DP-Tek, Inc. v. AT&T GLOBAL INFORMATION CO.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: LUNGSTRUM
• Citation: DP-Tek, Inc. v. AT&T GLOBAL INFORMATION CO., 891 F. Supp. 1510 (D. Kan. 1995)
• Decision Date: 30 June 1995
• Docket Number: No. 94-2115-JWL.,94-2115-JWL.
• Parties: DP-TEK, INC., Plaintiff, v. AT & T GLOBAL INFORMATION SOLUTIONS COMPANY (f/k/a NCR Corporation), Defendant.

891 F. Supp. 1510

DP-TEK, INC., Plaintiff, v. AT & T GLOBAL INFORMATION SOLUTIONS COMPANY (f/k/a NCR Corporation), Defendant.

No. 94-2115-JWL.

United States District Court, D. Kansas.

June 30, 1995.

COPYRIGHT MATERIAL OMITTED

Gregory L. Musil, Shughart, Thomson & Kilroy, Overland Park, KS, P. John Brady, R. Lawrence Ward, Shughart, Thomson & Kilroy, Kansas City, MO, for DP-Tek Inc.

Lynn W. Hursh, Truman K. Eldridge, Jr., Darren S. Black, Armstrong, Teasdale, Schlafly & Davis, Robert G. Rooney, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, Edwin L. Noel, Thomas B. Weaver, Armstrong, Teasdale, Schlafly & Davis, St. Louis, MO, James Greene, Robert L. Clark, AT & T Global Information Solutions Co., Dayton, OH, for NCR Corp.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This case involves claims by plaintiff DP-Tek, Inc. against defendant AT & T Global Information Solutions Company ("AT & T") for tortious interference with a contract and tortious interference with a business relationship or expectancy. This matter is currently before the court on defendant AT & T's motion for summary judgment (Doc. # 115). In its motion, defendant AT & T seeks summary judgment on both of plaintiff's tortious interference claims. For the reasons set forth below, defendant's motion is granted.

II. Factual Background

As of December of 1990, Venture Stores, Inc ("Venture") owned and operated a chain of approximately 80 discount retail stores. In late 1990, Venture decided to upgrade three separate components of the cash register and sales recording system in its stores: the cash register/point of sale hardware ("POS hardware"); the cash register/point of sale software ("POS software"); and each store's In-Store Processor ("ISP") system.¹ Venture's objectives in upgrading its system included increasing the capacity, functionality, reliability and flexibility of its registers and in-store computer system to meet its existing and future needs.

Pursuant to its desire to upgrade its computer system, in approximately March or April of 1991, Venture prepared and transmitted to various vendors Requests for Proposal ("RFP") for the three component parts of the Store Automation Project. The RFP included an overview of the RFP process and identification of Venture's general objectives for POS software and hardware, the POS controller, the ISP, a POS retrofit, and remote support requirements. During the RFP stages of the Store Automation Project, Venture indicated a desire to move toward a more open system than the IBM system that was then in place.² In addition to containing a preference for a more open system, the RFP also stated that Venture might accept proposals from vendors that involved proprietary codes. The preference for a more open system in part was a means to the end of achieving lower costs for the system. DP-Tek, NCR³, and Research Computer Services ("RCS"), among others, received copies of the RFP.

In response to the RFP, DP-Tek, NCR, RCS and other vendors provided written information and also made presentations to Venture regarding their respective proposals and responses to the RFP. DP-Tek made a proposal regarding the POS hardware portion of the project. DP-Tek's proposal involved retrofitting Venture's existing POS IBM 3683 hardware. Among other things, DP-Tek's proposal involved placing a processor in the existing IBM cabinet and utilizing certain of the existing peripherals, including the printers. NCR made proposals for both the POS hardware component and the ISP component of the project.⁴ Regarding the POS hardware component, NCR proposed to sell new PC-based POS hardware rather than retrofitting Venture's existing equipment. RCS made a proposal regarding the POS software component of the project.

Based on the initial proposals Venture received from potential vendors involving new equipment, Venture was faced with a potential capital expenditure in the neighborhood of $20 million. The Store Automation Project was the largest capital project for computer equipment Venture had ever pursued up to that time. Based in part on the substantial difference between the list prices proposed for new registers and the proposed cost of DP-Tek's retrofits, Venture continued to pursue the DP-Tek proposed retrofit solution for the POS hardware.

On September 30, 1991, Darell Zerbe, Venture's Vice President of Management Information Systems, executed a Product and Service Master Agreement ("Master Agreement") presented to Venture by DP-Tek. The Master Agreement had been drafted by Robert Hess and Robert Nichols⁵. Hess was the General Manager and Nichols was Sales and Marketing Manager of DP-Tek's Major Product Division in St. Louis. The Master Agreement was executed by Robert Harbison, President of DP-Tek, on October 28, 1991. A purpose of the Master Agreement was to set out general contractual terms which would govern any future orders of products from DP-Tek by Venture. The Master Agreement contained the following provisions:

1.1 Customer agrees to purchase from DP-Tek and DP-Tek agrees to furnish to customer the products and services described in attached schedules signed by both parties.

1.2 All references to "Products and Services" in this Agreement are to the Products and Services listed in the attached schedules and on any agreements and schedules submitted to and accepted by DP-Tek pursuant to Section 2. All references to "Schedules" in this Agreement are to the schedules attached hereto and to any schedules that are parts of any additional agreements incorporated herein pursuant to Section 2.

2.1 Customer and DP-Tek may from time to time agree upon additional Products and Services to be provided by DP-Tek. Such Agreements shall be written and shall describe the Products and Services to be provided, the timetable to provide them and the charges therefore. The terms of this Agreement shall automatically apply to and be incorporated in all such additional agreements whether or not this Agreement is expressly mentioned therein.

16.4 Unless otherwise provided in this Agreement, the Agreement shall not be modified except by written agreement signed by a duly authorized representative of both parties.

Also on September 30, 1991, Zerbe signed a document entitled Venture Stores, Inc., Store Automation Project Scope of Work ("Scope of Work"). Robert Harbison, DP-Tek's President, signed the Scope of Work on behalf of DP-Tek on October 28, 1991. Under the terms of the Scope of Work, DP-Tek agreed to produce and Venture agreed to purchase eight prototype retrofit units. In or about December, 1991, DP-Tek delivered to Venture six prototype units for which Venture paid $80,000 pursuant to the terms of the Scope of Work. Between the execution of the Master Agreement on September 30, 1991, and April 30, 1992, Venture engaged in ongoing communications with DP-Tek regarding the Store Automation Project, and specific issues regarding DP-Tek's proposed retrofit solution.

Also during the time period between September of 1991 and April 30, 1992, Venture was considering using RCS for the POS application software portion of the Store Automation Project and NCR for the ISP. RCS had submitted a proposal for application software which had been written to run on NCR POS hardware and to drive NCR peripherals to the NCR POS terminals. RCS had also submitted a "retrofit" software solution that did not involve any NCR POS hardware in existing stores.

In approximately March or April, 1992, Venture expressed its desire to accelerate the development and installation of any solution, and, in April of 1992 solicited from DP-Tek a revised proposal reflecting an additional quantity commitment and a shorter delivery and installation schedule, as well as additional pricing information. During this same time period, Bob Neel of Venture, who had become project manager of the Store Automation Project, also contacted other vendors in an attempt to obtain more competitive proposals. On or about April 17, 1992, DP-Tek gave to David Fink and Bob Neel of Venture an amended Schedule C containing proposed quantity commitments, an expedited delivery and installation schedule, and revised pricing and payment terms. This amended proposal included a request for a downpayment of over $1 million, due upon "final execution of this agreement."

On April 30, 1992, Venture's Darell Zerbe, David Fink and Bob Neel telephoned Bob Hess at DP-Tek to inform him that DP-Tek had been identified as the selected POS hardware vendor to move forward on the Store Automation Project. In that conversation, Hess said that DP-Tek wanted Venture to sign the revised proposal (Schedule C) and to pick up DP-Tek's proposed downpayment of more than $1 million. Zerbe had not heard about the downpayment and immediately told Hess that the request for such a substantial downpayment was a significant issue that he could not agree to, and he would need to discuss it further with Venture representatives. Venture representatives also placed calls on or after April 30, 1992, to NCR and RCS to notify them that they had been selected as vendors to move forward with the ISP and POS software components of the Store Automation Project, respectively.

Shortly after being advised that NCR had been identified as the vendor to go forward on the ISP component of the project, Richard Bruck of NCR discussed with Zerbe the possibility of NCR making a more competitive bid on the POS hardware component than NCR had previously made. The parties are in dispute as to whether Zerbe solicited this bid from NCR. However, there is no dispute that Zerbe did nothing to discourage such a bid and, in fact, indicated to Mr. Bruck that no final contract had been entered into with DP-Tek and such a bid would receive consideration.

On May 19, 1992, a meeting was held at Venture among representatives of Venture, DP-Tek, RCS and Equinox⁶ at which the vendors were introduced and began discussing...