Ifreedom Direct v. First Tennessee Bank National et al, No. 2:2009cv00205 - Document 235 (D. Utah 2012)

Court Description: MEMORANDUM DECISION AND ORDER granting in part and denying in part 233 Motion for Directed Verdict. Signed by Judge David Nuffer on 8/21/12 (alt)
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Thomas E. Lowe, Utah State Bar No.2006 Lowe, Hutchinson & Cottingham 2150 South 1300 East, Suite 120 Salt Lake City, UT 84106 Telephone: (801) 486-1112 Facsimile: (801) 486-1198 Email: tlowe@lhclawyers.com Attorneys for Plaintiff Thomas M. Barton Coles Barton, LLP 150 South Perry Street, Suite 100 Lawrenceville, GA 30046 Telephone: (770) 995-5552 Facsimile: (770) 995-5582 Email: tbarton@colesbarton.com Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION IFREEDOM DIRECT CORPORATION, f/k/a New Freedom Mortgage Corporation, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. FIRST TENNESSEE BANK NATIONAL ASSOCIATION, successor-in-interest to First Horizon Home Loan Corporation, Defendants. -1- MEMORANDUM DECISION and ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DIRECTED VERIDCT ON DEFENDANT S AFFIRMATIVE DEFENSES OF WAIVER AND ESTOPPEL JURY DEMANDED Case No. 2:09-cv-205-DN Judge David Nuffer Based upon Plaintiff s Motion for Directed Verdict 1 on Defendant s Affirmative Defenses of Waiver and Estoppel, and the Memorandum submitted in Support of that Motion, as well as the testimony and evidence presented at trial, IT IS HEREBY ORDERED that 1. Plaintiff s Motion is GRANTED as to defendant s affirmative defense of estoppel. An essential element of estoppel under Texas law is detrimental reliance on the concealing or misrepresentation of material facts. See Nelson v. Jordan, 663 S.W.2d 82, 87 (Tex. App. 1983). Defendant did not introduce any evidence that Plaintiff concealed or misrepresented any facts to Defendant. Nor did Defendant introduce any evidence that it relied to its detriment on anything Plaintiff did. Accordingly, a directed verdict on Defendant s affirmative defense of estoppel is appropriate. 2. Plaintiff s Motion is DENIED at this time as to Defendant s affirmative defense of waiver. Dated August 21, 2012. BY THE COURT: ____________________________ David Nuffer United States District Judge 1 Docket no. 233. -2-