UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO.: 0:22-cv-62268-BB

JESSE IWUJI MOTORSPORTS, LLC,

Plaintiff/Counter-defendant,

v.

EQUITY PRIME MORTGAGE, LLC,

Defendant/Counterclaimant.

______________________________________/

DEFENDANT/COUNTERCLAIMANT’S OPPOSITION TO PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56

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TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................... i

TABLE OF AUTHORITIES........................................................................................................ ii

PRELIMINARY STATEMENT .................................................................................................. 1

BACKGROUND ........................................................................................................................... 2

LEGAL ANALYSIS ...................................................................................................................... 3

I. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT MUST BE SUMMARILY 

DENIED AS PLAINTIFF FAILED TO PROVIDE ANY SWORN TESTIMONY TO 

ESTABLISH THE EXISTENCE OF AN AGREEMENT..................................................... 3

II. PLAINTIFF FAILED TO PERFORM UNDER THE AGREEMENT AND IS NOT 

ENTITLED TO SUMMARY JUDGMENT ........................................................................... 6

A. JESSE IWUJI WAS REQUIRED TO DRIVE IN ALL EPM SPONSORED RACES6

III. PLAINTIFF FAILED TO DEMONSTRATE THAT IT WAS DAMAGED............... 8

IV. PLAINTIFF’S BREACH OF THE AGREEMENT EXCUSED EPM FROM 

CONTINUING TO MAKE PAYMENTS UNDER THE SPONSORSHIP AGREEMENT

.............................................................................................................................................. 8

V. THE COURT MAY CONSIDER PAROL EVIDENCE TO AID IN THE 

INTERPRETATION OF THE AGREEMENT..................................................................... 9

VI. IT IS FOR A JURY TO DETERMINE THE PARTIES’ INTENT AND WHETHER 

THERE HAS BEEN A BREACH OF THE AGREEMENT .............................................. 10

VII.PLAINTIFF WAS PROVIDED NOTICE OF ITS BREACH PRIOR TO EPM 

TERMINATING THE AGREEMENT ..................................................................................11

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TABLE OF AUTHORITIES

Cases

Aim Recycling of Fla., LLC v. Metals USA, Inc., 

2020 WL 209860 (S.D. Fla. Jan. 13, 2020) ................................................................................ 3

Bryka Skystocks, LLC v. Skystocks, Inc.,

2013 WL 12090022 (S.D. Fla. June 11, 2013)...........................................................................11

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986).................................................................................................................... 4

Clark v. Coats & Clark, Inc.,

929 F.2d 604 (11th Cir. 1991)..................................................................................................... 4

Commc'ns, Inc. v. Ernest, 

2011 WL 13220159 (S.D. Fla. Dec. 12, 2011)............................................................................ 7

Farman v. Deutsche Bank Nat'l Tr. Co. as Tr. for Long Beach Mortg. Loan Tr. 2006-05, 

311 So. 3d 191 (Fla. Dist. Ct. App. 2020)................................................................................... 8

Fecteau v. Se. Bank, N.A., 

585 So. 2d 1005 (Fla. Dist. Ct. App. 1991) ................................................................................ 7

Gauck v. Meleski, 

346 F.2d 433 (5th Cir. 1965)....................................................................................................... 3

Hamilton v. Suntrust Mortg. Inc.,

6 F. Supp. 3d 1300 (S.D. Fla. 2014)............................................................................................ 8

Hirsch v. Jupiter Golf Club LLC, 

2016 WL 7507865 (S.D. Fla. July 25, 2016)(............................................................................. 4

Hoffman v. Terry, 

397 So. 2d 1184 (Fla. Dist. Ct. App. 1981)............................................................................... 10

In re Standard Jury Instructions--Cont. & Bus. Cases, 

116 So. 3d 284 (Fla. 2013).......................................................................................................... 6

Landolfi v. City of Melbourne, Fla., 

515 F. App'x 832 (11th Cir. 2013).............................................................................................. 4

Maris Distrib. Co. v. Anheuser-Busch, Inc., 

2000 WL 33403622 (M.D. Fla. Mar. 17, 2000).......................................................................... 4

Case 0:22-cv-62268-BB Document 38 Entered on FLSD Docket 02/27/2024 Page 3 of 17
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Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 

569 So. 2d 845 (Fla. Dist. Ct. App. 1990.................................................................................... 6

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986).................................................................................................................... 3

Ness Racquet Club, LLC v. Ocean Four 2108, LLC, 

88 So. 3d 200 (Fla. Dist. Ct. App. 2011)..................................................................................... 9

Organo Gold Int'l, Inc. v. Aussie Rules Marine Servs., Ltd., 

416 F. Supp. 3d 1369 (S.D. Fla. 2019)........................................................................................ 3

Ostrow v. GlobeCast Am. Inc., 

825 F. Supp. 2d 1267 (S.D. Fla. 2011 ......................................................................................... 9

Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, 

437 F. Supp. 2d 1233 (D. Kan. 2006) ..................................................................................... 4, 5

Smart Commc'ns Holding, Inc. v. Correct Sols., LLC, 

2023 WL 5003169 (M.D. Fla. Aug. 4, 2023)........................................................................ 7, 10

SMS Audio, LLC v. Belson, 

2017 WL 1533971 (S.D. Fla. Mar. 20, 2017)............................................................................. 5

United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., 

941 F.2d 1428 (11th Cir. 1991)................................................................................................... 4

Walton for Est. of Smith v. Fla. Dep't of Corr., 

2020 WL 5255088 (M.D. Fla. Sept. 3, 2020) ............................................................................. 5

Wham! Frozen Foods Inc. v. Built Brands, LLC, 

2022 WL 1664025 (S.D. Fla. Mar. 21, 2022)............................................................................. 9

Statutes

Fed. R. Civ. P. 56............................................................................................................................. 1

Fed. R. Civ. P. 56(c)(1)(A) ............................................................................................................. 3

Fed. R. Evid. 901 ............................................................................................................................ 5

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PRELIMINARY STATEMENT

 Defendant, Equity Prime Mortgage (“EPM” or “Defendant”) submits this memorandum 

of law in opposition to Plaintiff, Jesse Iwuji Motorsports LLC (“JIM” or “Plaintiff’s) motion for 

summary judgment pursuant to Fed. R. Civ. P. 56. Additionally, EPM references and incorporates 

its motion for summary judgment [Doc. No. 35], along with its “Statement of Material and 

Undisputed Facts” (“56.1 Stmt.”) [Doc. No. 36], and the underlying documents and declarations 

that are submitted in support thereof [Doc. Nos. 36-1 through -9] in opposing Plaintiff’s motion.

Plaintiff inexplicably failed to provide any sworn statement(s) under the penalties of 

perjury, in either a declaration or affidavit, in support of its motion.

1 Plaintiff has, therefore, not 

produced evidence to even meet its burden to demonstrate: (a) that there was a valid Sponsorship 

Agreement (“Agreement”); (b) that JIM performed under the Agreement; and (c) that EPM 

breached the Agreement; as such, Plaintiff’s motion should summarily be denied and no further 

review is necessary. 

Assuming for purposes of this opposition that the Court determines Plaintiff has met its 

evidentiary burden on its breach of contract claim, Plaintiff’s motion must still be denied. EPM’s 

intent was always only to sponsor Jesse Iwuji’s dream to go from the U.S. Navy to a full-time 

NASCAR driver. Thus, when the parties were negotiating, Plaintiff emphasized to EPM its driver,

Jesse Iwuji, one of only two African Americans driving in NASCAR and an active member in the 

Navy, whose story aligned with EPM’s motto of “empowering people more.” 

Jesse Iwuji was represented to be the sole driver of JIM’s stock car for the EPM sponsored 

races. As such this is why the claimed Agreement only provides for the name, image and likeness 

1

In contrast, EPM in support of its motion for summary judgment provided the declarations of Eduardo G. Perez, Jr. 

(“Perez Decl.”) [Doc. No. 36-7], Jason Frazier (“Frazier Decl.”) [Doc. No. 36-8], and Jenna Silverman (“Silverman 

Decl.”) [Doc. No. 36-9], to support its undisputed statement of material facts. 

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rights for Jesse Iwuji, and co-owner, NFL Legend, Emmitt Smith. All of the social media posting 

requirements, off-track appearances, and social media content was by Jesse Iwuji. This clearly 

evidences that there were no other drivers or personalities connected with JIM’s stock car for the 

EPM sponsored races or ever contemplated or presented to EPM. Despite this, Jesse Iwuji only 

drove in 4 out of the 8 EPM sponsored races, and Kyle Weatherman, a white, non-veteran drove

in the other 4 races. An essential element of any Agreement contemplated by EPM was that Jesse 

Iwuji was the sole driver for the EPM sponsored races. Kyle Weatherman driving in half of the 

EPM sponsored races breached the parties’ Agreement. Plaintiff’s violation renders any claims of 

a breach by EPM null and void and precludes the granting of Plaintiff’s motion for this reason, as 

well. 

Finally, the parties’ diametrically opposed interpretation of any Agreement highlights that, 

at a minimum, there are material questions of fact concerning: (a) whether the parties have an 

enforceable agreement; (b) Plaintiff’s performance under the Agreement; and (c) the purported 

breach by EPM, which must be resolved by a factfinder. Plaintiff’s motion must also be denied on 

this basis.

BACKGROUND

EPM refers to its “Statement of Material and Undisputed Facts” (“56.1 Stmt.”) [Doc. No. 

36], and the exhibits annexed thereto and the Declaration of Eduardo G. Perez, Jr. (“Perez Decl.”) 

[Doc. No. 36-7], Declaration of Jason Frazier (“Frazier Decl.”) [Doc. No. 36-8], and Declaration 

of Jenna Silverman (“Silverman Decl.”) [Doc. No. 36-9] as evidence of the Agreement,

negotiations, and Plaintiff’s breach of the Agreement when Jesse Iwuji failed to race in half of the 

EPM sponsored races. 

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LEGAL ANALYSIS

I. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT MUST BE 

SUMMARILY DENIED AS PLAINTIFF FAILED TO PROVIDE ANY SWORN 

TESTIMONY TO ESTABLISH THE EXISTENCE OF AN AGREEMENT

Plaintiff fails to meet its burden to demonstrate that there are no material issues of fact that 

would preclude it from an award on its breach of contract claim. In order to prevail on a claim for 

breach of contract, Plaintiff must establish “(1) the existence of a contract; (2) a material breach 

of that contract; and (3) damages resulting from the breach.” Organo Gold Int'l, Inc. v. Aussie

Rules Marine Servs., Ltd., 416 F. Supp. 3d 1369, 1377 (S.D. Fla. 2019).

Plaintiff fails to present any affidavits or other sworn testimony to establish the existence 

of: (a) an Agreement; (b) Plaintiff’s performance under the Agreement; or (c) EPM’s purported 

breach. As the moving party, Plaintiff “shoulders the initial burden to demonstrate the absence of 

a genuine issue of material fact.” Aim Recycling of Fla., LLC v. Metals USA, Inc., 2020 WL 

209860, at *6 (S.D. Fla. Jan. 13, 2020). This burden is met, “[w]here the record taken as a whole 

could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To demonstrate that it is entitled to summary 

judgment, Plaintiff must “[c]it[e] to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or declarations, stipulations 

(including those made for purposes of the motion only), admissions, interrogatory answers, or 

other materials.” Fed. R. Civ. P. 56(c)(1)(A). In this respect “[t]he basic mission of the summary 

judgment procedure is to allow the court to pierce the pleadings and assess the proof in order to 

see whether there is a genuine need for a trial.” Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 

1965).

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“When the moving party has the burden of proof at trial, that party must show affirmatively

the absence of a genuine issue of material fact: it ‘must support its motion with credible evidence 

... that would entitle it to a directed verdict if not controverted at trial.’” United States v. Four

Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1438 (11th 

Cir. 1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)(Brennan, J. dissenting); 

Landolfi v. City of Melbourne, Fla., 515 F. App'x 832, 834 (11th Cir. 2013)(“Where it bears the 

burden of proof at trial, the movant must affirmatively show the absence of a genuine issue of 

material fact, and support its motion with credible evidence demonstrating that no reasonable jury 

could find for the non-moving party on all of the essential elements of its case.”) Accordingly, “the 

party bearing the ultimate burden of proof-usually the Plaintiff-may no longer rest on the pleadings

but must then come forward with affidavits, depositions, answers to interrogatories, or other 

admissible evidence.” Maris Distrib. Co. v. Anheuser-Busch, Inc., 2000 WL 33403622, at *2 

(M.D. Fla. Mar. 17, 2000). In this respect. “[e]ven after Celotex it is never enough simply to state 

that the non-moving party cannot meet its burden at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 

604, 608 (11th Cir. 1991). Further, “factual allegations must be supported by evidence ‘identified 

by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.’” 

Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, 437 F. Supp. 2d 1233, 1236 (D. Kan. 2006); 

Hirsch v. Jupiter Golf Club LLC, 2016 WL 7507865, at *1 (S.D. Fla. July 25, 2016)(discussing 

how on a motion for summary judgment, that the court reviewed the “facts, as culled from 

affidavits, exhibits, depositions, answers, answers to interrogatories”). Plaintiff in asserting a claim 

for breach of contract, bears the burden of proof at trial to demonstrate all elements of its breach 

of contract claim. Plaintiff has not presented this court with any admissible evidence to support its 

claim. See Walton for Est. of Smith v. Fla. Dep't of Corr., 2020 WL 5255088, at *1 (M.D. Fla. 

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Sept. 3, 2020) (discussing that “[t]he record to be considered on a motion for summary judgment 

may include ‘depositions, documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), admissions, interrogatory 

answers, or other materials.’”)

Additionally, to the extent Plaintiff relies on emails exchanged between non-party, Matt 

Casto, and Eduardo G. Perez, Jr., CEO of EPM, such documents have not been authenticated and 

do not constitute proper factual evidence to support Plaintiff’s claim. Fed. R. Evid. 901 provides, 

in relevant part, that “[t]o satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a finding that the item is what 

the proponent claims it is.” “A witness with knowledge may authenticate evidence by ‘[t]estimony 

that the item is what it is claimed to be.’ Fed. R. Evid. 901(b)(1).” SMS Audio, LLC v. Belson, 

2017 WL 1533971, at *3 (S.D. Fla. Mar. 20, 2017). Here, Plaintiff fails to provide one factual 

declaration or affidavit and has not authenticated the email records on which it relies in support of 

its motion. The unauthenticated emails and other documents cannot be considered in support of 

Plaintiff’s motion. See, e.g., Ryan, 437 F. Supp. 2d at 1236. (“In this case, plaintiff's factual 

allegations are largely supported by references to notes, emails, and other documents that are not 

authenticated or part of a sworn affidavit or other testimony. Thus, the majority of exhibits plaintiff 

filed in support of her response are not proper Rule 56 evidence.”). 

Accordingly, Plaintiff failed to present any sworn testimony to support its assertion that: 

(a) an Agreement existed; (b) it fulfilled its obligations under the Agreement; or (c) EPM’s 

purported breach, does not meet its burden to demonstrate that it is entitled to summary judgment. 

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Regardless, even if, the Court determines that Plaintiff has established the existence of an 

Agreement for purposes of the motion for summary judgment, EPM puts forth in Points II-VII, 

infra, why summary judgment in favor of the Plaintiff must still be denied.

II. PLAINTIFF FAILED TO PERFORM UNDER THE AGREEMENT AND IS 

NOT ENTITLED TO SUMMARY JUDGMENT

Plaintiff failed to perform and abide by an essential element of the Agreement.

2 As stated 

in In re Standard Jury Instructions--Cont. & Bus. Cases, 116 So. 3d 284, 306 (Fla. 2013) “[t]o 

maintain an action for breach of contract, a claimant must first establish performance on the 

claimant's part of the contractual obligations imposed by the contract.” See also Marshall Const.,

Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845, 848 (Fla. Dist. Ct. App. 1990 (“in 

order to maintain an action for breach of contract, a claimant must first establish performance on 

its part of the contractual obligations imposed in the contract.”)

A. JESSE IWUJI WAS REQUIRED TO DRIVE IN ALL EPM SPONSORED 

RACES

As outlined in Point II(A) of EPM’s motion for summary judgment, the terms of the 

Agreement are clear that Jesse Iwuji was to be the sole and exclusive driver of the EPM sponsored 

races. See [Doc. No. 35] at 4-5. This is evident where: (a) the Agreement only provided the name, 

image and likeness rights for Jesse Iwuji and Emmitt Smith; (b) the Agreement provided that it 

would be Jesse Iwuji who would provide two social media posts in advance of each race; and (c) 

the Agreement provided that Jesse Iwuji would appear quarterly at EPM for: (1) live-events; (2) 

podcasts; and (3) to create content. See 56.1 Stmt. [Doc. No. 36] at ¶14; “Statement of Work”, 

Exhibit E [Doc. No. 36-5]. While the Agreement required Jesse Iwuji to drive in the eight races –

2 EPM is not conceding that Plaintiff has satisfied its burden of establishing the existence of an Agreement for purposes 

of this summary judgment motion. The following arguments are put forth assuming the Court finds that the burden 

has been met.

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he only drove in four, and Kyle Weatherman, a Caucasian male who was not a veteran drove, in 

the other four races, thereby breaching the Agreement. See 56.1 Stmt. [Doc. No. 36] at ¶¶18, 19.

As discussed in Point III of EPM’s motion for summary judgment, Plaintiff having failed 

to fulfill its obligations under the Agreement cannot recover against EPM for any purported breach 

of contract. See [Doc. No. 35] at 11. Plaintiff failed to fulfill its obligations under the Agreement

when:

• Jesse Iwuji failed to drive in all 8 EPM sponsored races and only drove in 4 races. 

See 56.1 Stmt. [Doc. No. 36] at ¶¶18, 19. 

• Jesse Iwuji failed to post his two contracted for social media posts in the weeks 

preceding the March 5, 2022, July 16, 2023, July 23, 2023 and October 1, 2023

races. See 56.1 Stmt. [Doc. No. 36] at ¶21.

• Jesse Iwuji only appeared on one podcast, and did not appear for an EPM live-event 

in Quarter 2. See 56.1 Stmt. [Doc. No. 36] at ¶21.

Whether Plaintiff breached the Agreement, “is a question of fact.” Commc'ns, Inc. v.

Ernest, 2011 WL 13220159 at *2 (S.D. Fla. Dec. 12, 2011). To the extent Plaintiff disputes that 

the Agreement required Jesse Iwuji to drive in all of the EPM sponsored races, such dispute raises 

a material issue of fact that precludes summary judgment. See Smart Commc'ns Holding, Inc. v.

Correct Sols., LLC, 2023 WL 5003169, at *17 (M.D. Fla. Aug. 4, 2023) (“When there are ‘two 

reasonable interpretations’ of a contract, ‘summary judgment is inappropriate because there is a 

genuine issue of material fact.’”), citing Fecteau v. Se. Bank, N.A., 585 So. 2d 1005, 1007 (Fla. 

Dist. Ct. App. 1991). 

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III. PLAINTIFF FAILED TO DEMONSTRATE THAT IT WAS DAMAGED

Plaintiff may not be awarded summary judgment because it failed to demonstrate that it 

was damaged by EPM’s breach. “Under Florida law, damages are an essential element of an action 

for breach of contract.” Farman v. Deutsche Bank Nat'l Tr. Co. as Tr. for Long Beach Mortg. Loan

Tr. 2006-05, 311 So. 3d 191, 195 (Fla. Dist. Ct. App. 2020). Here, Plaintiff’s motion is silent with 

respect to any damages that it incurred as a result of EPM’s purported breach. Accordingly, 

Plaintiff cannot be awarded summary judgment as it failed to present any evidence of an essential 

element of its claim. 

IV. PLAINTIFF’S BREACH OF THE AGREEMENT EXCUSED EPM FROM 

CONTINUING TO MAKE PAYMENTS UNDER THE SPONSORSHIP 

AGREEMENT

EPM was excused from making any further sponsorship payments when Plaintiff failed to 

fulfill its obligations under the Agreement. “It is a fundamental principle of Florida contract law 

that a material breach by one party excuses the performance by the other.” Hamilton v. Suntrust

Mortg. Inc., 6 F. Supp. 3d 1300, 1309 (S.D. Fla. 2014). “A ‘material breach’ is one that goes ‘to 

the essence of the contract.’” Hamilton, 6 F. Supp. 3d at 1309. Jesse Iwuji driving in the EPM 

sponsored races is a material breach because it was Jesse Iwuji and his dream to go from the U.S. 

Navy to a NASCAR driver that was an essential element to EPM’s sponsorship of Plaintiff. See 

Perez Decl. [Doc. No. 36-7] at ¶12; Frazier Decl. [Doc. No. 36-8] at ¶3. Additionally, Plaintiff

breached the Agreement when Jesse Iwuji failed to uphold his pre-race social media posting 

requirements, failed to attend all required live-events, and failed to make all required podcast

appearances. See 56.1 Stmt. [Doc. No. 36] at ¶¶20, 21. Accordingly, as there was a material breach 

of the Agreement by Plaintiff, EPM was not required to make any further sponsorship payments. 

Plaintiff’s material breach of the Agreement is evident based on the underlying record. To the 

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extent there is any dispute as to whether EPM was excused from making any further payments due 

to Plaintiff’s breach of its obligations, such dispute is best left to a factfinder, thereby precluding 

an award of summary judgment to Plaintiff. See Wham! Frozen Foods Inc. v. Built Brands, LLC, 

2022 WL 1664025, at *2 (S.D. Fla. Mar. 21, 2022) (“Generally, whether there has been a breach

of the terms of a contract is a question of fact for the factfinder.”); Ness Racquet Club, LLC v.

Ocean Four 2108, LLC, 88 So. 3d 200, 203 (Fla. Dist. Ct. App. 2011)(“Generally, whether there 

has been a breach of the terms of the contract is a question of fact, and the issue of whether there 

is a defense that excuses the breach is typically a question of fact.”)

V. THE COURT MAY CONSIDER PAROL EVIDENCE TO AID IN THE 

INTERPRETATION OF THE AGREEMENT

EPM maintains that the Agreement required Jesse Iwuji to drive in the 8 EPM sponsored 

races. Notably, as discussed in Point II(A), supra, and in EPM’s motion for summary judgment 

[Doc. No. 35 at 4-6], it is evident in the four corners of the Agreement that Jesse Iwuji was to drive 

in the 8 EPM sponsored races, as the Agreement only provides name, image, and likeness rights 

and social media posting requirements on Jesse Iwuji. To the extent Plaintiff disputes that the 

Agreement required Jesse Iwuji to drive in all EPM sponsored races, the Court may look to the 

underlying negotiations to assist in interpreting the Agreement. “Where ‘two reasonable

interpretations’ of a contract [exist], ‘the issue of the proper interpretation is an issue of fact

requiring the submission of evidence extrinsic to the contract bearing upon the intent of the

parties.’” Ostrow v. GlobeCast Am. Inc., 825 F. Supp. 2d 1267, 1270 (S.D. Fla. 2011)(internal 

citations omitted). 

Here, as outlined in the accompanying affidavit of EPM’s CEO, Eduardo G. Perez, Jr. 

[Doc. No. 36-7], and the Declaration of Jason Frazier, EPM’s Chief Strategy Officer [Doc. No. 

36-8], along with the emails [Doc. Nos. 36-1, 36-2, 36-3] and proposals [Doc. Nos. 36-1 and 36-

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4] sent by Matt Casto, on behalf of Plaintiff, while negotiating the Agreement, the purpose and 

intent of the Agreement was to have Jesse Iwuji be the sole and exclusive driver for the EPM 

sponsored races. When Plaintiff pitched the sponsorship, Matt Casto repeatedly emphasized 

upcoming appearances from Jesse Iwuji that could be used to promote EPM. [Doc. Nos. 36-1, 36-

2, 36-3]. Accordingly, as there is an ambiguity in the interpretation of the Agreement, this Court 

may look outside the four corners of the Agreement to assist in determining the parties’ intent. 

EPM in referencing the underlying negotiations, representations and emails from Plaintiff does not 

violate the parol evidence rule because EPM does not reference these documents to modify or alter 

the terms of the Agreement. Rather these representations explain the underlying intent and 

understanding that sponsoring JIM was sponsoring Jesse Iwuji and his dreams of going from the 

U.S. Navy to NASCAR. Such intent is evident from the face of the Agreement because the only 

name, image and likeness rights, social media postings requirements, and appearance requirements 

were for Jesse Iwuji and Emmitt Smith, and the emails and negotiations referenced by EPM only 

serve to illuminate the parties’ intent when negotiating the Agreement. Accordingly, this Court 

may consider the underlying emails and affidavits presented by EPM to aid in interpreting the 

parties’ Agreement. 

VI. IT IS FOR A JURY TO DETERMINE THE PARTIES’ INTENT AND 

WHETHER THERE HAS BEEN A BREACH OF THE AGREEMENT

To the extent the Agreement is found to be ambiguous and “reasonably susceptible to more 

than one construction,” then “it [is] proper to submit the issue to the jury for resolution as a matter 

of fact.” Hoffman v. Terry, 397 So. 2d 1184, 1184 (Fla. Dist. Ct. App. 1981). Indeed, “[w]hen there 

are ‘two reasonable interpretations’ of a contract, ‘summary judgment is inappropriate because 

there is a genuine issue of material fact.’” Smart Commc'ns Holding, Inc. v. Correct Sols., LLC, 

2023 WL 5003169, at *17 (M.D. Fla. Aug. 4, 2023). Additionally, “whether there has been a 

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breach of the terms of a contract is a question of fact for the factfinder.”Bryka Skystocks, LLC v.

Skystocks, Inc., 2013 WL 12090022, at *2 (S.D. Fla. June 11, 2013). Further, as discussed in Point 

IV of EPM’s motion [Doc. No. 35 at 7-8], as JIM, despite the representations made when 

negotiating the Agreement, alleges that it never intended to have Jesse Iwuji drive in all of the 

EPM sponsored races, raises a question of material fact as to whether there was mutuality of 

agreement to an essential term of the contract to render the agreement enforceable between the 

parties. Accordingly, Plaintiff’s motion for summary judgment should be denied by this Court. 

VII. PLAINTIFF WAS PROVIDED NOTICE OF ITS BREACH PRIOR TO EPM 

TERMINATING THE AGREEMENT

Plaintiff was provided with notice and an opportunity to cure its breach prior to EPM 

terminating the Agreement as discussed in the Perez and Silverman Declarations. Notably, Perez 

and Silverman, on behalf of EPM, met with Matt Casto, JIM’s agent on May 11, 2022, during 

which meeting, Plaintiff was advised that it breached the Agreement as a result of Jesse Iwuji’s 

failure to drive in all of the EPM sponsored races. See Perez Decl. [Doc. No. 36-7] at ¶19; 

Silverman Decl. [Doc. No. 36-9] at ¶4. Despite this meeting, Jesse Iwuji continued to breach the 

Agreement with Jesse Iwuji failing to drive in three more sponsored races. See 56.1 Stmt. [Doc. 

No. 36] at ¶19. Accordingly, Plaintiff was provided with notice and an opportunity to cure its 

breach.

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CONCLUSION

For the reasons set forth above, JIM’s motion for summary judgment should be denied. 

Dated: February 27, 2024

KREINER / BURNS

By: /s/ Seth A. Kreiner

Seth A. Kreiner, Esq.

Florida Bar No. 432040

950 Peninsula Corporate Circle/Suite 3001

Boca Raton / Florida / 33487

(p)(561)901-8400 

(f)(561)666-9700

seth@kreinerlawfirm.com

FORCHELLI DEEGAN TERRANA LLP

By: /s/ Keith J. Frank

Keith F. Frank, Esq. (Pro Hac Vice)

Lisa M. Casa, Esq. (Pro Hac Vice Motion 

Forthcoming)

333 Earle Ovington, Blvd., Suite 1010

Uniondale, NY 11553

(516) 248-1700

kfrank@forchellilaw.com

Attorneys for Defendant/Counterclaimant

Case 0:22-cv-62268-BB Document 38 Entered on FLSD Docket 02/27/2024 Page 16 of 17
13

SERVICE LIST

Darren A. Heitner, Esq.

Florida Bar No. 85956

HEITNER LEGAL P.L.L.C.

215 Hendricks Isle

Fort Lauderdale, FL 33301

(954) 558-6999 Telephone

Email: darren@heitnerlegal.com

Attorney for Plaintiff/Counter-Defendant 

Served via transmission of Notices of 

Electronic Filing generated by CM/ECF

Case 0:22-cv-62268-BB Document 38 Entered on FLSD Docket 02/27/2024 Page 17 of 17