead contractor for
reliance damages based on its promise. Id. at 971. We held that these
numerous, specific statements constituted actionable promises, and
accordingly reversed the district court’s grant of summary judgment for the
defendant. Id. at 982.
The reassurances made here seem at least as strong as those made in
MetroplexCore. The reassurances given were just as continuous, numerous,
and specific. Despite Dalton’s lack of action to formalize the promise, the jury
was presented with sufficient evidence to find a promise occurred. The district
court did not plainly err by denying the JMOL and upholding the jury’s verdict.
2.
Universal Truckload’s second argument, also reviewed for plain error, is
that Dalton’s reliance on the promise was not reasonable. In support,
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Universal Truckload primarily relies on the “Indication of Interest” (IOI) it
sent to Dalton. The IOI expressed Universal Truckload’s interest in
purchasing Dalton, but it stated that the agreement was “only an indication of
interest and is not intended to be legally binding.” The IOI explained that
Universal Truckload would enter into a binding contract to purchase Dalton
only after the fulfillment of certain conditions: the completion of due diligence,
the lack of any materially adverse change in Dalton’s business, and approval
by Universal Truckload’s board of directors. Because the conditions laid out in
the IOI were never completed, Universal Truckload insists that Dalton’s
reliance on the alleged oral promise was unreasonable. We disagree.
Universal Truckload relies on the Supreme Court of Texas’s decision in
JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648 (Tex.
2018). In JPMorgan, the relying party had signed a binding letter of intent
that contradicted the terms of the oral promise it allegedly relied on. Id. at
651. The Supreme Court of Texas held that reliance on the oral promise was
unreasonable because it directly contradicted the written contract and the
relying party was aware of other red flags that made reliance unreasonable.
Id. at 660. Universal Truckload claims that JPMorgan’s holding should apply
here: Dalton received the IOI and “should have viewed [a certain] series of
events as a red flag warranting further investigation” in light of “the amount
of money involved in the transaction” and the “ambiguous nature of [the
defendant’s] assurance.” Id. at 655 (second alteration in original) (quoting
Lewis v. Bank of Am. NA, 343 F.3d 540, 547 (5th Cir. 2003)).
However, this case differs from JPMorgan in at least three crucial ways.
First, the letter of intent at issue in JPMorgan was a binding contract signed
by both parties. The IOI that Universal Truckload sent Dalton is expressly
nonbinding. Second, the letter of intent in JPMorgan included a clause
disclaiming any oral agreements. Id. at 650–51. Universal Truckload’s IOI
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does not. And third, the letter of intent in JPMorgan directly contradicted the
oral promise, and Universal Truckload’s IOI does not. The Supreme Court of
Texas explained in JPMorgan, “there is no direct contradiction if a reasonable
person can read the writing and still plausibly claim to believe the [oral]
representation.” Id. at 659. The conditions laid out in the IOI explain what
would need to happen if Universal Truckload was to enter a contract to
purchase Dalton. But the jury did not find in favor of Dalton on a contract
theory. Dalton succeeded on a promissory estoppel theory, which requires the
absence of a contract. See Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1965)
(explaining that promissory estoppel exists to furnish a remedy for “reasonable
reliance upon an otherwise unenforceable promise” (emphasis added)). The
IOI’s discussion of contractual prerequisites does not directly contradict the
oral promise that Universal Truckload would purchase Dalton. 2
Universal Truckload was of course free to use the IOI as evidence that
the oral promise was not reasonably relied upon. But the jury was also free to
weigh all the evidence presented and conclude to the contrary. Between
Universal Truckload’s initial promise to acquire Dalton on May 31 and
Limback’s and Cochran’s repeated promises over the ensuing months that they
would “make it work,” the jury was presented with sufficient evidence to
conclude that despite the IOI, Dalton’s reliance was reasonable. The district
court did not plainly err by denying the JMOL and upholding the jury’s finding.
2 In a letter submitted to the court under Rule 28(j) of the Federal Rules of Appellate
Procedure, Universal Truckload points this court to Mercedes-Benz USA, LLC. v. Carduco,
Inc., 583 S.W.3d 553 (Tex. 2019), a recent decision by the Supreme Court of Texas. Universal
Truckload argues that “Carduco is relevant legally and factually to Universal [Truckload]’s
position.” In Carduco¸ the court determined that reliance was not reasonable when factual
“red flags” would prompt a party to exercise diligence before relying on oral assurances.
However, like JPMorgan, the facts of Carduco differ significantly from the facts before us in
this case. The promisee in Carduco relied on a promise despite “the [Agreement] he signed
expressly” providing that the promisor “was under no such obligation.” Id. at 563.
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3.
In its final argument challenging the district court’s denial of its JMOL,
Universal Truckload contends that the district court erred by not vacating the
jury’s $5.7 million judgment in Dalton’s favor. Universal Truckload explains
that even if this court concludes that a promise was made and reasonably
relied upon, there is insufficient evidence to support the award of $5.7 million.
We review the denial of the JMOL de novo, but “all reasonable inferences and
. . . all credibility determinations [are viewed] in the light most favorable to
the nonmoving party.” Foradori, 523 F.3d at 485.
The disputed damage award hinges on the parties’ differing conceptions
of the dates Universal Truckload “broke” its promise. The parties agree that
Dalton’s reliance began on May 31, 2013, when the alleged promise was made.
But because there can be no reasonable reliance after a clear repudiation of a
contract, Universal Truckload asserts that any reasonable reliance ended on
August 27, 2013, when it offered to purchase Dalton for a lower amount of
money. See Conner v. Lavaca Hosp. Dist., 267 F.3d 426, 436 (5th Cir. 2001)
(holding that there could be no reasonable reliance on a contract following its
repudiation). Because Dalton was worth $5.7 million on May 31 and on August
27, Universal Truckload claims the evidence does not support any reliance
damages.
However, Universal Truckload’s argument suffers from two fatal flaws.
First, it misunderstands the “promise” at issue, and therefore it miscalculates
the relevant date range. Universal Truckload acts as if the promise from which
Dalton’s claim arises was a specific promise to purchase Dalton for $25 million.
But Dalton’s promissory estoppel claim rests on a much broader promise:
Universal Truckload’s promise to purchase Dalton at all. The reassurances
that Dalton and Universal Truckload would strike a deal, and that eventually
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Dalton would be purchased, continued long after Universal Truckload made a
lower offer in August 2013.
Second, Universal Truckload misreads the case law. Connor holds that
reliance on a contract is not reasonable after the other party unequivocally
repudiates its obligations. 267 F.3d at 436. Here, there is no contract at issue,
and therefore there is nothing Universal Truckload could have “unequivocally
repudiated.” Connor does not require reliance damages to stop in August 2013,
because the promise at issue was not clearly broken until a much later date—
when Universal Truckload expressly told Dalton it would not be purchasing
the company at all and required Dalton to repay the $1.9 million.
Dalton presented sufficient evidence to support the jury’s award of $5.7
million. At the time Dalton was preparing to shut its doors in May of 2013, the
evidence indicates Dalton’s valuation was $5.7 million. This is supported by
“testimony from multiple witnesses—including Universal [Truckload]
witnesses.” And when it finally became clear that Universal Truckload had no
intention of purchasing Dalton, Dalton had no assets. As the jury found that
Dalton stayed in business because it relied on Universal Truckload’s promise,
there was more than enough evidence for the jury to award $5.7 million in
damages. We affirm the district court’s denial of Universal Truckload’s JMOL
and affirm the jury verdict in Dalton’s favor on its promissory estoppel claim
and damages award.
B.
The jury awarded Universal Truckload $1.9 million from Dalton arising
from Dalton’s unpaid shipping bill. But Universal Truckload waived its right
to a jury on the question of whether that $1.9 million was spent in reliance on
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Universal Truckload’s promise to purchase Dalton. 3 Under Federal Rule of
Civil Procedure 49(a)(3), “the [district] court may make a finding on [any]
issue” on which a party has waived its right to a trial by jury. The district
court found that the $1.9 million debt Dalton owed Universal Truckload was
entered into entirely in reliance on Universal Truckload’s promise of
eventually purchasing Dalton. Therefore, the damages were offset, and Dalton
did not need to pay Universal Truckload $1.9 million. Universal Truckload
challenges the district court’s finding. “[I]mputed factual findings under Rule
49 are reviewed for clear error.” Heck v. Triche, 775 F.3d 265, 282 (5th Cir.
2014).
Universal Truckload contends that the district court clearly erred
because Dick Meredith—Dalton’s owner—conceded at trial that it owed
Universal Truckload the $1.9 million. At trial, Meredith was asked, “If [the]
jury determines that Universal Truckload is owed [the] $1.9 million, who
should pay for it?” To which Meredith responded, “Dalton should pay for it.”
Universal Truckload claims that this seals the deal. Because the jury
determined Dalton breached the contract, Dalton owes Universal Truckload
$1.9 million.
However, this issue is not as open and shut as Universal Truckload
believes it to be. Whether Dalton breached its contract with Universal
Truckload—the question the jury answered—is separate from the question the
district court answered. The district court found that Dalton entered into the
$1.9 million contract solely in reliance on Universal Truckload’s promise, and
3 Prior to trial, Universal Truckload and Dalton had stipulated that $1.9 million was
the amount owed. Universal Truckload objected to the question of whether the debt was
entered into in reliance on Universal Truckload’s promises being submitted to the jury. It
argued that that question was unnecessary because the question of offsetting the $1.9 million
could be sorted out later after the jury verdict on the reliance damages and breach of contract
claims was settled.
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therefore the damages offset each other. And it is that finding that Universal
Truckload appeals. Meredith’s statement at trial that “Dalton should pay” the
$1.9 million was not a response to this separate question. Meredith’s
statements at trial were in response to a line of questioning about which party,
Dalton, H&P, or Hess, would owe Universal Truckload the $1.9 million if the
jury found breach of contract. Meredith’s answer indicated only that Dalton,
and not H&P or Hess, could be on the hook for that money. It did not foreclose
the finding that the $1.9 million contract was entered into in reliance on
Universal Truckload’s promise.
If Universal Truckload, instead of being the lender itself, had encouraged
Dalton to borrow $1.9 million from a third party, these damages would be
included in a straightforward reliance damage calculation. See Mistletoe
Express Serv. v. Locke, 762 S.W.2d 637, 638–39 (Tex. App.—Texarkana 1988,
no writ) (explaining that a promisor is liable for any debts that a promisee
incurred as a foreseeable consequence of the promise). At trial, Cochran, one
of Universal Truckload’s witnesses, admitted that Dalton would not have
incurred this debt if it closed in April 2013. And as determined above, Dalton
kept its doors open solely in reliance on Universal Truckload’s promise that it
would eventually purchase Dalton. 4 Therefore, Dalton entered this $1.9
million debt in reliance on Universal’s promise.
What makes this case appear tricky is that Universal Truckload wears
two hats: it is both the promisor and the lender. But this does not affect our
analysis. As a lender, Universal Truckload is entitled to $1.9 million from
Dalton under breach of contract. And as a promisor, Universal Truckload owes
Dalton $1.9 million because Dalton incurred this debt in reliance on Universal
4 There is also evidence in the record that in April 2014, when Dalton had the money
to pay this debt, Universal Truckload encouraged it to keep the cash to “keep [Dalton] going.”
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Truckload’s promise. The district court did not clearly err in finding that the
$1.9 million arose out of Dalton’s reliance on Universal Truckload’s promise
and therefore, it did not err in offsetting the damages. We affirm the district
court.
C.
Universal Truckload also appeals the judgment in favor of H&P. H&P
contracted with Dalton to broker transport of two disassembled oil rigs from
Texas to North Dakota. Dalton retained Universal Truckload to transport the
freight. Universal Truckload moved a part of the freight itself and
subcontracted out the transportation of the remainder. When Dalton failed to
pay Universal Truckload for its services, Universal Truckload sued Dalton and
H&P, arguing both parties were on the hook for the unpaid bill.
H&P prevailed in the district court. Universal Truckload and H&P filed
competing motions for summary judgment. The district court denied Universal
Truckload’s motion and granted H&P’s in part, dismissing Universal
Truckload’s claim that H&P was liable to Universal Truckload for the
subcontracted loads. The remaining question of H&P’s liability for the loads
Universal Truckload transported itself went to the jury. The jury rejected
Universal Truckload’s contract theory and found that H&P was not liable to
Universal Truckload. After the verdict, Universal Truckload moved for a
JMOL and the district court denied its motion. Universal Truckload now
challenges: (1) the decision to send the contract question to the jury, (2) the
denial of Universal Truckload’s motion for summary judgment, and (3) the
grant of summary judgment to H&P. We affirm the district court on all three
issues. 5
Carried with this case is H&P’s motion to dismiss for lack of appellate jurisdiction.
5
H&P argues this court lacks appellate jurisdiction to decide two of Universal Truckload’s
claims against H&P. H&P first claims that we lack appellate jurisdiction to review Universal
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1.
Universal Truckload contends on appeal that the district court judge, not
the jury, should have decided whether H&P was contractually liable to
Universal Truckload. Universal Truckload asserts that the only question
Truckload’s arguments about the jury question because Universal Truckload’s notice of
appeal was premature. Universal Truckload appeals from “[t]he District Court’s Order of
October 30, 2017 (the final judgment),” but final judgment was not entered against H&P until
December 1, 2017. H&P argues that this premature notice of appeal deprives this court of
jurisdiction. United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998) (explaining a timely
notice of appeal is necessary to exercise appellate jurisdiction). However, FirstTier Mortgage
Co. v. Investors Mortgage Insurance, 498 U.S. 269, 274 n.4 (1991), says that “a premature
notice of appeal relates forward to the date of entry of a final ‘judgement’ . . . when the ruling
designated in the notice is a ‘decision’ for purposes of [Rule 4(a)(2)].”
In a case similar to the one before us, the Eleventh Circuit reasoned that because “all
of the claims had been decided as to all of the parties effectively ending the litigation on the
merits” and the final judgment appealed from “would have been appealable if immediately
followed by the entry of judgment on all counts of the complaint,” the notice of appeal fell
“directly within the language of [Federal Rule of Civil Procedure] 4(a)(2)” and the notice of
appeal was considered timely. Virgo v. Riviera Beach Assoc. Ltd., 30 F.3d 1350, 1356–57 (11th
Cir. 1994). So here too. On October 30, when the district court entered final judgment on
some of the issues, all questions regarding H&P had been resolved by the jury or ruled on by
the court. Therefore, the notice of appeal falls within the language of Rule 4(a)(2) and we read
the first designation of Universal Truckload’s notice of appeal broadly to encompass the jury
verdict and JMOL in H&P’s favor. Williams v. Henagan, 595 F.3d 610, 616 (5th Cir. 2010)
(explaining that this court “generously interpret[s] the scope of the appeal”).
H&P correctly contends that this court lacks jurisdiction to review the district court’s
denial of a motion for summary judgment. We have previously said that “this court has
jurisdiction to hear an appeal of the district court’s legal conclusions in denying summary
judgment, but only if it is sufficiently preserved in a Rule 50 motion.” Feld Motor Sports, Inc.
v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). While Universal Truckload did make a
Rule 50 motion re-urging the arguments made at the summary judgment stage, it specifically
designated the denial of summary judgment for appeal. We interpret Feld Motor Sports to
require not only that a Rule 50 motion is made, but also that the Rule 50 motion’s disposition,
not the denial of summary judgment, is what is appealed from. Despite the error in its notice
of appeal, however, Universal Truckload could have been spared by our broad reading of the
first designated order in its notice of appeal. Because Universal Truckload’s first designation
includes the denial of its JMOL, in which the summary judgment arguments were re-urged,
we are not jurisdictionally precluded from reviewing, through the JMOL, the arguments that
relate to denial of summary judgment. However, we do not reach the merits of this issue for
another reason. Universal Truckload has forfeited this issue because its brief is silent on the
denial of summary judgment and the JMOL. United States v. Martinez, 263 F.3d 436, 438
(5th Cir. 2001) (explaining that a party forfeits an issue if it fails to adequately brief it). We
therefore affirm the district court’s denial of the JMOL regarding H&P.
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remaining after the presentation of evidence was the effect of bills of lading
Universal Truckload gave to H&P when it dropped off shipments. And because
the effect of a legal instrument is a question of law, Universal Truckload
contends that the district court erred by sending this question to the jury.
Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (“A trial court commits
error if it submits a question of law to the jury.”); see also Tri-State Petroleum
Corp. v. Saber Energy, Inc., 845 F.2d 575, 581–82 (5th Cir. 1988) (“The
interpretation of a contract is a question of law . . . .”). Because Universal
Truckload did not make a timely objection below, we review this issue for plain
error. Jimenez v. Wood Cty., 660 F.3d 841, 844–45 (5th Cir. 2011) (en banc). 6
H&P disagrees with Universal Truckload’s claim that the only relevant
question was the effect of the bills of lading. It contends that an issue of fact—
the parties’ intent to be bound—remained. See Foreca, S.A. v. GRD Dev. Co.,
758 S.W.2d 744, 746 (Tex. 1988) (“In some cases, of course, the court may
decide, as a matter of law, that there existed no immediate intent to be bound.
This case, however, is not such a case. The evidence as to the intent of the
parties is disputed.”). At trial, Universal Truckload conceded that it did not
contact H&P before the transport of the rigs, that it did not send H&P a
contract for the transportation of the rigs, and that it never told H&P that the
bills of lading would function as a contract between the parties. Universal
Truckload’s business records, also presented at trial, indicated that Universal
Truckload always intended Dalton to be responsible for paying for the
6 Rule 51 of the Federal Rules of Civil Procedure requires a party objecting to an
improper jury charge to (1) make a proper timely objection to the jury instructions, and (2)
show that the instructions were legally erroneous. At the close of evidence, the district court
judge asked the parties whether there were any objections to the jury questions. One of the
jury questions asked “Did [H&P] contract for Universal Truckload to transport portions of
rig 517 and 524?” Universal Truckload did not object to this question and therefore we review
its claim for plain error. Jimenez, 660 F.3d at 844–45.
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shipments. Corey Lawyer, H&P’s construction manager, also testified at trial
about its understanding that the bills of lading function as receipts to show
delivery, and not as contracts for payment obligations. While Universal
Truckload was free to argue to the jury that the bills of lading were a clearly
binding contract, the jury was presented with evidence that called into
question whether a true “meeting of the minds” occurred. The intent of the
parties to be bound is an essential element of an enforceable agreement and is
often a question of fact, as it appears to be here. See id. at 746.
Further, the jury charge—“Did [H&P] contract for Universal Truckload
to transport portions of rig 517 and 524”—is language taken directly from the
Texas Pattern Jury Charges. The charge does not ask the jury to construe the
effect of the bills of lading, but instead asks the jury to weigh the facts and
determine whether H&P and Universal Truckload intended the bills of lading
to be an enforceable contract. The district court did not plainly err by sending
this question to the jury.
2.
Universal Truckload’s final argument regarding H&P is that the district
court erred when it granted partial summary judgment to H&P on the
outsourced loads. We review this de novo. Smith v. Reg’l Transit Auth., 827
F.3d 412, 417 (5th Cir. 2016). Universal Truckload paid subcontractors, but
never got paid by Dalton. And, under a theory of equitable subrogation,
Universal Truckload claims H&P should pay the subcontractors’ bill. Because
Universal Truckload’s arguments fail as a matter of law, the district court’s
grant of summary judgment was proper.
Universal Truckload argues that it should have prevailed on its theory
of equitable subrogation because it has non-voluntarily paid a debt—payment
to subcontractors—that H&P was “primarily liable for” and that “in equity”
H&P should have paid. “Equitable subrogation is the legal fiction through
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which a person or entity, the subrogee, is substituted, or subrogated, to the
rights and remedies of another by virtue of having fulfilled an obligation for
which [another] was responsible.” Gen. Star Indem. Co. v. Vesta Fire Ins., 173
F.3d 946, 949 (5th Cir. 1999). It applies when “one person, not acting
voluntarily, has paid a debt for which another was primarily liable and which
in equity should have been paid by the latter.” Frymire Eng’g Co. v. Jomar
Int’l, Ltd., 259 S.W.3d 140, 142 (Tex. 2008) (quoting Mid-Continent Ins. v.
Liberty Mut. Ins., 236 S.W.3d 765, 774 (Tex. 2007)).
Universal Truckload’s argument fails, however, because Universal
Truckload’s payment to the subcontractors was not actually non-voluntary, nor
was H&P “primarily liable” for the payment. In Frymire, a subcontractor
installed a faulty valve that caused damage to a property when a water line
ruptured. Id. The subcontractor’s insurance company paid for it, but then sued
the valve manufacturer to recover this cost. Id. The valve manufacturer was
liable because the damage was caused by the valve manufacturer’s error
through no fault of the subcontractor and therefore “in equity should have been
paid by” the manufacturer. Id.
Here, Universal Truckload, on its own initiative, entered into a contract
with third-party motor carriers to move a portion of H&P’s freight. The
contract specifically provided that the motor carriers would be paid by
Universal Truckload. Unlike in Frymire, where the subcontractor was
supplied with a faulty valve, no error of another party created Universal
Truckload’s obligation to the subcontractor. Universal Truckload created its
own, independent contractual obligation to pay the subcontractor. And, as the
district court noted: “Universal [Truckload] specifically conditioned its contract
with the motor carriers seeking payment exclusively from Universal
Truckload. Payment under such circumstances cannot be characterized as
involuntary.” Because Universal Truckload’s payment to the subcontractors
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was voluntary, Universal Truckload’s equitable subrogation argument fails as
a matter of law and was properly dismissed by the district court.
D.
Finally, Universal Truckload appeals the district court’s grant of
summary judgment to Hess. The relationship between Universal Truckload
and Hess resembles that of Universal Truckload and H&P. Hess is an oil and
gas producer who has drilling operations in North Dakota. As part of its
operations, Hess moves its rigs from one site to another. Hess entered into a
contract with Dalton to coordinate the move of some of Hess’s rigs. Dalton then
entered into a subcontract with Universal Truckload to provide the trucks for
Hess’s move. Hess was not a party to the subcontract. Hess paid Dalton in
full, but Dalton did not pay Universal Truckload. Universal Truckload sued
Hess, as well as Dalton, to recover on the unpaid bills. Hess moved for
summary judgment, arguing that it was not liable for the unpaid bills. The
district court agreed, granted Hess’s motion for summary judgment, and
Universal Truckload appealed. Because there is no contractual relationship
between Hess and Universal Truckload, we affirm the district court’s grant of
summary judgment.
Universal Truckload advances two legal theories supporting Hess’s
liability. First, Universal Truckload claims that Hess is contractually
obligated to pay Universal Truckload for its services. Second, Universal
Truckload argues that North Dakota’s statutes and common law entitle
Universal Truckload to recovery from Hess because Hess was the consignor of
the loads. 7 Both arguments fail.
7 Both Universal Truckload and Hess brief this issue under North Dakota law because
all interaction between the two companies took place in North Dakota. As this case is before
this court on diversity jurisdiction, and both parties agree North Dakota law applies, we
interpret and apply North Dakota law here.
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1.
Universal Truckload’s first argument, that Hess is contractually
obligated to pay Universal Truckload what Dalton owes, is unsupported by the
record. The contracts at issue are: a Master Service Agreement between
Dalton and Hess that Universal Truckload was not a party to and an
agreement between Dalton and Universal Truckload that Hess was not a party
to. As the district court correctly found, “there is no evidence that Hess ever
knew of, received, accepted, or assented to the terms of any shipping contract
with Universal [Truckload].”
Acknowledging no formal contract, Universal Truckload claims that bills
of lading delivered to Hess at the time of shipment contractually bind Hess and
Universal Truckload. However, Universal Truckload does not adequately
demonstrate this on appeal. The sole support for its contention that there are
binding bills of lading is a citation to two hundred pages of the record. This
portion of the record purportedly contains bills of lading between the two
companies, but the cited page span includes numerous bills of lading between
multiple companies. Universal Truckload does not point to a single bill of
lading that was for a shipment to Hess relevant to this case. We have no
obligation to “sift through the record in search of evidence to support a party’s
opposition to summary judgment.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th
Cir. 1992)). Therefore, the alleged bills of lading referenced in Universal
Truckload’s brief are insufficient to support Universal Truckload’s argument.
Even if we were to look past Universal Truckload’s insufficient briefing
and comb through the record, there is nothing in the record that indicates the
prepared bills of lading were actually given to Hess. Dalton’s president, Dick
Meredith, testified in his deposition that “there [is] no way of knowing” on
many bills of lading whether it was a shipment for Hess, H&P, or one of
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Universal Truckload’s other clients. He also explained that bills of lading are
often prepared exclusively for payroll and not actually given to the receiver.
He testified that one could not know on the face of the bill of lading whether it
had been given to the recipient. Thus, the district court correctly determined
that because “there is no evidence that Hess ever knew of, received, accepted,
or assented to the terms of any bill of lading” Universal Truckload’s breach of
contract claim fails.
2.
Universal Truckload’s second theory of recovery also falls short.
Universal Truckload claims that even without an express contract between
Hess and Universal Truckload, Hess is liable for the unpaid shipping costs
under North Dakota law. Universal Truckload contends that specific
provisions of the North Dakota Century Code “codified the common law
doctrine that the consignor and consignee remain liable to the carrier absent a
contrary agreement.”
The relevant provisions of the Century Code are as follows:
§ 8-05-02. Consignor liable for freightage: The consignor
of freight is presumed to be liable for the freightage, but if the
contract between the consignor and the carrier provides that the
consignee shall pay it and the carrier allows the consignee to take
the freight, the carrier cannot afterwards recover the freightage
from the consignor.
§ 8-05-03. Consignee liable for freight: The consignee of
freight is liable for the freightage if the consignee accepts the
freight with notice of the intention of the consignor that the
consignee should pay it.
N.D. Cent. Code §§ 8-05-02, -03. As Universal Truckload understands it,
section 8-05-02 controls here because Hess is the “consignor” and must pay
Universal Truckload’s freight charges, because there existed no “contract
between the consignor (Hess) and the carrier (Universal [Truckload]) that
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provides that” another party should pay. Universal Truckload also argues that
under section 8-08-03 Hess was the “consignee” and because Hess accepted the
shipment, Hess must pay for it.
Hess disputes this reading of the statute and explains that these
provisions were intended to allocate liability between three separate parties: a
“consignor” (the sender), a “consignee” (the recipient), and a carrier. That is
not the type of transaction at issue in this case. Here, we have Dalton (a
carrier) who subcontracted a service from Universal Truckload (a third-party
subcontractor) to ship goods to and from a single entity—Hess. In this case,
Hess is the consignor and the consignee. These sections cannot be read to
establish liability in favor of a third-party subcontractor such as Universal
Truckload, as they do not even contemplate the existence of such a third party.
Contrary to Universal Truckload’s contention, these provisions do not create a
default rule that the consignee is always liable to the party who delivers goods.
Universal Truckload cites a single case it believes supports its reading
of North Dakota law: E.W. Wylie Corp. v. Menard, Inc., 523 N.W.2d 395 (N.D.
1994). 8 Universal Truckload contends that Wylie established a common law
rule that carriers may seek payment from either the consignor or consignee.
But Wylie expressly reached the opposite conclusion. The Supreme Court of
North Dakota explained that the appellant in Wylie “overstate[d] the common
law” when it argued that a consignor and consignee of shipped goods are
8 In Wylie, Menard, a consignee/receiver, purchased lumber from IKA, a
consignor/shipper. Id. at 397. The contract between IKA and Menard established that IKA
would pay the freight charges to the carrier. Id. IKA then contracted with a carrier, E.W.
Wylie Corp., to transport the lumber, and the contract provided that IKA would pay. Id.
Menard paid IKA, but IKA never paid Wylie. After Wylie unsuccessfully sought payment
from IKA, it attempted to recover from Menard. Id. The Supreme Court of North Dakota
held that Menard was not liable to Wylie for IKA’s unpaid bills because there was no contract
between Wylie and Menard and there was a contract between Wylie and IKA. Id. at 397,
406.
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always jointly and severally liable for a carrier’s freight charges. Id. at 397.
“[B]ecause liability for payment of freight charges is largely a matter of
contract, any common law presumption about responsibility for freight costs
may be rebutted by evidence that the parties intended something else.” Id. at
399. In Wylie, the “something else” was a contract between the carrier and the
consignor that expressly stated the consignor would pay the carrier. Id. Here,
it is the contract between Universal Truckload and Dalton that expressly
states Dalton would pay Universal Truckload. Even if there were a common
law presumption regarding the obligation of a consignee to pay a third-party
contractor that it has no contractual relationship with, the contract between
Universal Truckload and Dalton would rebut that presumption.
Nothing in the North Dakota common law or Code allows Universal
Truckload to overcome its lack of contractual agreement with Hess.
Accordingly, we affirm the district court’s grant of summary judgment in
Hess’s favor.
III.
The district court correctly denied the JMOL asking the court to reverse
the jury’s finding that Dalton was entitled to $5.7 million in reliance damages
under promissory estoppel. Further, the district court correctly concluded that
the $1.9 million breach of contract damages in Universal Truckload’s favor
should be offset because the debt arose from reliance on Universal Truckload’s
promise. Finally, the district court also correctly determined that neither H&P
nor Hess was liable for the shipping charges Universal Truckload incurred.
We therefore AFFIRM the judgment in full.
25