     Case: 10-10197        Document: 00511536175         Page: 1     Date Filed: 07/11/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                               July 11, 2011

                                          No. 10-10197                        Lyle W. Cayce
                                                                                   Clerk

KEVIN M. EHRINGER ENTERPRISES, INC., doing business as Data Center
Systems,

                                                      Plaintiff - Appellee
v.

MCDATA SERVICES CORP., formerly known as Computer Network
Technology Corporation,

                                                      Defendant - Appellant



                      Appeal from the United States District Court
                           for the Northern District of Texas


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ,* District Judge.
HAYNES, Circuit Judge:
        McData Services Corporation, formerly known as Computer Network
Technology Corporation (“McData”), appeals the district court’s judgment on a
jury verdict in favor of Kevin M. Ehringer Enterprises, Inc., doing business as
Data Center Systems (“Ehringer”), in Ehringer’s suit for breach of contract and
fraudulent inducement. McData argues that the district court erred in denying
its motion for judgment as a matter of law because: (a) partial performance
under the parties’ contract (the “Agreement”) negates the “no intent to perform”


        *
            District Judge of the Western District of Texas, sitting by designation.
   Case: 10-10197   Document: 00511536175      Page: 2   Date Filed: 07/11/2011



                                  No. 10-10197

element of fraudulent inducement by false promise; (b) the phrase “best efforts”
has no definite meaning, and Ehringer presented insufficient evidence that
McData had “no intent to perform” under the “best efforts” provision of the
contract; (c) Ehringer failed to prove that McData had an “intent to deceive”; (d)
Ehringer’s recovery is subject to the limitation-of-remedies clause in the
Agreement that bars recovery of lost profits; and (e) the damages award was not
supported by sufficient evidence. Because we find that Ehringer failed to
present sufficient evidence that McData had no intent to perform under the “best
efforts” provision of the contract and failed to present any evidence of damages
on its other claim, we REVERSE and REMAND to the district court to enter
judgment in favor of McData and do not reach the other issues.
                I. FACTS AND PROCEDURAL HISTORY
      McData is a technology company that sells data centers. In 2003, McData
acquired InRange, a competitor. As a result, it acquired two product lines
known as fiber management systems (“FMS”) and intelligent fiber systems
(“IFS”). FMS and IFS (collectively, the “Products”) are both cables that connect
devices in a data center. After McData and InRange merged, McData decided
to sell some of InRange’s product lines, including the Products, as it wanted to
focus on its core business.
      McData located Ehringer, a company that was willing to purchase the
Products. Ehringer had the technical ability to produce the Products, but it
wanted to enter into a strategic agreement with McData because McData had
access to customers. Ehringer and McData entered into negotiations about the
purchase, finally reaching an agreement on November 13, 2003. The Agreement
provided that Ehringer would pay McData a 25% royalty on sales of the Products
for a three-year period. Once Ehringer paid a total of $1 million in royalties,
McData would transfer title to Ehringer. However, Ehringer would continue to
pay a 25% royalty until the end of the three-year period. In return, McData

                                        2
   Case: 10-10197    Document: 00511536175       Page: 3    Date Filed: 07/11/2011



                                   No. 10-10197

promised to give Ehringer reasonable access to its customers; to use its “best
efforts” to promote, market, and sell the Products during the Agreement’s three-
year term; to respond promptly to all inquiries from customers; to permit
Ehringer to visit McData’s customers and place of business; and to permit
Ehringer to inspect relevant documents. McData also promised not to “develop,
produce, distribute, or market products that are competitive with existing
[Ehringer] products” and not to “buy or sell products in North America which
directly compete with the Products.” Additionally, the Agreement limited the
parties’ liability, providing that “in no event, regardless of the form of the cause
of action, will either party be liable for any claim made against it by any party,
or for any claim by the other party or its customers for lost profits . . . or for any
other direct, indirect, special, incidental, or consequential damages . . . .”
      Approximately twelve months after the parties entered into the
Agreement, Ehringer paid McData $1 million in royalties, and McData
transferred title to the Products to Ehringer. However, in 2006, Ehringer sued
McData for breach of contract and fraudulent inducement, alleging that McData
breached the contract by: competing with the Products; failing to use its best
efforts to promote, market, and sell the Products; and failing to provide access
to McData’s records and customer lists. Ehringer also alleged that McData
fraudulently induced it to enter into the contract because McData never
intended to use its “best efforts” and never intended to be bound by the non-
competition provision.
      The parties agreed that Minnesota law governed the breach of contract
claim and Texas law governed the fraudulent inducement claim. The district
court granted summary judgment in favor of McData on Ehringer’s breach of
contract claim, concluding that the limitation-of-remedies clause prevented
Ehringer from recovering lost profits, which were the only damages Ehringer
sought for the breach. The district judge allowed the fraudulent inducement

                                          3
   Case: 10-10197     Document: 00511536175        Page: 4    Date Filed: 07/11/2011



                                     No. 10-10197

claim to proceed to a jury trial, concluding that the limitation-of-remedies clause
did not bar Ehringer’s fraudulent inducement claim.
      At trial, McData’s CEO testified that he never intended “that the McData
sales and marketing force would become dedicated to promoting, marketing, and
selling the FMS and IFS product lines.” Additionally, Ehringer presented expert
testimony that McData was finalizing the development of an allegedly competing
product—the 2900—just days before the parties signed the Agreement.
Ehringer introduced several McData PowerPoint presentations which it
contends indicate that McData viewed the 2900 as competing with IFS and FMS
technology.1
      Before the case was submitted to the jury, McData filed a motion for
judgment as a matter of law, arguing that Ehringer: (1) presented no evidence
that McData intended to deceive Ehringer; (2) presented no evidence that
McData had no intent to comply with the “best efforts” provision because that
term was too indefinite to be enforceable; (3) could not recover because of the
limitation-of-remedies clause in the contract; and (4) failed to present sufficient
evidence of its damages. The judge denied the motion. The jury subsequently
found for Ehringer on the liability questions and found $12.53 million in
damages.
      McData renewed its motion for judgment as a matter of law and, in the
alternative, moved for a new trial. The district court denied the motion and
entered a final judgment on the jury verdict (together with pre-judgment and
post-judgment interest) on February 25, 2010. McData timely appealed.




      1
        The parties dispute whether the 2900 was competitive with or complementary to the
Ehringer product.

                                           4
   Case: 10-10197    Document: 00511536175       Page: 5    Date Filed: 07/11/2011



                                   No. 10-10197

            II. JURISDICTION AND STANDARD OF REVIEW
      The district court has jurisdiction over this diversity case under 28 U.S.C.
§ 1332. McData is a citizen of Texas and Ehringer is a citizen of Minnesota, and
Ehringer sought damages of over $75,000. We have jurisdiction to review the
final judgment of the district court pursuant to 28 U.S.C. § 1291.
      We review denials of motions for judgment as a matter of law under
Federal Rule of Civil Procedure 50 de novo, applying the same standard as the
district court. Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d
475, 481 (5th Cir. 2008). Under Rule 50(a), the court may grant a motion for
judgment as a matter of law “[i]f a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue . . . .” FED. R. CIV.
P. 50(a). A Rule 50(a) motion is a challenge to the legal sufficiency of the
evidence. See id.; Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008). This
court may review a denial of a motion for judgment as a matter of law under
Rule 50(a) if the party re-raises its motion after the jury’s verdict. Downey v.
Strain, 510 F.3d 534, 543 (5th Cir. 2007). McData did so.
      In resolving a motion for judgment as a matter of law, “the court must
draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 150 (2000). This court “cannot reverse a denial
of a motion for judgment as a matter of law unless . . . the legal conclusions
implied from the jury’s verdict cannot in law be supported by those findings.”
Am. Home Assur. Co. v. United Space Alliance, LLC, 378 F.3d 482, 488 (5th Cir.
2004).
                                III. DISCUSSION
      To state a claim for fraudulent inducement under Texas law, a plaintiff
must prove the basic elements of fraud: (1) a material misrepresentation; (2) that

                                          5
   Case: 10-10197    Document: 00511536175      Page: 6    Date Filed: 07/11/2011



                                  No. 10-10197

is false; (3) when the defendant made the representation, the defendant knew
it was false or made the statement without any knowledge of its truth; (4) the
defendant intended the plaintiff to rely on the representation, and the plaintiff
actually relied on the representation; and (5) the defendant’s actions caused an
injury. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960
S.W.2d 41, 47 (Tex. 1998). Fraudulent inducement also requires proof of an
underlying contract which was induced. Haase v. Glazner, 62 S.W.3d 795, 798
(Tex. 2001). In this case, Ehringer does not contend that McData made a false
representation about a present fact; rather, it contends that McData’s promise
to do an act in the future was fraudulent because McData never intended to
perform according to that promise. “A promise to do an act in the future is
actionable fraud when made with the intention, design and purpose of deceiving
and with no intention of performing the act.” Spoljaric v. Percival Tours, Inc.,
708 S.W.2d 432, 434 (Tex. 1986). Here, the alleged false promise was the
contract itself.
      Texas has recognized that, where the damages claimed are (as here)
economic loss to the subject of the contract itself, the remedy ordinarily is one
of contract alone. Formosa Plastics, 960 S.W.2d at 45. Texas courts have long
been reluctant to hold a party liable in tort if the action should only be
characterized as a breach of a contract. See Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 306 (Tex. 2006) (“We recognize the need to keep tort law from
overwhelming contract law, so that private agreements are not subject to
readjustment by judges and juries.”). In Formosa Plastics, 960 S.W.2d at 45,
however, the court concluded that a claim for fraudulent inducement was not
barred merely because the damages could be categorized as “economic loss to the
subject of the contract.” The court concluded that “it is well established that the
legal duty not to fraudulently procure a contract is separate and independent
from the duties established by the contract itself.” Id.

                                        6
   Case: 10-10197        Document: 00511536175          Page: 7     Date Filed: 07/11/2011



                                        No. 10-10197

       However, as McData points out, mere failure to perform contractual
obligations as promised does not constitute fraud but is instead a breach of
contract.    Spoljaric, 708 S.W.2d at 435.               To be actionable as fraudulent
inducement, a breach must be coupled with a showing that the promisor never
intended to perform under the contract. Spoljaric, 708 S.W.2d at 434; see also
Tony Gullo Motors I, 212 S.W.3d at 306.
       McData argues that since “best efforts” has no precise meaning either in
the Agreement or under the law, Ehringer cannot prove that McData had no
intent to perform or, more specifically, there is nothing by which to measure the
breach and lack of intent to perform. It argues that “to form the basis of a claim
for fraudulent inducement, a contract term must be definite, specific, and
unconditional.”
       With respect to this issue, the parties disagree about whether Texas or
Minnesota law applies to the court’s interpretation of the “best efforts” provision.
However, as Texas law applies to Ehringer’s fraud claim, we use Texas law to
determine whether the “best efforts” term is sufficiently definite to serve as a
benchmark for analyzing McData’s intent at the time it entered into the
Agreement.2
       The Texas Supreme Court has not analyzed the term “best efforts” to
determine its meaning in a contract; therefore, under Erie Co. v. Tompkins, 304
U.S. 64 (1938), we look to decisions from the intermediate Texas appellate courts
to determine the likely outcome. First Nat’l Bank of Durant v. Trans Terra
Corp., 142 F.3d 802, 809 (5th Cir. 1998). We have recognized that CKB &
Associates, Inc. v. Moore McCormack Petroleum, Inc., 809 S.W.2d 577 (Tex.


       2
         Importantly, while Minnesota law of “best efforts” is not as fully developed as Texas
law on this subject, neither party has shown that the outcome would be different if Minnesota
law were applied to this question. See Hininger v. Case Corp., 23 F.3d 124, 126 (5th Cir. 1994)
(explaining that, where all potentially applicable states’ laws do not differ in material respect,
the claimed conflict is a “false conflict”).

                                                7
   Case: 10-10197    Document: 00511536175       Page: 8    Date Filed: 07/11/2011



                                   No. 10-10197

App.—Dallas 1991, writ denied), is instructive on the issue of how to interpret
a “best efforts” clause in a contract in Texas. See Herrmann Holdings Ltd. v.
Lucent Techs. Inc., 302 F.3d 552, 559 (5th Cir. 2002); see also Int’l Truck &
Engine Corp. v. Bray, 372 F.3d 717, 722 (5th Cir. 2004) (“A prior panel opinion’s
interpretation of state law binds us no less firmly than a prior panel
interpretation of federal law would.”).
      In CKB & Associates, the court noted that “[b]est efforts is a nebulous
standard. Under some circumstances, a party could use best efforts to achieve
a contractual goal and fall well short. Under different circumstances, an effort
well short of one’s best may suffice to hit a target.” CKB & Assoc., 809 S.W.2d
at 581. Therefore, the court determined that “to be enforceable, a best efforts
contract must set some kind of goal or guideline against which best efforts may
be measured.” Id. If the contract sets out such goal or guideline, “[a] contracting
party that performs within the guidelines fulfills the contract regardless of the
quality of its efforts. When a party misses the guidelines, courts measure the
quality of its efforts by circumstances of the case . . . and by comparing the
party’s performance with that of an average, prudent, comparable [party].” Id.
at 582 (citations omitted).
      In interpreting CKB & Associates, we have held that the term “goal” or
“guideline” need not be read narrowly. See Herrmann Holdings Ltd., 302 F.3d
at 559. In Herrmann Holdings, the contractual language at issue stated that a
party was to “use its reasonable best efforts to prepare, file and cause to become
effective, as promptly as practicable . . . the Registration Statement . . . .” Id. at
556. We concluded that the phrase “as promptly as practicable” was an objective
goal making the “best efforts” clause enforceable. Id. at 559-60. Therefore, we
held that the plaintiff could pursue a claim for breach of this clause. Id. at 561.
      We acknowledge that both CKB & Associates and Herrmann Holdings
were breach of contract cases and do not resolve whether a party can bring a

                                          8
   Case: 10-10197    Document: 00511536175      Page: 9    Date Filed: 07/11/2011



                                  No. 10-10197

fraud claim based on failure to comply with a “best efforts” provision. One
unpublished Texas appellate decision allowed liability for fraudulent inducement
based on a “best efforts” clause in a contract, however that case involved a
standard in the contract by which the best efforts could be objectively measured.
See Finesse Custom Homes, Inc. v. Jacks, No. 04-98-00607-CV, 1999 Tex. App.
LEXIS 5339, at *3, *7 (Tex. App.—San Antonio July 21, 1999, no pet.)
(unpublished) (defendant promised “to do his best to get [the plaintiff] paid
within five days of the next stage’s completion”).
      While these cases make clear that “best efforts” provisions may be
enforceable under Texas law if they provide some kind of objective goal or
guideline against which performance is to be measured, no Texas case has
addressed whether a party can pursue a fraudulent inducement claim based on
a promisor’s intent not to perform under a provision that has no objective
measure.
      Based on the absence of case law directly on point, we use the CKB &
Associates best efforts analysis as a yardstick for analyzing the fraudulent
inducement claim. The “best efforts” provision in the Agreement required
McData to use its
      best efforts to: (i) further the promotion, marketing, licensing, and
      sale of Products; (ii) maintain an adequate inventory of sales
      literature; (iii) respond promptly to all inquiries from customers; (iv)
      permit Ehringer to visit McData’s customers and to visit McData’s
      place of business and inspect its relevant documents upon
      reasonable notice; and (v) participate and exploit Product
      capabilities at industry trade events. McData shall provide
      Ehringer with a list of events applicable to the Products that
      McData participate [sic] in and shall engage Ehringer in local
      McData events.
Ehringer claimed that McData never intended to comply with the first and fifth
clauses of the “best efforts” provision.



                                           9
  Case: 10-10197      Document: 00511536175         Page: 10     Date Filed: 07/11/2011



                                      No. 10-10197

         Unlike Herrmann Holdings, where the court found that “as promptly as
practicable” was an enforceable guideline, 302 F.3d at 556, the first clause of the
“best efforts” provision in this case does not provide a goal or guideline by which
McData can be expected to measure its progress. Therefore, the requirement
that McData use its “best efforts to further the promotion, marketing, licensing,
and sale of Products” is not enforceable under Texas law. See CKB & Assoc., 809
S.W.2d at 581 (noting that a “best efforts” clause is not enforceable unless it has
a guideline by which to measure performance). The provision requiring McData
to use its best efforts to “participate and exploit Product capabilities at industry
trade events” is similarly indefinite and also unenforceable. See id. Even
applying the only objective guideline by which to measure the “best efforts”
clause—the requirement that McData would transfer the patents to Ehringer
when Ehringer met the $1 million royalty mark—Ehringer would not prevail.
If we were to use this guideline, it is undisputed that McData met—and even
exceeded—the parties’ expectations, as it aided Ehringer in meeting this
guideline six months before the parties anticipated it would occur.
         Because the “best efforts” clause is too indefinite and vague to provide a
basis for enforcement, the claim for fraudulent inducement, as a matter of law,
cannot rest on the alleged breach of this clause coupled with an alleged intent
not to perform. Accordingly, this issue should not have been submitted to the
jury.3


         3
         Additionally, even assuming Ehringer could bring such a claim, Ehringer failed to
present sufficient evidence to support a finding that McData never intended to perform under
this provision. For example, as support for its position, Ehringer presented testimony from
McData’s corporate representative that McData did not have any obligation to introduce
Ehringer to a single customer. However, this testimony merely reflects McData’s
interpretation of the contract; McData never denied that the promise was made. Compare
Spoljaric, 708 S.W.2d at 435 (noting that denial that a promise was ever made supports a
finding of fraudulent intent), with Hearthshire Bareswood Plaza Limited Partnership v. Bill
Kelly Co., 849 S.W.2d 380, 389 (Tex. App.—Houston [14th Dist.] 1993, writ denied)
(disagreement about the meaning of a contract is insufficient to support a finding that the

                                            10
  Case: 10-10197       Document: 00511536175         Page: 11     Date Filed: 07/11/2011



                                       No. 10-10197

       Ehringer also alleged that McData fraudulently induced it to enter into
the contract by promising that it would not compete with the Products. Even
assuming that there was evidence to support this contention, Ehringer presented
no evidence of damages associated with McData’s failure to comply with this
provision. Ehringer’s damages evidence was entirely centered around McData’s
alleged failure to perform under the “best efforts” provision which, as we
explained above, could not support a claim of fraudulent inducement. Indeed,
at oral argument, Ehringer’s attorney asserted that the damages from this
alleged “non-competition fraud” were based entirely on the alleged denial of
“access to customers,” which is simply a back door to the “best efforts” damages.
In the absence of damages from this alleged fraud, the claim cannot stand. MGE
UPS Sys. Inc. v. GE Consumer & Indus. Inc., 622 F.3d 361, 368 (5th Cir. 2010)
(applying Texas law). Here, Ehringer failed to prove an injury as a result of
McData’s failure to comply with the non-competition provision other than as a
“back door” to the best efforts argument we have already rejected.
                                  IV. CONCLUSION
       Because we reverse Ehringer’s claims related to the “best efforts” provision
and find that Ehringer failed to present evidence of damages on its claim related
to the non-competition provision, we REVERSE and REMAND to the district
court to render judgment in favor of McData.




promisor fraudulently induced the promisee to enter into the contract).
       The only other evidence supporting Ehringer’s argument that McData never intended
to comply with the “best efforts” provision is Ehringer’s CEO’s testimony that McData refused
to provide access to its customer list, claiming that the information was “confidential.”
However, McData’s refusal to provide the list occurred in 2004, after McData had provided
Ehringer with a partial customer list. McData’s later decision not to comply with the contract
(as Ehringer interpreted it) cannot support a finding that McData never intended to perform
under the contract.

                                             11
