A Texas district court recently affirmed a jury’s verdict, and entered judgment in favor of Bradley Roach and Texas Select Energy Consulting LLC (“TSE”) in a lawsuit filed against Roach and Texas Select Energy Consulting by Eastwood Energy Group, LLC (“Eastwood”) in which Eastwood had alleged, among other things, that Roach breached non-interference and non-solicitation provisions of an agreement between Eastwood and Roach
In denying Eastwood’s motion for the court to find in favor of Eastwood notwithstanding the jury’s verdict, a judge for the District Court in Harris County, Texas, summarized that the jury found that, “(1) Eastwood breached the contract between Eastwood and Roach and that Roach did not; (2) Eastwood’s breach of contract was not excused; and (3) that TSE did not intentionally interfere with contracts obtained by Eastwood.”
“The Court is of the opinion that a final judgment should be entered pursuant to the terms of the jury’s verdict,” the District Court judge ruled.
The suit concerned certain customers for which Eastwood was earning commissions and which were Eastwood customers, who subsequently switched their retail supplier in the wake of Winter Storm Uri in 2021
Roach had formerly served as CEO of Eastwood until Dec. 2, 2020.
Under a Separation Agreement between Roach and Eastwood, Eastwood alleged that Roach was subject to non-interference and non-solicitation provisions concerning these customers.
More specifically, under the “Non-Interference” provision of the relevant agreement, Eastwood argued that Roach is prohibited from making “any change or modification to any contract which is listed on Exhibit A or B which negatively impacts Eastwood economically unless written approval from Eastwood has been received in advance.”
Post-separation, several customers of Eastwood were switched to a new retail supplier, terminating commissions to Eastwood and subjecting Eastwood to chargebacks from the customers’ original retail supplier.
Roach assisted the customers in selecting a new supplier.
Roach’s involvement with the switches, and Roach’s specific actions undertaken regarding the new retail contracts, and when such actions occurred, were disputed facts addressed by the jury.
Eastwood alleged that actions allegedly undertaken by Roach in connection with the switch of these customers’ retail supplier, post-separation from Eastwood, allegedly violated the non-interference and non-solicitation provisions of the Separation Agreement between Roach and Eastwood.
Eastwood alleged that the switches were not retail contract terminations unilaterally undertaken by the customers, but were rather an impermissible “change or modification” to the original retail contracts by Roach, which in turn economically impacted Eastwood, including through chargebacks from the original retail supplier
Roach, however, argued that, upon customers contacting Roach not as the result of solicitation, Roach only connected customers with suppliers after customers, of their own volition, unilaterally terminated their contracts with their suppliers due to post-Uri pricing or other factors (such as customers having new or changed locations).
Roach, as stated in a motion opposing summary judgment in favor of Eastwood, argued that, “Roach did not solicit these customers. Nor did Roach interfere with any contracts that Plaintiff [Eastwood] was involved in. Roach merely responded to customers in need of suppliers. Roach is incapable of terminating contracts between customers and suppliers. Roach fully complied with the Separation Agreement executed between the parties.”
Roach had stated, “Roach cannot be in breach for a customer’s choice to terminate a contract with a supplier.”
As noted above, under the “Non-Interference” provision of the relevant agreement, Eastwood argued that Roach is prohibited from making “any change or modification to any contract which is listed on Exhibit A or B which negatively impacts Eastwood economically unless written approval from Eastwood has been received in advance.”
In a motion for judgment notwithstanding the jury’s verdict, Eastwood argued that, before and during the trial, the Court found that the phrase, “any change or modification” includes the cancellation or termination of a contract, and that a customer’s request for Roach to make a change or modification to a contract does not excuse Roach’s obligations under the Separation Agreement.
Eastwood argued that Roach personally negotiated the contracts between the relevant customers and the new retail suppliers, which resulted in the termination of the existing retail contracts for which Eastwood was earning a commission. As noted above, Eastwood argued that the court found that termination of a contract amounted to an impermissible change or modification under the Non-Interference provision
The jury specifically answered the following questions, with the jury’s verdict unanimous on all questions (certain question became inapplicable due to the jury’s finding to Question 1):
Question No. 1. Did Roach fail to comply with the Confidential Separation Agreement and General Release?
Answer: No.
Question No. 2. Did Eastwood fail to comply with the Confidential Separation Agreement and General Release?
Answer: Yes.
Question No. 4. Was Eastwood’s failure to comply excused?
Answer: No.
Question No. 6. What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Roach for his damages, if any, that resulted from the breach of contract by Eastwood as to the agreement?
Answer: Expectation damages in the past: $78,480.97.
Question No. 7. Did TSE intentionally interfere with contracts obtained by Eastwood?
Answer: No.
The damages awarded to Roach relate to amounts allegedly owed to Roach by Eastwood which were allegedly withheld by Eastwood due to the dispute
In a motion for judgment notwithstanding the jury’s verdict, Eastwood argued that, “the jury’s verdict on liability for breach of contract in the Charge of the Court’s Jury Question No. 1 is unsupported by legally sufficient evidence,” with Eastwood citing the alleged actions taken by Roach regarding the new contracts described above, and Eastwood’s argument that the court found that termination of a contract amounted to an impermissible “change or modification” under the Non-Interference provision
Roach and TSE argued that Eastwood, through the motion for judgment notwithstanding the jury’s verdict, asked the Court to reweigh disputed evidence and substitute its judgment of the evidence for that of the jury.
Roach and TSE argued that Eastwood, “attempts to use the Court’s pretrial rulings as evidence that Plaintiff’s [Eastwood] breach of contract claims against Roach and tortious interference claims against TSE were conclusively established. If such rulings had that effect, then the Jury would not have had to deliberate and decide whether Roach breached the Agreement or whether TSE tortiously interfered with the contracts on Exhibit A of the Agreement.”
Roach and TSE said, “The Court’s pre-trial legal rulings interpreted the Agreement’s language for the Jury and legally ruled on the ambiguity of such language, but the highly disputed facts on whether Roach breached the Agreement or whether TSE tortiously interfered with the contracts listed on Exhibit A to the Agreement were left for the Jury to decide. The Jury deliberated with all evidence and applicable law available to them and unanimously decided in Defendants’ favor. The Jury’s verdict is supported by the legally sufficient evidence presented at trial. The Court should uphold the Jury’s verdict for this reason.”
Roach and TSE said, “Plaintiff has failed to point the Court to evidence that conclusively establishes … that Roach changed or modified a contract on Exhibit A. At trial, the parties submitted evidence in support of the highly disputed fact question of whether Roach himself changed or modified any of the contracts. For example, Roach submitted sufficient evidence to support his position that he did not have the contractual authority nor ability to terminate or modify these contracts as he was not a party to the supplier agreements with the customers.”
Roach and TSE said that, under the relevant supplier contracts, “termination is a supplier remedy, exercised only by a contracting party upon defined Events of Default. Modifications require a written amendment executed by both parties … Roach had no power to invoke remedies, terminate contracts, or amend them.”
Roach and TSE said, “Roach also submitted evidence of the customers’ and suppliers’ communications requesting modifications and/or terminations of their contracts for various reasons such as the 2021 winter storm, exorbitant energy bills, closing of locations, combining locations, desire to change suppliers, etc.”
Roach and TSE said, “the twelve members of the public that were chosen to hear, evaluate, and make decisions on the evidence presented at trial did not agree with Plaintiff’s assessment. As a result, the Jury found that Roach was entitled to his commissions under the Agreement, Plaintiff clearly breached the Agreement by withholding these amounts, and the Jury appropriately found that Plaintiff was not excused from such breach.”
Addressing Eastwood’s claims that Roach, not the customers, negotiated terms with the new supplier, Roach and TSE said, “The customers are not on email because Roach is their broker and is speaking on their behalf at their specific request for Roach to do so … The Jury was not presented with any evidence that Roach did not have customer approval to negotiate new contracts on their behalf because it does not exist. In fact, Defendants presented evidence of the customers making such requests.”
As noted above, the district court entered final judgment pursuant to the terms of the jury’s verdict, with the jury, as summarized by the court, finding that: (1) Eastwood breached the contract between Eastwood and Roach and that Roach did not; (2) Eastwood’s breach of contract was not excused; and (3) TSE did not intentionally interfere with contracts obtained by Eastwood.
Roach provided the following statement to EnergyChoiceMatters.com on May 29:
“After more than four years of litigation and countless filings, I am grateful that the jury unanimously found in our favor and that the Court entered final judgment consistent with that verdict.
“The jury concluded that I did not breach the parties’ agreement, that Eastwood did, and that Texas Select Energy did not interfere with Eastwood’s contracts. I always believed the facts would prevail, and they did.
“I am especially grateful to my attorneys, Jason Friedman and Paige Hawkins, for their professionalism, dedication, and exceptional work throughout the entire process.
“My focus now is on moving forward, serving our customers through Texas Select Energy, and hopefully never having to read another court filing again.”
— Statement from Bradley Roach
Eastwood provided the following statement to EnergyChoiceMatters.com on May 29:
“Eastwood Energy Group is aware of the judgment entered by the trial court in the matter involving former employee Bradley Roach and related parties.
“While we respect the judicial process, we respectfully disagree with portions of the outcome and are currently evaluating all available post-trial and appellate options. Because the litigation remains ongoing, it would be inappropriate to comment on specific evidence, testimony, or legal arguments at this time.
“What we can confirm is that Mr. Roach was terminated by Eastwood Energy Group in December 2020. The matters at issue in this case arise from events occurring after his separation from the company.
“Eastwood Energy Group has built its reputation through long-standing relationships with clients, suppliers, and industry partners, and we remain committed to operating with integrity, professionalism, and compliance with applicable laws and contractual obligations.
“We appreciate the support of our employees, customers, and business partners and will continue focusing on serving our clients while pursuing the appropriate legal avenues available to us. No further comment will be provided at this time due to the ongoing nature of the proceedings.”
— Statement Eastwood Energy Group
The jury’s verdict entitles Roach to $78,480.97, plus stipulated attorneys’ fees and costs, from Plaintiff Eastwood.
More specifically, the judgment awarded, to Roach, reasonable and necessary attorneys’ fees in the amount of $186,787.00 that Eastwood and Roach and TSE stipulated to on the record, plus reasonable and necessary costs and expenses in the amount of $11,983.61
Harris (TX) District Court, Cause No. 2021-61121
