Affirmed and Memorandum Opinion filed May 2, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00215-CV

LOST MAPLES GENERAL STORE, LLC AND WILLIAM BUTLER, 

Appellants 

V.

ASCENTIUM CAPITAL, LLC, Appellee 

On Appeal from the 127th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-16650 

MEMORANDUM OPINION 

In this commercial dispute between a buyer and a third-party lender, the buyer 

argues that the trial court erred by denying a request for a jury trial, by finding in 

favor of the lender’s counterclaim and against the buyer’s own claims, and by 

granting a partial motion for summary judgment. For reasons explained more fully 

below, we overrule all of these arguments and affirm the trial court’s judgment. 
2

BACKGROUND 

This case arises out of a seller’s failure to deliver a product to a buyer, and the 

buyer’s subsequent efforts to avoid its contractual obligations to the third-party 

lender who financed the undelivered product. 

The buyer is Lost Maples General Store, LLC, which operates an 

independently owned gas station and convenience store. Lost Maples reached out to 

Argosy Foodservice, the seller, to inquire about the purchase of an ice machine. 

Argosy provided Lost Maples with a quote for $36,495, and Lost Maples agreed to 

that price. Argosy then referred Lost Maples to Ascentium Capital, LLC, the thirdparty lender, for a financing offer of 0% interest over two years. 

To obtain that financing offer, Lost Maples executed two single-page 

contracts with Ascentium. The first contract was an Equipment Finance Agreement 

(“EFA”). Under the EFA, Lost Maples made an absolute and unconditional promise 

to remit twenty-four monthly payments to Ascentium at $1,520.63 per payment, for 

a grand total of $36,495.12. The second contract was a Commencement Agreement 

(“CA”). Under the CA, Lost Maples authorized Ascentium to release a lump-sum 

payment to Argosy. The CA also allocated to Lost Maples the risk that Argosy would 

fail to perform. In particular, the CA required Lost Maples to begin making 

immediate payments to Ascentium “notwithstanding the fact that not all items of 

Equipment have been delivered.” 

After Lost Maples executed the two contracts, Ascentium paid Argosy a 

negotiated price of $31,750.65, which amounts to a blind discount of 13%. The 

discount is “blind” because Lost Maples had no actual awareness of it. Had all parties 

duly performed, Ascentium stood to profit just over $4,744 from the transaction. 
3

Not all parties performed, however. Argosy received the payment from 

Ascentium, but Argosy never delivered the ice machine to Lost Maples. Instead, 

after many weeks of refusing to respond to inquiries, Argosy sent notice to Lost 

Maples that it was going out of business. When this notification was received, Lost 

Maples had already made three monthly payments to Ascentium. 

Lost Maples asked Ascentium to refund the money it had already paid. 

Ascentium refused, and demanded that Lost Maples honor its unconditional promise 

to pay off the debt. 

Lost Maples then filed suit against Ascentium, but not Argosy. Lost Maples 

alleged several common law claims, including fraud and conspiracy. Lost Maples 

also asserted a statutory claim under the Deceptive Trade Practices Act (“DTPA”), 

and it sought declaratory relief under the Uniform Declaratory Judgments Act 

(“UDJA”). Ascentium counterclaimed for breach of contract. After a nonjury trial, 

the trial court disposed of all claims in favor of Ascentium. 

ANALYSIS 

I. Did the trial court err by denying a jury trial on the DTPA claim? 

Lost Maples requested, and paid the mandatory fee, to have a trial by jury on 

all of its claims for relief. But during a summary-judgment hearing, the trial court 

determined that the entire suit should be tried to the bench, based on the following 

provision in the EFA (emphasis in the original): 

General. This EFA shall be governed and construed under the laws of 

the State of New Jersey without reference to its principles of conflicts 

of laws. You consent to the non-exclusive jurisdiction of courts 

located in New Jersey in any action relating to this EFA. You waive 

any objection based on improper venue and/or forum non 

[conveniens] and waive any right to a jury trial.
4

After the summary-judgment hearing, Lost Maples filed a separate motion to 

have a jury trial on just its DTPA claim. Lost Maples advanced two arguments in 

support of its motion: first, the jury-waiver provision was not enforceable under 

Texas or New Jersey law; and second, even if the provision were enforceable, it did 

not encompass any statutory claims under New Jersey law. 

Ascentium responded that the jury-waiver provision was enforceable, 

regardless of which state’s law applied. Ascentium further argued that the jurywaiver provision was broad enough under New Jersey law to encompass statutory 

claims, including a DTPA claim. 

The trial court agreed with Ascentium, and Lost Maples now challenges that 

ruling in its first issue on appeal. 

A. Is the jury-waiver provision enforceable? 

In its challenge to the enforceability of the jury-waiver provision, Lost Maples 

relies primarily on New Jersey law, and secondarily on Texas law. Although New 

Jersey law governs the construction of the contract, we cite to authorities from both 

states because both states’ laws yield the same result. 

Under New Jersey law, a court may consider the following set of nonexclusive 

factors when determining the enforceability of a waiver provision: (1) whether the 

provision was conspicuous, (2) whether the parties were represented by counsel, and 

(3) whether there was evidence of negotiation without substantial inequality in 

bargaining positions. See Fairfield Leasing Corp. v. Techni-Graphics, Inc., 607 A.2d 

703, 705 (N.J. Super. Ct. Law Div. 1992). Texas courts may consider the same 

factors (and more) when deciding the same question under Texas law. See In re 

Frank Kent Motor Co., 336 S.W.3d 374, 378 (Tex. App.—Fort Worth 2011, orig. 

proceeding). 
5

Lost Maples argues that the jury-waiver provision is not enforceable because 

it is not conspicuous. More specifically, Lost Maples complains that the provision is 

“virtually illegible”; that it is buried in the last paragraph of the EFA, which is titled 

“General” rather than “Waiver of Rights”; and because it addresses a plethora of 

rights, rather than just the right to a jury trial. 

In support of these complaints, Lost Maples attached to its motion a lowresolution copy of the EFA. The text of that copy is blurry and difficult to read, but 

the trial court had access to a higher-resolution copy in the summary-judgment 

record, and the text of that copy is clear and legible. That copy also reveals that the 

jury-waiver provision is printed in bold and set apart from other typefaces, which 

means that it is conspicuous. Accordingly, there is support in the record for the trial 

court’s ruling that the waiver provision is enforceable. See Inv’rs Sav. Bank v. Waldo 

Jersey City, LLC, 12 A.3d 264, 271 (N.J. Super. Ct. App. Div. 2011) (rejecting an

enforceability challenge where the provision was “expressed in large and bold 

type”); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 134 (Tex. 2004) (orig. 

proceeding) (similar). 

Lost Maples contends that the opposite conclusion is compelled by Fairfield 

Leasing, a New Jersey case. But the facts of that case are readily distinguishable. 

The waiver provision there was “1/10 of a centimeter in height, or approximately 

one-half the size of the letters produced by the typical typewriter.” See Fairfield 

Leasing, 607 A.2d at 704. By contrast, the provision here was printed in a size at 

least twice as large, at two-tenths of a centimeter in height.1

 

1 This measurement is based on the copy of the EFA appearing in the summary-judgment 

record. Ascentium suggests in its brief, without any proof, that this copy is a reduced version of 

the original, which contains even larger text.
6

In addition to its conspicuousness complaints, Lost Maples argues that the 

jury-waiver provision is not enforceable because it was not negotiated by legal 

counsel. Lost Maples asserted this point in its motion, but Lost Maples did not 

support that assertion with any attached evidence. In fact, Lost Maples failed to 

attach any evidence regarding the circumstances under which the EFA was executed. 

Without such evidence, we conclude that the trial court did not abuse its discretion 

by ruling that the jury-waiver provision was enforceable.2

B. Does the jury-waiver provision encompass the DTPA claim? 

Both sides agree that New Jersey law governs the scope of the jury-waiver 

provision, but they disagree as to what New Jersey law requires in this case. 

Under New Jersey law, a waiver of statutory rights “must be clearly and 

unmistakably established.” See Red Bank Reg’l Educ. Ass’n v. Red Bank Reg’l High 

Sch. Bd. of Educ., 393 A.2d 267, 276 (N.J. 1978). Although there is no “magic 

words” requirement for being clear and unmistakable, a waiver should be written “in 

some general and sufficiently broad way” and “in plain language that would be clear 

and understandable to the average consumer.” See Atalese v. U.S. Legal Servs. 

Group, L.P., 99 A.3d 306, 314–16 (N.J. 2014). 

Lost Maples argues that it did not clearly and unmistakably waive its right to 

a jury trial on its DTPA claim because the EFA’s jury-waiver provision is silent as 

to statutory claims. Relying on Garfinkel v. Morristown Obstetrics & Gynecology 

Associates, P.A., 773 A.2d 665 (N.J. 2001), Lost Maples argues that a jury-waiver 

 

2 During the trial on the merits, Bill Butler, who executed the EFA on behalf of Lost 

Maples, testified that other bold provisions in the EFA were noticeable and legible. Butler also 

established that he was a sophisticated businessman, and that he was able, without the aid of legal 

counsel, to negotiate other terms with Ascentium, like the amount of a document processing fee, 

and the authorization of ACH debits. The trial court did not have the benefit of Butler’s testimony 

when it ruled on the motion for a jury trial. Nevertheless, Butler’s testimony is consistent with the 

trial court’s ruling that the jury-waiver provision is enforceable.
7

provision cannot encompass statutory claims unless the provision contains an

express or general reference to statutory claims. This argument fails for two reasons. 

First, Lost Maples overlooks an important factual component in Garfinkel. 

That case involved an arbitration clause in an employment agreement, and the clause 

stated that “any controversy or claim arising out of, or relating to, this Agreement or 

the breach thereof, shall be settled by arbitration.” Id. at 668. Due to its limiting 

reference to “this Agreement,” the New Jersey Supreme Court construed this 

arbitration clause as only encompassing contract claims. Id. at 672 (“That language 

suggests that the parties intended to arbitrate only those disputes involving a contract 

term, a condition of employment, or some other element of the contract itself.”). The 

Court also explained that because the clause mentioned contract claims, but not 

statutory claims, there was no clear and unmistakable manifestation that the 

employee intended to waive his right to a jury trial on his statutory claim. Id. at 673.3

The current case does not fit within the Garfinkel paradigm because the EFA’s 

jury-waiver provision does not identify any claims at all, whether they be contractual 

or statutory. Thus, there is no textual basis for concluding that Lost Maples waived 

its right to a jury trial in one type of claim, but not another. 

This point dovetails into the second reason why we must reject the argument 

presented by Lost Maples: Under New Jersey law, a jury-waiver provision may 

encompass statutory claims so long as the provision is worded broadly and omits 

 

3 For a similar holding, see Noren v. Heartland Payment Systems, Inc., 154 A.3d 178, 184 

(N.J. Super. Ct. App. Div. 2017) (applying Garfinkel and holding that a statutory whistleblower 

claim did not fall within the scope of a jury-waiver provision that said “[Employer] and 

[Employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in 

connection with or to enforce this Agreement” because there was no additional reference to 

statutory claims, and explaining that “by using ‘this Agreement’ as the defining threshold for all 

suits, actions and proceedings, the provision limits the category of disputes for which a jury trial 

is waived”).
8

any limiting references to contract claims. That was the central holding of 

Martindale v. Sandvik, Inc., 800 A.2d 872 (N.J. 2002), which Lost Maples wholly 

failed to address in its briefing. 

Martindale also involved an arbitration clause in an employment agreement, 

but unlike Garfinkel, the employee there did not agree to arbitrate any controversy 

or claim “arising out of, or relating to [her] Agreement.” Instead, the employee 

agreed to “waive [her] right to a jury trial in any action or proceeding related to [her] 

employment with [her employer],” and she further agreed “that all disputes relating 

to [her] employment with [her employer] or termination thereof shall be decided by 

an arbitrator.” Id. at 875. The New Jersey Supreme Court held that this language was 

“sufficiently broad” to encompass the employee’s statutory claims for family leave 

and employment discrimination. Id. at 883–84. The Court also distinguished 

Garfinkel on the ground that “the arbitration provision here does not contain any 

limiting references” to contract claims. Id. at 884.4

The EFA’s jury-waiver provision contains no qualifications or limiting 

references whatsoever.5

 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.6

 

4 For a similar holding, see Leodori v. CIGNA Corp., 814 A.2d 1098, 1103 (N.J. 2003) 

(holding that an arbitration clause encompassed statutory claims because the provision expressly 

referred to claims under certain enumerated statutes and “any other federal, state, or local statute,” 

and distinguishing Garfinkel on the basis that the clause there only referred to contract claims).

5 There is, however, a limiting reference in the forum clause, which precedes the jurywaiver provision. In the forum clause, Lost Maples agreed that New Jersey courts would have nonexclusive jurisdiction over “any action relating to this EFA.”

6 Although we have faithfully applied New Jersey law to the disposition of this issue, we 
9

II. Did the trial court err by rendering judgment in favor of Ascentium on 

its counterclaim for breach of contract? 

In its next issue, Lost Maples argues that it conclusively established four 

defenses to Ascentium’s counterclaim. Even though Lost Maples cites in its brief to 

authorities from both Texas and New Jersey, Lost Maples represents that for each 

defense involved in this issue, there is no substantive difference between the laws of 

the two states. Because Lost Maples relies primarily on Texas authorities (and 

assigns almost all of the New Jersey authorities to footnotes), we too will refer to 

Texas authorities. 

A. Partnership by Estoppel or Quasi-estoppel 

The first defense that Lost Maples asserts is that Argosy and Ascentium were 

partners, and by virtue of that partnership, Argosy’s failure to deliver the ice machine 

amounted to a failure of consideration, which defeated Ascentium’s counterclaim 

for breach of contract. 

Lost Maples recognizes that Argosy and Ascentium were not partners at law, 

but Lost Maples believes that Ascentium is equitably estopped or quasi-estopped 

from denying that it was Argosy’s partner. 

Assuming without deciding that partnership by estoppel is a viable theory, 

Lost Maples had the burden of establishing the following elements: (1) a 

representation that the one sought to be bound is a partner, and (2) the one to whom 

 

wish to add that New Jersey law and Texas law are not in accordance in their approach to waiverof-rights provisions. Under Texas law, when a waiver-of-rights provision refers to a claim “arising 

out of the agreement” or “relating to the agreement,” that language signifies breadth, not limitation. 

See Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 437, 441 (Tex. 2017) (holding that 

statutory and common law claims fell within the scope of a forum-selection clause that provided 

that Delaware courts would have exclusive jurisdiction over any dispute “arising out of this 

Agreement”); AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195–96 (Tex. App.—Houston 

[14th Dist.] 2003, orig. proceeding) (holding that “arising out of or relating to” language “is 

recognized as broad language favoring arbitration”). 
10

the representation is made relied on the representation. See CCR, Inc. v. 

Chamberlain, No. 13-97-312-CV, 2000 WL 35721225, at *10 (Tex. App.—Corpus 

Christi June 1, 2000, pet. denied) (citing Paramount Petrol. Corp. v. Taylor Rental 

Ctr., 712 S.W.2d 534 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.), 

abrogated by SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444 (Tex. 

2008)). 

The trial court did not make findings addressing either of these elements. To 

prevail on its appellate complaint that the evidence conclusively established these 

elements, Lost Maples must show that the evidence is of such a character that 

reasonable people could not differ in their conclusions as to the existence of these 

elements. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). If the 

evidence shows that there was a conflict, then the elements were not conclusively 

established. See Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986). 

Lost Maples produced affirmative evidence that Argosy and Ascentium held 

each other out as partners. For example, the vendor agreement between Argosy and 

Ascentium contains a paragraph that is captioned with the word “Partnership.” 

Argosy also issued press releases announcing its partnership with Ascentium. But as 

Ascentium points out, the vendor agreement contains a separate paragraph clarifying 

that the two companies are not agents of each other. And Jerry Noon, a representative 

from Ascentium, testified that the press releases had not been authorized by 

Ascentium. Thus, these representations do not conclusively establish a partnership.7

Lost Maples also produced evidence that the logos of Argosy and Ascentium 

appeared on the same credit application that Lost Maples submitted to Ascentium. 

 

7 The trial court also found that Lost Maples had no knowledge of the vendor agreement 

when it executed the EFA and CA.
11

But Noon explained that Argosy’s logo was present because Argosy requested a cobranded application to help with its marketing. 

Lost Maples refers next to testimony from its sole owner, Bill Butler, who 

said that he remembered seeing Argosy and Ascentium described as partners on 

Argosy’s website. However, any such representation would have been made by 

Argosy, not Ascentium. 

Butler also testified that he had two telephone conversations with David 

Cuccolo, the vice president of franchise sales at Ascentium, and both times Cuccolo 

referred to a partnership with Argosy. But there was a conflict in the evidence on 

this point. Cuccolo testified in his deposition that Argosy was just a vendor, and that 

he has never referred to vendors as legal partners of Ascentium. A separate vice 

president at Ascentium added that even if the word “partnership” had been used, its 

meaning is just “a generic term for doing business with someone.” 

Even if there had been no conflict in the evidence, Lost Maples could not 

establish its estoppel defense unless it used due diligence in ascertaining the truth of 

the statements upon which it relied. See Barfield v. Howard M. Smith Co. of 

Amarillo, 426 S.W.2d 834, 838 (Tex. 1968). Lost Maples cannot establish this due 

diligence because the EFA, like the vendor agreement, plainly reveals that 

Ascentium was not acting on Argosy’s behalf. Specifically, Ascentium made the 

following representation in the EFA: “the Supplier [i.e., Argosy] is not our agent nor 

are we its agent.” 

As for quasi-estoppel, that doctrine precludes a party from asserting, to 

another’s disadvantage, a right inconsistent with a position previously taken. See 

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The 

doctrine applies when it would be unconscionable to allow a person to maintain a 
12

position inconsistent with one to which he acquiesced, or from which he accepted a 

benefit. Id.

This theory fails for the same reasons as partnership by estoppel: Ascentium 

produced evidence that it did not hold itself out as a legal partner with Argosy, and 

the EFA disclaimed any such relationship. Accordingly, Lost Maples did not 

establish its partnership defense as a matter of law. 

B. Unconscionable or Void as Against Public Policy 

Unconscionability includes two aspects: (1) procedural unconscionability, 

which refers to the circumstances surrounding the formation of the contract, and 

(2) substantive unconscionability, which refers to the fairness of the contract itself. 

See In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002) (orig. proceeding). The 

trial court did not specifically address either aspect in its findings of fact and 

conclusions of law, but Lost Maples contends that both aspects were established as 

a matter of law. 

Lost Maples asserts that the EFA and the CA are procedurally unconscionable 

because they “[1] contain confusing, hidden, and unduly complex contract terms; 

[2] were procured through bargaining tactics involving material misrepresentations 

and false statements; [3] were executed by a 69-year-old man whose personal and 

business affairs were largely handled by his assistant; and [4] had terms and 

conditions set forth in small print that was barely legible.” 

As for the first point, Lost Maples does not identify which terms are 

“confusing, hidden, and unduly complex,” nor does Lost Maples explain how those 

terms render the contracts procedurally unconscionable, as opposed to substantively 

unconscionable. The second point is just a repackaged complaint that Argosy and 
13

Ascentium were partners, which we have already considered and rejected. And the 

third and fourth points are not born out by the evidence. 

The record shows that Butler executed the contracts. Butler was a 

sophisticated party who owned multiple businesses. He received the contracts over 

email, and he was afforded ample time to review them and seek legal counsel before 

signing them. He never once complained that the contracts were illegible. To the 

contrary, he negotiated their terms with Ascentium. He even considered the option 

of paying cash for the ice machine and walking away from the financing offer 

altogether. These circumstances negate any claim of procedural unconscionability. 

See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 679 (Tex. 2006) (orig. 

proceeding) (rejecting a procedural unconscionability challenge to an arbitration 

provision even though the challengers were unsophisticated and had executed a 

contract of adhesion). 

Lost Maples argues next that the contracts are substantively unconscionable 

because they required Lost Maples to deem acceptance of the ice machine before it 

was delivered, and then they required Lost Maples to pay for the ice machine even 

after receiving notification that it would never be delivered. For these same reasons, 

Lost Maples also argues that the contracts are void as against public policy. 

These arguments essentially complain about the allocation of risk. But there 

is nothing unconscionable or against public policy by allowing sophisticated parties 

to allocate risks as they see fit. See Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 

905, 912 (Tex. 2007) (“Texas strongly favors parties’ freedom of 

contract. . . . Freedom of contract allows parties to bargain for mutually agreeable 

terms and allocate risks as they see fit.”). 

Lost Maples responds that Ascentium created an unnecessary risk because it 

had the power under its vendor agreement to withhold payment until after delivery 
14

of the ice machine was confirmed, yet Ascentium failed to exercise that power or 

otherwise take steps to prevent a loss to Lost Maples. This argument also fails. 

Ascentium promised under its vendor agreement that it would promptly pay Argosy 

after receiving “a satisfactory confirmation, if needed, from the Customer 

confirming that collateral has been delivered, installed and accepted.” Ascentium 

did not need confirmation in this case because Lost Maples deemed acceptance of 

the ice machine before it was delivered. And Lost Maples knew from the two 

contracts that it signed that it would still have to pay if delivery did not occur: the 

EFA provided in bold type that Lost Maples had an “absolute and unconditional” 

obligation to pay, and the CA provided that this obligation commenced immediately 

even though the ice machine had not been delivered. 

We are not unsympathetic to the circumstances of Lost Maples. Without 

question, Lost Maples was wronged in this case by Argosy. But instead of pursuing 

Argosy, Lost Maples would have us rescind its contracts with Ascentium, effectively 

shifting the loss to a third party who already performed. That outcome cannot be 

justified under the terms of the contract or as a matter of policy. See Spring Motors 

Distribs., Inc. v. Ford Motor Co., 489 A.2d 660, 671 (N.J. 1985) (“As between 

commercial parties, then, the allocation of risks in accordance with their agreement 

better serves the public interest than an allocation achieved as a matter of policy 

without reference to that agreement.”). 

C. Conditions Precedent 

For its third defense, Lost Maples argues that Ascentium cannot recover on 

its breach of contract because “the EFA and CA were subject to express or implied 

conditions precedent—specifically, that the vending machine would be delivered to, 

and accepted by, Butler.” This argument fails as a matter of law, for reasons we have 

just explained. The EFA provides: “Your obligation to pay all amounts payable 
15

hereunder is absolute and unconditional and will not be subject to any reduction, 

setoff, defense, counterclaim, deferment or recoupment for any reason.” And the CA 

provides: 

You acknowledge and agree that notwithstanding the fact that not all 

items of Equipment have been delivered to and accepted by you as of 

the date set forth above, the terms and conditions of the [EFA], 

including your obligation to pay all amounts of rent or debt service set 

forth in the [EFA], shall commence immediately and, except as 

otherwise specifically set forth in this CA, irrevocably.

 Thus, there was no condition precedent. Lost Maples was required to pay even 

if the ice machine was not delivered.8

D. Material Breach 

For its last defense, Lost Maples argues that Ascentium could not recover on 

its counterclaim because it materially breached the contracts in two ways: first, by 

not ensuring the delivery of the ice machine; and second, by not making a pro-rata 

price adjustment. 

The first argument fails because it is a repackaged complaint about conditions 

precedent. Ascentium had no duty to deliver the ice machine or ensure its delivery. 

Lost Maples, by contrast, had a contractual obligation to pay for the ice machine, 

even if it was not delivered. 

The second argument is based on the following provision in the CA: 

The [EFA] contemplates a pro-rata adjustment to the payments owed 

by you under the [EFA] in the event the purchase price of the 

Equipment and other amounts, if any, paid by us on your behalf are 

higher or lower than those on which the payments set forth in the [EFA] 

are based. Following the delivery and acceptance of all items of 

 

8 The trial court made the same conclusion of law: “Delivery of the Vending Machine is 

not a condition precedent to Defendant’s right to receive payments or enforce the EFA.”
16

Equipment set forth in the [EFA], we shall make any necessary 

adjustments to the payments as contemplated by the [EFA].

Lost Maples contends that Ascentium breached this provision when 

Ascentium negotiated a blind discount with Argosy and then failed to pass along that 

discount to Lost Maples in the form of a price adjustment. But as we construe the 

provision, Ascentium would only be required to make a price adjustment if the 

purchase price of the ice machine changed as between Argosy and Lost Maples, 

which did not happen. 

The alternative interpretation proposed by Lost Maples would effectively 

mean that Ascentium would never turn a profit at a 0% interest rate. To the contrary, 

Ascentium would actually lose money due to the time value of money, which is 

commercially unreasonable.9

Even if we were to determine that Ascentium breached the terms of its own 

CA, Lost Maples would only be excused from its obligation to pay Ascentium if the 

breach were material. The materiality of a breach is usually an issue to be determined 

by the trier of fact. See Bartush-Schnitzius Foods Co. v. Cinco Refrigeration, Inc., 

518 S.W.3d 432, 436 (Tex. 2017) (per curiam). 

The trial court here did not make a finding on the materiality of any breaches 

by Ascentium. Instead, it found that Ascentium had not breached the CA. However, 

the trial court did conclude that “the blind discount given Defendant by Argosy was 

immaterial to Plaintiffs’ decision to purchase the Vending Machine at the Grand 

Total price and to finance that amount through Defendant.” If the blind discount was 

immaterial, then so too must be any failure by Ascentium to pass on that discount to 

Lost Maples in the form of a price adjustment. 

 

9 Butler was aware of this concept, too. He admitted in his testimony that he could never 

obtain a loan at 0% interest from a bank.
17

III. Are the trial court’s findings against Lost Maples on its own affirmative 

claims for relief supported by factually sufficient evidence? 

Lost Maples asserted various common law and statutory claims against 

Ascentium. The trial court determined, and the parties agreed, that Texas law should 

apply to all of these claims. We accordingly apply Texas law in our discussion of 

this next issue, where Lost Maples challenges the factual sufficiency of the trial 

court’s adverse findings. 

A. Fraud 

The trial court found that “Defendant did not induce Plaintiffs to enter into the 

EFA or Guaranty through fraud, negligent or intentional misrepresentation, or 

concealment of a material fact.” Lost Maples challenges this finding and the trial 

court’s implicit rejection of the claim that Ascentium had misrepresented that it was 

legally partnered with Argosy. 

When a party attacks the factual sufficiency of an adverse finding on an issue 

for which the party had the burden of proof, the party must demonstrate that the 

adverse finding is against the great weight and preponderance of the evidence. See 

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We 

consider and weigh all of the evidence in a factual-sufficiency review, not just the 

evidence in support of the challenged finding. Id. We may only set aside a judgment 

for factually insufficient evidence if the finding is so contrary to the overwhelming 

weight of the evidence as to be clearly wrong and manifestly unjust. Id.

There was conflicting evidence on the partnership issue, which we discussed 

at length in Part II.A of this opinion, and need not repeat here. Based on our review 
18

of the record, we cannot say that the trial court’s finding is so against the great weight 

and preponderance of the evidence as to be clearly wrong and manifestly unjust.10

Lost Maples challenges the trial court’s finding for a separate reason, arguing 

that there is overwhelming evidence that Ascentium “repeatedly misrepresented 

[that it was] financing the purchase of the vending machine on a 0% basis for 24 

months for a purchase price of $36,495.00 when, in reality, Ascentium had arranged 

with Argosy to pay only $31,750.65 and make a profit of at least 13% on the 

transaction.” But there were no such misrepresentations. Ascentium’s statements 

tracked the terms of the EFA. 

Lost Maples appears to be complaining about the trial court’s rejection of its 

claim for fraud by nondisclosure. The trial court addressed that claim in a separate 

set of findings, which we reproduce here: 

28. To induce Defendant to finance its offers to customers of 0% 

financing, Argosy offered Defendant a “blind discount,” whereby 

Argosy would accept a reduced payment from Defendant in exchange 

for accepting payment of the purchase price over time by Argosy’s 

customer. 

29. Blind discounts are a common method used in financing that allow 

sellers to offer 0% financing to customers, and there is no evidence that 

the blind discount offered by Argosy is fraudulent, misleading, 

deceptive, or otherwise wrongful. 

30. Plaintiffs agreed to the purchase price of the Vending Machine 

because William Butler considered it a good deal. The amount later 

paid by Ascentium to Argosy was not relevant to that decision.

 

10 Perhaps more importantly, Lost Maples cannot establish that it justifiably relied on any 

false representations of a partnership because Ascentium specifically disavowed in the EFA that 

it was Argosy’s agent or that Argosy was its agent. See Mercedes-Benz USA, LLC v. Carduco, 

Inc., — S.W.3d —, 2019 WL 847845, at *5 (Tex. Feb. 22, 2019) (if the terms of the contract 

contradict the alleged misrepresentations, then the fraudulent inducement claim must fail because 

justifiable reliance is negated as a matter of law); see also Tex. Bus. Org. Code § 152.301 (“Each 

partner is an agent of the partnership for the purpose of its business.”).
19

Lost Maples suggests in its brief that Ascentium had a duty to disclose its 

discount, but Ascentium produced evidence to the contrary, showing that the 

discounts are “blind” for a reason. Noon, the Ascentium representative, testified that 

blind discounts are “very common” in the financing industry.11 He explained that “it 

wouldn’t make sense” for lenders to disclose blind discounts to customers. He also 

added: “I think it would be very naïve for someone to believe that banks are lending 

money at zero percent and not making any money.” 

Lost Maples has not shown in the record that it ever asked Ascentium to reveal 

its discounts or profits. Without such evidence, Lost Maples cannot demonstrate that 

the trial court’s findings are supported by factually insufficient evidence. 

B. DTPA 

Lost Maples argues next that the overwhelming weight of the evidence shows 

that Ascentium violated the DTPA by engaging in false, misleading, or deceptive 

acts. See Tex. Bus. & Com. Code § 17.50(a)(1). The factual bases for this argument 

are that (1) Ascentium misrepresented that it was partnered with Argosy, 

(2) Ascentium failed to disclose the blind discount it received from Argosy, and 

(3) Ascentium failed to disclose that it intended to enforce its contracts even if the 

ice machine was never delivered by Argosy. 

The first two points are just repackaged complaints about fraud, which we 

must reject for the reasons stated above. The third point fails as a matter of law 

because Ascentium had no duty to disclose that information, which was already 

apparent from the face of the two contracts. 

 

11 Lost Maples argues that this testimony cannot be considered because Noon was not 

designated as an expert, but this argument was not preserved by a timely trial objection. See Tex. 

R. App. P. 33.1.
20

Lost Maples also argues that the overwhelming weight of the evidence shows 

that Ascentium violated the DTPA by engaging in an unconscionable course of 

action. Id. § 17.50(a)(3). Lost Maples explains that “the CA and EFA themselves are 

direct evidence of Ascentium’s unconscionable actions.” Lost Maples goes on to 

assert that those contracts are illegible, and that their terms are substantively 

unconscionable. Once again, Lost Maples has simply repackaged an earlier 

complaint. Based on the ample evidence that Lost Maples entered into the contracts 

after Butler, a sophisticated businessman, had an opportunity to review their terms, 

we conclude that the trial court’s rejection of this DTPA claim is not so against the 

great weight and preponderance of the evidence as to be clearly wrong and 

manifestly unjust. 

C. Conspiracy 

Lost Maples claimed that Ascentium had conspired with Argosy to commit 

fraud and violations of the DTPA by concealing information about the blind 

discount. The trial court rejected that claim, and now Lost Maples contends that the 

evidence is factually insufficient to support the trial court’s ruling because there was 

uncontroverted evidence that Ascentium would never disclose its negotiated prices, 

even when asked by the customer. 

Because we have already determined that the trial court’s rejection of the fraud 

and DTPA claims is supported by factually sufficient evidence, we must likewise 

conclude that the conspiracy claim fails as a matter of law. See Chu v. Hong, 249 

S.W.3d 441, 444 (Tex. 2008) (“Conspiracy is a derivative tort.”); Brewer v. Capital 

Cities/ABC, Inc., 986 S.W.2d 636, 642 (Tex. App.—Fort Worth 1998, no pet.) (“A 

conspiracy claim fails as a matter of law if the underlying claim has failed.”). 
21

D. UDJA 

In its next challenge, Lost Maples argues that “the EFA and CA should have 

been interpreted and construed, particularly with regard to the terms that involved 

the delivery and acceptance of the equipment as a condition or requirement for the 

payment of money to Ascentium.” This point does not involve a challenge to the 

factual sufficiency of the evidence, and it fails as a matter of law. As we have already 

explained, Lost Maples has an absolute and unconditional obligation to repay 

Ascentium under the plain terms of the contracts. The trial court also concluded as 

much in its findings of fact and conclusions of law.12

IV. Did the trial court err by granting a partial summary judgment? 

Lost Maples pleaded the affirmative defense of mutual mistake, and 

Ascentium challenged that defense by moving for a no-evidence summary judgment, 

asserting among other points that Lost Maples had no evidence that both parties had 

the same misunderstanding of the same material fact (represented in this case to be 

that Argosy would fail to deliver the ice machine). Lost Maples filed a lengthy 

response, spanning more than two hundred pages, but the trial court granted a partial 

summary judgment in Ascentium’s favor. 

Lost Maples now challenges that ruling, arguing that a fact issue precluded a 

summary judgment. But the only evidence cited by Lost Maples in its appellate brief 

is from the trial on the merits, not the summary-judgment response. That evidence 

is outside the scope of our review. See Tex. R. Civ. P. 166a(c) (“Issues not expressly 

presented to the trial court by written motion, answer or other response shall not be 

considered on appeal as grounds for reversal.”); see also Gleason v. Isbell, No. 14-

 

12 The trial court concluded that the contracts are “unambiguous,” that “Plaintiffs’ 

obligations to make the payments required by the EFA are not contingent upon Argosy’s delivery 

of the Vending Machine,” and that these obligations are “absolute, irrevocable and unconditional.”
22

03-00166-CV, 2004 WL 1205784, at *4 (Tex. App.—Houston [14th Dist.] June 3, 

2004, pet. denied) (holding that the appellate court has no duty to conduct its own 

independent search of a voluminous record to determine whether a summary 

judgment should be reversed).

Moreover, the cited evidence is just a deposition excerpt from an Ascentium 

representative, who testified that actual receipt of the ice machine was important to 

the transaction. Even if this evidence were within the scope of our review, it would 

not raise a genuine issue of material fact as to mutual mistake because the deposition 

testimony concerns a future event, not a present fact. See Walden v. Affiliated 

Comput. Servs., Inc., 97 S.W.3d 303, 326 (Tex. App.—Houston [14th Dist.] 2003, 

pet. denied) (“To prove a mutual mistake, however, the evidence must show that 

both parties were acting under the same misunderstanding of the same material fact. 

Here, the alleged “mistake” did not concern any presently existing fact, but rather a 

belief regarding some future occurrence.”); accord Reinhardt v. Wilbur, 105 A.2d 

415, 417 (N.J. Super. Ct. App. Div. 1954). 

CONCLUSION 

The trial court’s judgment is affirmed. 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Bourliot, and Poissant.