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 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

FACTS............................................................................................................................................ 2

MEMORANDUM OF LAW ........................................................................................................ 2

LEGAL ANALYSIS ...................................................................................................................... 2

I. STANDARD OF REVIEW................................................................................................ 2

II. JIM BREACHED THE AGREEMENT....................................................................... 3

A. JESSE IWUJI WOULD BE THE SOLE AND EXCLUSIVE DRIVER OF JESSE 

IWUJI MOTORSPORTS. .................................................................................................... 4

B. JIM MATERIALLY BREACHED THE AGREEMENT.......................................... 5

C. EPM WAS DAMAGED AS A RESULT OF JESSE IWUJI’S BREACH................ 6

III. JIM CANNOT RECOVER FOR BREACH OF CONTRACT BECAUSE IT 

FAILED TO FULFILL ALL MATERIAL TERMS OF THE AGREEMENT.................. 7

IV. IN THE ALTERNATIVE THE AGREEMENT IS UNENFORCEABLE 

BECAUSE THERE WAS NO MUTUALITY OF AGREEMENT TO ALL ESSENTIAL 

TERMS OF THE CONTRACT. .............................................................................................. 7

CONCLUSION ............................................................................................................................. 8

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TABLE OF AUTHORITIES

Cases

Acosta v. Dist. Bd. Of Trustees of Miami-Dade Cmty. Coll., 

905 So. 2d 226 (Fla. Dist. Ct. App. 2005)................................................................................... 8

Alegra Motorsports v. Nano Pro Mt, LLC,

2023 WL 1971899 (M.D. Fla. Jan. 19, 2023), report and recommendation adopted sub nom.

Alegra Motorsports, LLC v. Nano Pro MT, LLC, 2023 WL 1967571 (M.D. Fla. Feb. 13, 2023)

..................................................................................................................................................... 6

Beefy Trail, Inc. v. Beefy King Int'l, Inc., 

267 So. 2d 853 (Fla. Dist. Ct. App. 1972 .................................................................................... 5

Big E Trailers, Inc. v. Ohio Andersons, Inc., 

2016 WL 2943889 (M.D. Fla. May 20, 2016) ............................................................................ 5

Bryka Skystocks, LLC v. Skystocks, Inc.,

2013 WL 12090022 (S.D. Fla. June 11, 2013)............................................................................ 4

Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 

25 So. 3d 693 (Fla. Dist. Ct. App. 2010)..................................................................................... 8

Commc'ns, Inc. v. Ernest, 

2011 WL 13220159 (S.D. Fla. Dec. 12, 2011)............................................................................ 3

Cross v. Craig R. Jayroe D.D.S., LLC,

2021 WL 5084235 (S.D. Fla. June 22, 2021) ............................................................................. 2

DigiART, LLC v. Casale,

2023 WL 6038109 (M.D. Fla. Sept. 15, 2023) ........................................................................... 8

Dirico v. Redland Ests., Inc.,

154 So. 3d 355 (Fla. Dist. Ct. App. 2014)................................................................................... 4

Gaines v. Nortrust Realty Mgmt., Inc.,

422 So. 2d 1037 (Fla. Dist. Ct. App. 1982) ................................................................................ 8

Gulf Bldg. LLC v. Philadelphia Indem. Ins. Co.,

2023 WL 5617358 (S.D. Fla. Aug. 30, 2023) ............................................................................. 3

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

116 So. 3d 284 (Fla. 2013).......................................................................................................... 7

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Kol B'seder, Inc. v. Certain Underwriters at Lloyd's of London subscribing to Certificate

No.154766 under Cont. No. B0621MASRSWV15BND, 

261 F. Supp. 3d 1257 (S.D. Fla. 2017), aff'd, 766 F. App'x 795 (11th Cir. 2019)...................... 7

Kolodziej v. Mason,

774 F.3d 736 (11th Cir. 2014)..................................................................................................... 8

Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 

569 So. 2d 845 (Fla. Dist. Ct. App. 1990)................................................................................... 7

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

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

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

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

Pearson v. Caterpillar Fin. Servs. Corp., 

60 So. 3d 1168 (Fla. Dist. Ct. App. 2011)................................................................................... 4

St. Johns Inv. Mgmt. Co. v. Albaneze,

22 So.3d 728 (Fla. 1st DCA 2009).............................................................................................. 4

T.D.S. Inc. v. Shelby Mut. Ins. Co.,

760 F.2d 1520 (11th Cir. 1985)................................................................................................... 6

Vega v. T-Mobile USA, Inc., 

564 F.3d 1256 (11th Cir. 2009 ................................................................................................ 3, 8

Statutes

Fed. R. Civ. P. 56(a) ....................................................................................................................... 3

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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 MOTION FOR SUMMARY JUDGMENT 

PURSUANT TO FED. R. CIV. P. 56

Defendant/counterclaimant, Equity Prime Mortgage (“EPM”) hereby files this motion for 

summary judgment against plaintiff, Jesse Iwuji Motorsports, and in support of its counterclaim, 

and states as follows:

PRELIMINARY STATEMENT

EPM was induced by plaintiff, JIM, to sponsor its race team with the representation that 

EPM would be sponsoring the dreams of Jesse Iwuji of going from the Navy to NASCAR. During 

all of the negotiations leading up to the Agreement, the only driver of JIM’s racecar was 

represented to be Jesse Iwuji, a co-owner of JIM. Emmitt Smith, a co-owner of JIM with Jesse 

Iwuji, was likewise, involved in these negotiations. Representations were made on a regular basis 

that in exchange for EPM being the primary sponsor for eight races in NASCAR’s xFinity series, 

Jesse Iwuji promised to have two social posts in advance of each race on his channels, appear 

quarterly at live events, appear quarterly on EPM’s podcast, attend EPMx, and provide 6 hours of 

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filming for content each quarter. The only name, image and likeness rights provided were for Jesse 

Iwuji and co-owner, Emmitt Smith. Despite these promises and representations, Jesse Iwuji only 

drove in 4 out of the 8 sponsored races, with the heretofore unidentified, Kyle Weatherman driving 

in the other four. Additionally, Jesse Iwuji failed to uphold his social media posting obligations, 

failed to appear on podcasts, and failed to attend a live-event in quarter two of 2022. As a result of 

these breaches, EPM had no choice but to terminate the Agreement in November 2022. Despite 

having breached the Agreement, JIM now attempts to enforce the Agreement and demands

payment for the 2023 season, which they admittedly did not race in. Accordingly, JIM, which 

breached its obligations under the Agreement may not now move to enforce the Agreement. 

Accordingly, EPM’s counterclaim for breach of contract should be granted and JIM’s claim for 

breach of contract should be dismissed. 

FACTS

The Court is respectfully referred to the accompanying Declaration of Eduardo G. Perez, 

Jr. (“Eddy Perez”) (“Perez Declaration”) (Exhibit G), Jason Frazier (“Frazier 

Declaration”)(Exhibit H) and Jenna Silverman (“Silverman Declaration”)(Exhibit I) and 

Defendant’s Statement of Material Facts in Support of Motion for Summary Judgment (“56.1 

Stmt.”) for a recitation of the facts underlying the negotiations and implementation of EPM’s 

sponsorship of Jesse Iwuji and his dreams of going from Navy to NASCAR. 

MEMORANDUM OF LAW

LEGAL ANALYSIS

I. STANDARD OF REVIEW 

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Cross v.

Craig R. Jayroe D.D.S., LLC, 2021 WL 5084235, at *2 (S.D. Fla. June 22, 2021), citing 

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Civ. P. 56(a). “Summary judgment is rendered if the pleadings, the discovery and disclosure 

materials on file, and any affidavits show there is no genuine issue as to any material fact and the 

movant is entitled to judgment as a matter of law.” Organo Gold Int'l, Inc. v. Aussie Rules Marine

Servs., Ltd., 416 F. Supp. 3d 1369, 1375 (S.D. Fla. 2019); Commc'ns, Inc. v. Ernest, 2011 WL 

13220159, at *2 (S.D. Fla. Dec. 12, 2011) (“A motion for summary judgment should be granted 

when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.’”). Accordingly, “[w]here the record taken as a 

whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine 

issue for trial.’” Id. at *2, citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986). Thus, “[w]here the non-moving party fails to prove an essential element of its case for 

which it has the burden of proof at trial, summary judgment is warranted.” Id.

II. JIM BREACHED THE AGREEMENT. 

EPM may recover on its counterclaim for breach of contract by establishing: “(1) the 

existence of a contract; (2) a material breach of that contract; and (3) damages resulting from the 

breach.” Organo, 416 F. Supp. 3d at 1377, citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 

(11th Cir. 2009); see also Gulf Bldg. LLC v. Philadelphia Indem. Ins. Co., 2023 WL 5617358, at 

*35 (S.D. Fla. Aug. 30, 2023) (“it is axiomatic that ‘[t]o prevail in a breach of contract action, a 

plaintiff must prove: (1) a valid contract existed; (2) a material breach of the contract; and (3) 

damages.’”). “To constitute a material breach of the contract, a party's noncompliance must ‘go to 

the essence of the contract; it must be the type of breach that would discharge the injured party 

from further contractual duty.’” Bryka Skystocks, LLC v. Skystocks, Inc., 2013 WL 12090022, at 

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*3 (S.D. Fla. June 11, 2013). Here, JIM materially breached the Agreement when it failed to have 

Jesse Iwuji drive for JIM in the eight EPM sponsored races. 

A. JESSE IWUJI WOULD BE THE SOLE AND EXCLUSIVE DRIVER OF JESSE 

IWUJI MOTORSPORTS. 

The language of the Agreement is clear and unambiguous that it was Jesse Iwuji who would 

be the sole and exclusive driver for JIM. When reviewing a contract, its terms “‘must be construed 

according to their plain language.’” Dirico v. Redland Ests., Inc., 154 So. 3d 355, 357 (Fla. Dist. 

Ct. App. 2014), citing St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728, 731 (Fla. 1st DCA 

2009). In this respect:

“[a] cardinal rule of contract interpretation is to ascertain and give 

effect to the intent of the parties.” Allstate Ins. Co. v. Watson, 195 

S.W.3d 609, 611 (Tenn.2006) (citation and internal quotation marks 

omitted). The “plain meaning of the words in the document” should 

be used to ascertain the parties' intent. Id. This means the “usual, 

natural, and ordinary meaning of the contractual language. 

Pearson v. Caterpillar Fin. Servs. Corp., 60 So. 3d 1168, 1172 (Fla. Dist. Ct. App. 2011). 

Accordingly, “[i]f the language is clear and unambiguous, the literal meaning controls the 

outcome of the dispute.” Id. at 1172.

Here the language of the Agreement is clear and unambiguous that Jesse Iwuji would be 

the sole and exclusive driver for JIM. Notably, in the Agreement, it was agreed that EPM would 

be the primary sponsor for eight races. See 56.1 Stmt. at ¶14. That Jesse Iwuji would be the driver 

for these eight races is evident by the fact that: (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; (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. at ¶14; “Statement of Work”, Exhibit E. While the Agreement 

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required Jesse Iwuji to drive in the eight races – he only drove in four, and Kyle Weatherman, a 

Caucasian male who was not a Veteran drove in the other four races. See 56.1 Stmt. at ¶¶18, 19.

Thus, JIM materially breached the Agreement. 

B. JIM MATERIALLY BREACHED THE AGREEMENT.

Jesse Iwuji’s failure to drive in the eight primary races was a material breach of the 

Agreement. “To constitute a material breach, a party's nonperformance must ‘go to the essence of

the contract; it must be the type of breach that would discharge the injured party from further

contractual duty on his part.’” Big E Trailers, Inc. v. Ohio Andersons, Inc., 2016 WL 2943889, at 

*8 (M.D. Fla. May 20, 2016), citing Beefy Trail, Inc. v. Beefy King Int'l, Inc., 267 So. 2d 853, 857 

(Fla. Dist. Ct. App. 1972). That Jesse Iwuji would be the driver goes to the very essence of the 

Agreement. As discussed in the Perez Declaration (Exhibit G to the 56.1 Stmt.) and the Frazier 

Declaration (Exhibit H to the 56.1), the purpose of the Agreement was to sponsor Jesse Iwuji’s 

dream of going from a Naval Officer to a full-time NASCAR driver. It was Jesse Iwuji’s story of 

being an active-duty member in the U.S. Navy and one of only two African Americans driving in 

NASCAR, which aligned with EPM and its motto of “empowering people more.” EPM, cofounded by Eddy Perez who was inspired by his father’s story of coming to the United States as a 

political refugee from Cuba who overcame a treacherous three-day journey and homelessness who 

seized the opportunities available in America and found a construction company which instilled in 

his children the drive to succeed and thrive. See Perez Decl., Exhibit G at ¶3. Likewise, through 

the power of homeownership, EPM strives to pass on the American Gift, and “empower people 

more” to achieve their own dreams. See Id. It was Jesse Iwuji’s story going from the Naval 

Academy, to an active-duty officer deployed overseas to training and entering the NASCAR circuit 

that drew EPM to the NASCAR sponsorship. See Id. at ¶4. It was Jesse Iwuji’s story that was 

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pitched to EPM by JIM’s agent – Matt Casto. In the negotiations incorporated into the Agreement, 

the only driver discussed with Jesse Iwuji. See 56.1 Stmt. at Exhibits B and C. The only name, 

image and likeness rights were for Jesse Iwuji and Emmitt Smith. See 56.1 Stmt. at Exhibit E. The 

only appearance rights secured were for Jesse Iwuji. See Id. The only social media posts secured 

were for Jesse Iwuji. See Id. The only content requirements were for Jesse Iwuji. See Id. No other 

drivers were mentioned, no other appearance rights were provided and no other social media rights 

were provided. The terms of the Agreement are clear that Jesse Iwuji was to be the sole driver –

and his driving was a material term that was breached when Jesse Iwuji failed to drive in one-half 

of the contracted races. 

C. EPM WAS DAMAGED AS A RESULT OF JESSE IWUJI’S BREACH.

“Damages for breach of contract should place the injured party in the position it would

have been in had the breach not occurred.” Alegra Motorsports v. Nano Pro Mt, LLC, 2023 WL 

1971899, at *3 (M.D. Fla. Jan. 19, 2023), report and recommendation adopted sub nom. Alegra

Motorsports, LLC v. Nano Pro MT, LLC, 2023 WL 1967571 (M.D. Fla. Feb. 13, 2023). When 

awarding damages for breach of contract “Florida follows the general rule that to be recoverable, 

damages for breach of contract ‘must arise naturally from the breach, or have been in the 

contemplation of both parties at the time they made the contract, as the probable result of a 

breach.’” T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1532 at FN11 (11th Cir. 1985). Here, 

EPM paid to JIM the sum of $1,875,000.00, which was ten (10) months of monthly sponsorship 

payments that were paid from December 1, 2021 through September 1, 2022. See 56.1 Stmt. at 

¶25. EPM continued to make sponsorship payments, despite the fact that Jesse Iwuji failed to 

drive in only 4 of the 8 races sponsored by EPM and despite the fact that Jesse Iwuji failed to 

uphold his social media obligations, failed to appear at a live event in quarter 2 of 2022, and failed 

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to make quarterly podcast appearances. As a result of these breaches, EPM should be reimbursed 

for its sponsorship fee. 

III. JIM CANNOT RECOVER FOR BREACH OF CONTRACT BECAUSE IT 

FAILED TO FULFILL ALL MATERIAL TERMS OF THE AGREEMENT.

With respect to JIM’s claim for breach of contract, its claim must be dismissed because 

JIM failed to perform its obligations under the Agreement. It is well established that “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.” Marshall Const., Ltd. v. Coastal Sheet Metal

& Roofing, Inc., 569 So. 2d 845, 848 (Fla. Dist. Ct. App. 1990); see also In re Standard Jury

Instructions--Cont. & Bus. Cases, 116 So. 3d 284, 306 (Fla. 2013) (“To 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.”). Here, it is undisputed that Jesse Iwuji drove in 

only 4 out of the 8 EPM sponsored races. See 56.1 Stmt. at ¶¶18, 19. Additionally, Jesse Iwuji 

failed to post his two contracted for social media posts in the weeks preceding the March 5, 2022, 

May 28, 2022 or October 1, 2022 races, he only appeared on one podcast, and did not do an EPM 

live-event in Quarter 2. See 56.1 Stmt. at ¶21. As a result of these breaches, JIM may not prevail 

on its breach of contract claim. 

IV. IN THE ALTERNATIVE THE AGREEMENT IS UNENFORCEABLE 

BECAUSE THERE WAS NO MUTUALITY OF AGREEMENT TO ALL 

ESSENTIAL TERMS OF THE CONTRACT.

In order to sustain a claim for breach of contract, the parties must have a valid contract. See 

Kol B'seder, Inc. v. Certain Underwriters at Lloyd's of London subscribing to Certificate

No.154766 under Cont. No. B0621MASRSWV15BND, 261 F. Supp. 3d 1257, 1266 (S.D. Fla. 

2017), aff'd, 766 F. App'x 795 (11th Cir. 2019). To demonstrate the existence of a contract, the 

claimant must demonstrate: “(1) offer; (2) acceptance; (3) consideration; and (4) sufficient 

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specification of the essential terms.” Vega, 564 F.3d at 1272. “A fundamental principle of the law 

of contracts is that there must be mutuality of agreement, and there can be no such mutuality when 

there is no common intention.” Gaines v. Nortrust Realty Mgmt., Inc., 422 So. 2d 1037, 1039 (Fla. 

Dist. Ct. App. 1982). In this respect, “a meeting of the minds of the parties on all essential elements 

is a prerequisite to the existence of an enforceable contract....” Bus. Specialists, Inc. v. Land &

Sea Petroleum, Inc., 25 So. 3d 693, 695 (Fla. Dist. Ct. App. 2010), citing Acosta v. Dist. Bd. Of

Trustees of Miami-Dade Cmty. Coll., 905 So. 2d 226, 228 (Fla. Dist. Ct. App. 2005). “A court 

evaluates the existence of mutual assent ‘by analyzing the parties’ agreement process in terms of 

offer and acceptance.’” DigiART, LLC v. Casale, 2023 WL 6038109, at *3 (M.D. Fla. Sept. 15, 

2023), citing Kolodziej v. Mason, 774 F.3d 736, 741 (11th Cir. 2014).

Here, to the extent JIM never intended to have Jesse Iwuji drive full-time, which was an 

essential element to EPM and the sole and exclusive reason for its execution of the Agreement, 

there was no mutuality to an essential term of the agreement, rendering the Agreement 

unenforceable. 

CONCLUSION

JIM who breached its obligations under the Agreement may not enforce the Agreement. 

Accordingly, JIM’s claim for breach of contract should be dismissed, and EPM awarded summary 

judgment on its counterclaim for JIM’s breach. 

Dated: February 14, 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 

Case 0:22-cv-62268-BB Document 35 Entered on FLSD Docket 02/14/2024 Page 12 of 14
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(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

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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

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