Petition for Writ of Certiorari — ISS Aviation, Inc., Wyoming, et al., Petitioners v. Bell Textron, Inc.

No. 24In the

Supreme Court of the United States

ISS AVIATION, INC., WYOMING, AND

ISS AVIATION, INC., GUYANA,

Petitioners,

v.

BELL TEXTRON, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael Confusione

Counsel of Record

Hegge & Confusione, LLC

P.O. Box 366

Mullica Hill, NJ 08062

(800) 790-1550

mc@heggelaw.com

Counsel for Petitioners

April 29, 2025

131053

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Did the district court misapply Federal Rules of

Civil Procedure 12 and 56 by ruling that no reasonable

jury could find that Bell breached its contract with the

plaintiff and failed to act in good faith while fulfilling its

duty to support the Representative in promoting the sale

of Authorized Products and Services in Guyana during the

final months of the parties’ Independent Representative

Agreement? Did the court err in ruling that the plaintiffs

are not entitled to recover in quantum meruit for the

work they performed over six years as Bell’s Independent

Representative in Guyana—work that led to multi-milliondollar agreements finalized by Bell in 2020 and 2022?

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, there is no

parent or publicly held company owning 10% or more of

either petitioner’s stock.

iii

PARTIES TO THE PROCEEDINGS

Petitioners, ISS Aviation, Incorporated, Wyoming, and

ISS Aviation, Incorporated, Guyana, were the plaintiffs

in the District Court and the appellants in the Court of

Appeals. Respondent, Bell Textron, Incorporated, was

the defendant in the District Court and the Appellee in

the Court of Appeals.

iv

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings in any court that are

directly related to this case.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . . . ii

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

The District Court’s Dismissal of Some of the

Plaintiffs’ Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The District Court’s Dismissal of the Plaintiffs’

Remaining Claims on Summary Judgment . . . . . . . 5

Plaintiffs’ Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

vi

Table of Contents

Page

REASONS FOR GRANTING THE PETITION . . . . . 7

A. To clarify and correct the application of the

motion to dismiss standard . . . . . . . . . . . . . . . . . . 7

B. To clarify and correct the application of the

summary judgment standard . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 5, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORT H ER N DI S T R IC T OF T E X A S ,

F ORT WORT H DI V I SION, F I L ED

JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

APPENDIX C — FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

T E X A S , F OR T WOR T H DI V I S ION,

FILED JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . . 47a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORT H ER N DI S T R IC T OF T E X A S ,

F ORT WORT H DI V I SION, F I L ED

MAY 30, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Beard v. Banks,

548 U.S. 521 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Columbia Gas Transmission Corp. v.

New Ulm Gas, Ltd.,

940 S.W.2d 587 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . 8

Eng. v. Fischer,

660 S.W.2d 521 (Tex. 1983) . . . . . . . . . . . . . . . . . . . . . 10

Fitz-Gerald v. Hull,

150 Tex. 39, 237 S.W.2d 256 (1951) . . . . . . . . . . . . . . 10

Kinzbach Tool Co. v. Corbett-Wallace Corp.,

138 Tex. 565, 160 S.W.2d 509 (1942) . . . . . . . . . . . . . 10

L.O.D.C. Grp., Ltd v. Accelerate360, LLC,

621 F. Supp. 3d 716 (E.D. Tex. 2022) . . . . . . . . . . . . 10

ix

Cited Authorities

Page

Lam v. Thompson & Knight,

104 F. App’x 975 (5th Cir. 2004) . . . . . . . . . . . . . . . . . 18

Leasehold Expense Recovery, Inc. v.

Mothers Work, Inc.,

331 F.3d 452 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . 7-9

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

475 U.S. 574, 106 S. Ct. 1348,

89 L. Ed. 2d 538 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 10

R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc.,

596 S.W.2d 517 (Tex. 1980) . . . . . . . . . . . . . . . . . . . . . . 7

TLC Hosp., LLC v. Pillar Income Asset Mgmt., Inc.,

570 S.W.3d 749 (Tex. App. 2018) . . . . . . . . . . . . . . . . 18

Tolan v. Cotton,

572 U.S. 650 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Truly v. Austin,

744 S.W.2d 934 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . 9

Statutes and Rules

28 U.S.C.A. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8

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

1

PETITION FOR A WRIT OF CERTIORARI

ISS Aviation, Incorporated, Wyoming, and ISS

Aviation, Incorporated, Guyana, petition this Court for a

writ of certiorari to review the decisions of the District

Court for the Northern District of Texas and the Court

of Appeals for the Fifth Circuit.

OPINIONS BELOW

The February 5, 2025 Opinion of the Court of Appeals

is unpublished and appears at App. A. The January 4,

2024 and May 30, 2023 Opinions of the District Court are

unpublished and appear at Appendices B and D.

JURISDICTION

The Court of Appeals decision affirming the orders

and judgment of the District Court was entered on

February 5, 2025. App. A. This Court’s jurisdiction is

invoked under 28 U.S.C.A. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Federal Rule of Civil Procedure 12(b) provides,

“Every defense to a claim for relief in any pleading must

be asserted in the responsive pleading if one is required.

But a party may assert the following defenses by motion

. . . (6) failure to state a claim upon which relief can be

granted . . . ”

Federal Rule of Civil Procedure 56 provides, “(a)

Motion for Summary Judgment or Partial Summary

2

Judgment. A party may move for summary judgment,

identifying each claim or defense—or the part of each

claim or defense—on which summary judgment is sought.

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. The court should state on the record the reasons

for granting or denying the motion.”

STATEMENT OF THE CASE

ISS Guyana contends that Bell owes commissions

or at least quantum meruit damages for sales of Bell

helicopters finalized in 2020 and 2022 that were worth

at least $55.5 million (Record on Appeal before Court

of Appeals “ROA,” ROA.585, 1104, 1121; a press release

indicated the deal was worth more like $256 million,

ROA.1588). ISS Wyoming, which spearheaded lobbying

efforts for Bell, (ROA.1564), alleged a separate quantum

meruit claim in the district court.

Bell manufactu res and sells helicopters and

related services throughout the world. Bell does so

through Independent Representatives, who work under

Independent Representative Agreements (IRAs) that

prescribe the duties of Bell and the representative in

marketing and selling Bell products. Each IR works

in a defined region and is required to market only Bell

helicopters (Art. 10, ROA.1555).

ISS Guyana served as Bell’s IR for French Guiana,

Guyana, and Suriname from 2013 until September 30,

2019, via six separate IRAs of one year each. ROA.1838,

696. Articles Five and Six of the final 2018 IRA (ROA.1549)

3

are at issue in this case. Article Five provides that “Bell

agrees to perform the duties defined below:”

a. Support Representative in its efforts to

promote the sale of Authorized Products and

Services in the Authorized Territory during

the Term of Appointment; . . .

c. Generally render such sales assistance

as may be, in Bell’s sole judgment, reasonable

and appropr iate, w ithout assuming any

responsibility for Representative’s sales

efforts or any obligation to render assistance

beyond what Bell, in its sole discretion, deems

adequate; . . .

f. Compensate the Representative as

provided in Article 6 of this Agreement.

Article 6 provides that “Bell will pay commissions to

Representative . . . for the sale of Authorized Products and

Services to third parties who purchase directly from Bell

and the Bell Companies, provided that Representative has

actively and substantially participated in the promotion

of a particular sale in the Authorized Territory as

determined at the reasonable discretion of Bell, and the

order is placed with Bell during the Term of Appointment

set forth in Article (2)(b) of this Agreement.”

ISS Guyana contends that Bell breached the IRA by

failing to pay commissions for the 2020 and 2022 sales

to the Guyana Defence Force (GDF) that ISS Guyana

“actively and substantially participated in the promotion

of” through its six years of work as Bell’s representative in

4

Guyana, and Bell did not exercise “reasonable discretion”

in determining whether to pay commissions (ROA.1551).

Though the orders were not “placed with Bell” during the

Term of Appointment as the IRA requires for commissions

to be paid, this was because Bell breached its duties to

“Support” its representative and provide sales assistance

under subsections (a) and (c) of Article Five and did not act

in good faith in carrying out its duties. Bell also breached

its duty to cooperate, under Texas law, by cutting its IR

out of the final stages of communications and negotiations

that culminated in the multi-million dollar agreements.

ROA.303. Plaintiff charges, “After ISS Guyana and ISS

Wyoming performed all of the work procuring a deal

with the Guyana Government and the Guyana Defence

Force for the purchase of Bell helicopters, products, and

services for approximately six years on Bell’s behalf,

Bell deliberately ousted ISS Guyana and ISS Wyoming

from the discussions, negotiations, and ultimate deal

transaction . . . with the finish line in sight, Bell decided to

get the deal done without ISS Wyoming or ISS Guyana in

order to avoid paying them commissions” (ROA.325, 1560).

The District Court’s Dismissal of Some of the Plaintiffs’

Claims

The District Court granted Bell’s Rule 12(b)(6) motion

and dismissed ISS Guyana’s claims for breach of contract

except that premised on the implied duty to cooperate.

“Defendant’s obligation to ‘[s]upport [ISS Guyana’s]

efforts to promote the sale’ of Defendant’s Authorized

Products and Services, as set forth in Article 5(a), is the

same as Defendant’s obligation to ‘[g]enerally render

. . . sales assistance,’ as set forth in Article 5(c),” the

court said. ROA.445. “[T]he Court finds that the clear,

5

unambiguous meaning of the contract is that Article

5(c) is meant to place limits on Defendant’s obligations

under Article 5(a) . . . the Parties agreed and intended

that Defendant would have an obligation to provide sales

assistance to ISS Guyana, but that Defendant would only

be obligated to provide such assistance as Defendant

thought reasonable and appropriate. Therefore, any

breach of contract claim based on an alleged failure of

Defendant to provide sufficient sales assistance regarding

the Guyana Deal fails.” ROA.445. ISS Guyana’s alternative

claim for quantum meruit failed on its face as well, the

court said, because Texas law precludes such claims where

an express contract exists between the parties. ROA.451

(the court retained ISS Wyoming’s quantum meruit

claim, ROA.462).

The District Court’s Dismissal of the Plaintiffs’

Remaining Claims on Summary Judgment

Regarding ISS Guyana’s remaining claim for breach

of the implied duty to cooperate, the court acknowledged

that, at the motion to dismiss stage, it had held “that the

Plaintiffs sufficiently pled facts to state a plausible claim

for an implied duty to cooperate.” “However,” the court

said, “given the heightened pleading standard at summary

judgment and the benefit of additional evidence, the Court

finds that the implied duty Plaintiffs seek to impose on

the Defendant was ‘clearly [not] within the contemplation

of the parties’ and thus not applicable under Texas law.”

ROA.1846. “[T]he 2018 IRA expressly states that Bell’s

obligations to ISS Guyana are to support it ‘in its efforts

to promote sales’ and ‘[g]enerally render such sales

assistance as may be, in Bell’s sole judgment, reasonable

and appropriate.’ And the 2018 IRA makes clear that Bell

6

has no obligation to render assistance beyond what Bell,

in its sole discretion, deems adequate.” Id.

Plaintiffs’ Appeal

The plaintiffs argued that the District Court

misapplied the motion to dismiss and summary judgment

standards in dismissing their claims before trial.

The District Court misconstrued Bell’s obligations

under subsection (a) of Article Five of the parties’ IRA,

which does not grant Bell “sole discretion” to decide what

“Support” to give its representative. Regarding Bell’s

duty to provide “sales assistance” under subsection (c),

the court disregarded that this duty must be considered

alongside Bell’s duty to cooperate implied under Texas law,

and a jury applying Texas law would also consider whether

Bell acted in good faith in carrying out its contractual

obligations. The District Court committed a reversible

error by dismissing ISS Guyana’s alternative quantum

meruit claim as well. The court ruled that this claim

failed because there is an “express contract” between

the parties, but Texas law provides a “clear exception” to

this rule for a party who has partially performed under

the contract and alleges that its complete performance

was hindered by the other party—as ISS Guyana shows

in this case.

These claims are trial worthy, moreover, because a

reasonable jury can find in ISS Guyana’s favor on the

claims. A jury can find that Bell failed to act in good faith

in carrying out its contractual duties to its representative

and did so for the improper purpose of trying to avoid

paying its IR commissions or any compensation for the

7

six years of work that resulted in Bell’s 2020 and 2022

sale agreements.

REASONS FOR GRANTING THE PETITION

A. To clarify and correct the application of the motion

to dismiss standard

This Court’s precedent provides a very minimal

standard for pleaded claims to survive dismissal on a Rule

12(b)(6) motion. The complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief

that is simply plausible on its face. Ashcroft v. Iqbal,

556 U.S. 662 (2009). Plausibility requires only a sheer

possibility that a defendant has acted unlawfully and is

liable to the plaintiff. Id. The factual allegations must

be enough to raise a right to relief above merely the

speculative level. Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007).

The district court misapplied that standard, which the

Court should intervene to correct and clarify the governing

standard. The IRA is unambiguous (R & P Enterprises

v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519

(Tex. 1980); Leasehold Expense Recovery, Inc. v. Mothers

Work, Inc., 331 F.3d 452, 458 (5th Cir. 2003)), but the

District Court misconstrued the unambiguous language

in limiting Bell’s duty to “Support Representative” under

subsection (a) the “sole judgment” limitation that appears

in subsection (c), with regard to Bell’s duty to “render”

sales assistance. These are separate obligations that Bell

had under two independent provisions, which are not even

next to each other under Article Five and are among six

separately stated duties Bell has to its IR under Article

8

Five. The “sole discretion” and “as Bell deems reasonable

and appropriate” limitations appear only in subsection

(c), not in subsection (a) or in any other section, Columbia

Gas Transmission Corp. v. New Ulm Gas, Ltd., 940

S.W.2d 587, 591 (Tex. 1996) (“The failure to include more

express language of the parties’ intent does not create

an ambiguity when only one reasonable interpretation

exists.”) Under the District Court’s construction, the

limitation would apply to Bell’s other obligations under

Article Five as well, such as Bell’s duty to “compensate the

Representative” under subsection (f). This is not sensible,

since the representative’s right to compensation is not

dependent on Bell’s sole discretion. The District Court’s

dismissal on its face of plaintiff’s breach of contract

claim premised on subsection (c) was erroneous because

Bell’s obligation under subsection (c) must be considered

alongside Bell’s implied duty to cooperate under Texas law,

because Bell’s “cooperation is necessary for” ISS Guyana’s

performance of its own duties under the parties’ contract,

Leasehold Expense Recovery, Inc. v. Mothers Work, Inc.,

331 F.3d 452 (5th Cir. 2003).

The district court also violated the plausibility

standard under Rule 12(b)(6) by dismissing even ISS

Guyana’s alternative quantum meruit claim. The court

dismissed this claim on the ground that Texas law (which

applies to this diversity dispute) precludes quantum meruit

recovery where there is an express contract between the

parties. But Texas law provides an exception that permits

“recovery in quantum meruit . . . when a plaintiff has

partially performed an express contract but, because of

the defendant’s breach, the plaintiff is prevented from

completing the contract”—as ISS Guyana did, Leasehold

Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d

9

452, 462 (5th Cir. 2003) (noting if “Mothers violated the

duty to cooperate implied in the Contract, then LER was

unable to recover any potential overcharges on Mothers’s

behalf because Mothers breached the contract. We must

therefore also vacate the district court’s grant of summary

judgment for Mothers on LER’s claim that it is entitled to

recover in quantum meruit insofar as it relates to LER’s

implied duty to cooperate claim”) (citing Truly v. Austin,

744 S.W.2d 934, 936 (Tex. 1988)).

B. To clarify and correct the application of the

summary judgment standard

Summary judgment should be denied when the

evidence permits a reasonable jury to return a verdict

for the nonmoving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986). A district court must view the

evidence in the light most favorable to the nonmoving

party in assessing a summary judgment motion. Tolan

v. Cotton, 572 U.S. 650 (2014). If reasonable minds could

differ on the import of the evidence, summary judgment

is unwarranted. Beard v. Banks, 548 U.S. 521 (2006).

The district court misapplied this governing standard

as well because a reasonable jury, seeing and hearing

the witness testimony and considering the documentary

evidence, can find that Bell took actions—in cutting Barker

from the communications on the Guyana deal between the

beginning of January 2019 and the termination of the IRA

in September 2019—that breached its duty to plaintiff and

shows that Bell failed to act in good faith in carrying out its

duty to “Support Representative in its efforts to promote

the sale of Authorized Products and Services in” Guyana.

10

A jury would also consider whether Bell acted in

good faith in carrying out its duty, L.O.D.C. Grp., Ltd v.

Accelerate360, LLC, 621 F. Supp. 3d 716, 727 (E.D. Tex.

2022) (“the Court will instead consider Lily’s allegations

of bad faith to be subsumed within its breach of contract

claims”). Texas law says there is a duty of good faith

“in special relationships,” such as those between joint

venturers and principal and agent—much like the

relationship between Bell and its IR. Bell says that

the IRA disclaims creating any “agency, partnership,

dealership, distributorship, employment relationship, and/

or joint venture between [ISS Guyana] and Bell (Brief at

11), but the duty of good faith springs from the parties’

relationship, not from the contractual language, Eng.

v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983) (concurring

opinion); cf. Fitz-Gerald v. Hull, 150 Tex. 39, 54, 237

S.W.2d 256 (1951) (three parties in joint adventure for oil

and gas lease, imposing upon each party duty to perform

to further common interest; petitioner violated duty in

taking title in own name and seeking to appropriate all

profits for itself); Kinzbach Tool Co. v. Corbett-Wallace

Corp., 138 Tex. 565, 160 S.W.2d 509 (1942) (principal and

agent).

The district court distorted the summary judgment

standard, this Court should rule by granting Certiorari,

by failing to construe the evidence in the light most

favorable to the plaintiff and, instead, highlighting

proofs that Bell claimed supports the factual conclusions

it urges, contravening the Court’s governing precedent,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

11

It is not just Lex Barker’s testimony that the district

court disregarded but Bell’s own witnesses and documents.

All of Bell’s actions occurred while plaintiff was still Bell’s

IR in Guyana—during the term of the IRA. This is an

important fact that a jury would consider in determining

whether Bell breached its duty under Article Five and

failed to act in good faith in carrying out its duty. Among

other evidence, Bell’s Ruben Reyes’ acknowledges that

ISS Aviation was excluded from the “renewed” discussions

with Guyana; Barker was “not involved in any of the

meetings that the Bell team is having with the GDF for

the new LOR.” ROA.1118. Bell contacted Guyana and/or

the GDF in early August 2019 seeking more information

or specifications and requirements of Guyana—without

including its IR (ROA.1625-26). Reyes acknowledged that

Bell received a Letter of Request from Guyana that Reyes

withheld from its IR. ROA.1621. In an August 12, 2019

email regarding a PowerPoint presentation containing a

proposal for the Guyana deal, Bell’s Nick Peffer states,

“If there is reference to [ISS Guyana], please remove.”

ROA.1628 (redacted from public filing). Bell’s Reyes wrote

to Guyana’s representative without notifying its IR:

Dear Colonel Bowman,

Hope your day is going well. My name

is Ruben Reyes and as the Regional Sales

Manager for Bell, my goal is to ensure we

meet address all of your needs. Currently, we

are working on responding to your attached

request. There are some specifications that still

need to be clarified, such certain details around

the needed helicopter configuration.

12

Would it be possible to setup a teleconference

with you so that we can continue the dialogue

and if needed, I’m happy to travel to Guyana to

meet with you in person. My contact information

is as shown below and am available at any time.

You can best reach me on my cell via WhatsApp

as well (817) 964-5602.

Regards,

Ruben S. Reyes Jr

Regional Sales Manager Latin America / Bell

[ROA.1625]

Reyes wrote independently to Lieutenant Colonel Byrne

as well:

It was a pleasure speaking with you on

Monday and as discussed we are working on

the response for the LOR.

Wou ld you plea se rev iew t he att a ched

configuration that is being developed to see if

it will meet your needs. I’ll call you tomorrow

to discuss the subject further. Below you will

also find my contact information and I hope to

meet you in person soon. [ROA.1625-26]

Bell coordinated a teleconference with the GDF to

address its questions and concerns—without telling its

IR. ROA.1631.

Reyes visited Guyana in late August 2019 to discuss

the Guyana deal without advisement to or involvement of

13

its IR. Reyes provided an expansive summary of his visit

to other participants within Bell—but nothing to Barker.

ROA.1635.

When Barker made his presentation to Bell in August

2019, Reyes made “some changes” to it, but Reyes did

not tell Barker, even then, that there was an LOR, or

that Guyana had renewed and was following up on the

2016 proposal—now advising it wanted more of the same

model helicopters that Barker had previously negotiated.

Reyes admits,

Q. And when you received this PowerPoint

presentation from Mr. Barker, this 4158, that

page, indicates that the Guyana government is

wanting two 429s and one 412. See?

A. Okay. Yes ***

Q. So this requirement that was being

communicated to you through this presentation

that he gave to you, before he gave the

presentation, was wrong?

A. Yes.

Q. But you didn’t tell Mr. Barker that, did

you?

A. I did. I told him to take out the August

2019.

Q. That’s all you told him to do. But you

didn’t tell him to change the 429—you didn’t

tell him to change the 412 quantity?

14

“I may have overlooked it,” Reyes claimed during his

deposition. ROA.1620. A jury can reject this and find that

this was reflective of Reyes and Bell’s concerted action to

cut its IR from the discussions about the agreement that

its IR had built for six-plus years.

A jury would consider that Reyes’ actions also broke

the promises of continued support that Vice-President

Ortiz had consistently made to Plaintiff’s Lex Barker.

“Jay made this oral statement to support” plaintiff and

promised that Bell would renew the IRA at least until

the Guyana agreement was finalized. ROA.1144. Barker

testified, “We’re working a live active deal.” ROA.1144.

“We had a clear feeling and understanding, promise,

reassurance that we’ll get the support and be involved

in the deal with Bell Helicopter as ISS Wyoming and

ISS Guyana to close the Guyana deal.” ROA.1144. “Bell

Helicopter was committed to work with ISS Aviation on

the Guyana deal to see it through closing, and we should

keep at it, and there’s always another time for another

deal, just stick at it, keep at it, and we will be not excluded,

you know, just be involved. And the commitment from

Bell to support ISS Aviation, based on their commitment

to not do the Guyana deal without us, I mean, was that

reassurance that we got that we did the right thing, that

Bell will be committed to doing the Guyana deal with

ISS Aviation because of our long-term involvement and

bringing the deal to where it was.” ROA.1144, ROA.1150.

“[W]e got their assurances that Bell is committed to us,

so I mean, the promise is there for us to keep at it, we’re

going to have Bell’s involvement to ensure we close the

deal that we worked on, we created the program, set up

the program,” Barker would affirm to a jury at trial.

ROA.1151.

15

Bell’s August 2019 emails permit a jury to find that

Bell breached its duties to plaintiff and failed to carry

out its duties in good faith during the term of the IRA.

Bell claimed that it was pleased with plaintiff’s work and

would approve renewal of the IRA beyond September 2019

(per Ortiz’s promises, etc., as noted), then reversed its

decision when Reyes concluded he could close the Guyana

deal without plaintiff and cut them from its final stages,

thereby avoiding payment of any sort to its IR. A jury can

find this breached the duty to support its IR and showed a

complete lack of good faith in carrying out its contractual

duties to its IR because of the following email from Bell’s

Susan Michaels discussing Bell’s sudden decision not to

renew the IRA (ROA.1560-61), telling Reyes and Ortiz

(among others at Bell),

I found a problem on ISS Aviation. I forgot

that they were put on a temporary extension,

under the renewal process, that goes through

the end of September, see attached. The option

we now have is to do an early termination

instead of allowing him to just lapse. If you

allow the contract to continue through the end

of September wouldn’t that give [ISS Guyana]

the opportunity to get involved in the FMS case

in Guyana? . . . Want to make sure we have all

of our ducks in a row because when I reach out

to him next week for a list of opportunities he

feels he has been actively involved in . . . he will

more than likely list the FMS case. . . . Let me

know if early termination is the best way to go

on this one. [ROA.1560-61]

16

Bell Vice P resident Or ti z adv ised the ema i l

participants, “Good Morning All . . . While Lex had

no clue about the FMS case he was the individual that

created the program a few years ago. That will be his

claim and he would be correct.” ROA.1560; ROA.1115

(Reyes’ testimony re: same). A jury would consider all

Bell’s internal communications showing discussions among

Bell’s personnel and a concerted effort, led by Reyes, to

hide the renewed, follow up discussions from Barker and

cut his company completely from the forthcoming deal to

avoid paying plaintiff anything for its part, e.g., ROA.1560

(August 2019 emails among Bell personnel discussing

how to cut off ISS Guyana’s claim for commissions on

forthcoming agreement); ROA.1614 (Reyes testimony

acknowledging omission of Barker from follow-up

communications about 2016 proposal made on Bell’s behalf);

ROA.1617 (Reyes acknowledging Barker not advised of

meetings “that Bell team [was] having with the GDF

[Guyana Defence Force) for the new LOR”); ROA.1620-21

(Reyes acknowledging concealing from Barker, in July

2019, that GDF had renewed interest in consummating

purchase); ROA.1625-26 (Reyes communicating with GDF

about GDF requests for purchases, omitting Barker);

ROA.1631 (communications without Barker/ISS Guyana

re: “updated 429 configurations” for agreements, and GDF

request for further details, ROA.1633); ROA.724 (April

2019 communications confirming interest from Guyana in

finalizing sale for purchase of Bell helicopters); ROA.728

(request from GDF to U.S. Embassy re: same); ROA.820

(April 2019 emails from Bell re: “Guyana 2 x 412 ROM

proposal”); ROA.822 (Rough Order Proposal sent by Bell

for 2 x 412 sale to GDF); ROA.825 (Bell communications—

sans Barker/ISS Guyana—noting continued work toward

finalizing pricing requests for Guyana agreement);

17

ROA.826 (July 2019 email noting LOR from Guyana “for

4 total aircraft: two each Bell 412Epi and 2 each Bell

429”); ROA.829 (June 2019 Letter Request from Guyana

for “Offer for the purchase of two Bell 412 EPIs and

Two Bell 529 Helicopters”); ROA.832 (August 12, 2019

email re: GDF purchases of same); ROA.834 (September

19, 2019 email from “FMS Contracts Administrator”

to U.S. Army re: “Bell’s LOA response for the Guyana

Defence Force” for same sales, noting, “Should you have

any questions or desire a walkthrough of the attached

document, please contact myself, Brad Mullins, or David

Archer” of Bell); ROA.836 (LOA Response re: proposed

purchase agreements with Guyana).

The district court credited Bell’s claim that it canceled

the plaintiff’s IRA not to cut them out of the Guyana

agreements but because the plaintiff was “not aware” of

the “FMS prospect.” However, proper application of Rule

56 shows this is an issue for a jury, not the district court

judge, to determine. Bell was withholding the information

from its IR in the first place. Barker told Reyes that Bell

suddenly deciding not to renew the IRA just as the Guyana

deal was coming to fruition was precluding plaintiff

sufficient time to close the agreement. ROA.1117.

Bell says that plaintiff has no right to compensation

because the 2020 and 2022 agreements were not “placed

with Bell” during the term of plaintiff’s appointment as

Bell’s IR in Guyana, as Article 6 of the IRA requires.

But a jury can find that Bell breached its duties to

plaintiff in the first place, and did not act in good faith in

carrying out its support duties; Bell’s wrongful actions,

first in time, precluded plaintiff from completing its

own obligations under the IRA and wrongfully deprived

18

it of the commissions it otherwise would have earned

for its six-plus years of work. “Where one party to the

contract, by wrongful means, prevents the other party

from performing, as by making it impossible for him

or her to perform, such action constitutes a breach of

the agreement, the effect of which not only excuses

performance by the injured party, but also entitles him to

seek to recover for any damage he may have sustained by

reason of the breach.” TLC Hosp., LLC v. Pillar Income

Asset Mgmt., Inc., 570 S.W.3d 749, 765–66 (Tex. App.

2018); Lam v. Thompson & Knight, 104 F. App’x 975, 976

(5th Cir. 2004) (“[W]hen a contract has been substantially

performed and an attempt to complete performance has

been refused, the refusal excuses any further attempt to

perform by the party offering performance and entitles

that party to recover under the contract”).

The district court also credited Bell’s claim that the

plaintiff was only involved in an “FMS case” that never

transpired and that the FMS case was “unrelated” to the

2020 and 2020 agreements. But this again is for a jury,

which can reject Bell’s claim and find otherwise—that

plaintiff did “actively and substantially participate[]

in the promotion of” the 2020 and/or 2022 agreements

through its six years of service as Bell’s IR in Guyana.

Bell disregards its own documents acknowledging that the

2019 discussions were renewed, follow-ups from the 2016

proposals that Barker had piloted, ROA.1650, and involved

the same 412 and 429 Bell model helicopters, ROA.808,

ROA.817 (Guyana request for pricing and availability of

412s and 429s); ROA.808. Reyes himself said that, in 2019,

Tropical Aviation Distribution/ Africair, Bell’s successor

IR in Guyana was following up on the work done by ISS

Aviation. ROA.1122.

19

The December 2020 and June 2022 agreements were

preceded by a March 2020 FMS approval from the United

States Government that Barker helped procure during his

six years as Bell’s IR. As Reyes himself affirms, Barker

“was the individual that created the program a few years

back”—referencing the proposed “FMS case” in 2019

(ROA1118). Vice President Ortiz affirms this as well:

Q . . . So as you sit here today, Mr. Ortiz,

you agree that it was Mr. Barker, by way of ISS

Aviation (Guyana), that created the program

for the sale of helicopters to the Guyana

government?

A. Mr. Barker engaged with the Government

of Guyana to sell the aircraft. Given the timing

of the FMS case, my argument here is that, if

he claimed, he would be correct, if the FMS

case had closed.

Q. So you’re in agreement that if the

FMS case had closed, then Mr. Barker, ISS

Aviation, would have been—has substantially

participated in that—in facilitating that

closing?

A. Not the closing of the FMS case but the

fact that we closed the program. Two different

things.

Q. Okay. What program are we talking

about?

A. The program to the Guyana government.

20

Q. Okay. And has the Guyana—has Bell, in

fact, sold helicopters to the Guyana government?

A. A couple of years later, yes.

Q. So when you say he created the program,

what do you mean?

A. He engaged with the customer in a

conversation to pitch the Bell product and

create an opportunity for Bell to sell into the

country.

Q. Okay. Is it fair to say that there was no

program prior to ISS Aviation’s involvement

with the Government of Guyana?

A . Yes. There was basically no rep.

[ROA.1102

A jury can find that even by Bell’s characterization of

the events, the “FMS case” that plaintiff helped procure

was still active when the allegedly separate 2020 sale

was finalized—providing further proof that the prior

discussions and groundwork laid by Barker and company

from 2014 onward resulted in the 2020 agreement reached.

Bell’s own Frank Ferraro, who worked alongside Barker

for years, would tell the jury,

• how Barker worked with Bell to secure financing

from 2014 forward (ROA.1639; ROA.1089-90, ROA.1049)

• how Barker worked with past and newly-elected

Governments of Guyana, leading to the 2016 proposal

(ROA.1080; ROA.1073-78; ROA.1038-47)

21

• how Barker and his company worked to drive

marketing and sales for Bell in the hostile conditions

of Guyana despite interference in plaintiff’s business

operations and even attempts on Mr. Barker’s life

• about the work he and Barker did to advance a sale of

the 412—the same model in the renewed 2019 discussions

and that Bell then sold to Guyana in the 2020 and 2022

agreements (Appellee’s Brief at 16; ROA.1588, 775, 789)

• how Barker helped Ferraro visit Guyana to meet

with decisionmakers and “help move the deal forward”

(ROA.1080-82)

• how, by August 2016, Ferraro and Barker had

developed and presented a proposal to the U.S. Embassy

and the Canadian High Commission in Guyana toward

securing the needed approval for Bell’s helicopters sales

to Guyana

• how, by 2017, Barker and Ferraro had succeeded in

getting the GDF to move beyond their existing helicopters

and consider new Bell “replacement helicopters,”

with Barker simultaneously working on securing the

needed “GDF/Government financing” for the purchase

(ROA.1029).

Bell’s Vice President, Javier Ortiz, would testify that,

• Barker and his company’s work had furthered

an agreement with Guyana (ROA.1049, 1639, 108990; ROA.1598-1611 (noting work done by Barker and

companies toward Guyana agreement)

22

• Ortiz promised continued support for plaintiff

towards finalizing an agreement with Guyana (ROA.1665)

• Ortiz assured Barker that it was Bell’s expectation

that a deal with Guyana would be finalized during the

2018 IRA and Bell would continue working with plaintiff

toward the agreement (ROA.1666).

A jury can find that all this evidence (and the other

evidence detailed in the summary judgment record)

showed that Barker and his company were substantially

involved in the deals—having laid the needed groundwork

for the agreements that were ultimately reached on the

back of what the IR built for Bell and rejecting Bell’s

claim that its longtime IR had “nothing to do” with the

agreements.

Bell contends, “[t]he 2018 IRA did not guarantee

ISS Guyana access to all deals in the Guyana region

or protection in Guyana.” What deals? Bell hadn’t had

a deal since 1981. Saying that Bell was not required to

“include ISS Guyana” in “all potential sales” is absurd in

the context of this case, when the only deal being worked

on was any deal with Guyana or its GDF as Barker, with

his Bell point person Ferraro, had worked towards for

six-plus years, a jury can find.

The lower courts’ misapplication of the summary

judgment standard is reflected most acutely in adopting

Bell’s characterization of this case as if it involved

two discrete sales by a regional representative among

hundreds or thousands a company might make of a

garden variety product marketed in a friendly country.

23

This is not such a case. Bell is a manufacturer and seller

of helicopters trying to obtain multi-million-dollar sales

agreements with a hostile foreign government in a volatile

country, riddled with corruption and rampant drug trade,

where Bell hadn’t had a sale of any sort for decades (since

1981). Such deals take years to grow into financed and

government-approved ones—and that’s precisely what it

took for Bell to obtain the 2020 and 2022 agreements here.

A jury would consider these circumstances in deciding

whether plaintiff “actively and substantially participated

in the promotion of” the 2020 and/or 2022 agreements

through its six years of service as Bell’s representative in

Guyana; whether Bell breached its duty to “Support” its

IR and failed to act in good faith in carrying out its duty;

and whether Bell exercised “reasonable discretion” in

determining whether compensation was owed to plaintiff

for the agreements that Bell then obtained by way of

damages for breach of contract or, at least, under quantum

meruit principles.

24

CONCLUSION

The Court should grant this Petition for a Writ of

Certiorari.

Respectfully submitted,

Michael Confusione

Counsel of Record

Hegge & Confusione, LLC

P.O. Box 366

Mullica Hill, NJ 08062

(800) 790-1550

mc@heggelaw.com

Counsel for Petitioners

Dated: April 29, 2025

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 5, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORT H ER N DI S T R IC T OF T E X A S ,

F ORT WORT H DI V I SION, F I L ED

JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24a

APPENDIX C — FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

T E X A S , F OR T WOR T H DI V I S ION,

FILED JANUARY 4, 2024 . . . . . . . . . . . . . . . . . . . 47a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORT H ER N DI S T R IC T OF T E X A S ,

F ORT WORT H DI V I SION, F I L ED

MAY 30, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED FEBRUARY 5, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 24-10063

ISS AVIATION, INCORPORATED WYOMING;

ISS AVIATION, INCORPORATED GUYANA,

Plaintiffs—Appellants,

versus

BELL TEXTRON, INCORPORATED,

Defendant—Appellee.

Filed February 5, 2025

Before Higginbotham, Willett, and Ho, Circuit Judges.

Per Curiam:*

ISS Aviation, Inc. Wyoming (ISS Wyoming) and ISS

Aviation, Inc. Guyana (ISS Guyana) worked on behalf

of Bell Textron, Inc., a helicopter manufacturer, to sell

helicopters in certain South American countries. During

their six-plus years as Bell’s representatives, ISS Wyoming

* This opinion is not designated for publication. See 5th Cir.

R. 47.5.

2a

Appendix A

and ISS Guyana achieved no sales. However, they now

seek commissions or restitution for sales that post-date

their contract with and representation of Bell, based on

their supposed groundwork for the eventual sales and

Bell’s alleged failure to “support” their sales efforts. The

district court granted summary judgment to Bell and

dismissed the ISS parties’ breach-of-contract, breach-ofimplied-duty-to-cooperate, and quantum meruit claims.

We AFFIRM.

I

Bell Textron, Inc. manufactures and sells helicopters

around the world. Bell sells its helicopters through three

paths: (1) Foreign Military Sales, through which Bell sells

the product to the United States government who then

sells the product to the customer; (2) Direct Consumer

Sales, in which the customer buys the product directly

from Bell; and (3) Canadian Commercial Sales, through

which the customer obtains quasi-private financing from

Export Development Canada to purchase the product

from Bell.

To achieve sales, Bell contracts with Independent

Representatives for specified terms. These Representatives

work under Independent Representative Agreements,

which outline the duties of both Bell and the Representative

in marketing and selling Bell products. Included among

these duties, each Representative is assigned a defined

region and is required to market only Bell products—and

none of any competitor.

3a

Appendix A

Via six separate agreements, ISS Guyana was Bell’s

Representative in French Guiana, Guyana, and Suriname

from 2013 to September 30, 2019. As background, Lex

Barker—eventual head of ISS Guyana—owned Bell

helicopters and a hanger in Guyana and had previously

sold preowned helicopters to the Guyanese government.

Bell had not sold a helicopter in Guyana since 1981, so

Bell and Barker met to discuss doing business as an

Independent Representative. Barker formed ISS Guyana

soon after and entered into an Agreement in 2013, which

was subsequently renewed multiple times for varying

term lengths. In 2015, ISS Guyana relocated to Florida

(after the Guyanese government allegedly seized ISS

Guyana’s hangar) and never returned.1 Barker later

formed ISS Wyoming—with Bell’s knowledge—to lobby

the United States to approve sales to Guyana, given that

ISS Guyana, a foreign corporation, could not lobby the

U.S. government.

ISS Guyana and ISS Wyoming’s relationship with

Bell at first seemed promising. In 2014, Barker and the

ISS parties worked with Bell to achieve a non-binding

indication from Canada, confirming its interest in

financing up to three aircrafts for around $25 million.

Barker also provided Bell with intelligence about Guyana’s

politics, corruption, and drug trade. And by 2017, the

Guyana Defence Force was considering new Bell models

as “replacement helicopters,” and Barker confirmed to

Bell in February 2017 that “all was in place to close our

deal in early 2017.”

1. The Agreements required ISS Guyana to maintain an

office in the covered territory.

4a

Appendix A

But the ISS parties’ initial promise faded. The

anticipated 2017 deal was disrupted—due to corruption,

say the ISS parties, and according to email records,

helicopters were not the Guyana Defence Force’s top

priority and “the budget [did] not contemplate such a

buy.” Barker still anticipated moving towards a sales

agreement, but Bell was growing increasingly concerned

with ISS Guyana’s lack of engagement—i.e., failure to

generate new leads and to further the potential threehelicopter sale—and failure to maintain a physical

presence in the Agreement territory (Guyana).

B

In May 2018, Bell renewed ISS Guyana’s IndependentRepresentative term for one year. However, Bell expressed

it “[w]ould like to see more in-country involvement.” The

2018 Agreement’s term extended from August 15, 2018 to

August 14, 2019. By amendment, Bell extended the term

to September 30, 2019.

Under Article 4 of the 2018 Agreement, ISS Guyana’s

duties included: “[e]stablish[ing] and maintain[ing] an

official place of business in the Authorized Territory”; “[o]

btain[ing] offers from prospective customers to purchase

Authorized Products” and “submit[ting] those offers to

Bell”; and “[p]ay[ing] all costs and expenses incurred

in the promotion and sale by the Representative of the

Authorized Products and Services unless otherwise

agreed to in writing by the Representative and Bell[.]”

5a

Appendix A

A rticle 5 of the Agreement spelled out Bell’s

obligations:

a. Support Representative in its efforts to

promote the sale of Authorized Products

and Services in the Authorized Territory

during the Term of Appointment; . . .

c. Generally render such sales assistance as

may be, in Bell’s sole judgment, reasonable

and appropriate, without assuming any

responsibility for Representative’s sales

efforts or any obligation to render assistance

beyond what Bell, in its sole discretion,

deems adequate; . . .

f. Compensate the Representative as provided

in Article 6 of this Agreement.

Article 6 governed “Compensation.” As relevant here,

the Agreement provided that:

Bell will pay commissions to Representative . . .

for the sale of Authorized Products and Services

. . . provided that Representative has actively

and substantially participated in the promotion

of a particular sale in the Authorized Territory

as determined at the reasonable discretion of

Bell, and the order is placed with Bell during

the Term of Appointment[.] . . . Orders received

outside of the Term of Appointment . . . will not

be eligible to receive a commission, regardless

6a

Appendix A

of when such order was initiated unless

otherwise agreed to by Bell under a separate

written agreement.

C

By Spring 2019, Bell received a letter from the MultiNational Aviation Special Project Office (a division of the

U.S. Army), on behalf of the Guyanese government, which

requested pricing and availability for four helicopters

through Foreign Military Sale procedures. Barker and

ISS Guyana had no knowledge of the Foreign Military

Sale prospect.

In response to the letter, Bell made another proposal

to Guyana through its internal government-to-government

team and without ISS Guyana. ISS Guyana contends that

Bell “fell silent” and worked “behind [the ISS parties’]

back to close the deal without ISS Guyana’s involvement.”

Javier Ortiz, Vice President of Bell, assured Barker

that Bell expected a deal with Guyana to be completed

during the term of the 2018 Agreement. As a result,

Barker, ISS Guyana, and ISS Wyoming pressed ahead

with work to further a deal with Guyana.

In August 2019, Bell advised Barker that it would not

be renewing the Agreement. Bell did, however, suggest

that it may consider granting prorated commissions on

future sales if ISS Guyana “actively and substantially

participated in the transaction prior to the expiration

date of the subject Agreement.” Bell repeatedly asked

7a

Appendix A

ISS Guyana to identify any potentially qualifying sales,

but ISS Guyana never responded.

ISS Guyana’s Agreement then expired on September

30, 2019. And its business never took off: ISS Guyana did

not sell a single Bell helicopter during the six-plus-year

relationship.

D

In October 2020, after the 2018 Agreement expired,

the United States approved the potential Foreign Military

Sale of Bell helicopters to Guyana, worth approximately

$256 million. However, that Foreign Military Sale never

materialized, as the Guyanese government cancelled the

sale proposal in January 2021.

Eventually, Guyana purchased two helicopters from

Bell. The first sale occurred in December 2020. According

to Bell, a year after the 2018 Agreement expired, Bell’s

new Independent Representative in Guyana learned that

the newly-installed Guyanese National Security Advisor—

with whom ISS Guyana had no contact during its term as

Representative—sought to obtain a used Bell helicopter.

A Bell regional sales manager approached the official to

discuss the sale of a new Bell helicopter to the Guyana

Defence Force, and in December 2020, the sale was

completed for $9.5 million. Bell paid its new Representative

commission. ISS Guyana sought commission, by email, for

this sale in May 2022, and continues to seek commission

for this sale now.

8a

Appendix A

The second sale occurred in June 2022—nearly three

years after the 2018 Agreement expired—for another

$9.5 million. Bell again paid its new Representative

commission. ISS Guyana now seeks commission for this

sale.

E

In August 2022, ISS Guyana filed suit in state

court—which Bell later removed to federal court—and

charged that Bell breached the 2018 Agreement by failing

to pay commissions for the 2020 and 2022 sales to the

Guyana Defence Force. ISS Guyana alleges it “actively

and substantially participated in the promotion of” the

sales through its six years as Bell’s Representative,

and Bell did not exercise “reasonable discretion” in

determining whether to pay commissions, as required by

the Agreement. According to ISS Guyana, it “performed

all the work procuring a deal” with Guyana’s government

and defense force for the purchase of Bell helicopters

and services, but Bell “deliberately ousted” them from

the negotiations “with the finish line in sight . . . to avoid

paying them commissions.”

Bell moved to dismiss. The district court found that

“any breach of contract claim based on an alleged failure

of [Bell] to provide sufficient sales assistance regarding

the Guyana Deal fails.” ISS Aviation, Inc. (Wyoming) v.

Bell Textron, Inc., No. 4:22-CV-00689-O, 2023 U.S. Dist.

LEXIS 238873, 2023 WL 11822275, at *5 (N.D. Tex. May

30, 2023). It also found ISS Guyana’s alternative claim

for quantum meruit failed because Texas law precludes

9a

Appendix A

such claims where an express contract exists between

the parties. 2023 U.S. Dist. LEXIS 238873, [WL] at

*6–7. However, the court retained ISS Guyana’s claim

for breach of the implied duty to cooperate and ISS

Wyoming’s quantum meruit, promissory estoppel, and

unjust enrichment claims. 2023 U.S. Dist. LEXIS 238873,

[WL] at *12.

After discovery, Bell moved for summary judgment

on the ISS parties’ remaining claims. The district court

found the implied duty to cooperate was “clearly [not]

within the contemplation of the parties” and accordingly

was not applicable under Texas law. ISS Aviation, Inc. v.

Bell Textron Inc., No. 4:22-CV-00689-O, 2024 U.S. Dist.

LEXIS 111061, 2024 WL 3086629, at *4–6 (N.D. Tex.

Jan. 4, 2024). As to ISS Wyoming’s claims, the district

court ruled that the summary-judgment evidence did

not “demonstrate that ISS Wyoming performed work

or that Bell enjoyed that work” nor did it “demonstrat[e]

how ISS Wyoming’s lobbying led to any helicopter sales

or provided any other benefits to Bell.” 2024 U.S. Dist.

LEXIS 111061, [WL] at *6.

ISS Guyana appeals its breach-of-contract, breach-ofimplied-duty-to-cooperate, and quantum meruit claims.

ISS Wyoming appeals its quantum meruit claim.

II

We begin with ISS Guyana’s claims which were

dismissed at the motion-to-dismiss stage: (1) breach of

contract, and (2) in the alternative, quantum meruit.

10a

Appendix A

We review de novo a district court’s grant of a motion to

dismiss. See Leal v. McHugh, 731 F.3d 405, 410 (5th Cir.

2013).

Federal Rule of Civil Procedure 12(b)(6) permits

dismissal of complaints which “fail[] to state a claim upon

which relief can be granted.” Accordingly, “[t]o survive

a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.

1955, 167 L. Ed. 2d 929 (2007)). So ISS Guyana must plead

“factual content that allows [us] to draw the reasonable

inference that [Bell] is liable for the misconduct alleged.”

Id. Because the district court had jurisdiction based on

diversity, we apply Texas substantive law. See Smith v.

Christus Saint Michaels Health Sys., 496 F. App’x 468,

470 (5th Cir. 2012) (per curiam) (“When the district court

exercises diversity jurisdiction over a dispute, we apply

the substantive law of the forum state, which in this case

is Texas.” (citation omitted)); Weaver v. Metro. Life Ins.

Co., 939 F.3d 618, 626 (5th Cir. 2019) (“As this is a diversity

case, [the court] interpret[s] the contract at issue under

Texas law.” (alterations in original) (citation omitted)).

At the motion-to-dismiss stage, we may consider

contracts attached to the motion and central to the

complaint. See New Orleans City v. Ambac Assur. Corp.,

815 F.3d 196, 200 (5th Cir. 2016). Here, that is the 2018

Agreement.

11a

Appendix A

A

First, ISS Guyana revives its breach-of-contract

claim. But its arguments on appeal are unavailing.

We review a district court’s interpretation of a

contract de novo. See Franlink Inc. v. BACE Servs., Inc.,

50 F.4th 432, 438 (5th Cir. 2022). Texas applies the “usual

rules of construction” to commission contracts such as

the 2018 Agreement. Perthuis v. Baylor Miraca Genetics

Labs., LLC, 645 S.W.3d 228, 236 (Tex. 2022) (quotation

marks and citation omitted). Accordingly, our “primary

objective is to ascertain and give effect to the parties’

intent as expressed in” the 2018 Agreement. URI Inc. v.

Kleberg Cnty., 543 S.W.3d 755, 763 (Tex. 2018) (citations

omitted). We refrain from rewriting or changing the 2018

Agreement under the guise of contract interpretation.

Weaver, 939 F.3d at 627.

1

Because ISS Guyana seeks commissions, we start

with Article 6(b), which governs compensation. Below,

the district court found that Bell did not breach

Article 6 because ISS Guyana, by its own allegations,

sought commissions for sales occurring after the 2018

Agreement’s term. We agree.

Article 6(b) only requires commissions for sales in

which ISS Guyana

12a

Appendix A

has actively and substantially participated

. . . and the order is placed with Bell during

the Term of Appointment . . . Orders received

outside of the Term of Appointment . . . will not

be eligible to receive a commission, regardless

of when such order was initiated unless

otherwise agreed to by Bell under a separate

written agreement.

See Art. 6(b) (emphasis added). The 2018 Agreement

reiterated this limitation on commissions twice more. See

Arts. 6(c)(8), 7(b).

The Texas Supreme Court has instructed that when

a contract “authorize[s] commissions only on sales that

close during the [contractual] relationship,” like the

2018 Agreement here, the contracting parties’ choice is

binding. Perthuis, 645 S.W.3d at 237. As such, Bell could

“freely provide [its] own rules for paying or withholding

commissions” and was free to “deny the payment of

commissions from procured sales absent continued

employment; authorize commissions only on sales that

close during the [contractual] relationship; [or] condition

commissions on the money from the sale being received

within a particular time frame.” Id. at 236–37.

The contract here is unambiguous, and “at least in

Texas, clear text = controlling text.” Weaver, 939 F.3d

at 627. So we honor Bell’s—and ISS Guyana’s—choice.

The 2018 Agreement expired on September 30, 2019.

And the only sales that took place were in December

2020 and June 2022—years after the expiration of ISS

13a

Appendix A

Guyana’s Agreement. Bell even gave ISS Guyana an

opportunity for potential commissions outside of these

limitations by asking the Representative to identify

potentially qualifying sales, and ISS Guyana failed to do

so. Accordingly, Bell did not breach Article 6(b) of the

2018 Agreement.

2

To evade these contractual requirements for

commissions, ISS Guyana argues that Bell breached

Article 5(a) of the 2018 Agreement, which requires Bell to

“[s]upport [ISS Guyana] in its efforts to promote the sale

of Authorized Products and Services in the Authorized

Territory during the Term of Appointment.”

But Texas courts do not read contractual clauses in

isolation; instead, Texas law requires that we interpret

contracts as a whole and give effect to each provision. See,

e.g., Matter of Pirani, 824 F.3d 483, 493 (5th Cir. 2016)

(applying Texas law); Weaver, 939 F.3d at 626 (same); In re

Serv. Corp. Int’l, 355 S.W.3d 655, 661 (Tex. 2011) (Courts

should “examine and consider the entire writing in an

effort to harmonize and give effect to all the provisions of

the contract so that none will be rendered meaningless.”

(emphasis in original) (citation omitted)). And we “must

be particularly wary of isolating from its surroundings or

considering apart from other provisions a single phrase,

sentence, or section of a contract.” Tex. v. Am. Tobacco

Co., 463 F.3d 399, 408 (5th Cir. 2006) (emphasis added)

(citation omitted) (applying Texas law). To that end, we

look to Article 5(c) to help us determine whether Bell

breached Article 5(a).

14a

Appendix A

Both Articles 5(a) and 5(c) are subsections of the same

Agreement section dedicated to Bell’s duties. And the text

of Article 5(c) refers back to Article 5(a): Although Article

5(a) requires Bell to “[s]upport [ISS Guyana] in its efforts

to promote the sale of Authorized Products . . .”, Article

5(c) clarifies that Bell will “[g]enerally render such sales

assistance as may be, in Bell’s sole judgment, reasonable

and appropriate, without assuming any responsibility for

Representative’s sales efforts or any obligation to render

assistance beyond what Bell, in its sole discretion, deems

adequate” (emphasis added). See, e.g., Slack Techs., LLC

v. Pirani, 598 U.S. 759, 766, 143 S. Ct. 1433, 216 L. Ed. 2d

18 (2023) (commenting “[t]he word ‘such’ usually refers to

something that has already been ‘described’” and using

at-issue section’s context in the statute and surrounding

language to define terms); Escondido Res. II, LLC v.

Justapor Ranch Co., No. 04-14-00905-CV, 2016 Tex. App.

LEXIS 5222, 2016 WL 2936411, at *3 (Tex. App.—San

Antonio May 18, 2016, no pet.) (mem. op.) (describing

“such” as reference to preceding sentences).

Accordingly, Article 5(c) narrows the scope of Bell’s

“support” duties to what is “reasonable and appropriate”

in “Bell’s sole judgment” and limits the assistance to what

“Bell, it its sole discretion, deems adequate.” See WalMart Stores, Inc. v. Xerox State & Local Sols., Inc., 663

S.W.3d 569, 587 (Tex. 2023) (reaffirming that “a specific

contract provision controls over a general one” (quoting

Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.,

574 S.W.3d 882, 889 (Tex. 2019))). And in Texas, these

kinds of sole-judgment or sole-discretion clauses are

binding and enforceable. See, e.g., Culbertson v. Brodsky,

15a

Appendix A

788 S.W.2d 156, 157 (Tex. App.—Fort Worth 1990, writ

denied); Lewis v. Vitol, S.A., No. 01-05-00367-CV, 2006

Tex. App. LEXIS 5645, 2006 WL 1767138, at *5 (Tex.

App.—Houston [1st Dist.] June 29, 2006, no pet.) (mem.

op.); Kellermann v. Avaya, Inc., 530 F. App’x 384, 389 (5th

Cir. 2013) (applying Texas law). Because Bell had “sole

discretion” to determine what support to give, Bell did

not breach Article 5 of the Agreement. Accordingly, the

district court correctly dismissed ISS Guyana’s breachof-contract claim.

B

Second, ISS Guyana argues that the district court

misapplied Texas law when it dismissed ISS Guyana’s

alternative claim for quantum meruit. Again, ISS

Guyana’s argument fails.

To begin, “quantum meruit is an equitable remedy

which does not arise out of a contract, but is independent

of it.” Vortt Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d

942, 944 (Tex. 1990). For ISS Guyana to recover under

quantum meruit, it must prove that “‘(1) valuable services

were rendered or materials furnished; (2) for the party

sought to be charged; (3) which services and materials

were accepted by the party sought to be charged, used

and enjoyed by him; (4) under such circumstances as

reasonably notified the person sought to be charged that

the plaintiff, in performing such services, was expecting

to be paid by the person sought to be charged.’” Matter of

KP Eng’g, L.P., 63 F.4th 452, 456 (5th Cir. 2023) (quoting

Vortt, 787 S.W.2d at 944).

16a

Appendix A

In Texas, recovery in quantum meruit is unavailable

when an “express contract” exists between the parties. Id.

(quoting Vortt, 787 S.W.2d at 944). However, as ISS Guyana

emphasizes, such recovery is permissible “when a plaintiff

has partially performed an express contract but, because

of the defendant’s breach, the plaintiff is prevented from

completing the contract.” Leasehold Expense Recovery,

Inc. v. Mothers Work, Inc., 331 F.3d 452, 462 (5th Cir.

2003) (cleaned up) (quoting Truly v. Austin, 744 S.W.2d

934, 936 (Tex. 1988)).

The district court dismissed ISS Guyana’s quantum

meruit claim because the 2018 Agreement covered

“all the services performed by ISS Guyana” and thus

barred recovery in quantum meruit. ISS Aviation,

Inc. (Wyoming), 2023 U.S. Dist. LEXIS 238873, 2023

WL 11822275, at *7. Indeed, an “express contract”

undisputedly exists between ISS Guyana and Bell, which

outlined their respective duties and responsibilities for

the term. So that contract bars ISS Guyana’s recovery in

quantum meruit, unless an exception applies.

But ISS Guyana’s partial-performance-exception

argument now before us does not rescue their claims. The

district court never considered that argument because

ISS Guyana never raised it. So we do not consider it

either. See, e.g., Matter of KP Eng’g, L.P., 63 F.4th at

457 (finding party “forfeited [an] argument because it

was alleged for the first time on appeal”); Purselley v.

Lockheed Martin Corp., 322 F. App’x 399, 404 (5th Cir.

2009) (finding that estoppel argument not raised in the

district court was waived); Cox Paving of Tex., Inc. v. H.O.

17a

Appendix A

Salinas & Sons Paving, Inc., 657 S.W.3d 756, 767 (Tex.

App.—El Paso 2022, pet. denied) (discussing waiver of

partial-performance exception). Even if this argument was

not forfeited, the partial-performance exception does not

apply. We already determined that Bell didn’t breach the

contract, and nothing suggests ISS Guyana was prevented

from completing its end of the bargain. See Leasehold

Expense Recovery, 331 F.3d at 462.

Accordingly, the district court correctly dismissed

ISS Guyana’s quantum meruit claim.

III

We next turn to the claims resolved at the summary

judgment stage: ISS Guyana’s claim for breach of an

implied duty to cooperate and ISS Wyoming’s claim for

quantum meruit. We review grants of summary judgment

de novo. See Miller v. Michaels Stores, Inc., 98 F.4th 211,

216 (5th Cir. 2024). We affirm “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.” Fed. R. Civ. P. 56(a). A “genuine dispute”

of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party.” Jones v. New Orleans Reg’l Physician Hosp. Org.,

981 F.3d 428, 432 (5th Cir. 2020) (citation omitted). We view

the evidence in favor of the nonmovant—here, the ISS

parties. Id. And we may “affirm a summary judgment on

any ground supported by the record, even if it is different

from that relied on by the district court.” Diamond Servs.

Corp. v. RLB Contracting, Inc., 113 F.4th 430, 438 (5th

Cir. 2024) (citation omitted).

18a

Appendix A

A

We first address ISS Guyana’s claim for breach of

the implied duty to cooperate, for which the district court

granted summary judgment to Bell.

The implied duty to cooperate “requires that a

promisee” does not “hinder, prevent, or interfere with

the promisor’s ability to perform his duties under an

agreement.” Bank One, Tex., N.A. v. Stewart, 967

S.W.2d 419, 435 (Tex. App.—Houston [14th Dist.] 1998,

pet. denied) (citing Bagwell Coatings, Inc. v. Middle S.

Energy, Inc., 797 F.2d 1298, 1305 n.6 (5th Cir. 1986)).

But the implied duty to cooperate is just that—implied.

And Texas law permits an implied duty, such as that to

cooperate, when it rests “on the presumed intention of the

parties as gathered from the terms as actually expressed

in the written instrument itself, and it must appear that it

was so clearly within the contemplation of the parties that

they deemed it unnecessary to express it. . . ” Universal

Health Servs., Inc. v. Renaissance Women’s Grp., P.A.,

121 S.W.3d 742, 748 (Tex. 2003) (emphasis added) (citations

omitted). 2 But there “can be no implied covenant as to

2. ISS Guyana also seems to argue that Bell acted in bad

faith. Even if ISS Guyana pleaded or appealed a claim for a breach

of the implied duty of good faith—which it did not—Bell had no

general duty to act in good faith under Texas law. See, e.g., Dallas/

Fort Worth Int’l Airport Bd. v. Vizant Techs., LLC, 576 S.W.3d

362, 369-70 n.13 (Tex. 2019) (“Under Texas law . . . contracting

parties owe a good-faith duty only if they expressly agree to act in

good faith, a statute imposes the duty, or the parties have a ‘special

relationship’ like that between an insurer and insured.”); English

19a

Appendix A

a matter specifically covered by the written terms of

the contract.” Bank One, 967 S.W.2d at 434–35 (citation

omitted).

The district court found that Article 5 of the 2018

Agreement defined Bell’s cooperation obligation “to

support ISS Guyana,” and the court thus declined “to

imply an additional duty to cooperate.” ISS Aviation,

Inc., 2024 U.S. Dist. LEXIS 111061, 2024 WL 3086629,

at *5. We agree.

The 2018 Agreement expressly defined Bell’s

obligations—to “render such sales assistance as may be, in

Bell’s sole judgment, reasonable and appropriate.” And the

Agreement explicitly outlined ISS Guyana’s obligations,

too—to bring potential sales to Bell, and as the district

court said, “[n]ot the other way around.” Id. Indeed, Bell’s

decision to pursue the Foreign Military Sale proposal on

its own—outside of the Direct Consumer Sale process

and based on leads which ISS Guyana was unaware of—

did not constitute a breach. ISS Guyana even admits as

much—conceding that Bell had no obligation to involve it

in the Foreign Military Sale proposal. Accordingly, the

Agreement defined the extent of “cooperation” required

of both parties. See, e.g., Chapman Children’s Tr. v.

Porter & Hedges, L.L.P., 32 S.W.3d 429, 437 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (“Because the

parties specifically contracted the extent of their duty to

v. Fischer, 660 S.W.2d 521, 522 (Tex. 1983) (declining to adopt

implied covenant of “good faith and fair dealing”); Culbertson,

788 S.W.2d at 157 (rejecting good-faith argument where contract

afforded one party sole discretion).

20a

Appendix A

cooperate, . . . we decline to imply additional duties in this

instance.”); Estate of Rashti v. Bank of Am. Nat’l Ass’n,

782 F. App’x 322, 326 (5th Cir. 2019) (applying Texas law).

We can imply nothing more or nothing less, and we will not

read into the contract additional, heightened duties just

to “make the contract fair, wise, or just” in ISS Guyana’s

view. Bank One, 967 S.W.2d at 434; see also In re Bass,

113 S.W.3d 735, 743 (Tex. 2003) (“[I]mplied covenants

are not favored by law and will not be read into contracts

except as legally necessary to effectuate the plain, clear,

unmistakable intent of the parties.”).

ISS Guyana makes much noise about its groundwork

and contributions to Bell’s eventual helicopter sales to

Guyana. But even if we were to imply a duty to cooperate,

Bell’s efforts to sell helicopters outside of the IndependentRepresentative relationship never hindered, prevented,

or interfered with ISS Guyana’s efforts to perform its

obligations. As the district court correctly emphasized, “[t]

he 2018 Agreement did not guarantee ISS Guyana access

to all deals in the Guyana region or protection in Guyana.”

ISS Aviation, Inc., 2024 U.S. Dist. LEXIS 111061, 2024

WL 3086629, at *5. It merely required Bell to assist, as

“reasonable and appropriate” in Bell’s “sole discretion,”

in the sales that ISS Guyana pursued or obtained.

Finally, even assuming the implied duty to cooperate

applied—though it does not—no evidence suggests ISS

Guyana was entitled to damages for any alleged breach.

First, the Foreign Military Sale for four helicopters

never materialized. A nd even if ISS Guyana was

involved in initiating that sale, ISS Guyana was never

21a

Appendix A

entitled to commissions for sales that never occurred.

Second, the 2020 sale resulted from a new regime’s

interest in purchasing a helicopter, a new Independent

Representative’s lead—with whom ISS Guyana had no

prior contact—and Bell’s outreach. ISS Guyana points to

no evidence that ISS Guyana would have closed that sale,

or the 2022 sale, prior to the end of the 2018 Agreement.

Because ISS Guyana relies on “mere conclusor y

allegations” that are “not competent summary judgment

evidence,” its allegations are “insufficient, therefore, to

defeat a motion for summary judgment.” Eason v. Thaler,

73 F.3d 1322, 1325 (5th Cir. 1996) (per curiam). As such, the

district court properly granted Bell summary judgment

on ISS Guyana’s implied-duty claims.

B

Finally, we turn to ISS Wyoming’s quantum meruit

claims. Just as the district court found, ISS Wyoming

has “failed to . . . establish a fact issue for two elements

of this claim: ISS Wyoming’s performance of work and

enjoyment of work by Bell.” ISS Aviation, Inc., 2024 U.S.

Dist. LEXIS 111061, 2024 WL 3086629, at *6.

ISS Wyoming’s single-paragraph argument fails

to provide any “genuine dispute” of material fact to

survive summary judgment. Fed. R. Civ. P. 56(a). The

only thing ISS Wyoming—and the record evidence on

which it relies—shows is that Bell was aware of ISS

Wyoming. Indeed, in the district court’s words, ISS

Wyoming has presented no evidence that the “lobbying

led to any helicopter sales or provided any other benefits

22a

Appendix A

to Bell.” ISS Aviation, 2024 U.S. Dist. LEXIS 111061,

2024 WL 3086629, at *6. Critically, even if Bell, as ISS

Wyoming argues, “supported ISS Wyoming’s formation

and lobbying for Bell,” Bell did not ask Barker or ISS

Guyana to form ISS Wyoming, nor did Bell promise or

expect to compensate ISS Wyoming in exchange for

any lobbying efforts. See LTS Grp., Inc. v. Woodcrest

Cap., L.L.C., 222 S.W.3d 918, 920 (Tex. App.—Dallas

2007, no pet.) (“Quantum meruit is an equitable theory

of recovery which is based on an implied agreement to

pay for benefits received.” (emphasis added)). And as

Bell emphasizes, “ISS Wyoming supplied services, if at

all, to further its own business interests—specifically, to

assist ISS Guyana sales-promotion efforts so that ISS

Guyana, which ISS Wyoming (and ultimately Barker)

owns, might earn commissions.” Because ISS Wyoming’s

efforts were to support a “future business advantage or

opportunity”—sales of Bell helicopters, and accordingly,

commissions from those sales—there is no basis for “a

cause of action in quantum meruit.” Peko Oil USA v.

Evans, 800 S.W.2d 572, 577 (Tex. App.—Dallas 1990, writ

denied) (“Quantum meruit relief cannot be obtained where

the benefit is conferred officiously or gratuitously or where

the services were rendered to gain a business advantage

or where the defendant could not have reasonably believed

that the plaintiff expected a fee.”); see, e.g., FDIC v. Plato,

981 F.2d 852, 858 n.14 (5th Cir. 1993) (affirming denial of

quantum meruit damages where defendant did not ask for

and was unaware of benefit conferred); Blanchard v. Via,

No. 5:20-CV-170-BQ, 2022 U.S. Dist. LEXIS 63398, 2022

WL 1018645, at *5 (N.D. Tex. Apr. 5, 2022) (applying Texas

law) (collecting cases applying the rule that expectation

23a

Appendix A

of future business advantage cannot form the basis of

quantum meruit claim), aff’d, No. 22-10458, 2023 U.S.

App. LEXIS 11367, 2023 WL 3316326 (5th Cir. May 9,

2023). ISS Wyoming hasn’t provided evidence that a fact

dispute exists as to whether there were either “services

rendered” to or benefits “enjoyed” by Bell sufficient to

defeat a motion for summary judgment.

Accordingly, the district court properly granted

summary judgment to Bell on ISS Wyoming’s quantum

meruit claim.

***

We AFFIRM the district court’s grant of summary

judgment to Bell and its dismissal of the ISS parties’

breach-of-contract, breach-of-implied-duty-to-cooperate,

and quantum meruit claims.

24a

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF TEXAS, FORT WORTH DIVISION,

FILED JANUARY 4, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4:22-CV-00689-O

ISS AVIATION, INC. (WYOMING), et al.,

Plaintiffs,

v.

BELL TEXTRON INC,

Defendant.

ORDER

Before the Court are Defendant’s Motion for

Summary Judgment (ECF No. 49), filed June 26, 2023;

Plaintiffs’ Response (ECF No. 67), filed July 31, 2023;

and Defendant’s Reply (ECF No. 72), filed August 14,

2023. For the reasons stated herein, Defendant’s Motion

is GRANTED. Because the Court grants summary

judgment on all causes of action, the Courts does not reach

the merits of Plaintiffs’ entitlement to damages.

25a

Appendix B

I.

BACKGROUND1

This case arises out of an Independent Representative

Agreement (“IRA”) between Defendant Bell Textron Inc.

(“Defendant” or “Bell”) and ISS Aviation, Inc. (Guyana)

(“ISS Guyana”). Bell manufactures helicopters and spare

helicopter parts. Bell sells its products and services with

the assistance of independent representatives who work on

commission and obtain the right to market Bell’s products

and services in defined regions for defined periods of

time under an IRA. Bell’s independent representatives

market and sell products and services based on territories

assigned in executed IRAs. 2

In 2013, Lex Barker (“Barker”) formed ISS Guyana

to serve as Bell’s independent representative in the

Guyana region. 3 On or about March 15, 2013, Bell and

ISS Guyana entered into an IRA for a one-year term.4

Each IRA expires at the conclusion of the term, at which

time Bell determines whether to renew the relationship

by agreeing to a new IRA. 5 Between 2013 and 2018, Bell

1. The facts referenced herein are taken from Plaintiffs’ Brief

in Opposition to Defendant’s Motion for Summary Judgment (ECF

No. 68).

2. See Def.’s Br. in Supp. of Summ. J. 3-4, ECF No. 50.

3. Pl.’s App’x 113 (Barker Affidavit), ECF No. 69.

4. Id.

5. Def.’s App’x 002 (Reyes Declaration), ECF No. 51-1; Def.’s

App’x 506-28 (Ortiz Deposition) 27:1-10, 27:17-24, 182:18-183:7,

ECF No. 51-2. For examples of the IRAs, see Def.’s App’x 012-031

(2013 IRA); Def.’s App’x 032-051 (2014 IRA); Def.’s App’x 052-071

26a

Appendix B

renewed the IRA on four occasions. Each renewal was

accompanied by the execution of a separate IRA between

Bell and ISS Guyana.

Bell renewed the final IRA with ISS Guyana on or

about August 15, 2018 (“2018 IRA”), which is the main

subject of this dispute. As relevant to this case, the 2018

IRA states that:

• ISS Guyana ag reed to establish and

maintain an official business in the Guyana

region, obtain offers from prospective

customers, submit those offers to Bell, and

pay all costs and expenses incurred in the

promotion and sale by ISS Guyana.6

• Bell agreed to support ISS Guyana in its

efforts to promote the sale of products and

services, render such sales assistance as

may be, in Bell’s sole judgment, reasonable

a nd appr opr i at e , w it hout a s su m i ng

responsibility for ISS Guyana’s sales efforts

or any obligation to render assistance

beyond what Bell, in its sole discretion,

deems adequate.7

• Bell will pay commissions to ISS Guyana

provided that it had actively and substantially

(2015-2017 IRA); Def.’s App’x 072-085 (June 2017 IRA); Def.’s App’x

086-099 (Dec. 2017 IRA).

6. Pl.’s App’x. 003 (2018 IRA) ¶¶ 4(a), (d), ECF No. 69.

7. Id. at 004 ¶¶ 5(a), (c).

27a

Appendix B

participated in the promotion of a particular

sale in the Guyana region as determined at

the reasonable discretion of Bell. 8

• Orders received outside the ter m of

appointment will not be eligible to receive

commissions, regardless of when such order

was initiated.9

During ISS Guyana’s term as the independent

representative, it marketed Bell’s helicopters in the Guyana

region, conducted demonstrations, and disseminated

product and marketing information. ISS Guyana provided

Bell with advice, research, and market intelligence

pertaining to the politics and current events taking place

in the Guyanese government and the Guyana Defense

Force (“GDF”). Additionally, Barker lobbied the United

States government to garner support for Bell’s dealings

in Guyana. As a part of this lobbying, Barker formed ISS

Aviation Inc. (Wyoming) (“ISS Wyoming” and, collectively

with ISS Guyana, “Plaintiffs”).10 Bell was aware of the

formation of ISS Wyoming and its lobbying work.11 And

Bell paid ISS Wyoming a partial commission in June

2019 for a sale that was secured by another independent

representative to a customer in the Guyana region.12

8. Id. ¶ 6(b)(1).

9. Id.

10. Pls.’ Appx 114-15 (Barker Affidavit), ECF No. 69.

11. Id.

12. Id.

28a

Appendix B

ISS Guyana never secured a sale of a new helicopter

in the Guyana region during its term as an independent

representative. 13 The closest ISS Guyana came to

facilitating a sale was in 2014 when ISS Wyoming and ISS

Guyana successfully lobbied the Export Development of

Canada (“EDC”) for $25 million in financing to facilitate

a transaction between Bell, Guyana, and the GDF.14

However, ISS Guyana never secured any helicopter sale

that would take advantage of the financing.15

By 2015, ISS Guyana was no longer physically

operating in Guyana after it relocated to Florida.16

Because of ISS Guyana’s refusal to operate in Guyana

and its poor sales record, Bell grew concerned that

ISS Guyana lacked the appropriate presence in the

region to operate as its independent representative and

was disconnected from the Guyana region’s helicopter

market.17 Bell’s concern increased in April 2019 when it

received a letter from the Multi-National Aviation Special

Project Office (“MASPO”) on behalf of the Guyanese

13. Def.’s App’x 001-011 (Ruben Reyes Declaration), ¶ 14, ECF

No. 51-1; Def.’s App’x 551-596 (Barker Deposition), 115:17-25, 116:711, 116:15-24, 117:19-118:10, ECF No. 51-2.

14. Pls.’ Appx115(Barker Affidavit), ECF No. 69.

15. Def.’s App’x 551-596 (Barker Deposition), 84:4-85:12, 115:1721, 116:7-24, 117:19-118:10, 306:6-15, ECF No. 51-2.

16. Id. at 341 ; Pls.’ App’x 118 (Barker Affidavit), ECF No. 69.

17. Def.’s App’x 441-447 (Frank Ferraro Declaration) ¶ 3, ECF

No. 51-2; Def.’s App’x 448-470 (Email Dated February 14, 2017),

ECF No. 51-2.

29a

Appendix B

government.18 The letter requested Bell’s pricing for a

total of four helicopters. This request was the first step

in a proposed foreign military sale (“FMS Case”) for the

Guyanese government. Bell later contacted ISS Guyana

about the FMS Case but ISS Guyana did not seem to

know that the Guyanese government was interested in

purchasing helicopters at that time or that a FMS Case

process had begun.19

Around this same time, ISS Guyana believed that a

deal with Guyana was materializing. 20 Plaintiffs contend

that executives from Bell assured Barker that it was Bell’s

expectation that a deal would get done with the GDF or

Guyanese government during the term of the 2018 IRA. 21

And that Bell would assist and include ISS Guyana in any

Guyana deals. Plaintiffs assert that ISS Guyana and ISS

Wyoming each continued to expend funds and resources

in furtherance of a deal because of these representations. 22

Bell worked the FMS Case without ISS Guyana. For

reasons Bell and ISS Guyana dispute, ISS Guyana was

18. Id. at 506-528 (Ortiz Deposition) 246:17-247:2; id. at 236238 (Email Dated April 3, 2019 re: ROM Request for Guyana); id.

at 239-241 (The P&A Request Dated March 13, 2019).

19. Id. at 529-550 (Reyes Deposition) 172:19-173:2; 178:2-4; id. at

551-596 (Barker Deposition) 269:1-7, 273:7-9, 282:19-283:5, 292:18-23.

20. Pls.’ App’x 119-20 (Barker Affidavit), ECF No. 69.

21. Id.

22. Id.

30a

Appendix B

not included in phone calls or other meetings surrounding

this deal. 23 Bell’s sales team met with Guyanese officials

directly and made a formal proposal to MASPO on

or about September 19, 2019. 24 However, no sale ever

materialized from the FMS Case. 25

Bell contends that ISS Guyana’s lack of awareness

of the FMS Case was the final and most-prominent

reason it declined to renew the IRA. 26 In July 2019,

Barker presented at Bell’s annual sales meeting in

Florida. Leading up to the sales meeting, Barker and

Ruben Reyes (“Reyes”), Bell’s regional sales manager,

exchanged communications about Barker’s presentation.

In one of those communications, Reyes told Barker to

change the closing date for the FMS Case from August

2019 to “unknown.” 27 Plaintiffs allege that this change

made Barker appear unprepared. 28 Defendants, on the

other hand, claim that Barker appeared uninformed

about the FMS Case generally because he did not provide

the timeline for closing the deal or the specific types of

helicopters the GDF requested. 29

23. Def.’s Br. in Supp. of Mot. for Sum. J. 10, ECF No. 50.

24. Id.

25. Id.

26. Id.

27. Pls.’ App’x. 122 (Barker Affidavit), ECF No. 69.

28. Id.

29. Def.’s Br. in Supp. of Mot. for Sum. J. 11-12, ECF No. 50.

31a

Appendix B

Bell notified ISS Guyana on August 19, 2023 that it

would not be entering into another IRA. 30 As part of its

standard non-renewal procedure, Bell asked ISS Guyana

to identify potential sales that it actively participated in

from which it could claim a commission. 31 ISS Guyana did

not identify any sales that it had actively and substantially

participated in prior to the expiration of the 2018 IRA. 32

Around August 2020, nearly a year after the IRA

expired, the Guyanese government experienced a regime

change. At this time Bell learned from another company

(unrelated to Plaintiffs) that the new Guyana National

Security Advisor (“NSA”) was searching for a used

helicopter. 33 After learning about this prospect, Reyes

flew to Florida and pitched the NSA for the sale of a new

Bell helicopter. 34 In December 2020, the GDF purchased

a helicopter from Bell. Bell later made additional sales to

the GDF in 2022. 35

Plaintiffs filed this case against Bell seeking

commissions from the successful 2020 and 2022 Guyana

deals and other compensation for work performed under

30. Def.’s App’x 529-550 (Reyes Deposition) 159:14-18, 165:7166:1, ECF No. 51-2; Def.’s App’x 181-182 (Email Dated August 28,

2019), ECF No. 51-1; id. at 183-184 (Formal Notice of Non-renewal).

31. Def.’s; App’x 185-186 (Email Dated September 16, 2019),

ECF No. 51-1.

32. Id.

33. Id. at 191-192 (Email Dated December 1, 2020).

34. Def.’s Br. in Supp. of Mot. for Sum. J. 14, ECF No. 50.

35. Id. at 15.

32a

Appendix B

the 2018 IRA.36 On May 30, 2023, the Court dismissed with

prejudice most of Plaintiffs’ claims.37 The remaining claims

are (1) ISS Guyana’s breach of contract claim regarding

an implied duty to cooperate under the 2018 IRA; (2) ISS

Wyoming’s quantum meruit claim; (3) ISS Wyoming’s

unjust enrichment claim; (4) ISS Wyoming’s promissory

estoppel claim; (5) Plaintiffs’ fraud/fraudulent inducement

claim; and (6) Plaintiffs’ fraud by non-disclosure claim. 38

Defendants now seek summary judgment on all remaining

claims, which is now ripe for review. 39

II. LEGAL STANDARD

The Court may grant summary judgment when the

pleadings and evidence show “that there is no genuine

dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Summary judgment is not “a disfavored procedural

shortcut,” but rather an “integral part of the Federal

Rules as a whole, which are designed to secure the just,

speedy and inexpensive determination of every action.”

Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986) (internal quotation marks omitted).

“[T]he substantive law will identify which facts are

material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

36. Pls.’ Complaint, ECF No. 1.

37. May 30, 2023 Order, ECF No. 44.

38. Id. at 26-27.

39. Def.’s Mot. for Summ. J.,ECF No.49; Pls.’ Resp. to Def.’s

Mot. for Summ. J.,ECF No. 67; Def.’s Reply in Supp. of Mot. for

Summ. J., ECF No.72.

33a

Appendix B

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A genuine

dispute as to any material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Id. The movant must inform the court

of the basis for its motion and demonstrate from the record

that no genuine dispute as to any material fact exists.

Celotex, 477 U.S. at 323. “The party opposing summary

judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that

evidence supports his or her claim.” Ragas v. Tenn. Gas

Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

III. ANALYSIS

A.

ISS Guyana’s Implied Duty to Cooperate Claim

Plaintiffs assert Defendant breached its duty to

cooperate under the 2018 IRA by “exclud[ing] ISS Guyana

from the Guyana deal and intentionally preventing

consummation of the transaction until after the 2018 IRA

expired.”40 Defendant counters that an implied duty to

cooperate should not be imposed in the 2018 IRA as the

IRA already defines Defendant’s obligation to cooperate.41

Further, Defendant argues that, even if there was an

implied duty to cooperate, Defendant did not breach said

duty.42 The Court agrees.

40. Pl. Br. in Opp. to Def.’s Mot. for Summ. J. 8, ECF No. 68.

41. Def. Br. in Support of Mot. for Summ. J. 17, ECF No. 50.

42. Id. at 19.

34a

Appendix B

“The parties’ obligations under a contract are, for

the most part, limited to those stated within the written

agreement.” Miller v. Ret. Sys. Grp., Inc., No. H-09-834,

2011 U.S. Dist. LEXIS 166809, 2011 WL 13340637, at *9

(S.D. Tex. Jan. 31, 2011), report and recommendation

adopted sub nom., Miller v. RSGroup Tr. Co., No. H-09834, 2011 U.S. Dist. LEXIS 166801, 2011 WL 13340640

(S.D. Tex. Apr. 26, 2011) (citing Universal Health Servs.,

Inc. v. Renaissance Women’s Grp., P.A., 121 S.W.3d 742,

747 (Tex. 2003)). However, a court may imply a covenant

when necessary to reflect the parties’ actual intentions.

Universal Health Servs., Inc., 121 S.W.3d at 747. The

implied covenant must appear, based on the express

terms, “‘so clearly within the contemplation of the parties

that they deemed it unnecessary to express it.’” Id. at

748 (quoting Danciger Oil & Ref. Co. of Tex. v. Powell,

137 Tex. 484, 154 S.W.2d 632, 635 (Tex. 1941)). Texas law

implies a duty to cooperate “in every contract in which

cooperation is necessary for performance of a contract.”

Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 434

(Tex. App.—Houston [14th Dist.] 1998, pet. denied). When

applicable, the duty to cooperate prohibits a party to a

contract from hindering, preventing, or interfering with

the other party’s ability to perform his contractual duties.

Id. at 435.

A court “cannot make contracts for parties” and “can

declare implied covenants to exist only when there is a

satisfactory basis in the express contracts of the parties

which makes it necessary to imply certain duties and

obligations in order to effect the purposes of the parties

in the contracts made.” Freeport Sulphur Co. v. Am.

Sulphur Royalty Co. of Tex., 117 Tex. 439, 6 S.W.2d 1039,

35a

Appendix B

1040 (Tex. 1928). “An implied covenant must rest entirely

on the presumed intention of the parties as gathered

from the terms as actually expressed in the written

instrument itself, and it must appear that it was so clearly

within the contemplation of the parties that they deemed

it unnecessary to express it.” Danciger, 154 S.W.2d at

635. Accordingly, “a covenant will not be implied simply

to make a contract fair, wise, or just.” Universal Health

Servs., Inc., 121 S.W.3d at 748.

Plaintiffs contend that the duty to cooperate should

be implied in the 2018 IRA because “Bell’s cooperation

was imperative in ensuring ISS Guyana’s ability to

perform as required by the 2018 IRA.”43 By excluding

ISS Guyana from the Guyana deals, Plaintiffs argue that

Defendants breached this duty. But “‘[t]here can be no

implied covenant as to a matter specifically covered by

the written terms of the contract.’” Bank One, Texas,

N.A., 967 S.W.2d at 434-35 (quoting Texstar N.A., Inc. v.

Ladd Petroleum Corp., 809 S.W.2d 672, 678 (Tex. App.—

Corpus Christi—Edinburg 1991, writ denied)). Here, the

2018 IRA expressly states that Bell’s obligations to ISS

Guyana are to support it “in its efforts to promote sales”

and “[g]enerally render such sales assistance as may be,

in Bell’s sole judgment, reasonable and appropriate.44 And

the 2018 IRA makes clear that Bell has no “obligation to

render assistance beyond what Bell, in its sole discretion,

deems adequate.”45

43. Pls.’ Br. in Opp. to Def.’s Mot. for Summ. J. 9, ECF No. 68.

44. Pl.’s App’x 004 (2018 IRA) ¶ 5(a), (c)), ECF No. 69 (emphasis

added).

45. Id.

36a

Appendix B

The Court is aware that at the motion to dismiss

stage, it held that the Plaintiffs sufficiently pled facts to

state a plausible claim for an implied duty to cooperate.46

However, given the heightened pleading standard at

summary judgment and the benefit of additional evidence,

the Court finds that the implied duty Plaintiffs seek to

impose on the Defendant was “clearly [not] within the

contemplation of the parties.” Danciger, 154 S.W.2d at

635. The 2018 IRA set up a framework that allowed ISS

Guyana to operate as an independent representative for

Bell in Guyana. Bell would provide ISS Guyana marketing

materials and assistance up to Bell’s sole discretion. The

2018 IRA did not guarantee ISS Guyana access to all deals

in the Guyana region or protection in Guyana.

Simply put, this implied duty to cooperate would have

forced Bell to include ISS Guyana in deals that it did not

generate, did not know about, and did not participate in

bringing to Bell.47 But under the 2018 IRA, Bell had no

obligation to involve ISS Guyana in the FMS Case or the

successful sales that occurred after the 2018 IRA expired.

For the first of those sales, Plaintiffs were unaware of

the deal48 and MASPO reached out to Bell directly about

the FMS Case, making it reasonable for Bell, in its sole

judgment, to exclude ISS Guyana from getting involved

in the FMS Case. And both the 2020 and 2022 sales were

initiated and occurred after the IRA had expired, meaning

46. Id.

47. Pls.’ Br. in Opp. to Def.’s Mot. for Summ. J. 9, ECF No. 68.

48. Id. at 20 (stating “Plaintiffs were unaware of the Guyana

deal”).

37a

Appendix B

Bell had no duties—implied or not—to involve ISS Guyana

in those deals.

Given the express language of the 2018 IRA and the

parties’ own conduct, Plaintiffs ask the Court to imply a

duty that would flip the 2018 IRA on its head. Under the

2018 IRA, ISS Guyana was supposed “to obtain offers

from prospective customers and submit those offers to

Bell.” Despite this language, Plaintiffs seem to argue that

2018 IRA requires Bell to support ISS Guyana’s presence

in Guyana and facilitate sales for ISS Guyana. But nothing

in the express terms of the 2018 IRA indicate that this

is the parties’ intent. In fact, the terms of the 2018 IRA

clearly indicate that the parties intended to have ISS

Guyana generate sales opportunities for Bell. Not the

other way around.

In total, “the parties agreed and intended that

Defendant would have an obligation to provide sales

assistance to ISS Guyana, but that Defendant would only

be obligated to provide such assistance as Defendant

thought reasonable and appropriate.”49 Because the

parties specifically defined Bell’s obligations to support

ISS Guyana, the Court declines to imply an additional duty

to cooperate. See Bank One, Texas, N.A., 967 S.W.2d at

435; see also In re Bass, 113 S.W.3d 735, 743 (Tex. 2003)

(“[I]mplied covenants are not favored by law and will

not be read into contracts except as legally necessary

to effectuate the plain, clear, unmistakable intent of the

parties.”); Matlock Place Apartments, L.P. v. Druce,

49. May 30, 2023 Order 10, ECF No. 44.

38a

Appendix B

369 S.W.3d 355, 379 (Tex. App.—Fort Worth 2012, no

pet.) (“An implied covenant is necessary to effectuate

the parties’ intentions only if the obligation is so clearly

within the contemplation of the parties that they deemed

it unnecessary to express it.” (cleaned up)).

Accordingly, Defendants motion for summary

judgment on Plaintiffs’ breach of contract claim is

GRANTED.

B. ISS Wyoming’s Quantum Meruit Claim

Plaintiffs next bring a claim for quantum meruit. To

succeed on a quantum meruit claim, the claimant must

prove:

(1) valuable services were rendered or materials

furnished; (2) for the person sought to be

charged; (3) those services and materials were

accepted by the person sought to be charged,

and were used and enjoyed by him; and (4) the

person sought to be charged was reasonably

notified that the plaintiff performing such

services or furnishing such materials was

expecting to be paid by the person sought to

be charged.

In re BJ Servs., LLC, No. 20-33627, 2023 Bankr. LEXIS

540, 2023 WL 2311986, at *4 (Bankr. S.D. Tex. Mar.

1, 2023) (emphasis omitted) (quoting Hill v. Shamoun

& Norman, LLP, 544 S.W.3d 724, 732-33 (Tex. 2018)).

Plaintiffs failed to present evidence to establish a fact

39a

Appendix B

issue for two elements of this claim: ISS Wyoming’s

performance of work and enjoyment of work by Bell.

Plaintiffs assert that “ISS Wyoming was formed at

Bell’s encouragement to facilitate in conversations with

and lobbying of the United States government to garner

support for the Guyana transaction.”50 Plaintiffs also

state that Bell knew ISS Wyoming was created for the

purpose of lobbying. But nowhere in Plaintiffs’ response

or the record do Plaintiffs show that ISS Wyoming

performed work for Bell or that Bell enjoyed that work.

Plaintiffs point to excerpts from Barker’s Affidavit 51 and

Ferraro’s Deposition, but those pieces of evidence only

indicate that Bell knew about ISS Wyoming and that ISS

Wyoming was established for the “purpose of seeking

advocacy support for Bell’s potential transaction.” 52

Plaintiffs additionally point to a series of emails between

Susan Michaels (“Michaels”) and Barker regarding ISS

Wyoming’s articles and certificate of incorporation. This

evidence certainly demonstrates that Bell was aware

of ISS Wyoming, but once again does not demonstrate

that ISS Wyoming performed work or that Bell enjoyed

that work. Indeed, Plaintiffs have provided no evidence

demonstrating how ISS Wyoming’s lobbying led to any

helicopter sales or provided any other benefits to Bell.

Because Plaintiffs have failed to present evidence to

50. Pl. Br. in Opp. to Def.’s Mot. for Summ. J. 12, ECF No. 68.

51. Pl.’s App’x 114 (Barker Affidavit), ECF No. 69 (indicating

that Barker made Bell aware of the formation of ISS Wyoming,

without providing any evidence of work performed by ISS Wyoming).

52. Id. at 095-099 (Ferraro Deposition).

40a

Appendix B

establish a fact issue for at least two elements of their

claim, Defendant’s motion for summary judgement on

Plaintiffs’ quantum meriut claim is GRANTED.

C.

ISS Wyoming’s Unjust Enrichment Claim

Plaintiffs also bring a claim for unjust enrichment. “‘A

party may recover under the unjust enrichment theory

when one person has obtained a benefit from another

by fraud, duress, or the taking of an undue advantage.’”

Elias v. Pilo, 781 F. App’x 336, 338 (5th Cir. 2019) (quoting

Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d

39, 41 (Tex. 1992)). Here, Plaintiffs have not demonstrated

what benefit, if any, Bell obtained from ISS Wyoming.

Plaintiffs have only provided evidence that demonstrates

Bell knew ISS Wyoming was formed to provide advocacy

services. Accordingly, Defendant’s motion for summary

judgment on Plaintiffs’ unjust enrichment claims is

GRANTED.

D.

ISS Wyoming’s Promissory Estoppel Claim

Plaintiffs also bring a claim for promissory estoppel.

“To prevail on a promissory estoppel claim under Texas

law, a plaintiff must show: ‘(1) a promise; (2) foreseeability

of reliance thereon by the promisor; and (3) substantial

reliance by the promisee to his detriment.’” Howard

v. Bank of N.Y. Mellon, No. 3:12-CV-1143-O, 2012 WL

13024096, at *2 (N.D. Tex. Nov. 27, 2012) (quoting English

v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)). Plaintiffs allege

that Defendant was aware of ISS Wyoming and the efforts

taken by ISS Wyoming in furtherance of the Guyana deal.

41a

Appendix B

To support this claim, Plaintiffs once again merely point

to communications between Michaels and Barker about

documentation for ISS Wyoming and that Defendant

encouraged the formation of ISS Wyoming, 53 but none

of these communications point to any promises made by

Defendant. Plaintiffs fail to sufficiently demonstrate that

Bell made a promise or that ISS Wyoming substantially

relied on any such promise. Accordingly, Defendant’s

motion for summary judgment on the promissory estoppel

claim is GRANTED.

E. Plaintiffs’ Fraud/Fraudulent Inducement

Claim

Next, Plaintiffs bring a claim for fraud and fraudulent

inducement, alleging that ISS Guyana is entitled to

commissions for sales occurring within the term of the

2018 IRA. “The essential elements of common law fraud

are: ‘(1) that a false, material representation was made;

(2) that was either known to be false when made or was

made without knowledge of its truth; (3) that was intended

to be acted upon; (4) that was relied upon; and (5) that

caused injury.’” Express Working Cap., LLC v. Starving

Students, Inc., 28 F. Supp. 3d 660, 672 (N.D. Tex. 2014)

(quoting Hubbard v. Shankle, 138 S.W.3d 474, 482-83

(Tex. App.—Fort Worth 2004, pet. denied)). “Texas law

has long imposed a duty to abstain from inducing another

to enter into a contract through the use of fraudulent

misrepresentations.” Anderson v. Durant, 550 S.W.3d

605, 614 (Tex. 2018). “Fraudulent inducement is a

53. Pl. Br. in Opp. to Def.’s Mot. for Summ. J. 13, ECF No. 68.

42a

Appendix B

particular species of fraud that arises only in the context

of a contract and requires the existence of a contract as

part of its proof.” Id. (cleaned up) (quoting LeTourneau

Techs. Drilling Sys., Inc. v. Nomac Drilling, LLC, 676 F.

Supp. 2d 534, 542 (S.D. Tex. 2009)). Fraud and fraudulent

inducement share the same basic elements, but fraudulent

inducement requires the existence of a contract as an

essential element of proof. Anderson, 550 at 614.

Justifiable reliance is an element of each claim. See

JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C.,

546 S.W.3d 648, 654 (Tex. 2018). The plaintiff must show

that it actually relied on the defendant’s representation

and, also, that such reliance was justifiable. Grant

Thornton LLP v. Prospect High Income Fund, 314 S.W.3d

913, 923 (Tex. 2010). Justifiable reliance is typically a

question of fact, but it can be “negated as a matter of law

when circumstances exist under which reliance cannot

be justified.” Orca Assets G.P., L.L.C., 546 S.W.3d at 648.

Texas courts have repeatedly held that reliance upon

an oral representation that is directly contradicted by

unambiguous terms of a written contract is not reasonable

or justified as a matter of law. Holdings, L.P. v. Westergren,

453 S.W.3d 419, 424 (Tex. 2015); Orca Assets G.P., L.L.C.,

546 S.W.3d at 658. In this case, all fraud claims against

Defendant fail as a matter of law because Plaintiffs have

not demonstrated that ISS Guyana or ISS Wyoming

justifiably relied on Bell’s alleged representations.

The crux of Plaintiffs’ fraud and fraudulent inducement

claims center around the allegations that ISS Guyana

and ISS Wyoming would not have continued providing

43a

Appendix B

marketing and lobbying services if they knew Defendants

would not help Plaintiffs secure a Guyana deal or renew

the IRA.54 Both the fraudulent and fraudulent inducement

claims turn on Bell’s alleged representations to Plaintiffs

that (1) Bell would support Plaintiffs and provide

assistance to perform under the 2018 IRA, (2) Plaintiffs

had the right be involved in all transactions, (3) the value

of the Guyana deal was $24 million, and (4) the Guyana

deal would be complete by the expiration of the 2018 IRA.55

But these alleged representations are all contradicted by

the express language of the 2018 IRA.

First, nothing in the IRA requires Bell to aid ISS

Guyana. Instead, the 2018 IRA requires Defendant to

“render such sales assistance as may be, in Bell’s sole

judgment, reasonable and appropriate.56 Second, the 2018

IRA did not give ISS Guyana the right to be involved in

all transactions, know the value of deals it is not involved

in, or consummate a deal while ISS Guyana is the

independent representative. Under the 2018 IRA, ISS

Guyana was supposed “to obtain offers from prospective

customers and submit those offers to Bell.” It was ISS

Guyana’s responsibility to generate sales opportunities

for Bell—not the other way around. Finally, the 2018

IRA does not entitle ISS Guyana to commissions or the

successful completion of a sale. The 2018 IRA states that

54. Pls.’ 2nd Am. Compl. ¶ 58, ECF No. 20; Def’s. App’x 551596 (Lex Barker Deposition) 203:16-24, 244:12-16, ECF No. 51-2.

55. Pls.’ 2nd Am. Compl. at 14-15, ECF No. 20.

56. Pl.’s App’x 004 (2018 IRA) ¶¶ 5(a), (c)), ECF No. 69 (emphasis

added).

44a

Appendix B

Bell will pay commissions for sales when the independent

representative had “actively and substantially participated

in the promotion of a particular sale”57 and that “orders

received outside of the term of appointment will not be

eligible to receive a commission, regardless or when such

orders were initiated.”58 No sales ever materialized during

the 2018 IRA’s term and Baker failed present Bell with a

list of any sales in which he directly participated.59 Thus,

under the explicit terms of the 2018 IRA, ISS Guyana was

never guaranteed a sale or any commissions.

Despite this, Barker continued to provide ISS

Wyoming’s and ISS Guyana’s services to Defendant and

continued to seek renewal of the IRA. Baker did so while

knowing that Bell’s decision not to renew ISS Guyana

was a possibility subject to Bell’s sole discretion and

that ISS Guyana was not entitled to a successful sale

and commissions solely because it was an independent

representative. 6 0 Accordingly, it was not justified

for Plaintiffs to continue providing support through

ISS Guyana or ISS Wyoming based on Bell’s alleged

representations.

57. Id. ¶ 6(b)(1).

58. Id.

59. Def.’s App’x 185-187 (Email Dated October 9, 2019), ECF

No. 51-1; Def.’s App’x. 551-596 (Lex Barker Deposition) 329:9-330:23,

ECF No. 51-2.

60. Def.’s App’x 551-596 (Lex Barker Deposition) 327:18-328:8,

ECF No. 51-2.

45a

Appendix B

This decision is consistent with Texas precedent.

DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A.,

112 S.W.3d 854, 858-59 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (en banc)). In DCR, the contract granted

the plaintiff non-exclusive distribution rights. Id. at 856.

But the plaintiff claimed that the defendant fraudulently

induced it to sign the agreement by promising exclusive

distribution rights. Id. at 858. The Texas Court of

Appeals rejected the claims because “reliance upon an

oral representation that is directly contradicted by the

express, unambiguous terms of a written agreement

between the parties is not justified as a matter of law.”

Id. To hold differently, the court reasoned, “would defeat

the ability of written contracts to provide certainty and

avoid dispute,” and reward parties that seek to enforce

conflicting terms of unwritten agreements. Id. Here,

much like DRC, Plaintiffs seek commissions through the

enforcement of terms that directly contradict the 2018

IRA. The Court will not reward such tactics.

Because Plaintiffs failed to sufficiently demonstrate

that ISS Guyana or ISS Wyoming reasonably relied on

Bell’s alleged misrepresentations, Defendant’s motion

for summary judgment for the fraud and fraudulent

inducement claims is GRANTED.

F.

Plaintiffs’ Fraud by Non-Disclosure Claim

Lastly, Plaintiffs bring a claim for fraud by nondisclosure. Justifiable reliance is an essential element

of fraud by non-disclosure. Schlumberger Tech. Corp.

v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997) (explaining

46a

Appendix B

that reliance is an element of fraud by nondisclosure

because this cause of action is a subcategory of fraud);

BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 506 (Tex.

App.—San Antonio 2013, pet. denied) (stating that, like

common-law fraud, fraud by nondisclosure includes the

element of justifiable reliance). Because the Court has

determined that Plaintiffs’ reliance was not justified as a

matter of law, Defendants motion for summary judgment

on this claim is GRANTED.

IV. CONCLUSION

For the reasons stated above, Defendant’s Motion

for Summary Judgment is GRANTED in its entirety.

Plaintiffs’ Objection to Defendant’s Summary Judgment

Evidence61 (ECF No. 70), Defendant’s Motion to Exclude

Testimony (ECF No. 78); and Defendant’s Objections to

Plaintiffs’ Evidence in Response to Exclude Testimony

(ECF No. 84) are DENIED as MOOT. Defendant’s

Objections to and Motion to Strike Summary Judgment

Evidence (ECF No. 73) is OVERRULED. Separate final

judgment shall follow.

SO ORDERED this 4th day of January, 2024.

/s/ Reed O’Connor

Reed O’Connor

UNITED STATES DISTRICT JUDGE

61. Because the Court, in ruling on Defendant’s Motion for

Judgment, did not rely on Defendant’s Exhibits A-9 through A-13,

A-19, A-18, or A-28, Plaintiffs’ Objection is MOOT.

47a

Appendix

C

APPENDIX C — FINAL

JUDGMENT

OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS, FORT WORTH

DIVISION, FILED JANUARY 4, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4:22-CV-00689-O

ISS AVIATION, INC. (WYOMING), et al.,

Plaintiffs,

v.

BELL TEXTRON INC,

Defendant.

FINAL JUDGMENT

This Judgment is issued pursuant to Fed. R. Civ. P.

58(a).

This action came on for consideration by the Court,

and the issues having been duly considered and a decision

duly rendered,

It is ORDERED, ADJUDGED, and DECREED that:

1.

This case is DISMISSED with prejudice to the

refiling of the same.

48a

Appendix C

2.

This Final Judgment fully and finally resolves all

issues between Plaintiffs and Defendant and may

be appealed. Any relief not specifically granted

in this Judgment is DENIED and any parties not

otherwise disposed of are DISMISSED.

3.

The taxable costs of court, as calculated by

the clerk of court, shall be borne by the party

incurring the same.

SO ORDERED on this 4th day of January, 2024.

/s/ Reed O’Connor

Reed O’Connor

UNITED STATES DISTRICT JUDGE

49a

Appendix

D UNITED STATES

APPENDIX D — ORDER

OF THE

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF TEXAS, FORT WORTH DIVISION,

FILED MAY 30, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4:22-CV-00689-O

ISS AVIATION, INC. (WYOMING), et al.,

Plaintiffs,

v.

BELL TEXTRON INC,

Defendant.

ORDER

Before the Court are Defendant Bell Textron, Inc.’s

Motion to Dismiss (ECF No. 7), filed September 27, 2022;

Plaintiffs ISS Aviation, Inc. (Wyoming) and ISS Aviation,

Inc. (Guyana)’s Response (ECF No. 14), filed October

25, 2022; and Defendant’s Reply (ECF No. 18). For the

reasons contained herein, Defendant’s Motion is hereby

GRANTED in part and DENIED in part.

Also before the Court are Plaintiffs’ Motion for

Leave to File Amended Complaint (ECF No. 17), filed

October 25, 2022; Defendant’s Response (ECF No. 19),

50a

Appendix D

filed November 8, 2022; and Plaintiffs’ Reply (ECF No.

23), filed November 22, 2023. For the reasons contained

herein, Plaintiffs’ Motion is hereby GRANTED in part

and DENIED in part.

Defendant’s Motion to Dismiss

I.

Factual Background1

Plaintiffs ISS Aviation, Inc. (Wyoming) (“ISS

Wyoming”) and ISS Aviation, Inc. (Guyana) (“ISS

Guyana”) bring this lawsuit against Defendant Bell

Textron, Inc. Defendant promotes and sells model

helicopters, accessories, and spare parts, nationally and

internationally.

On or about March 15, 2013, Defendant and ISS

Guyana entered into the first Independent Representative

Ag reement (“IRA”), wherein Defendant and ISS

Guyana agreed that ISS Guyana would be Defendant’s

independent representative on behalf of Defendant within

the Authorized Territory of French Guinea, Guyana,

and Suriname. ISS Guyana 2 was to establish Defendant

1. Unless otherwise cited, the Court’s recitation of the facts is

taken from Plaintiffs’ Amended Complaint. See Am. Compl., ECF

No. 4. At this stage, these facts are taken as true and viewed in the

light most favorable to the plaintiffs. See Sonnier v. State Farm Mut.

Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007).

2. Throughout the Amended Complaint, Plaintiffs refer to

“ISS Aviation,” which is confusing as both Plaintiffs are related

to ISS Aviation. The Court presumes based on context that “ISS

Aviation” as utilized by Plaintiffs in the recitation of the facts in the

51a

Appendix D

as the primary resource for the Government of Guyana

for their helicopters, parts, services, and other needs.

In return, as part of the Parties’ agreement, Defendant

promised to support ISS Guyana in its efforts to promote

the sale of Authorized Products and Services and timely

accept or reject offers to purchase Authorized Products

and Services by or obtained by ISS Guyana. Defendant

renewed ISS Guyana as its independent representative

five times between 2014 and 2018 by signing new IRAs

containing similar terms and compensation structure as

the initial IRA, and each expiring by their own terms

after either one or two years.

Plaintiffs purport that Defendant was aware there

were deliberate attempts by various entities and rival

companies in Guyana to “financially ruin” ISS Guyana

over the course of the Parties’ contractual relationship.

For example, Plaintiffs contend that some of these

companies conspired with certain airport officials of the

Government of Guyana to obstruct the business operations

of ISS Guyana. Plaintiffs contend Defendant did nothing

to assist ISS Guyana with these entities.

In 2017 and 2018, Mr. Jay Ortiz, a representative

of Defendant, allegedly made representations to ISS

Guyana regarding Defendant’s commitment to support

ISS Guyana’s efforts to secure a profitable deal known

Amended Complaint refers to ISS Guyana, and, as such, the Court

has adopted the use of “ISS Guyana” throughout. Further, looking

at the “Factual Background” section of the Amended Complaint, it

is never explained who ISS Wyoming is and/or how it fits into this

litigation. See Am. Compl., ECF No. 4.

52a

Appendix D

as the “Guyana Deal.”3 Specifically, Mr. Ortiz and other

members of management of Defendant represented that

it would provide full support, including political support,

to ISS Guyana to close the Guyana Deal. This support

included the careful coordination of all meetings, visits,

emails and phone calls to the Government of Guyana to

close the transaction. Mr. Ortiz told ISS Guyana to keep

pressing ahead with its representation of Defendant.

On August 15, 2018, the Parties entered into their final

IRA (“the 2018 IRA”), extending the Parties’ contractual

relationship for another one-year term.

In early 2019, Plaintiffs discovered Defendant’s prior

regional sales manager, with whom ISS Guyana worked

with for years, was no longer working for Defendant.

Months later, an acting regional sales manager contacted

ISS Guyana asking for all information regarding the

Guyana Deal. The new acting regional sales manager

allegedly represented that the value of the Guyana Deal

at that time was approximately $24 million. Plaintiffs

contend that the new acting regional sales manager,

operating under Defendant’s direction, proceeded to

deal directly with the government of Guyana and the

Guyana Defence Force, excluding ISS Guyana from any

involvement. On or about August of 2019, Defendant’s new

acting sales manager contacted ISS Guyana and informed

3. Throughout the Amended Complaint, Plaintiffs refer to the

“Guyana Deal” although they fail to immediately define what the

Deal is or the background behind the Deal. The Court presumes the

“Guyana Deal” refers to the allegedly $256 million deal resulting

from two sales to the Government of Guyana and the Guyana Defence

Force in 2020.

53a

Appendix D

ISS Guyana that Defendant would not be renewing the

IRA at the expiration of the 2018 IRA.

The Guyana Deal commenced “some time in 2020.”4

According to certain news articles, the Guyana Deal

constituted at least two purchases made by the Government

of Guyana and the Guyana Defence Force, purportedly

valued at $256 million. In addition to commission owed

on the Guyana Deal, Plaintiffs claim Defendant owes

commission in relation to Defendant’s sale of helicopter

parts and equipment for two helicopters based and

operated in Guyana, thought to be helicopters with serial

numbers 52138 and 52164.

On August 9, 2022, Plaintiffs filed this lawsuit in the

Tarrant County District Court. 5 Defendant removed this

case to federal court on August 10, 2022.6 Plaintiffs filed

an amended complaint on August 30, 2022.7 On September

27, 2022, Defendant filed a motion to dismiss Plaintiffs’

amended complaint. 8 Plaintiffs filed their response on

October 25, 2022.9 Defendant filed its reply on November

8, 2022.10

4. Am. Compl. ¶ 67, ECF No. 4.

5. Pl. Orig. Pet., ECF No. 1-3.

6. Not. of Removal, ECF No. 1.

7. Am. Compl., ECF No. 4.

8. Def. Mot., ECF No. 7.

9. Pls. Resp., ECF No. 14.

10. Def. Reply, ECF No. 18.

54a

Appendix D

On October 25, 2022, Plaintiffs filed a motion for

leave to file an amended complaint.11 On November 8,

2022, Defendant filed its response to Plaintiffs’ motion.12

Plaintiffs stated that they filed the motion for leave to file

an amended complaint solely as a precaution should the

Court grant Defendant’s motion to dismiss.13 All motions

are now ripe for the Court’s review.

II. Legal Standard

Rule 8(a) requires that a complaint contain “a short

and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not

require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.

2d 929 (2007)). If a plaintiff fails to satisfy Rule 8(a), the

defendant may file a motion to dismiss under Rule 12(b)(6)

for “failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff must plead “enough facts to state a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at 570.

“A claim has facial plausibility when the plaintiff pleads

11. Pls. Mot. for Leave, ECF No. 17.

12. Def. Resp., ECF No. 19.

13. See Pls. Resp. to Court Order, ECF No. 22.

55a

Appendix D

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has

acted unlawfully.” Id. (quoting Twombly, 550 U.S. at

556). “Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the

line between possibility and plausibility of entitlement to

relief.” Id. (cleaned up) (quoting Twombly, 550 U.S. at 557).

A court may not accept legal conclusions as true. Id. at 67879. When well-pleaded factual allegations are present, a

court assumes their veracity and then determines whether

they plausibly give rise to an entitlement to relief. Id.

III. Analysis

Plaintiffs bring claims for breach of contract; 14

quantum mer uit; 15 promissor y estoppel; 16 unjust

enrichment;17 fraud/fraudulent inducement;18 and fraud

by non-disclosure.19 Defendant moves to dismiss all of

Plaintiffs’ claims. 20

14. Am. Compl. ¶¶ 73-81, ECF No. 4.

15. Id. at ¶¶ 81-84.

16. Id. at ¶¶ 85-89.

17. Id. at ¶¶ 90-93.

18. Id. at ¶¶ 94-103.

19. Id. at ¶¶ 104-08.

20. See generally Def. Mot., ECF No. 7.

56a

Appendix D

A.

Breach of Contract

Plaintiffs first bring a claim for breach of contract,

alleging that Defendant and ISS Guyana entered into

a valid enforceable contract, which Defendant breached

by excluding ISS Guyana from the Guyana Deal and by

intentionally preventing the consummation of the deal

during the representative period. 21 Plaintiffs further

contend Defendant breached the contract by failing to pay

ISS Guyana in full for the services it provided on behalf

of Defendant pursuant to the IRA. 22 Finally, Plaintiffs

allege that ISS Wyoming was an intended third-party

beneficiary of the agreement between ISS Guyana and

Defendant and suffered damages due to Defendant’s

breach. 23

Under Texas law, “[b]reach of contract requires

pleading and proof that (1) a valid contract exists; (2)

the plaintiff performed or tendered performance as

contractually required; (3) the defendant breached the

contract by failing to perform or tender performance

as contractually required; and (4) the plaintiff sustained

damages due to the breach.” Pathfinder Oil & Gas, Inc.

v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019)

(citing USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d

479, 501 n.21 (Tex. 2018)). To successfully plead a breach

of contract claim, a plaintiff must “identify a specific

provision of the contract that was allegedly breached.”

21. Am. Compl. ¶¶ 74, 77, ECF No. 4.

22. Id. at ¶ 78.

23. Id. at ¶ 81.

57a

Appendix D

Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue

Shield of Georgia, Inc., 995 F. Supp. 2d 587, 602 (N.D.

Tex. 2014).

1.

Article 6 of the 2018 IRA

Defendant first contends that Plaintiffs’ breach of

contract claim must be dismissed because Plaintiffs are

not entitled to commissions for sales that were procured

after the expiration date of the 2018 IRA. 24 Defendant

highlights Article 6 of the 2018 IRA wherein it states,

“[o]rders received outside of the Term of Appointment set

forth in Article [sic] 2.b will not be eligible to receive a

commission [or discount], regardless of when such order

was initiated unless otherwise agreed to by [Defendant]

under a separate written agreement.” 25 Plaintiffs are

seeking commission payments for the Guyana Deal that

commenced “sometime in 2020.” 26 Defendant contends

that the 2018 IRA expired on August 14, 2019. 27 Plaintiff

provides evidence of an amendment to the 2018 IRA that

the Parties entered into wherein the termination date was

extended to September 30, 2019. 28 Either way, the 2018

IRA expired, at latest, on September 30, 2019, before the

commencement of the Guyana Deal.

24. Def. Brief 11, ECF No. 8.

25. Id. (alterations in original); Def. App. 96, ECF No. 9.

26. Am. Compl. ¶ 67, ECF No. 4.

27. Def. App. 95, ECF No. 9.

28. Pls. App. 5, ECF No. 16.

58a

Appendix D

2.

Articles 5(a) and (e) of the 2018 IRA

Regardless, Plaintiffs contend Defendant nevertheless

breached the contract by failing to provide support and

sales assistance to ISS Guyana and by engaging in actions

that Plaintiffs argue ultimately obstructed the completion

of the Guyana Deal during the term of the IRA. 29 In terms

of what contractual provisions were breached, Plaintiffs

loosely allege that Defendant breached Articles 5(a) and

5(e) of the 2018 IRA. 30

Looking at the 2018 IRA, A rticle 5 spells out

Defendant’s duties. 31 Article 5(a) states that Defendant

agrees to “[s]upport [ISS Guyana] in its efforts to promote

the sale of Authorized Products and Services in the

Authorized Territory during the Term of Appointment.”32

Article 5(e) states that Defendant agrees to “[t]imely

accept or reject offers to purchase Authorized Products

and Services by or obtained by Representative.” 33

Regarding Article 5(e), the Court finds that Plaintiffs

do not allege facts to show that Defendant failed to timely

29. Pls. Resp. Brief 7, ECF No. 15.

30. Am. Compl. ¶ 27, ECF No. 4; Pls. Resp. Brief 2, ECF No. 15.

In the Amended Complaint, Plaintiffs fail to state which contractual

provisions they feel were breached but use language from Articles

5(a) and 5(e).

31. See Def. App. 96, ECF No. 9.

32. Id.

33. Id.

59a

Appendix D

accept or reject offers to purchase Authorized Products

and Services during the term of the agreement. Therefore,

Plaintiffs fail to sufficiently allege that Defendant

breached Article 5(e). Turning to Article 5(a), Defendant

highlights that, under Article 5(c) of the IRA, Defendant

was only contractually obligated to “[g]enerally render

such sales assistance as may be, in [Defendant’s] sole

judgment, reasonable and appropriate.” 34 Therefore,

Defendant contends, the Parties expressly agreed

Defendant had the sole right to determine how to perform

the sales assistance that Plaintiffs “take umbrage with”

in this lawsuit. 35 Plaintiffs counter that Article 5(c)

should not be read in conjunction with 5(a) and that, at

best, there is an ambiguity in the agreement based on

different interpretations. 36 Plaintiffs state that it is for

the jury to decide whether 5(a) and 5(c) are discussing

the same subject matter, how these provisions should be

read together, and whether Article 5(a) was breached. 37

“The primary concern of a court in construing a

written contract is to ascertain the true intentions of the

parties as expressed in the instrument.” Texas v. Am.

Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (citations

omitted). “Contracts are construed in their entirety, and it

is the Court’s duty ‘to consider each part with every other

34. Def. Brief 13, ECF No. 8 (quoting Def. App. 96, ECF No.

9) (emphasis in original).

35. Id.

36. Pls. Resp. Brief 3, ECF No. 15.

37. Id.

60a

Appendix D

part so that the effect and meaning of one part on any

other part may be determined.’” Id. at 408 (quoting Smart

v. Tower Land & Inv. Co., 597 S.W.2d 333, 337 (Tex. 1980)).

“[C]ourts must be particularly wary of isolating from its

surroundings or considering apart from other provisions

a single phrase, sentence, or section of a contract.” Id.

(quoting State Farm Life Ins. Co. v. Beaston, 907 S.W.2d

430, 433 (Tex. 1995)). “Whether a contract is ambiguous is

a question of law for the court to decide by looking at the

contract as a whole in light of the circumstances present

when the contract was entered.” Id. at 407 (quoting Coker

v. Coker, 650 S.W.2d 391, 394 (Tex. 1983)). “If a written

contract is worded such that it can be given a definite or

certain legal meaning, then it is not ambiguous.” Id. (citing

Nat’l Union Fire Ins. Co. of Pittsburgh v. CBI Indus.,

Inc., 907 S.W.2d 517, 520 (Tex. 1995)). “If the contract’s

meaning is uncertain and doubtful, or it is reasonably

susceptible to more than one meaning, it is ambiguous.”

Id. (citing Coker, 650 S.W.2d at 393-94).

In this case, the Court finds that the contract

language is unambiguous. Defendant’s obligation to

“[s]upport [ISS Guyana’s] efforts to promote the sale” of

Defendant’s Authorized Products and Services, 38 as set

forth in Article 5(a), is the same as Defendant’s obligation

to “[g]enerally render . . . sales assistance,” as set forth

in Article 5(c). 39 Reading the two clauses together, Court

finds that the clear, unambiguous meaning of the contract

is that Article 5(c) is meant to place limits on Defendant’s

38. Def. App. 96, ECF No. 9.

39. Id.

61a

Appendix D

obligations under Article 5(a). Furthermore, Plaintiffs

fail to articulate an alternative interpretation of 5 for

how Article 5(a) and (c) should be interpreted in relation

to one another.40 Accordingly, the Court finds that the

Parties agreed and intended that Defendant would have

an obligation to provide sales assistance to ISS Guyana,

but that Defendant would only be obligated to provide

such assistance as Defendant thought reasonable and

appropriate. Therefore, any breach of contract claim based

on an alleged failure of Defendant to provide sufficient

sales assistance regarding the Guyana Deal fails.

3.

Air Services, Ltd. Transactions

Plaintiffs, in their response, vaguely allege that

Defendant breached the 2018 IRA by failing to pay

ISS Guyana commissions for transactions involving

Air Services, Ltd.41 Plaintiffs cite to Paragraph 71 of

the Amended Complaint, which states that Defendant

owes commission in relation to aircraft operated by Air

Services, Ltd. in Guyana, which owns, operates, and bought

Defendant helicopter parts and equipment for their two

helicopters purchased from Defendant.42 Paragraph 71 is

the only mention of Air Services, Ltd. or any transactions

with Air Services, Ltd. in the entire Amended Complaint.43

Plaintiffs fail to state which provisions of the 2018 IRA

40. See Pls. Resp. Brief, ECF No. 15.

41. Id. at 8.

42. Am. Compl. ¶ 71, ECF No. 4.

43. See id.

62a

Appendix D

such transactions violated. Plaintiffs fail to specify when

these transactions even occurred. Altogether, the Court

finds that any breach of contract claim based on these

alleged transactions involving Air Services, Ltd. fails

as the Amended Complaint does not contain factual

allegations sufficient to support such a claim.

4.

Duty to Cooperate

Plaintiffs also assert Defendant breached its duty

to cooperate under the 2018 IRA by engaging in actions

that prevented ISS Guyana’s performance of the IRA.44

Defendant counters that an implied duty to cooperate

should not be imposed in the 2018 IRA as the IRA already

defines Defendant’s obligation to cooperate.45 Further,

Defendant argues that, even if there was an implied duty

to cooperate, Defendant did not breach said duty.46

“The parties’ obligations under a contract are, for

the most part, limited to those stated within the written

agreement.” Miller v. Ret. Sys. Grp., Inc., No. H-09834, 2011 WL 13340637, at *9 (S.D. Tex. Jan. 31, 2011),

adopting report and recommendation sub nom. Miller v.

RSGroup Tr. Co., No. H-09-834, 2011 WL 13340640 (S.D.

Tex. Apr. 26, 2011) (citing Universal Health Servs., Inc.

v. Renaissance Women’s Grp., P.A., 121 S.W.3d 742, 747

(Tex. 2003)). However, the court may imply a covenant

44. Pls. Resp. Brief 6-7, ECF No. 15.

45. Def. Reply 4, ECF No. 18.

46. Id. at 4-5.

63a

Appendix D

when necessary to reflect the parties’ actual intentions.

Universal Health Servs., Inc., 121 S.W.3d at 747. The

implied covenant must appear, based on the express

terms, “so clearly within the contemplation of the parties

that they deemed it unnecessary to express it.” Id. at 748

(quoting Danciger Oil & Ref. Co. of Tex. v. Powell, 137 Tex.

484, 154 S.W.2d 632, 635 (Tex. 1941)). Texas implies a duty

to cooperate “in every contract in which cooperation is

necessary for performance of a contract.” Bank One, Tex.,

N.A. v. Stewart, 967 S.W.2d 419, 434 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied). When applicable, the duty to

cooperate prohibits a party to a contract from hindering,

preventing, or interfering with the other party’s ability

to perform his contractual duties. Id. at 435.

In this case, the Court finds that Plaintiffs have

sufficiently pled the existence of an implied duty to

cooperate on the part of Defendant. The issue therefore

is whether Defendant breached the duty.

Defendant contends that it did not breach its duty

to cooperate under the 2018 IRA, as Defendant did not

prevent ISS Guyana from fulfilling its contractual duties.47

Specifically, Defendant contends that ISS Guyana was not

contractually obligated to secure a sale to the government

of Guyana, and that ISS Guyana’s only contractual duties

concerned how ISS Guyana was to conduct business

(e.g., ISS Guyana is obliged to office in Guyana, comply

with global anti-corruption laws, conduct reasonable

47. Def. Reply 5, ECF No. 18.

64a

Appendix D

due diligence into prospective customers).48 ISS Guyana

counters that Defendant engaged in actions that

prevented its performance of the contract and ultimately

obstructed completion of the Guyana Deal.49 Specifically,

ISS Guyana alleges that Defendant took “full control

over the deal to the exclusion of ISS Guyana despite ISS

Guyana being the sole independent representative”; that

during the term of the IRA, [Defendant’s] “new acting

regional sales manager and [Defendant’s] Management

conducted various meetings with Guyanese officials and

others without telling ISS Guyana despite the fact that

ISS Guyana was the representative”; that [Defendant’s]

unilateral decision to take over the deal discussions

without notifying ISS Guyana and its decision to exclude

ISS Guyana deliberately and intentionally from the deal

discussion runs afoul of the [IRA] and ultimately prevents

ISS Guyana from participating and concluding the deal

and getting the commissions it earned[.]”50

At the motion to dismiss stage, the Court finds that ISS

Guyana has sufficiently pleaded facts to support the claim

that Defendant prevented ISS Guyana from performing

as Defendant’s sole independent representative in the

region under the 2018 IRA. Defendant’s motion to dismiss

ISS Guyana’s breach of contract claim on this point is

DENIED.

48. Id.

49. Pls. Resp. Brief 7, ECF No. 15.

50. Id. (quoting Am. Compl. ¶¶ 54-55).

65a

Appendix D

5.

ISS Wyoming

Plaintiffs lastly allege that ISS Wyoming was an

intended third-party beneficiary of the agreement between

ISS Guyana and Defendant and suffered damages due to

Defendant’s breach. 51

“A third party may recover on a contract made

between other parties only if the parties intended to

secure some benefit to that third party, and only if the

contracting parties entered into the contract directly

for the third party’s benefit.” Mokhtar v. Penn-Am. Ins.

Co., No. 3:16-CV-01168-O, 2016 WL 9527963, at *4 (N.D.

Tex. June 22, 2016) (emphasis omitted) (quoting MCI

Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647,

651 (Tex. 1999)). “In determining whether a third party

can enforce a contract, the intention of the contracting

parties is controlling. The intention to contract or confer

a direct benefit to a third party must be clearly and fully

spelled out or enforcement by the third party must be

denied.” Id. (quoting MCI Telecomm. Corp., 995 S.W.2d

at 651).

In this case, Plaintiffs fail to provide any evidence

that the Parties intended for ISS Wyoming to be a thirdparty beneficiary to the 2018 IRA. Plaintiffs fail to point

to any provision of the contract wherein ISS Wyoming

was designated a third-party beneficiary. Plaintiffs fail

to cite to any provision in the 2018 IRA, or in the Parties’

negotiations before signing the 2018 IRA, where ISS

51. Am. Compl. ¶ 81, ECF No. 4.

66a

Appendix D

Wyoming was mentioned at all. Therefore, the Court finds

that ISS Wyoming fails to sufficiently allege a breach of

contract claim. ISS Wyoming’s breach of contract claim

thereby fails.

6.

Breach of Contract Conclusion

To conclude, Defendant’s motion to dismiss is hereby

GRANTED as to any breach of contract claim asserted

by ISS Wyoming. Also, Defendant’s motion to dismiss is

hereby GRANTED as to any breach of contract claim based

on an alleged failure of Defendants to provide sufficient

sales assistance under the IRA. Further, Defendant’s

motion to dismiss is hereby GRANTED as to any breach of

contract claim based on the alleged transactions involving

Air Services, Ltd. However, Defendant’s motion to dismiss

is DENIED as to Defendant’s alleged breach of the duty

to cooperate. Therefore, the sole surviving argument for

breach of contract is ISS Guyana’s claim that Defendant

breached its implied duty to cooperate under the 2018

IRA.

B. Quantum Meruit

Plaintiffs secondly bring a claim for quantum meruit.52

To succeed on a quantum meruit claim, the claimant must

prove:

(1) valuable services were rendered or materials

furnished; (2) for the person sought to be

52. Am. Compl. ¶¶ 81-84, ECF No. 4.

67a

Appendix D

charged; (3) those services and materials were

accepted by the person sought to be charged,

and were used and enjoyed by him; and (4) the

person sought to be charged was reasonably

notified that the plaintiff performing such

services or furnishing such materials was

expecting to be paid by the person sought to

be charged.

In re BJ Servs., LLC, No. 20-33627, 2023 WL 2311986,

at *4 (Bankr. S.D. Tex. Mar. 1, 2023) (emphasis omitted)

(quoting Hill v. Shamoun & Norman, LLP, 544 S.W.3d

724, 732-33 (Tex. 2018)). “[A] party may recover under

quantum meruit only when there is no express contract

covering the services or materials furnished.” Moncrief

v. Tech Pharm. Servs. LLC, No. 3:22-cv-1654-X, 2023 U.S.

Dist. LEXIS 12513, 2023 WL 416549, at *2 (N.D. Tex.

Jan. 25, 2023) (quoting Vortt Exploration Co. v. Chevron

U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990)).

Defendant contends, and the Court agrees, that the

2018 IRA clearly sets out the contractual obligations of

Defendant and ISS Guyana, and all the services performed

by ISS Guyana were contemplated by the 2018 IRA. 53

Accordingly, ISS Guyana cannot recover under quantum

meruit. Furthermore, the IRA was between ISS Guyana

and Defendant, and Plaintiffs fail to plead facts to show

that Defendant was ever reasonably notified that ISS

Wyoming performed work on Defendant’s behalf or that

53. Def. Brief 16-17, ECF No. 8.

68a

Appendix D

ISS Wyoming expected to be paid by Defendant.54 As such,

the Court agrees with Defendant’s contention that ISS

Wyoming’s quantum meruit claim must be dismissed. 55

Therefore, both ISS Guyana’s and ISS Wyoming’s claims

for quantum meruit are DISMISSED.

C.

Promissory Estoppel

Plaintiffs thirdly bring a claim for promissory

estoppel. 56 “To prevail on a promissory estoppel claim

under Texas law, a plaintiff must show: ‘(1) a promise; (2)

foreseeability of reliance thereon by the promisor; and (3)

substantial reliance by the promisee to his detriment.’”

Howard v. Bank of N.Y. Mellon, No. 3:12-CV-1143-O, 2012

WL 13024096, at *2 (N.D. Tex. Nov. 27, 2012) (quoting

English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)). “[I]

f a valid contract between the parties covers the alleged

promise, a plaintiff may not recover under a promissory

estoppel theory.” Id. (citing Fertic v. Spencer, 247 S.W.3d

242, 250 (Tex. App.—El Paso 2007, pet. denied)).

Plaintiffs allege that Defendant promised to respect

ISS Guyana’s r ights as Defendant’s independent

representative. 57 They further contend Defendant

promised that it would support Plaintiffs with the tools

and resources necessary to secure the Guyana Deal. 58

54. Id.

55. Id. at 17.

56. Am. Compl. ¶¶ 85-89, ECF No. 4.

57. Id. at ¶ 86.

58. Id.

69a

Appendix D

They also state that Defendant promised it would pay ISS

Guyana commissions for transactions procured by ISS

Guyana on Defendant’s behalf. 59 Finally, they allege that

it was foreseeable Plaintiffs would rely on Defendant’s

promises, and that Plaintiffs did in fact rely on Defendant’s

promises to their detriment.60 Regarding ISS Wyoming,

Plaintiffs contend that, as ISS Wyoming was not a

party to the 2018 IRA, ISS Wyoming is entitled to seek

compensation and damages for the benefit it conferred

on Defendant.61

The Court finds that the alleged promises by

Defendant were covered by the 2018 IRA. Furthermore,

pursuant to its own terms, the 2018 IRA “constitutes

the entire Agreement of the Parties with respect to the

subject matter of [the] Agreement.”62 Therefore, to the

extent Defendant made any extra-contractual promises,

it was not foreseeable that Plaintiffs would rely on any

such promises. Regarding ISS Wyoming specifically, the

Court finds that Plaintiffs fail to sufficiently plead that

Defendant made any promises to ISS Wyoming or that

ISS Wyoming substantially relied on any such promises.

Accordingly, Plaintiffs’ promissory estoppel claims are

DISMISSED.

59. Id.

60. Id.

61. Pls. Resp. Brief 13, ECF No. 15.

62. Def. App. 103, ECF No. 9.

70a

Appendix D

D.

Unjust Enrichment

Plaintiffs next bring a claim for unjust enrichment.

“A party may recover under the unjust enrichment theory

when one person has obtained a benefit from another

by fraud, duress, or the taking of an undue advantage.”

Elias v. Pilo, 781 F. App’x 336, 338 (5th Cir. 2019) (quoting

Heldenfels Bros., Inc. v. City of Corpus Christi, 832

S.W.2d 39, 41 (Tex. 1992)). “In Texas, unjust enrichment

is based on quasi-contract and is unavailable when a valid,

express contract governing the subject matter of the

dispute exists.” JPM Restoration, Inc. v. Ares LLC, No.

3:20-cv-3160-B, 2021 U.S. Dist. LEXIS 25164, 2021 WL

487696, at *3 (N.D. Tex. Feb. 10, 2021) (quoting Coghlan v.

Wellcraft Marine Corp., 240 F.3d 449, 454 (5th Cir. 2001)).

“[I]n general, unless one party disputes the existence of a

contract that governs the parties’ relationship, [plaintiffs]

cannot maintain an unjust-enrichment counterclaim—

even if pleaded in the alternative.” Id. (cleaned up).

In this case, the Court finds that the 2018 IRA governs

the subject matter of Plaintiffs’ claims. Also, the Parties

have expressly agreed that the 2018 IRA governs the

Parties’ relationship. Regarding ISS Wyoming, Plaintiffs

fail to allege facts to show ISS Wyoming has a viable

unjust enrichment claim. Therefore, Plaintiffs’ unjust

enrichment claims must be DISMISSED.

E. Fraud/Fraudulent Inducement

Plaintiffs br ing a claim for fraud /fraudulent

inducement. The essential elements of a fraud claim are:

“(1) that a false, material representation was made; (2)

that was either known to be false when made or was made

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without knowledge of its truth; (3) that was intended to be

acted upon; (4) that was relied upon; and (5) that caused

injury.” Express Working Cap., LLC v. Starving Students,

Inc., 28 F. Supp. 3d 660, 672 (N.D. Tex. 2014) (quoting

Hubbard v. Shankle, 138 S.W.3d 474, 482-83 (Tex. App.—

Fort Worth 2004, pet. denied)). “Fraudulent inducement is

a particular species of fraud that arises only in the context

of a contract and requires the existence of a contract as

part of its proof.” Id. (cleaned up) (quoting LeTourneau

Techs. Drilling Sys., Inc. v. Nomac Drilling, LLC, 676

F. Supp. 2d 534, 542 (S.D. Tex. 2009)). To prove their

fraudulent inducement claim, Plaintiffs must establish

the elements of fraud as they relate to the 2018 IRA. Id.

Rule 9(b) provides, in pertinent part, that, “[i]n

all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with

particularity.” F ed. R. Civ. P. 9(b). “The amount of

particularity required for pleading fraud differs from

case to case.” Flu Shots of Tex., Ltd. v. Lopez, No. 3:13-cv144-O, 2014 U.S. Dist. LEXIS 45828, 2014 WL 1327706, at

*8 (N.D. Tex. Apr. 3, 2014). “In the Fifth Circuit, the Rule

9(b) standard requires ‘specificity as to the statements (or

omissions) considered to be fraudulent, the speaker, when

and why the statements were made, and an explanation

of why they were fraudulent.’” Id. (quoting Plotkin v. IP

Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). “Essentially,

the standard requires the Complaint to allege answers

to ‘newspaper questions’ (‘who, what, when, where, and

how’) of the alleged fraud.” Id. (citing Melder v. Morris, 27

F.3d 1097, 1100 n.5 (5th Cir. 1994)). The pleading standard

under Rule 9(b) is more “relaxed” regarding pleadings of

intent and state of mind. Id. at *10.

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Plaintiffs contend that Mr. Ortiz, Defendant’s former

representative, made several representations in 2017 and

2018 regarding Defendant’s commitment to Plaintiff ISS

Guyana. Mr. Ortiz allegedly supported ISS Guyana by

introducing ISS Aviation to U.S. government programs

to help close the Guyana Deal, and by coordinating

meetings, visits, emails, and phone calls to ensure there

was one comprehensive and carefully executed strategy

in working with the Guyana government. 63 Plaintiffs

state that Defendant, through Ortiz’s statements, “lied”

because Defendant “never intended to provide [Plaintiffs]

with the support and assistance or tools [they] needed,

despite [Defendant’s] knowledge that [Plaintiffs] suffered

significant attacks to its operations” on Defendant’s

behalf. 64 Plaintiffs assert that Defendant made the

representations with the intent to induce Plaintiffs to act

on them, and Plaintiffs relied on the representations when

it executed the August 2018 IRA.65

Defendants contend that Plaintiffs’ fraudulent

inducement claim must be dismissed because it relies on

terms outside of the 2018 IRA.66 “Under Texas law, . . .

parties challenging contracts as fraudulently induced may

rely on evidence of oral promises or agreements to support

their claims.” LeTourneau Techs. Drilling Sys., Inc.,

676 F. Supp. 2d at 542 (citation omitted). However, “[t]o

63. Am. Compl. ¶ ¶ 36-40, ECF No. 4.

64. Id. at ¶ 42.

65. Id. at ¶¶ 36, 41.

66. Def. Brief 21, ECF No. 8.

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establish the ‘justifiable reliance’ element of a fraud claim,

the plaintiff’s reliance on the defendant’s false statement

must have been reasonable.” Id. (citing Ortiz v. Collins,

203 S.W.3d 414, 421 (Tex. App.—Houston [14th Dist.] 2006,

no pet.)). “Reliance upon an oral representation that is

directly contradicted by the express, unambiguous terms

of a written agreement between the parties is not justified

as a matter of law.” Id. at 542-43 (citing DRC Parts &

Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854,

858 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (en

banc)). “Thus, while a plaintiff may be able to introduce

parol evidence of a defendant’s misrepresentations in

order to prove a claim of fraudulent inducement, where

that parol evidence is directly contradicted by the express

terms of the written agreement the plaintiff will fail to

prove the element of justifiable reliance.” Id. at 543.

Defendant contends that Plaintiffs’ allegations cannot

be reconciled with the merger clause contained within the

2018 IRA,67 which states that the agreement “constitutes

the entire Agreement of the Parties with respect to the

subject matter of the subject matter of this Agreement

and supersedes all prior Agreements or understandings,

written or oral.” 68 Plaintiff cites to Dunbar Medical

Systems, Inc. v. Gammex, Inc. to support its contention

that the Fifth Circuit has held that merger clauses do

not preclude fraudulent inducement claims.69 See 216 F.3d

67. Def. Brief 22, ECF No. 8.

68. Def. App. 103, ECF No. 9.

69. Pls. Resp. Brief 10, ECF No. 15.

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441, 448-49, 451 (5th Cir. 2000). In Dunbar, the Fifth

Circuit held that, in determining whether a merger clause

precludes a fraudulent inducement claim, the court must

look at the agreement as a whole to determine whether the

agreement “clearly expresses the parties’ intent to waive

fraudulent inducement claims, or . . . disclaims reliance

on representations about specific matters in dispute.” Id.

at 449 (cleaned up).

In this case, after looking at the 2018 IRA as a whole,

the Court cannot say that the IRA reflects the “requisite

clear and unequivocal expression of intent necessary to

disclaim reliance on the [ ] specific representations” by

Plaintiffs. Id. at 451 (quoting Schlumberger Tech. Corp.

v. Swanson, 959 S.W.2d 171, 179 (Tex. 1997)). Therefore,

the Court finds that the merger clause does not preclude

Plaintiffs’ fraud/fraudulent inducement claim.

***

Turning to the sufficiency of Plaintiffs’ pleadings,

Defendant alleges that Plaintiffs fail to plead facts to

show that Mr. Ortiz’s statements were fraudulent, or

false when made.70 Defendant contends that Plaintiffs

fail to sufficiently plead their claims that Defendant had

no intention of supporting Plaintiffs.71 Plaintiffs counters

that Defendant’s eventual exclusion of ISS Guyana from

the Deal discussions and meetings with the government

of Guyana were indicators of Defendant’s malicious intent

70. Def. Brief 20, ECF No. 8.

71. Id. at 21.

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Appendix D

not to perform any of the representations and that such

representations were false.72 However, Plaintiffs do not

allege that Defendant began meeting with the Guyanese

government or otherwise excluding ISS Guyana from

the process until the new acting regional sales manager

took over in 2019.73 Mr. Ortiz made the aforementioned

statements in 2017 and 2018.74 Therefore, the Court finds

that Plaintiffs have insufficiently pled that Mr. Ortiz’s

statements were fraudulent at the time they were made.

Thereby, Plaintiffs’ fraud/fraudulent inducement claim is

DISMISSED.

F.

Fraud by Non-Disclosure

Plaintiffs lastly bring a claim for fraud by nondisclosure.75 “Fraud by non-disclosure, a subcategory of

fraud, occurs when a party has a duty to disclose certain

information and fails to disclose it.” CBE Grp., Inc. v.

Lexington L. Firm, 993 F.3d 346, 353 (5th Cir. 2021)

(quoting Bombardier Aerospace Corp. v. SPEP Aircraft

Holdings, LLC, 572 S.W.3d 213, 219 (Tex. 2019)). Under

Texas law, a plaintiff establishes fraud by non-disclosure

by proving:

(1) the defendant deliberately failed to disclose

material facts; (2) the defendant had a duty

72. Am Compl. ¶¶ 43-49, 98, ECF No. 4.

73. See id.

74. Id. at ¶ 36.

75. Am. Compl. ¶¶ 104-08, ECF No. 4.

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Appendix D

to disclose such facts to the plaintiff; (3) the

plaintiff was ignorant of the facts and did not

have an equal opportunity to discover them; (4)

the defendant intended the plaintiff to act or

refrain from acting based on the nondisclosure;

and (5) the plaintiff relied on the nondisclosure,

which resulted in injury. In general, there

is no duty to disclose without evidence of a

confidential or fiduciary relationship . . . . [But]

[t]here may [ ] be a duty to disclose when the

defendant . . . made a partial disclosure that

created a false impression . . . .

Id. (quoting Bombardier Aerospace Corp., 572 S.W.3d at

219-20) (alterations in original).

Plaintiffs contend that Defendant had a duty to

disclose information, “including but not limited to,” its

decision to conduct business meetings and deal discussions

without Plaintiffs and the value of the deal contemplated

by Defendant.76 Plaintiffs contend that this information

was material and that Defendant knew Plaintiffs were

ignorant of these facts and had no opportunity to discover

them.77 Defendant contends that Plaintiffs fail to articulate

facts sufficient to satisfy the heightened pleading standard

under Rule 9(b) as Plaintiffs rely on claims based “upon

information and belief” without articulating any factual

basis for those beliefs.78 Furthermore, Defendant contends

76. Id. at ¶ 105.

77. Id. at ¶ 106.

78. Def. Brief 23, ECF No. 8.

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Appendix D

that Plaintiffs fail to sufficiently plead that Defendant had

a duty to disclose information to Plaintiffs.79

In Bombardier Aerospace Corp. v. SPEP Aircraft

Holdings, LLC, 80 relied upon by Plaintiffs, the Supreme

Court of Texas states that a fiduciary duty arises “as a

matter of law in certain formal relationships, including

attorney-client, partnership, and trustee relationships.”

572 S.W.3d 12 at 220 (citation omitted). A confidential

relationship is one in which the “parties have dealt with

each other in such a manner for a long period of time

that one party is justified in expecting the other to act

in its best interest.” Id. (citation omitted). “An informal

relationship giving rise to a duty may also be formed from

“a moral, social, domestic or purely personal relationship

of trust and confidence.’” Id. The court further stated, “an

informal relationship giving rise to a duty may also be

created by a ‘special relationship of trust and confidence

[which] exist[s] prior to, and apart from, the agreement’”

Id. (quoting Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.

2005) (per curiam)) (alteration in original). However, a

duty to disclose may also arise “when one party makes

a representation, which gives rise to the duty to disclose

new information that the party is aware makes the earlier

representation misleading or untrue[.]” Solutioneers

Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237

S.W.3d 379, 385 (Tex. App. 2007).

79. Def. Reply 9-10, ECF No. 18.

80. In Bombardier, the court did not have to analyze whether

the defendant owed a duty of disclosure as the defendant waived the

issue during trial. See 572 S.W.3d 213, 222 (Tex. 2019).

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Appendix D

Plaintiffs state that Defendant, for example in 2017

and 2018 through its representative Mr. Ortiz, told ISS

Guyana 81 that it was committed to securing the Deal

through ISS Guyana. 82 Then, in 2019, Plaintiffs aver

that Defendant began acting to secure the Guyana Deal

without ISS Guyana, cutting them out of the Deal. 83 The

Court finds that ISS Guyana has thus sufficiently pleaded

the existence of a duty to disclose. The Court further

finds that ISS Guyana sufficiently pled the remaining

elements of their fraud by non-disclosure claim. Therefore,

Defendant’s motion to dismiss this claim as to ISS Guyana

is DENIED. Regarding ISS Wyoming, the Court finds

that there is not enough information in the Amended

Complaint as to ISS Wyoming’s identity or role in this

exchange. The Court thus finds that Plaintiffs have not

pleaded sufficient facts to support any fraud by nondisclosure claim brought by ISS Wyoming. Defendant’s

motion to dismiss the fraud by non-disclosure claim is

GRANTED as to ISS Wyoming.

IV. Conclusion

To conclude, the Court DENIES Defendant’s motion to

dismiss as to ISS Guyana’s claim that Defendant breached

an implied duty to cooperate under the 2018 IRA, but

the Court GRANTS Defendant’s motion to dismiss as

to all Plaintiffs’ other breach of contract claims. Among

the claims being dismissed, all are DISMISSED with

81. Again, Plaintiffs write “ISS Aviation,” and the Court

presumes this means Plaintiff ISS Guyana.

82. Am Compl. ¶ 39, ECF No. 4.

83. Id. at ¶¶ 41-55.

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Appendix D

prejudice other than the claim regarding the transaction

with Air Services, Ltd.

The Court GRANTS Defendant’s motion to dismiss

as to Plaintiffs’ claims for quantum meruit, promissory

estoppel, and unjust enrichment. As to ISS Guyana,

these claims are DISMISSED with prejudice. As to ISS

Wyoming, they are DISMISSED without prejudice.

The Court further GRANTS Defendant’s motion to

dismiss Plaintiffs’ claim of fraud/fraudulent inducement.

This claim is DISMISSED without prejudice.

Finally, the Court further DENIES Defendant’s

motion to dismiss ISS Guyana’s fraud by non-disclosure

claim and GRANTS Defendant’s motion to dismiss any

fraud by non-disclosure claim brought by ISS Wyoming.

ISS Wyoming’s fraud by non-disclosure claim is

DISMISSED without prejudice.

The Court will now assess whether to grant Plaintiffs

leave to file an amended complaint to cure their claims the

Court dismissed without prejudice.

Motion for Leave to File an Amended Complaint

As mentioned above, Plaintiffs filed a Motion for Leave

to File Amended Complaint on October 25, 2022. 84 On

November 8, 2022, Defendant filed a response opposing

Plaintiff’s motion for leave, highlighting that Plaintiffs

failed to attach the proposed amended pleading to their

84. See Pls. Mot. for Leave, ECF No. 17.

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Appendix D

motion as required under Local Rule 15.1(b). 85 However,

on November 9, 2022, Plaintiffs filed an Amended Motion

to Amend/Correct their prior motion, this time attaching

Plaintiffs’ proposed Second Amended Complaint, thereby

mooting Defendant’s objection.86 Plaintiffs make clear that

they filed their motion for leave as an alternative to its

response to Defendant’s Motion to Dismiss. 87

I.

Legal Standard

Federal Rule of Civil Procedure 15(a)(2) provides

that “the court should freely give leave when justice so

requires.” See also Lowery v. Texas A&M Univ. Sys.,

117 F.3d 242, 245 (5th Cir. 1997) (“Rule 15(a) expresses a

strong presumption in favor of liberal pleading”); Nance v.

Gulf Oil Corp., 817 F.2d 1176, 1180 (5th Cir. 1987) (“Rule

15(a) counsels a liberal amendment policy”). The decision

to allow amendment of a party’s pleadings is within the

sound discretion of the district court. Foman v. Davis,

371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962);

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994)

(citation omitted). “Leave to amend is in no way automatic,

but the district court must possess a ‘substantial reason’

to deny a party’s request for leave to amend.” Marucci

Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d

368, 378 (5th Cir. 2014) (citation omitted). “However, it

is within the district court’s discretion to deny a motion

85. Def. Resp. 3, ECF No. 19.

86. Proposed Sec. Am. Compl., ECF No. 20.

87. Pls. Mot. for Leave ¶ 7, ECF No. 17.

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Appendix D

for leave to amend pleadings if the amendment would be

futile.” Avdeef v. Royal Bank of Scotland, No. 4:13-cv967-O, 2014 WL 4055369, at *3 (N.D. Tex. Aug. 15, 2014)

(citing Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863,

872-73 (5th Cir. 2000)).

An amendment is futile if it could not survive a Rule

12(b)(6) motion. Briggs v. Mississippi, 331 F.3d 499, 508

(5th Cir. 2003). Therefore, the Court reviews the Proposed

Second Amended Complaint under “the same standard of

legal sufficiency as applies under Rule 12(b)(6).” Stripling v.

Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000)

(citation omitted). Thus, a plaintiff’s amended complaint

must plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Twombly,

550 U.S. at 556). “The plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 556). And a court should

accept all well-pleaded facts and view them in the light

most favorable to the plaintiff. Sonnier v. State Farm Mut.

Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007).

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Appendix D

II. Analysis

A.

Breach of Contract

The Court first finds that, regarding Plaintiffs’

breach of contract claim involving the transaction with

Air Services, Ltd., Plaintiffs’ Proposed Second Amended

Complaint does not cure the pleading issues from the First

Amended Complaint, as found by the Court. Thereby,

Plaintiffs’ request for leave to file an amended complaint

to cure the breach of contract claim is DENIED.

B. Quantum Meruit, Promissory Estoppel, and

Unjust Enrichment

The Court finds the Proposed Second Amended

Complaint provides more information regarding ISS

Wyoming’s purpose, activity, and how it fit into the business

relationship between ISS Guyana and Defendant. 88

Therefore, the Court finds it would not be futile to grant

leave to amend to cure ISS Wyoming’s quantum meruit,

promissory estoppel, and unjust enrichment claims.

Therefore, leave file an amended complaint to amend ISS

Wyoming’s quantum meruit, promissory estoppel, and

unjust enrichment claims is GRANTED.

C.

Fraud/Fraudulent Inducement

In assessing Plaintiffs’ Proposed Second Amended

Complaint, the Court finds that Plaintiffs added sufficient

88. See generally Proposed Sec. Am. Compl., ECF No. 20.

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Appendix D

details wherein granting leave to file an amended complaint

to cure their fraud/fraudulent inducement claim would not

be futile. As such, leave as to this claim is GRANTED.

D.

Fraud by Non-Disclosure

The Court finds that Plaintiffs in their Proposed

Second Amended Complaint added sufficient details

wherein granting leave to file an amended complaint to

cure ISS Wyoming’s fraud by non-disclosure claim would

not be futile. As such, leave as to this claim is GRANTED.

E. Conclusion

The Court finds that Plaintiffs’ Motion for Leave

to File Amended Complaint should be, and is, hereby

GRANTED in part and DENIED in part. Therefore,

accepting Plaintiffs’ Second Amended Complaint, the

Court finds that the remaining claims in this lawsuit are

as follows:

• ISS Guyana’s breach of contract claim

regarding an implied duty to cooperate

under the 2018 IRA;

• ISS Wyoming’s quantum meruit, promissory

estoppel, and unjust enrichment claims;

• Plaintiffs’ fraud/fraudulent inducement

claim; and

• Plaintiffs’ fraud by non-disclosure claim.

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Appendix D

All other claims are DISMISSED with prejudice.

SO ORDERED this 30th day of May, 2023.

/s/ Reed O’Connor

Reed O’Connor

UNITED STATES DISTRICT JUDGE