ORDER

D.P. MARSHALL, JR., District Judge.

1. The Court appreciates the parties' submissions to chambers yesterday afternoon, all of which are attached to this Order. The Tates' alternative plan for their exhibits is fine.

2. Don Tate has elected to proceed as a party to the contract. He no longer disputes his personal liability on the debt. He will pursue the breach and fraud claims with Tate Express. The Court will propose draft final instructions accordingly.

3. The Court appreciates the stipulation. Please file it after it's signed by the Tates' lawyers. The Court will read it to the jury after opening statements. A stipulation requires affirmative agreement from both sides. The additional facts are not covered by the parties' agreement. Sandine and Groundhogz are free to cross examine the Tates on what are probably admissions. But the additional facts are not stipulated.

So Ordered.

STIPULATED FACTS

The parties have stipulated to the following facts:

1. On May 23, 2014, Don Tate individually and as President of Tate Express, Inc. entered into a Contract with Chad Sandine, Groundhogz Express, Inc. and Groundhogz Logistics, Inc. to purchase ten tractors, along with certain current dedicated routes with FedEx.

2. The purchase price was $1,900,000,00. Mr. Don Tate admits that this was a negotiated price.

3. Don Tate admits that Mr. Sandine's original asking price was $2.2 million and that he made a counter offer of $1.9 million.

4. The Contract was subject to a satisfactory review of the books, records and operations of the business by the Defendants, and it was subject to the Defendants receiving acceptable financing.

5. Defendants paid Plaintiffs the $1,300,000.00 down payment which was accepted and deposited by Mr. Sandine on July 21, 2014.

6. Anthony Tate is an employee of Tate Express. Anthony Tate signed FedEx documents as the Secretary of Tate Express.

7. Mr. Tate admits that at some time after the purchase, he listed the business for sale. Mr. Tate could not recall the exact price and testified that he was not sure if it was $2 million or more.

8. With respect to the February 11, 2016 Don Tate email to Chad Sandine requesting a reduction and transfer of his personal note, Anthony Tate admits he would have agreed to accept his father's responsibility for $300,000.00 of that note personally and understood what was being transferred was Mr. Don Tate's personal responsibility.

9. Defendants have sold some of the trucks purchased from Mr. Sandine.

10. Anthony Tate testified that the Defendants did not inspect the truck themselves at the time of transfer, but instead used a third party, "10-4 Truck Service" to perform the inspections and confirm that they passed the DOT requirements. 10-4 Truck Service performed the DOT truck inspection and all trucks passed. They were found to be in satisfactory condition and in full compliance with DOT regulations.

11. Mr. Don Tate admitted that Mr. Sandine provided all documents needed to transfer the trucks and to vest good and marketable title to the business free and clear of any and all liens and encumbrances.

12. Mr. Tate admits that Mr. Sandine told him that the approval process could be slow because FedEx moves at their own pace.

13. Mr, Tate admits that he knew his purchase of Mr. Sandine's rights were subject to FedEx's approval.

14. Anthony Tate testified that the closing of the deal would have been around June 28, 2014 and that up until the closing, the parties were waiting on Defendants' bank, Iberia, to get documents ready.

15. Don Tate admits that FedEx had completed the authorization of Tate Express to begin running all of the routes by September 2014.

16. Mr. Don Tate testified that originally the trucks during the transaction with Mr. Sandine were valued at $600,000.00. Mr. Tate later increased the valuation of those same trucks to $650,000.00 related to his disclosures to the bank and request for financing.

17. Don Tate cannot identify any financial information or numbers provided by Mr. Sandine which he contends were false.

18. Don Tate admits that during the due diligence period, he could have cancelled the deal if he wanted to, and he chose not to do so.

19. Anthony Tate admits that until FedEx completed the route transfers, Tate Express could not run trucks on those routes. Mr, Tate understood that until FedEx switched those routes from Sandine to Tate, FedEx was not going to pay Tate for running those routes.

PLAINTIFFS' PROPOSED STIPULATED FACTS TO WHICH DEFENDANTS OBJECT

1. Anthony Tate testified that the financial overview performed by Don Tate on March 15, 2014 demonstrates the method used by Defendants to arrive at the offer price of $1.9 million. In performing his financial overview, Don Tate used an EBITDA (Earnings Before Income Taxes, Depreciation and Amortization) multiple of 4 as the basis of the offer. Using an EBITDA multiplier of 4 results in a value of $2.1 million. (SOMF ¶ 35; Pretrial ¶ 35)

2. Don Tate chose the multiplier to use for the purpose of the offer. Even though Mr. Don Tate's financial overview reflected a value of over $2.1 million, Mr. Tate chose an offer price of $1.9 million. SOMF ¶ 36; Pretrial ¶ 36)

3. Don Tate performed the EBITDA calculations for 2011 and 2012. SOMF ¶ 37; Pretrial ¶ 37)

4. Don Tate admits that Mr. Sandine continued to make insurance payments on the trucks until all of the trucks were transferred. Mr. Sandine admits that until the trucks were transferred, Mr. Sandine was running the trucks at his expense with his drivers on his insurance. SOMF ¶ 63; Pretrial ¶ 45)

PLAINTIFFS' PROPOSED STIPULATED FACTS TO WHICH DEFENDANTS OBJECT

1. Anthony Tate testified that the financial overview performed by Don Tate on March 15, 2014 demonstrates the method used by Defendants to arrive at the offer price of $1.9 million. In performing his financial overview, Don Tate used an EBITDA (Earnings B efore Income Taxes, Depreciation and Amortization) multiple of 4 as the basis of the offer. Using an EBITDA multiplier of 4 results in a value of $2.1 million.

2. Don Tate chose the multiplier to use for the purpose of the offer. Even though Mr. Don Tate's financial overview reflected a value of over $2.1 million, Mr. Tate chose an offer price of $1.9 million.

3. Don Tate performed the EBITDA calculations for 2011 and 2012.

4. Don Tate admits that Mr. Sandine continued to make insurance payments on the trucks until all of the trucks were transferred. Mr. Sandine admits that until the trucks were transferred, Mr, Sandine was running the trucks at his expense with his drivers on his insurance.