A Texas state appeals court has aided with former NBA superstar Allen Iverson, who had been sued by a marketing company after he failed to appear, as allegedly contracted, at a party held the weekend of the 2010 NBA All-Star Game in Dallas
Plaintiff Dolce Marketing Group sued Iverson shortly after the alleged breach of contract. Iverson filed a pro se answer, but failed to appear at trial. The trial court rendered a default judgment against him in the amount of $495,000 and change, plus attorney’s fees and court costs.
Iverson appealed, arguing among other things that the evidence is legally insufficient to support the default judgment.
The impetus for the lawsuit was an alleged contract, negotiated through and signed by agent Gary Moore — that required Iverson to appear for two hours at a party on the weekend in quetsion. Iverson’s representatives allegedly cancelled immediately before the event. The plaintiffs, however, alleged that Iverson breached the contract by failing to appear and also fraudulently induced them to enter into the contract.
On March 22, 2012, Iverson filed a pro se original answer in which he asserted a general denial and various affirmative defenses to the plaintiffs’ claims. That same day, the trial court issued a pre-trial order which set the case for a non-jury trial on June 11, 2012. When Iverson failed to appear for trial on June 11, 2012, the court heard evidence and rendered the aforementioned default judgment.
In its review, the court noted that if a no-answer default judgment is granted, the defendant who did not answer is deemed to have admitted the facts properly pleaded and the justice of his opponent’s claims. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). A post-answer default judgment, however, constitutes neither an abandonment of the defendant’s answer, nor an implied confession of any issues. Id. In such cases, judgment cannot be entered on the pleadings. Id. Instead, the party seeking judgment must offer evidence and prove all aspects of his case. Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994); Stoner, 578 S.W.2d at 682. Here, because Iverson filed an answer, appellees had the burden to prove both liability and damages. See Armstrong v. Benavides, 180 S.W.3d 359, 362 (Tex. App.—Dallas 2005, no pet.).
A party against whom a post-answer default judgment has been granted “may challenge the legal sufficiency of the evidence to support the judgment on appeal,” wrote the court, citing Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).
The appeals court continued: “The test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Armstrong, 180 S.W.3d at 362. In our review of the evidence, we credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. If there is more than a scintilla of evidence to support the verdict, we uphold the judgment. Evidence is no more than a scintilla when it is so weak as to do no more than create a mere surmise or suspicion of the fact’s existence. Id.
The plaintiffs’ first cause of action against Iverson was for breach of contract. “Among the elements necessary to succeed on their breach of contract claim, appellees needed to present evidence of a valid contract existing between them and Iverson. See Schindler v. Baumann, 272 S.W.3d 793, 795 (Tex. App.—Dallas 2008, no pet.). The elements required for formation of a valid contract are 1) an offer, 2) acceptance in strict compliance with the terms of the offer, 3) a meeting of the minds, 4) each party’s consent to the terms, and 5) execution and delivery of the contract with the intent that it be mutual and binding. Thornton v. AT&T Adver., L.P., 390 S.W.3d 702, 705 (Tex. App.—Dallas 2012, no pet.). The material terms of a contract must be agreed upon before a court can enforce a contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Effel v. McGarry, 339 S.W.3d 789, 793 (Tex. App.—Dallas 2011, pet. denied).”
In support of their claim, the plaintiffs “presented various contracts with third parties in support of their damages, including contracts for security, bouncers, models, DJs, and a photographer at the event. They did not, however, produce any substantive testimony about the formation of the contract with Iverson or its material terms. Moreover, they did not introduce the alleged written contract between them and Iverson’s agent that is the basis for their lawsuit.”
The appeals court concluded that “there is no more than a scintilla of evidence to show that a valid contract for Iverson’s services existed. Cf. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
Allen Iverson v. Dolce Marketing Group and DG1 Ent, LLC, Ct. App. Tex, 5th Dist., Dallas; No. 05-12-01230-CV, 2014 Tex. App. LEXIS 3461; 3/28/14
Attorneys of Record: (for appellants) Mark A. Goodman, David, Goodman & Madole, PC, Dallas, TX; Michael Y. Kim, Dallas, TX. (For appellees) David Anthony Small, Law Office of David A. Small, Dallas, TX.
