Casazza v. Kiser

• Decision Date: 10 December 2002
• Docket Number: No. 02-1515.,02-1515.
• Citation: Casazza v. Kiser, 313 F.3d 414 (8th Cir. 2002)
• Parties: James CASAZZA, Appellant, v. Joseph C. KISER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

313 F.3d 414

James CASAZZA, Appellant, v.Joseph C. KISER, Appellee.

No. 02-1515.

United States Court of Appeals, Eighth Circuit.

Submitted: October 7, 2002.

Filed: December 10, 2002.

COPYRIGHT MATERIAL OMITTED

Alan Marshall Anderson, argued, Minneapolis, MN (Sharna A. Wahlgren, Minneapolis, MN, on the brief), for appellant.

Mark J. Briol, argued, Minneapolis, MN (William G. Carpenter, Minneapolis, MN, on the brief), for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

This appeal arises from James Casazza's ill-fated effort to purchase a fifty-two-foot sailboat named the "Andante" from Joseph C. Kiser.Casazza sued Kiser seeking damages under the legal theories of breach of contract and promissory estoppel for Kiser's failure to sell him this boat.The District Court¹ granted Kiser's motion to dismiss.We affirm.

I.Background

In late May 2001, Casazza read Kiser's listing of the Andante on an internet sales site.Shortly thereafter, Casazza contacted Kiser and expressed an interest in purchasing the boat.They agreed to meet during the weekend of June 2, 2001, in Ft. Lauderdale, Florida, where the Andante was located.Casazza first viewed the boat on June 2 and looked at it again with Kiser the following day.Casazza and Kiser met again on June 4, 2001, and, according to Casazza, negotiated an agreement for Casazza's purchase of the Andante.The details of this agreement were handwritten by each party on separate sheets of paper and at some point converted, presumably by Casazza, into a typewritten agreement (collectively, the "purchase terms").That agreement provided for a sales price of $200,000 for the boat.The agreement further stated the sale was contingent on a marine survey, including a sea trial, satisfactory to Casazza.Among other provisions, the agreement also required payment by wire transfer and replacement of the mast step, and it detailed the logistics of transferring the boat from Florida to Virginia.Kiser never signed the agreement and the marine survey and sea trial did not take place.

During their meeting on June 4, Kiser gave Casazza a blank Coast Guard bill of sale to complete.The next day, Kiser and Casazza executed a software license transfer agreement for the boat's navigational software.This license agreement is the only document in the dispute signed by both parties and it does not refer to the Andante.Following these events, Casazza arranged for a marine survey, obtained an estimate for repair of the mast step, visited marinas, and tentatively reserved slip space for the Andante at a marina in Virginia.Things apparently went awry a week later, however, when Kiser informed Casazza that he would not sell him the boat.In response, Casazza initiated this suit and sought a temporary restraining order (TRO) to prevent Kiser from selling the Andante to someone else.While the application for the TRO was pending, but before Kiser had notice of it, Kiser sold the boat.Casazza amended his complaint and Kiser moved to dismiss the case on the basis of the statute of frauds.Casazza responded to Kiser's motion to dismiss and filed a Federal Rule of Civil Procedure 56(f) motion and affidavit requesting that the District Court's consideration of the motion to dismiss be delayed pending additional discovery.

On January 15, 2002, the District Court dismissed the action, concluding that additional discovery would not assist the court in the resolution of whether the statute of frauds applies to the dispute and that the defense barred Casazza's breach of contract and promissory estoppel claims.The District Court denied Casazza's motion for reconsideration.On appeal, Casazza argues the District Court erred in dismissing his claims.

II.Discussion

We must first decide whether the District Court properly treated Kiser's motion as one to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), instead of one for summary judgment, Fed. R.Civ.P. 56.Although not specifically briefed by the parties, the issue was discussed during oral argument on appeal.When "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."Fed.R.Civ.P. 12(c).In this case, Kiser submitted a two-page affidavit in support of his motion to dismiss Casazza's amended complaint.The affidavit addressed issues related to Kiser's jurisdictional challenge to Casazza's suit: specifically, whether Casazza can prove that the damages he allegedly suffered meet the jurisdictional minimum for diversity cases.²Affidavit of Joseph C. Kiser in Support of Motion to Dismissat 1-2;Transcript of Proceedings, January 14, 2002, at 11.In its ruling, the District Court granted Kiser's motion to dismiss for failure to state a claim without converting the motion into a summary judgment motion.Memorandum and Order, January 15, 2002, at 5-6.

We have previously said that "Rule 12(b)(6) motions are not automatically converted into motions for summary judgment simply because one party submits additional matters in support of or [in] opposition to the motion."Missouri ex rel. Nixon v. Coeur D'Alene Tribe,164 F.3d 1102, 1107(8th Cir.)(citation omitted), cert. denied,527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799(1999).For example, a district court does not convert a motion to dismiss into a motion for summary judgment when it does not rely upon an affidavit in dismissing a claim, Martin v. Sargent,780 F.2d 1334, 1336-37(8th Cir.1985), or when the district court makes clear that it ruled only on the motion to dismiss, Skyberg v. United Food & Commercial Workers Int'l Union,5 F.3d 297, 302 n. 2(8th Cir.1993).Here, the District Court ruled on the motion as a motion to dismiss and there is no evidence that it relied on Kiser's affidavit or any other matters outside the pleadings in granting the motion.³

We review de novo a district court's order granting a motion to dismiss, viewing the allegations in the complaint in the light most favorable to the plaintiff.Weaver v. Clarke,45 F.3d 1253, 1255(8th Cir.1995)(stating standard of appellate review for a 12(b)(6) motion).Like the District Court, we must accept the allegations of the complaint as true and dismiss the case only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957).

A.The Statute of Frauds Defense

Casazza contends the District Court erred when it dismissed his breach of contract claim, holding it was barred by the statute of frauds.Subject to certain limited exceptions, the statute of frauds renders unenforceable any unwritten contract for the sale of goods with a value over $500.SeeMinn.Stat. § 336.2-201(2000).⁴Because Kiser raised the statute of frauds defense in his motion to dismiss, Casazza was required to affirmatively show the existence of an appropriate writing or an exception to this defense in order to avoid dismissal by the District Court.In this appeal, Casazza argues that the alleged contract was taken out of the statute of frauds by (1) the doctrine of part performance, (2) the existence of a sufficient writing, and (3) the possibility that Kiser may have a sufficient writing or that Kiser might admit a contract was formed between the parties had the District Court granted Casazza's request for additional time for discovery.All these arguments are without merit.

(1)Part Performance

Under the part-performance exception to the statute of frauds, a writing is not required "with respect to goods for which payment has been made and accepted or which have been received and accepted."Id.§ 336.2-201(3)(c).Here, Casazza contends that his acceptance of the navigational software constitutes part performance of the parties' alleged agreement concerning the sale of the Andante.In support of this claim, Casazza relies on section 336.2-606(2)(2000), which provides that "[a]cceptance of a part of any commercial unit is acceptance of that entire unit."According to Casazza, the navigational software is part of the Andante.Thus, Casazza argues, when he accepted this software, he accepted the Andante.

First, we question the applicability of section 336.2-606(2) to the present dispute.The drafters of the commercial code designed this provision to limit a buyer's right of revocation of acceptance to whole units.SeeMinn.Stat. Ann. § 336.2-606(2)(West 2002) Prof. Robert C. McClure, Minnesota Code Comment (1966)(noting that "a buyer, when making a partial rejection, cannot unnecessarily destroy the value of a commercial unit").As the Ninth Circuit observed of the uniform provision at issue here, "The commercial unit provision is included to protect a seller from having a buyer return less than a commercial unit.Return of less than a commercial unit would leave the seller with only components of a commercial unit, which would have severely reduced market value."S & R Metals, Inc. v. C. Itoh & Co. (America),859 F.2d 814, 817(9th Cir.1988)(first emphasis added)(citingAbbett v. Thompson,148 Ind.App. 25, 263 N.E.2d 733, 735-36(1970)(holding buyer could not keep some parts of a car wash machine and revoke acceptance of the rest because the entire machine was a commercial unit and would have little value to the seller if incomplete)).

Second, even assuming section 336.2-606(2) applies to the instant dispute, we conclude that under no circumstances could the software and the Andante be considered a single "commercial unit."Minnesota's Uniform Commercial Code states that:

"Commercial unit" means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use.A commercial unit may be a single article(as a machine) or a...