The Perdido Case’s Petitions for Review Devon filed a petition for review on August 8, 2023, and Perdido filed a petition for review on September 5, 2023, and it will be interesting to see the SCOT’s response this pro-payee case receives. Although the SCOT has not yet granted either party’s petition, four briefs on the merits have been submitted to the Court. Devon’s appeal challenges the COA’s holding regarding (1) the sufficiency of the email signatures; (2) the alleged acknowledgement of debt to Perdido; and (3) the validity of enforcing double liability. Devon argues that: (a) the emails do not satisfy an acknowledgement’s signature requirement because Devon manifested an intent to be bound by only written agreements with wet-ink signatures; (b) the COA’s reliance on “the combined force of all Devon’s emails” is a “tortured attempt to reach the result of an unambiguous acknowledgement” of their debt to Perdido 51 ; and (c) imposing double liability on Devon goes against the SCOT’s precedent as Devon was not unjustly enriched and Perdido had a restitution remedy against the third party that wrongfully received Perdido’s royalty share. 52 On the other hand, Perdido’s cross-appeal challenges the COA’s holding regarding (1) Devon’s compliance with its statutory fiduciary duty as the holder of unclaimed funds; (2) the improper application of the statute of limitations; and (3) the denial of Devon’s fraudulent inducement. Perdido argues that: (a) Devon breached its duty to hold Perdido’s unclaimed funds “in trust for the benefit of the state” or when timely claimed, pay Perdido because Devon negligently distributed them to an unentitled third party instead 53 ; (b) the COA misapplied the statute of limitations because the
Nevertheless, a plaintiff-payee can dodge a defendant-payor’s limitations defense by invoking equitable estoppel, which requires the following elements to be proven: (1) the payor “made a false representation or concealed material facts; (2) with actual or constructive knowledge of those facts; (3) with the intent that” the payee would act on the payor’s misrepresentation; (4) to the payee, “who had no means of knowledge of the facts;” and (5) the payee “detrimentally relied” on the misrepresentations. 45 As it functions in all contract claims, equitable estoppel offers protection from the unconscionable acts of an exploitative party. Moreover, while a debt may be otherwise barred by the statute of limitations, the statute’s effect can be precluded “if the party to be charged acknowledges the debt in writing” thus creating a new obligation. 46 To be successful, it must be proven that the acknowledgement: (1) is “in writing and signed by the party to be charged;” (2) contains an unambiguous “acknowledgement of the justness or the existence of the particular obligation;” and (3) refers to the specific obligation and expresses a willingness to honor it. 47 To differentiate between elements (2) and (3), when the debt is unambiguously acknowledged, “the promise to pay is implied,” but to sufficiently refer to the specific obligation, the amount of the obligation must be capable of “ready ascertainment.” 48 Although it is agreed that modern communication largely occurs via email, there is a split in Texas authority surrounding whether a signature, as required in element (1), is satisfied by an email signature block. 49 However, Perdido might have set the record straight by concluding that “either a typed name or a signature block at the end of an email is sufficient.” 50 While Perdido appears to shift away from the pro-payor trend, the various Texas safeguards that remain in place for the payor’s protection will continue to substantially limit the amount a payee can recover from it. Nonetheless, it is more than likely that the SCOT will take a hard look at this case and possibly even reverse the COA’s decision, as they have done time and time again, to maintain the pro-payor status quo.
45). Id. at 557. 46). Id. at 558–59. 47). Id. at 559. 48). Id.
49). Id. at 560. 50). Id. at 561. 51). Pet’r’s Br. at 55-56. 52). Pet’r’s Br. at 67. 53). Cross-Pet’r’s Br. at 15.
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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