Lender prevails in legal battle concerning undelivered ice machine

By Charmaine Little | May 8, 2019

HOUSTON -- The 14th Court of Appeals on May 2 sided with a lender’s counterclaims and against a borrower’s initial allegations in an ongoing dispute regarding an ice machine. 

The court affirmed a partial summary judgment in favor of Ascentium’s counterclaims against Lost Maple General Store LLC  from the Harris County District Court. 

Lost Maples, a gas station and convenience store, accused Ascentium for not delivering an ice machine, alleging fraud and conspiracy along with an alleged violation of the Deceptive Trade Practices Act (“DTPA”). Lost Maples sought declaratory relief under the Uniform Declaratory Judgments Act (“UDJA”).   

Ascentium served as a third-party lender while Argosy Food Service was the seller. Although Ascentium paid Argosy 31,750.65 after a 13 percent blind discount, Argosy didn’t deliver the machine, court document say. Indeedt, Argosy ultimately sent Lost Maples a notice that it was going out of business. 


Lost Maples asked Ascentium to refund the money  but it refused and ordered Lost Maples to pay back the debt. Lost Maples subsequently attempted to get out of its own contract, resulting in Ascentium filing a counterclaim for breach of contract. The lower court ruled in favor of Ascentium and the appeals court affirmed. 

The appeals court first said the lower court didn’t err when it denied a trial by jury on Lost Maples’ DTPA accusation and pointed out that the jury-waiver provision, despite Lost Maples’ argument, is indeed enforceable. 

“The EFA’s jury-waiver provision contains no qualifications or limiting references whatsoever," the court said. "The jury-waiver provision plainly says, ‘You . . . waive any right to a jury trial.’ Given the breadth of this language, we conclude that Lost Maples clearly and unmistakably waived its right to a jury trial in all of its causes of actions, which means that the trial court did not err when it denied a jury trial on the DTPA claim.”

The appeals court also said the lower court ruled correctly when it affirmed summary judgment for Ascentium’s breach of contract claim. It said Ascentium did its part when it proved its status and relationship with Argosy. 

“Ascentium produced evidence that it did not hold itself out as a legal partner with Argosy, and the EFA disclaimed any such relationship," the appeals court said. Accordingly, Lost Maples did not establish its partnership defense as a matter of law.”

The appeals court said its empathetic with what Lost Maples experienced but the real party in the wrong is Argosy, not Ascentium. It added that unfortunately for Lost Maples, there wasn’t a condition precedent in the contract, so it was required to pay even if the ice machine wasn’t delivered. 

The court used Texas law to back the lower court’s ruling for partial summary judgment for Ascentium. 

Justice Tracy Christopher wrote the opinion, and justices Frances Bourliot and Margaret Poissant concurred.

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