Coca-Cola Co. v. Babyback's Intern., Inc.

• Decision Date: 01 February 2006
• Docket Number: No. 49S02-0408-CV-380.,49S02-0408-CV-380.
• Citation: 841 N.E.2d 557
• Parties: The COCA-COLA COMPANY, and Coco-Cola Enterprises Inc., Appellants (Defendants below), Hondo, Incorporated d/b/a Coca-Cola Bottling Company Indianapolis, a/k/a Coca-Cola Bottling Company Indianapolis, Inc., (Defendant below),<SMALL><SUP>1</SUP></SMALL> v. BABYBACK'S INTERNATIONAL, INC., Appellee (Plaintiff below).
• Court: Indiana Supreme Court

841 N.E.2d 557

The COCA-COLA COMPANY, and Coco-Cola Enterprises Inc., Appellants (Defendants below) Hondo, Incorporated d/b/a Coca-Cola Bottling Company Indianapolis, a/k/a Coca-Cola Bottling Company Indianapolis, Inc., (Defendant below),¹ v. BABYBACK'S INTERNATIONAL, INC., Appellee (Plaintiff below).

No. 49S02-0408-CV-380.

Supreme Court of Indiana.

February 1, 2006.

COPYRIGHT MATERIAL OMITTED

Gary P. Price, Peter S. French, Matthew S. Tarkington, Lewis & Kappes, P.C., Indianapolis, for Appellant Coca-Cola Company.

Kent M. Frandsen, Carol Sparks Drake, Parr Richey Obremskey & Morton, Lebanon, for Appellant Coca-Cola Enterprises Inc.

Marvin Mitchell, Richard J. Dick, Stephen P. Kenley, Mitchell Hurst Jacobs &amp Dick, LLP, Indianapolis, for Appellee Babyback's International, Inc.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0308-CV-703.

DICKSON, Justice.

This opinion centers on the enforceability of an alleged business agreement reflected in a memo prepared and faxed by one party to another. The trial court denied separate motions for summary judgment filed by each of the three defendants, but certified its order for interlocutory appeal for two of the defendants. As to its denial of the motion for partial summary judgment filed by defendant Coca-Cola Enterprises Inc. ("CCE"), the trial court's certification order described the "fundamental issue" as:

whether a legally sufficient written contract was signed for the alleged national co-marketing agreement to satisfy the requirements of Indiana's Statute of Frauds. . . . If an adequate writing is determined to not exist, a question of law remains whether the equitable doctrines of part performance or promissory estoppel can support plaintiff's claims for lost future profits. If an adequate writing is determined to exist, these alternative positions of plaintiff need not be litigated.

Appellants' Joint App'x. at 762. With regard to defendant Coca-Cola Company ("Coke USA"), the certification order stated that "the issue is whether Coke USA's efforts to protect its property interests were justified as a matter of law, thereby precluding plaintiff's [tortious] interference claims." Id.

The Court of Appeals accepted the interlocutory appeals and affirmed the trial court. Coca-Cola Co. v. Babyback's Int'l, Inc., 806 N.E.2d 37 (Ind.Ct.App.2004). We granted transfer and now reverse the denial of CCE's motion for partial summary judgment as to the issues described in the trial court's certification order. With respect to Coke USA's motion, we summarily affirm the decision of the Court of Appeals, which affirmed the trial court's denial of summary judgment. Ind. Appellate Rule 58(A)(2).

This business controversy arises from a complaint by Babyback's International, Inc., presenting various claims for relief. The underlying facts are not in dispute. Early in 1997, Babyback's, a processor and seller of barbeque meat products, entered into an agreement with Hondo, Incorporated, d/b/a Coca-Cola Bottling Company Indianapolis, a/k/a Coca-Cola Bottling Company of Indianapolis, Inc. ("Coke Indy"), a bottler of Coca-Cola products with its main office in Chicago, and its market area including Indianapolis. Under this agreement, Coke Indy was to pay Babyback's to arrange for and prominently place coolers in grocery stores in and around Indianapolis, displaying Babyback's products side-by-side in the coolers with Coca-Cola products. After Babyback's and Coke Indy experienced success with this "meals to go" concept in Indianapolis, CCE and Babyback's began discussions about similarly co-marketing their products in the Louisville market, which was outside the Coke Indy territory but within that of CCE. Babyback's thereafter arranged to have coolers delivered to several Louisville area grocery stores. At this time, Babyback's and CCE did not have a written contract regarding this arrangement. Babyback's and CCE representatives met on October 24, 1997, to discuss further expanding the arrangement into other CCE market areas. Following this meeting, Babyback's faxed to CCE a proposed contract. This contract, however, was never signed. On November 18, 1997, Babyback's and CCE representatives met again, this time at CCE's Atlanta headquarters to discuss expanding their co-marketing arrangement to stores on a nationwide basis. Following the November 1997 Atlanta meeting, a representative of CCE drafted and faxed to Babyback's a memo, which Babyback's contends summarizes the parties' oral agreement to co-market their food and drink products in mutual coolers in stores in Atlanta and across the nation. Babyback's claim asserts that CCE breached the agreement when it refused to perform under the purported terms, refused to pay allegedly agreed-upon up-front fees, and denied the existence of a contractual relationship between the parties.

CCE contends on appeal that its motion for partial summary judgment should have been granted because the multiple-year agreement alleged by Babyback's is unenforceable under the Statute of Frauds because it could not be performed within a year and no written contract was ever signed by the parties. CCE argues that the faxed memo following the November 1997 meeting is insufficient to satisfy the statute because it fails to contain the essential terms of a contract, and further, because it shows that no agreement was reached. Finally, CCE asserts that there is no evidence supporting an adequate substitute for a writing in the form of part performance or based upon a theory of estoppel.²

Babyback's responds that the trial court properly denied CCE's motion for partial summary judgment because of the existence of genuine issues of determinative fact regarding whether the faxed memo was sufficiently comprehensive and evinced the parties' intention to contract. Alternatively, Babyback's asserts that the Statute of Frauds should not apply to bar enforcement of the parties' agreement because of (a) Babyback's part performance, (b) promissory estoppel, (c) constructive fraud, and (d) an oral agreement to memorialize in writing within one year. Because the trial court's certification of this interlocutory appeal did not include the latter two alternative arguments, its denial of summary judgment thereon is not considered in this appeal.

We review the denial of CCE's motion for partial summary judgment using the same standard as that used in the trial court: the party seeking summary judgment must show "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Ind. Trial Rule 56(C); Fraternal Order of Police, Lodge No. 73 v. City of Evansville, 829 N.E.2d 494, 496 (Ind.2005); Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157, 1161 (Ind.2002). All facts and reasonable inferences therefrom are construed in favor of the nonmoving party. Bank of N.Y. v. Nally, 820 N.E.2d 644, 648 (Ind.2005); Allen, 766 N.E.2d at 1161.

Statute of Frauds Writing Requirement

This case centers on the application and requirements of the Indiana Statute of Frauds, which provides in relevant part:

A person may not bring any of the following actions unless the promise, contract, or agreement on which the action is based, or a memorandum or note describing the promise, contract, or agreement on which the action is based, is in writing and signed by the party against whom the action is brought or by the party's authorized agent:

* * *

(5) An action involving any agreement that is not to be performed within one (1) year from the making of the agreement.

Ind.Code § 32-21-1-1(b). It is undisputed that the alleged agreement is one that could not be performed within one year. And CCE's invocation of the Statute of Frauds does not claim a lack of signature. Rather, CCE claims that the faxed memo fails to contain the essential terms of the contract sufficient to satisfy the statute's requirement of a writing and that the memo demonstrates that "no agreement had in fact been reached." Brief of Appellant CCE at 12. To satisfy the Statute of Frauds, either the agreement sought to be enforced must be in writing, or there must be "a memorandum or note describing the promise, contract, or agreement." Ind.Code § 32-21-1-1(b). Whether the undisputed language of a document constitutes a contract is a question of law. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 721 n. 16 (Ind.1997); see also Gibson County Farm Bureau Co-op. Ass'n v. Greer, 643 N.E.2d 313, 320 (Ind.1994) (holding that whether a document is sufficient to satisfy the writing requirement for a valid security agreement under Ind.Code § 26-1-9.1-203 is a question of law).

CCE asserts that the faxed memo of the alleged agreement with Babyback's was insufficient to satisfy the Statute of Frauds because as a matter of law it did not contain the essential terms of the agreement, specifically claiming no indication of a meeting of the minds regarding the commencement date and duration of the program; whether and how much "up-front money" Babyback's was to receive; the identity and location of stores to be involved; and the allocation of responsibilities for advertising, promotion, and delivery and installation of the coolers. Br. of Appellant CCE at 18-19. CCE also emphasizes several passages in the memo indicating that CCE did not intend to agree upon a contract with Babyback's and that the memo only reflected preliminary discussions. Thus, the statute, according to CCE, precludes enforcement of any alleged agreement between the parties in Louisville, where there was clearly no written agreement, as well as in Atlanta, where the only purported writing is the faxed message.³

Claiming that the memo was sufficient under the statute, Babyback's refers to content in the memo and its attachments that discuss when the program was to begin, that CCE agreed to pay Babyback's "up front and on an annual basis," that the duration was to be "multi-year," that...