iFREEDOM DIRECT, f/k/a New Freedom Mortgage Corporation, Plaintiff-Appellant,
FIRST TENNESSEE BANK NATIONAL, successor-in-interest to First Horizon Home Loan Corporation, Defendant-Appellee.
D.C. No. 2:09-CV-00205-DN, D. Utah
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.
ORDER AND JUDGMENT [*]
Wade Brorby, Senior Circuit Judge
In this diversity case, Plaintiff iFreedom Direct Corporation ("iFreedom") appeals from the district court's judgment entered after a jury verdict in favor of defendant First Tennessee Bank National Association ("First Tennessee") on iFreedom's claim for breach of contract. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
In August 2006, iFreedom and First Tennessee's subsidiary, First Horizon Home Loan Corporation, entered into an Asset Purchase Agreement ("APA") in which iFreedom sold its retail and wholesale mortgage loan operations to First Tennessee. In the APA, the parties agreed on a purchase price consisting of a lump-sum payment, as well as the possibility of additional "Earnout Payments." See Aplt. App., Vol. I at A62-63. The Earnout Payments were contingent on the former iFreedom employees meeting certain threshold targets for loan production.
In August and November 2007, First Tennessee made Earnout Payments to iFreedom for both retail and wholesale loan production. In 2008, First Tennessee decided to sell the mortgage operations to MetLife Bank National Association ("MetLife"). After the sale to MetLife, First Tennessee attempted to make an Earnout Payment of $220, 588 to iFreedom, but iFreedom refused to accept it.
In March 2009, iFreedom filed a lawsuit against First Tennessee, bringing claims for breach of contract and breach of the covenant of good faith and fair dealing. First Tennessee moved for summary judgment on iFreedom's complaint. The district court denied the motion, concluding there were disputed issues of material fact as to whether: (1) iFreedom waived the non-assignment provision in the APA, (2) the non-assignment provision applied to First Tennessee's sale to MetLife, and (3) the sale or assignment caused any damages. The case proceeded to a jury trial.
At the close of evidence, First Tennessee and iFreedom both moved for directed verdicts. The district court granted in part First Tennessee's motion, concluding that First Tennessee was entitled to judgment in its favor for any alleged breach of §§ 2.5(b), 4.5, 5.6, and 10.1 of the APA. The court denied the motion as to First Tennessee's alleged breach of § 10.5 (the non-assignment provision). The district court also granted in part and denied in part iFreedom's motion, directing a verdict on First Tennessee's affirmative defense of estoppel, but denying it as to the waiver defense. The jury ultimately determined that First Tennessee had not breached § 10.5. This appeal followed.
iFreedom contends that the district court erred in five ways during trial by: (1)giving only part of iFreedom's proposed jury instruction on assignment; (2)rejecting one of iFreedom's proposed jury instructions; (3) directing a verdict in favor of First Tennessee on several claims; (4) using an improper special verdict form; (5) denying a directed verdict on First Tennessee's affirmative defense of waiver and instructing the jury on the waiver defense.
A. Jury Instructions
We review for abuse of discretion the district court's refusal to give a proposed jury instruction. See Zokari v. Gates, 561 F.3d 1076, 1090 (10th Cir. 2009). We review de novo whether the instructions as a whole accurately informed the jury of the governing law. See id. The parties agreed in the APA that the agreement would be governed by Texas law.
iFreedom alleged that First Tennessee breached the non-assignment provision in § 10.5 of the APA when it sold its mortgage operations to MetLife. That section states in relevant part: "No Party hereto may assign any of its rights or obligations hereunder to any other Person, without prior written consent of the parties . . . ." Aplt. App., Vol. I at A86. First Tennessee asserted there was no breach of ...