553 F.3d 1086 (7th Cir. 2009), 07-3596, HK Systems, Inc. v. Eaton Corp.

Docket Nº:07-3596.
Citation:553 F.3d 1086
Party Name:HK SYSTEMS, INC., Plaintiff-Appellant, v. EATON CORPORATION, Defendant-Appellee.
Case Date:January 28, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1086

553 F.3d 1086 (7th Cir. 2009)

HK SYSTEMS, INC., Plaintiff-Appellant,

v.

EATON CORPORATION, Defendant-Appellee.

No. 07-3596.

United States Court of Appeals, Seventh Circuit.

January 28, 2009

Argued Sept. 3, 2008.

Rehearing and Rehearing En Banc Denied March 3, 2009.[*]

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[Copyrighted Material Omitted]

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Michael A. Stiegel (argued), Michael Best & Friedrich, Chicago, IL, for Plaintiff-Appellant.

Michael H. King (argued), Dewey & Leboeuf, Chicago, IL, for Defendant-Appellee.

Before POSNER, RIPPLE, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

This is a diversity suit for breach of contract. The substantive issue, one of Wisconsin law, is the scope of an indemnification clause in a contract for the sale of a business. The clause required the seller, defendant Eaton, to indemnify the buyer, plaintiff HK, for all losses resulting from any " misrepresentation," " act or omission," or " occurrence of a matter ... relating to or arising out of the period on or before the Closing Date."

IBP, a large beef processor, wanted to replace the automated material-handling system in its beef-processing plant in Nebraska. Eaton-Kenway, a subsidiary of Eaton, and another company, Alvey, submitted a joint bid in response to IBP's request for proposals. IBP liked the bid and in December 1994 issued a two-sentence letter of intent to purchase the new system from the joint bidders.

Two months later, while IBP and the joint bidders were in the midst of negotiations aimed at transforming the bid into a contract, Eaton sold Eaton-Kenway to HK. The following month IBP signed a contract with HK for the material-handling system, with Alvey a subcontractor of HK. That is the contract that contains the indemnification clause. Eaton had nothing to do with the contract negotiations after it sold Eaton-Kenway to HK.

Three years later, IBP sued HK in Nebraska for fraud and breach of contract. The fraud claim was that before the sale of Eaton-Kenway to HK Eaton had misrepresented to IBP the speed at which the material-handling system would operate. The breach of contract claim was that the system did not operate at the speed promised in the contract. The suit was settled, HK agreeing to pay IBP $8 million, though Alvey contributed $5 million of that amount. HK then brought this suit against Eaton for indemnification.

Eaton moved for summary judgment on the ground that the loss HK had incurred in settling IBP's suit had been caused not by Eaton but by HK's own actions. The district judge denied the motion and the case proceeded to trial. Eaton moved for judgment as a matter of law, which the judge denied, and the jury awarded a little more than $3 million to HK. But Eaton then moved the judge to reconsider his earlier denial of its motion for summary judgment, and the judge granted the motion and dismissed the suit, precipitating this appeal by HK.

The judge's action in reconsidering his denial of summary judgment after the jury's verdict may seem odd; HK argues that it was improper. Although the standard for granting summary judgment is the same as the standard for granting judgment as a matter of law, Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.1999), the record compiled in a trial is bound to differ from the record on which a motion for summary judgment is based. Even if the motion should have been granted when made, any evidence properly admitted at trial is available for consideration if the judge is asked after the trial to reconsider his earlier denial of the motion-and if the opposing party has

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presented a convincing case at trial the inference is that the judge was right to deny the motion. So an appellate court will generally refuse to review the denial of a motion for summary judgment after the case has been tried. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 718-19 (7th Cir.2003). But the justification for refusing fails when the motion is denied because of a ruling on a pure question of law rather than on the adequacy of the evidence presented in opposition to the motion. Id. at 719-20, and cases cited there. For then if the ruling was erroneous and the motion should have been granted regardless of the evidence, the trial is an irrelevance. And that is this case.

But by not preserving, in its motion for judgment as a matter of law, its argument that HK was the author of its loss in the suit by IBP-which would have preserved the argument for appeal-Eaton took a big risk. The doctrine of law of the case counsels against a judge's changing an earlier...

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