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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 REPLY IN FURTHER SUPPORT OF ITS 

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

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ 2

TABLE OF AUTHORITIES........................................................................................................... 3

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

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

I. IT IS CLEAR AND UNAMBIGUOUS THAT JESSE IWUJI WAS THE ONLY 

DRIVER CONTEMPLATED BY THE AGREEMENT. ...................................................... 2

II. THE COURT MAY CONSIDER THE PARTIES’ NEGOTIATIONS TO 

ASCERTAIN THEIR INTENT IN ENTERING INTO THE AGREEMENT. .................. 3

III. JIM DRAFTED THE AGREEMENT AND CANNOT ALLEGE THAT IT WAS 

EPM WHO FAILED TO STATE THAT JESSE IWUJI MUST BE THE SOLE AND 

EXCLUSIVE DRIVER. ........................................................................................................... 5

IV. JIM MATERIALLY BREACHED ITS OBLIGATIONS UNDER THE 

AGREEMENT WHEN JESSE IWUJI WAS NOT THE DRIVER FOR EPM 

SPONSORED RACES.............................................................................................................. 6

V. EPM IS NOT JUDICIALLY ESTOPPED FROM CONTENDING THAT THERE 

WAS NO MUTUALITY OF AGREEMENT......................................................................... 7

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

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TABLE OF AUTHORITIES

Cases

Alexandra H. v. Oxford Health Ins. Inc. Freedom Access Plan, 

833 F.3d 1299 (11th Cir. 2016) .................................................................................................. 6

Calderon v. Sixt Rent a Car, LLC,

5 F.4th 1204 (11th Cir. 2021) ..................................................................................................... 5

Davis v. Valsamis, Inc.,

2016 WL 8677194 (S.D. Fla. Oct. 12, 2016), aff'd, 752 F. App'x 688 (11th Cir. 2018)............ 5

DeMarco v. T.D. Bank, N.A.,

2017 WL 2892255 (S.D. Fla. Apr. 26, 2017) ......................................................................... 2, 3

Golden v. Univ. of Miami, 

484 F. Supp. 3d 1255 (S.D. Fla. 2020) ....................................................................................... 2

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

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

MDS (Canada), Inc. v. Rad Source Techs., Inc., 

822 F. Supp. 2d 1263 (S.D. Fla. 2011), aff'd in part, question certified, 720 F.3d 833 (11th Cir. 

2013), certified question answered, 143 So. 3d 881 (Fla. 2014), and aff'd, 579 F. App'x 700 

(11th Cir. 2014)....................................................................................................................... 2, 3

Slater v. United States Steel Corp., 

871 F.3d 1174 (11th Cir. 2017) .................................................................................................. 7

Statutes

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

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PRELIMINARY STATEMENT

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

memorandum of law in further support of its motion for summary judgment pursuant to Fed. R. 

Civ. P. 56 on its counterclaim for breach of contract and in further opposition to the breach of 

contract claim filed by plaintiff, Jesse Iwuji Motorsports (“Plaintiff” or “JIM”). JIM in its 

opposition to EPM’s motion for summary judgment on the counterclaim, for the first time 

introduced sworn testimony by Matt Casto and Jesse Iwuji raising new claimed facts in the form 

of declarations. These belated declarations respectfully cannot be considered in support of JIM’s 

motion for summary judgment. 

Plaintiff mistakenly relies exclusively on the contention that the Sponsorship Agreement 

does not contain the statement, “Jesse Iwuji was to be the sole and exclusive driver for JIM.” In 

relying on this assertion, JIM utterly ignores the entire course of dealing between the parties, the 

promises and representations made by JIM to induce EPM to enter into the Agreement, the terms 

of the Agreement when read as a whole, including the discussions held on May 11, 2022, between 

Matt Casto, Eduardo G. Perez, Jr. (EPM’s CEO) and Jenna Silverman (EPM’s Chief Marketing 

Officer). JIM’s material breach of the Agreement is evident by the fact that: (a) the Agreement, 

when read as a whole, provides only: (i) the name, image, likeness rights for Jesse Iwuji and 

Emmitt Smith; (ii) social media posting requirements on Jesse Iwuji and Emmitt Smith; and (iii) 

appearances at live-events and on podcasts by Jesse Iwuji; (b) that the Agreement was prepared by 

JIM who had superior knowledge about the norms of NASCAR sponsorships; and (c) when 

negotiating the Agreement, Jesse Iwuji was the only driver contemplated by JIM. The Agreement 

is clear and unambiguous that the intent of the parties, and EPM’s corresponding sponsorship of 

EPM was to facilitate Jesse Iwuji and his dream of going from the Navy to being a NASCAR

driver. 

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JIM outright acknowledges that it breached the Agreement because Jesse Iwuji did not 

drive in all of the EPM sponsored races. This is undisputed and summary judgment must be 

awarded in favor of EPM on its counterclaim.

LEGAL ANALYSIS

I. IT IS CLEAR AND UNAMBIGUOUS THAT JESSE IWUJI WAS THE ONLY

DRIVER CONTEMPLATED BY THE AGREEMENT.

As discussed in Point II(A), of EPM’s motion for summary judgment [Doc. No. 35 at 4-5], 

when the Agreement is reviewed, as a whole, the intent that Jesse Iwuji would be the sole and 

exclusive driver is clear. Plaintiff in interpreting the Agreement, relies exclusively on the headings 

in the Statement of Work, which state: “On-Track Team Commitments,” and “Off-Track Team 

Commitments.” See Opposition [Doc. No. 42 at 5]. This overly simplistic view fails to construe 

the Agreement, in its entirety, wholly contrary to the tenets of contract interpretation. “When 

construing a contract, a court should read the contract as a whole, giving effect to each of the 

various provisions of the agreement if it can reasonably be done.” DeMarco v. T.D. Bank, N.A.,

2017 WL 2892255, at *4 (S.D. Fla. Apr. 26, 2017). In this respect, “courts do not interpret

contractual terms in isolation—‘[i]n reviewing a contract ... the entire contract must be reviewed

as a whole without fragmenting any segment or portion.’” Golden v. Univ. of Miami, 484 F. Supp. 

3d 1255, 1263 (S.D. Fla. 2020), citing MDS (Canada), Inc. v. Rad Source Techs., Inc., 822 F. 

Supp. 2d 1263, 1296 (S.D. Fla. 2011), aff'd in part, question certified, 720 F.3d 833 (11th Cir. 

2013), certified question answered, 143 So. 3d 881 (Fla. 2014), and aff'd, 579 F. App'x 700 (11th 

Cir. 2014).

The only logical conclusion is that Jesse Iwuji was contemplated to be the sole and 

exclusive driver. If there were any other drivers contemplated, EPM would have been provided 

with the name, image, and likeness rights for that other driver, there would have been social media 

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posting requirements for the other driver, and there would have been appearance and other 

requirements imposed on this driver. None of these requirements are in the Agreement. Jesse Iwuji 

was the only driver contemplated at the time the Agreement was entered into. 

The undisputed failure of Jesse Iwuji to drive in the 8 sponsored races is a material breach 

of the Agreement and requires summary judgment be granted in favor of EPM on its counterclaim 

and precludes entry of summary judgment in favor of JIM on its breach of contract claim. 

II. THE COURT MAY CONSIDER THE PARTIES’ NEGOTIATIONS TO 

ASCERTAIN THEIR INTENT IN ENTERING INTO THE AGREEMENT.

The Court may consider the parties’ negotiations when determining intent. “Florida law 

permits courts to consider extrinsic evidence not to vary the terms of the contract, but to explain, 

clarify or elucidate the ambiguous language with reference to the subject matter of the contract, 

the circumstances surrounding its making, and the relation of the parties.” DeMarco, 2017 WL 

2892255 at *4; see also MDS (Canada), Inc., 822 F. Supp. 2d at 1297 (“Parol evidence may not 

be used to vary or contradict the terms of an agreement, but it may be admitted to clarify the terms 

used and show the parties’ true intent.”). 

The Agreement reviewed, as a whole, along with the underlying negotiations, leads to the 

only logical conclusion, it was the parties’ intent when entering into it that Jesse Iwuji would be 

the only driver of the EPM sponsored races. The fact that JIM only intended Jesse Iwuji to drive 

the EPM sponsored car, is clearly admitted to by Matt Casto in his Declaration, where Casto 

acknowledges that “Kyle Weatherman was contracted as a JIM NASCAR racecar driver on or 

around April 2, 2022. Kyle Weatherman was contracted as a JIM NASCAR racecar driver to help 

the team’s performance in the NASCAR standings.” See Decl. of Matt Casto [Doc. No. 40-1] at 

¶¶20-21. It was only when Jesse Iwuji was unable to perform that an alternative driver – Kyle 

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Weatherman – was contracted to drive, in contradiction to the original negotiations and intent of 

the parties. 

Matt Casto’s post hoc contention that Jesse Iwuji being the exclusive driver was not a 

condition of EPM’s sponsorship and the Agreement is less than candid. Casto blithely ignores the 

representations he made during the parties’ negotiations, which only referenced the value that Jesse 

Iwuji had for EPM’s brand, and discussed upcoming appearances by Jesse Iwuji.1 Indeed, on 

October 25, 2021, Matt Casto referenced upcoming appearances by Jesse Iwuji and discussed how 

“[EPM] could leverage publicity wise with the theme around empowering people more and the 

American dream and our partnership if we made this race team partnership official this week.”2 

Thereafter, on October 28, 2021, when transmitting the revised proposal, Matt Casto stated 

“[w]e’ve got a big dose of Emmitt & Jesse ready to bring your way! We are ready to put this in 

writing and make the partnership official!”3 Accordingly, the assertion by Matt Casto that he never 

represented Jesse Iwuji would be the sole and exclusive driver is inconsistent with the 

representations he made to EPM when he was pitching the sponsorship. Casto further ignores that 

the decision to contract with Kyle Weatherman was done without any discussion or prior notice to 

EPM, even though the Agreement requires that any modifications were to be negotiated and set 

forth in writing and signed by both parties.

4

 Accordingly, JIM’s unilateral modification is a 

material breach of the parties’ agreement. 

JIM cannot overcome the fact that they pulled a bait-and-switch – using and providing for 

the name, image, and likeness of Jesse Iwuji5and his story as a minority going from the Navy to

1 See 56.1 [Doc. No. 36] at ¶¶9-10.

2 See Frazier Decl. [Doc. No. 36-8] at ¶8.

3 See Frazier Decl. [Doc. No. 36-8] at ¶9.

4 See Pl. 56.1, [Doc. No. 32] at ¶ 15. 

5 The argument that Emmitt Smith whose name, image and likeness rights were also provided would be a driver is 

honestly absurd. Emmitt Smith is an owner, and former NFL pro-football player and the assertion that his name, 

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being a NASCAR driver to induce EPM into the NASCAR sponsorship, then mid-way through 

the year using Kyle Weatherman – a non-minority and not a veteran. 

III. JIM DRAFTED THE AGREEMENT AND CANNOT ALLEGE THAT IT WAS 

EPM WHO FAILED TO STATE THAT JESSE IWUJI MUST BE THE SOLE 

AND EXCLUSIVE DRIVER.

In its opposition, JIM incredulously places an undue emphasis on the fact that the 

Agreement does not affirmatively state that “Jesse Iwuji would be the sole and exclusive driver.” 

As discussed in Point II, supra, the Agreement, when read as a whole, leads to the only logical 

interpretation that Jesse Iwuji would be the sole and exclusive driver of the EPM sponsored races 

– which JIM acknowledges was breached when Kyle Weatherman drove in 6

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of them. 

Additionally, when considering the parties’ intent, it is notable that it is Matt Casto, of The Sports 

Agency, who also negotiated and executed sponsorship agreements with JIM’s other sponsors,

who prepared the Sponsorship Agreement.7 While the Agreement does include a mutual drafting 

provision, it would be inequitable for JIM – who prepared the Agreement and who, as the sport 

agent, had superior experience about the terms and customs of a NASCAR sponsorship, to now 

allege that despite the representations made by JIM when negotiating the Agreement and 

emphasizing the value of Jesse Iwuji, it was EPM who had to affirmatively state the words “Jesse 

Iwuji is the sole driver” when that was the clear intent when the Agreement was prepared and 

negotiated. See, e.g., Calderon v. Sixt Rent a Car, LLC, 5 F.4th 1204, 1219 (11th Cir. 2021) (“Thus, 

the contra proferentem canon expresses a preference that an ambiguity in a contract provision be 

interpreted against its drafter.”); Davis v. Valsamis, Inc., 2016 WL 8677194, at *4 (S.D. Fla. Oct. 

12, 2016), aff'd, 752 F. App'x 688 (11th Cir. 2018) (“[O]nce we conclude a term is ambiguous, the 

image and likeness demonstrates that there would be more than one driver just utterly ignores the parties’ 

negotiations and representations made by JIM to EPM – and the public – when launching its brand. 

6 See Casto Decl. [Doc. No. 40-1] at ¶19. 

7 See Casto Decl. [Doc. No. 40-1] at ¶12; 56.1 [Doc. No. 36] at ¶11. 

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rule of contra proferentem requires us to construe any ambiguities against the drafter.”), citing 

Alexandra H. v. Oxford Health Ins. Inc. Freedom Access Plan, 833 F.3d 1299 (11th Cir. 2016).

IV. JIM MATERIALLY BREACHED ITS OBLIGATIONS UNDER THE 

AGREEMENT WHEN JESSE IWUJI WAS NOT THE DRIVER FOR EPM 

SPONSORED RACES.

JIM’s material breach of the Agreement is not in dispute. JIM acknowledges that Jesse 

Iwuji did not drive in the EPM sponsored races. See Pl. Op. 56.1 [Doc. No. 40] at ¶20. As spelled 

out in the Perez Decl. and Silverman Decl., JIM was placed on notice of this breach during the 

parties’ May 11, 2022 meeting. See Perez Decl. [Doc. No. 36-7] at ¶19; Silverman Decl. [Doc. 

No. 36-9] at ¶4. It is notable that Casto, in neither his declaration submitted with JIM’s opposition 

papers8nor his supplemental declaration submitted with JIM’s Reply papers,

9

never addressed the

May 11, 2022 meeting, under oath.

10

 Despite this meeting, JIM 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. Plaintiff was provided with notice and an opportunity to cure its breach.

Jesse Iwuji also did not fulfill his social media posting requirements. The social media 

posts referenced by Jesse Iwuji fail to demonstrate that he fulfilled his obligation to promote EPM 

in advance of the races:

• March 4, 2022: post made no reference to EPM.

• July 11, 2022, July 14, 2022 July 15, 2022: only includes #EPM, and did not thank 

EPM as a sponsor.

• July 17, 2022 and July 24, 2022: only references EPM along with JIM’s other 

corporate sponsors – Chevrolet and Coca Cola.

8 See Casto Decl. [Doc. No. 40-1].

9 See Casto Suppl. Decl. [Doc. No. 43-1].

10 Which leads to the inescapable conclusion that he was unable to truthfully address it when subject to the penalties 

of perjury. 

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• July 22, 2022: in thanking Chevrolet, Jesse Iwuji has on an EPM baseball cap and 

makes no other references to EPM.

These posts fall short of the two EPM dedicated posts agreed to by the parties in the 

Agreement. As to the podcast and live virtual team talks, JIM acknowledges that the number of 

contracted for appearances did not occur. Thus, it is undisputed that EPM’s motion for summary 

judgment should be granted and to the extent the Court considers the belated declarations from 

JIM, its motion for summary judgment for breach of contract should be denied. See 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.”).

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V. EPM IS NOT JUDICIALLY ESTOPPED FROM CONTENDING THAT 

THERE WAS NO MUTUALITY OF AGREEMENT. 

EPM is not judicially estopped from arguing that, to the extent that JIM never intended to 

have Jesse Iwuji be the sole and exclusive driver there was no mutuality of agreement. JIM fails 

to demonstrate that judicial estoppel applies in this action. As the Eleventh Circuit discussed in 

Slater v. United States Steel Corp., 871 F.3d 1174, 1181 (11th Cir. 2017) “[o]ur circuit employs 

a two-part test to guide district courts in applying judicial estoppel: whether (1) the party took an 

inconsistent position under oath in a separate proceeding, and (2) these inconsistent positions were 

‘calculated to make a mockery of the judicial system.’” (emphasis added). 

This is the only litigation between JIM and EPM, accordingly, Plaintiff has not and cannot 

point to an inconsistent position taken by EPM in a separate proceeding. EPM does not dispute 

that the parties executed the Agreement. However, EPM, in response to JIM’s contention that 

11 JIM’s reference to the discussions with Eduardo G. Perez, Jr., CEO in September 2022 concerning the October 

2022 sponsorship payment is irrelevant to JIM’s material breach of the Agreement. As Plaintiff breached the 

Agreement, they are unable to recover for any alleged breach of contract. 

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contrary to the representations made while negotiating the Agreement, there was never an intent 

to have Jesse Iwuji be the sole and exclusive racer, submits that there was no mutuality of 

agreement. It was Jesse Iwuji, as one of two African Americans and a military veteran connected 

with EPM’s motto to “empower people more.” It was never JIM’s intent to have Jesse Iwuji drive 

in the 8 EPM sponsored races, EPM submits that there was never a mutuality of agreement. This 

position is not in contradiction to EPM’s counterclaim for breach of contract, which is premised 

on JIM’s breaching the parties’ Agreement when it (admittedly) failed to have Jesse Iwuji drive in 

the EPM sponsored races. These positions are congruent and do not make a mockery of the judicial 

proceedings. Accordingly, judicial estoppel should not be applied to EPM’s alternative argument. 

CONCLUSION

EPM respectfully submits that summary judgment should be awarded in its favor. When 

negotiating the Agreement, Jesse Iwuji was the only driver contemplated and agreed to by the 

parties. When Jesse Iwuji could not perform, JIM was forced to find an alternative driver, which 

fell outside of the parties’ Agreement and was contrary to the representations made during the 

negotiations. As a result, JIM has materially breached the Agreement, mandating an award of 

summary judgment on EPM’s counterclaim and, even if, JIM’s belated declarations are considered 

by the Court on JIM’s motion for summary judgment, it must be denied. 

Dated: March 6, 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

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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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