Ellengee Mkt. Co. v. Phenix Specialty Films, LLC
| Decision Date | 24 August 2021 |
| Docket Number | Case No. 17-cv-8929 |
| Parties | ELLENGEE MARKET CO., Plaintiff, v. PHENIX SPECIALTY FILMS, LLC, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Bryan John O'Connor, Jr., Whiteside & Goldberg, Ltd., Bryan J. O'Connor, Sr., Eileen Marie O'Connor, O'Connor Law Group LLC, Chicago, IL, Thomas V. Benno, Oak Park, IL, for Plaintiff.
Mark Edward Wilson, FisherBroyles, LLP, Chicago, IL, Joseph Schramm, III, FisherBroyles, LLP, Princeton, NJ, for Defendant.
Ellengee Market Company, a meat distributor in Chicago, needed a better machine to vacuum-wrap corned beef, hamburger, and other meat products. After years of searching, its consultant located a used machine offered for sale by Phenix Specialty Films, LLC, in Florida. So the consultant trucked to Florida in a van, heavy-loaded with hundreds of pounds of meat, ready to put the machine to the test.
He spent a full day testing the machine. He wrapped package after package, running the meat through the machine several times. And he liked what he saw. He signed off on the machine, and brought samples back to Chicago for inspection. Ellengee promptly bought it.
The meat-wrapping machine turned out to be a lemon. From the very start, the machine was better at creating headaches than vacuum-sealed packages of meat. Customers returned the meat within a day or two, complaining about off-color meat that smelled bad. Ellengee concluded that the machine was not up to the task, so it asked for its money back. Phenix refused.
This litigation followed. After discovery, Phenix moved for summary judgment. Phenix argues that it made no warranties about the machine, and in any event, Ellengee had a full opportunity to inspect it before purchase. For the reasons that follow, the motion is granted in part and denied in part.
Ellengee is a family-owned, wholesale meat, cheese, and produce distributor on the north side of Chicago. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 4 (Dckt. No. 76-2). It sells to small restaurants, hot dog and beef stands, and so on. See W. Morrice Aff., at ¶ 1 (Dckt. No. 76-8). According to its website, it offers all types of meat for sale – steaks, burgers, poultry, pork, and the like. See Ellengee Market Shop , Ellengee Market, https://ellengeemarket.com/shop/ (last visited August 17, 2021). Its meat business requires meat packaging.
Ellengee packaged meat with a small, hand-operated machine, but it wanted a machine that could handle more product. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 5 (Dckt. No. 76-2). So Ellengee turned to Hank Robinson, a professional food technologist who had worked on and off for the company as a consultant for at least 15 years. Id. at ¶¶ 6–7.
The company asked Robinson to look for a better solution. As Robinson later explained, "[t]hey wanted to pack the corned beef and they wanted to pack hamburgers, they wanted to pack steaks in vacuum-pack." See Robinson Dep., at 35:18-21 (Dckt. No. 76-6).
Robinson hunted for a used machine because new machines were too expensive. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶¶ 8–10, 13 (Dckt. No. 76-2); W. Morrice Aff., at ¶¶ 3–4 (Dckt. No. 76-8). The search process lasted a few years. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶¶ 8–9. He pursued a number of leads and inspected some machines (the parties disagree about how many, but that dispute makes no difference here). Id. at ¶ 11; W. Morrice Aff., at ¶ 4.
Robinson eventually learned about a vacuum-packing machine that Phenix Specialty Films was offering for sale. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 14 (Dckt. No. 76-2). But it wasn't nearby. Phenix is based in Florida. So Ellengee sent Robinson on the road to take a close look at the machine. Id. at ¶ 15. The purpose of the trip was to inspect the machine and evaluate its ability to perform vacuum packaging. Id. at ¶ 42.
He didn't go empty-handed. He went on a road trip with 400 pounds of corned beef and ground beef. Id. at ¶ 16. He brought multiple briskets, too. See Robinson Dep., at 59:17 (Dckt. No. 76-6). The goal was to run the machine and see how it wrapped the meat.
When he arrived at the plant, Robinson met with a few employees and took a look at the machine in question, a Multivac 5100. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶¶ 17–18 (Dckt. No. 76-2). They fired up the machine, and put it to work. See Robinson Dep., at 52:6-7 (Dckt. No. 76-6).
Robinson and a group from Phenix ran the machine for hours. The testing began in the early morning on the day of arrival, and lasted until the mid-afternoon. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 19 (Dckt. No. 76-2). They wrapped all 400 pounds. See Robinson Dep., at 57:24 – 59:2 (Dckt. No. 76-6). In fact, Robinson ran the meat through the machine "several times," meaning "[m]aybe three or four." Id. at 58:21 – 59:2; Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 26. If they wrapped 400 pounds two-and-a-half times, that's half a ton of meat wrapping.
The Phenix personnel did not limit his ability to inspect the machine or ask questions. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 21 (Dckt. No. 76-2). During his deposition, Robinson testified that Phenix was "very open." See Robinson Dep., at 60:7 (Dckt. No. 76-6); Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 21. Ellengee objects to that characterization, but it doesn't offer any evidence that Phenix placed restrictions on Robinson's ability to inspect the machine. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 21.
The testing apparently was a success. Robinson testified that he "didn't see any sealing problems." See Robinson Dep., at 59:21 (Dckt. No. 76-6); Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 28 (Dckt. No. 76-2). The only issue involved the size of the briskets – they were large hunks of meat, and they were right at the limit of what the machine could handle. See Robinson Dep., at 59:3-11; Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 27. Before leaving Florida, Robinson called Ellengee and reported that the "machine looks good." See Robinson Dep., at 69:24 – 70:1; Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 29.
Robinson testified that "the machine, the workmanship that I saw down there, was – I thought it was very good." See Robinson Dep., at 70:8-9 (Dckt. No. 76-6). He thought it would meet customer expectations for meat packaging. Id. at 82:3-17. He was comfortable with his work on the inspection, too. Id. at 80:9-12.
Ellengee objects to those characterizations as opinions. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶¶ 32–33 (Dckt. No. 76-2). But Robinson was merely describing what he personally saw and did. And lay opinions are admissible. See Fed. R. Evid. 701. In any event, for present purposes, what matters is that Robinson had an opportunity to inspect the machine. And he took full advantage of that opportunity, putting hundreds of pounds of meat to the test.
Robinson returned to the plant the following day to pack up the vacuum-wrapped samples. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 20 (Dckt. No. 76-2); Robinson Dep., at 53:7-12 (Dckt. No. 76-6). He loaded hundreds of pounds of meat into his van, and headed back to Chicago. See Robinson Dep., at 60:8-24. But he left one brisket for his hosts. Id. at 61:15-18; Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 34.
Ellengee doesn't think that Robinson returned to Chicago with hundreds of pounds of wrapped meat. See Pl.’s Resp. to Def.’s Statement of Facts, at ¶ 34 (Dckt. No. 76-2). But the weight of the meat is immaterial. Ellengee admits that Robinson "returned to Ellengee with the packaged samples for Ellengee to inspect ...." Id. at ¶ 47. The company "gave it away immediately when [he] returned from Florida." Id. at ¶¶ 34, 35.
Robinson recommended that Ellengee purchase the machine, and the company did just that. Id. at ¶¶ 47–48. On March 22, 2016, Ellengee signed and accepted Phenix's written Estimate, agreeing to purchase the machine. Id. at ¶ 48. The machine and accessories cost $40,250, plus $3,000 for installation. See Estimate, at 2 of 6 (Dckt. No. 74-6).
At some point (apparently before the sale), Phenix provided Ellengee with a written warranty. See Equipment Proposal, at 4 of 4 (Dckt. No. 76-7). Despite the looming importance of this fact to the dispute at hand, the parties gave the warranty almost no attention in their respective submissions under Local Rule 56.1, meaning the statements of material facts and responses. In its statement of material facts, Phenix did not mention the document with the express warranty at all. See Def.’s Statement of Facts (Dckt. No. 73). Ellengee, for its part, brought it up in one paragraph, but provided few details. See Pl.’s Statement of Additional Facts, at ¶ 51 (Dckt. No. 76-2).
The parties agree that Phenix provided a limited warranty to Ellengee, and agree that the Equipment Proposal is it. See Def's Reply to Pl.’s Statement of Additional Facts, at ¶ 51 (Dckt. No. 81); Equipment Proposal, at 4 of 4 (Dckt. No. 76-7). But the parties don't provide any other details. The Equipment Proposal was dated March 8, 2016, a few weeks before the sale on March 22, 2016. See Equipment Proposal, at 4 of 4 (dated "3/8/2016"); Estimate, at 2 of 6 (Dckt. No. 74-6) (signed on "03-22-16").
Whatever the backstory, the parties agree that Phenix provided an express warranty to Ellengee in writing, and that the warranty appears in the Equipment Proposal. That document spanned only two pages. It included the make and model of the machine, the price, and not much else.
But it did include a provision entitled "LIMITED LABOR WARRANTY." That provision provided a warranty about the "Equipment," as follows:
PHENIX SPECIALITY FILMS, LLC. (PSF) warrants that the Equipment will, upon delivery to Customer, be in good working condition under normal...
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