MAY TRUCKING Co. v. Nw. VOLVO TRUCKS INC.

• Citation: 241 P.3d 729,238 Or.App. 21
• Decision Date: 20 October 2010
• Docket Number: A136410.,03C17564
• Parties: MAY TRUCKING COMPANY, Plaintiff-Appellant Cross-Respondent, v. NORTHWEST VOLVO TRUCKS, INC., an Oregon corporation; and TEC Equipment, Inc., an Oregon corporation, Defendants, and Volvo Trucks North America, Inc., a Delaware corporation, Defendant-Respondent Cross-Appellant. Northwest Volvo Trucks, Inc., an Oregon corporation; and TEC Equipment, Inc., an Oregon corporation, Cross-Claim Plaintiffs, v. Volvo Trucks North America, Inc., a Delaware corporation, Cross-Claim Defendant.
• Court: Court of Appeals of Oregon

238 Or.App. 21

241 P.3d 729

MAY TRUCKING COMPANY, Plaintiff-Appellant Cross-Respondent, v. NORTHWEST VOLVO TRUCKS, INC., an Oregon corporation; and TEC Equipment, Inc., an Oregon corporation, Defendants, and Volvo Trucks North America, Inc., a Delaware corporation, Defendant-Respondent Cross-Appellant.

Northwest Volvo Trucks, Inc., an Oregon corporation; and TEC Equipment, Inc., an Oregon corporation, Cross-Claim Plaintiffs, v. Volvo Trucks North America, Inc., a Delaware corporation, Cross-Claim Defendant.

03C17564; A136410.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2010.

Decided Oct. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Gordon T. Carey, Jr., Portland, argued the cause and filed the briefs for appellant-cross-respondent.

David M. Jacobson argued the cause for respondent-cross-appellant. With him on the briefs were James R. Hermsen and Dorsey & Whitney LLP.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.

LANDAU, P.J.

This is a case about unsuccessful negotiations for the sale of a large number of trucks and the intersection between the seventeenth-century statute of frauds and twenty-first century electronic mail. Along the way, there are allegations of breach of contract and the fabrication of documents, as well as issues of equitable estoppel, prejudgment interest, and appellate procedure.

By way of introduction to this civil litigation morass, we begin with the following summary. Plaintiff May Trucking Company needed to purchase a number of new trucks. It negotiated with a truck manufacturer, defendant Volvo Trucks North America, Inc. (VTNA), and with two of its dealers, defendants Northwest Volvo Trucks, Inc., and TEC Equipment, Inc. (collectively, TEC). The negotiations transpired orally and by email. VTNA eventually decided not to sell its trucks, but, by the time it did so, enough emails had been transmitted to convince plaintiff that it had a deal. Plaintiff sued both TEC and VTNA for breach of contract. VTNA responded that plaintiff had fabricated documents to support its claim and moved to dismiss. The trial court denied the motion. VTNA then moved for summary judgment based on the statute of frauds. This time, the trial court granted VTNA's motion and dismissed VTNA from the case.

Plaintiff went to trial against TEC and prevailed with a $3.14 million verdict, plus prejudgment interest. TEC and plaintiff settled, agreeing to defer the issue of prejudgment interest; TEC then paid plaintiff everything but the interest. In the meantime, plaintiff appealed the dismissal of VTNA. Shortly after that, the trial court entered an order awarding prejudgment interest on the settlement with TEC.

On appeal, plaintiff contends that the trial court erred in concluding that the contract with VTNA failed for want of compliance with the statute of frauds. VTNA, meanwhile, cross-appeals the denial of its motion to dismiss based on plaintiff's supposed fabrication of documents. VTNA also has filed two motions in this court. First, it moves to strike the trial court's entry of an order awarding prejudgment interest because the order was entered after the filing of the notice of appeal. Second, VTNA moves to dismiss the appeal on the ground that, plaintiff having satisfied its judgmentagainst TEC, the claim has been extinguished with respect to all obligors under the supposed contract. In the alternative, VTNA argues that plaintiff cannot maintain this appeal because the appeal puts at risk the judgment against TEC from which plaintiff already has received substantial benefit.

We conclude that the trial court did not err in dismissing VTNA on statute of fraud grounds. We also conclude that the trial court correctly denied VTNA's motion to dismiss. Finally, we deny both of VTNA's motions. We therefore affirm on the appeal and the cross-appeal.

I. FACTS

Because different standards of review are implicated by the appeal, the cross-appeal, and the motions, we state the facts pertinent to each separately.

A. The Appeal: Contract Negotiations

The appeal pertains to the trial court's decision to grant VTNA's motion for summary judgment concerning the question whether the parties had negotiated an enforceable contract. We state the facts in the light most favorable to plaintiff, the nonmoving party.

Plaintiff is an over-the-road carrier that, at the time of the trial, operated a fleet of some 750 tractor trucks in the lower 48 states. As with any carrier, plaintiff was required periodically to replace trucks in its fleet. TEC sold new and used tractor trucks, including Volvo tractor trucks manufactured by VTNA.

In early 2003, plaintiff, TEC, and VTNA began negotiations for the purchase and sale of 499 new tractor trucks over a period of three and one-half years. Detailed discussions continued through mid-July. VTNA participated in a number of the meetings and email exchanges between plaintiff and its dealers, TEC. VTNA and TEC, meanwhile, had their own negotiations about the extent to which VTNA would commit to providing a certain number of trucks at a guaranteed price.

At the end of May, representatives of each of the parties met to see if they could “close the deal.” Marvin May, representing plaintiff, said that he needed a reduced purchase price of $89,000 per tractor. Richard Bell, representingVTNA, replied that he would have to check with VTNA's headquarters. He spoke with headquarters and confirmedthat VTNA could give rebates sufficient to reduce the price. On July 15, 2003, Jeff Strong, of TEC, emailed Bell asking for written confirmation of VTNA's commitment to TEC, so that TEC could make an offer to plaintiff.

On July 16, Bell replied by email with a summary of what he saw as the principal components of the deal and confirming VTNA's quantity and pricing commitments. Bell recommended that, “upon a signed agreement with the customer,” TEC place orders with VTNA for the next two calendar years. Bell added that “VTNA's support for this transaction is to TEC Equipment not the customer. You will have to prepare your agreement with May Trucking based upon the support we are providing you.” The emails between Bell and Strong were sent only between representatives of VTNA and TEC; none were sent to plaintiff.

Strong and representatives of plaintiff then exchanged draft forms of a proposed contract. On July 18, 2003, Strong sent a letter to May setting out what he believed to be the terms of the agreement. Notwithstanding Bell's instruction to Strong in his July 16 email that the contract be between plaintiff and TEC, Strong's letter described the agreement as one among three parties: plaintiff, TEC, and VTNA. On that same date, Strong and Jeff Denny, VTNA's district manager for Oregon, called May from Strong's office to discuss the letter and draft agreement. The parties discussed one paragraph that had been a source of disagreement, the details of which are not necessary to describe. Strong and Denny told May that, if plaintiff would yield the point, the parties had a deal, and Denny told May that if May abandoned the point, he would sign the contract. May agreed, and Strong prepared a final draft of the contract dated July 18, 2003. The final draft listed three parties-plaintiff, TEC, and VTNA-and included a signature line for each.

On July 21, 2003, Strong sent a copy of the draft to VTNA, stating, “Here is our proposal to May that they are signing.” In a July 23, 2003, email from Frank Roehrig, VTNA's director of sales, to the company's fleet facilitator and its manager of remarketing, Roehrig included a copy ofthe July 16 email from Bell to Strong and said, “Here is what [VTNA's vice-president for sales] & I approved.” That same day, Brian Laymen, VTNA's fleet facilitator, sent an email to Bell, Roehrig, and others at VTNA stating that

“[i]t appears that we have a commitment from [plaintiff] for a three-year purchase program and that is fantastic. It is important that we document in-house ‘the deal.’ After reviewing * * * Jeff Strong's letter of commitment and the various emails * * * there is a short list of ‘open items' which have already been discussed among senior management, but need formal documented approval in-house.”

Again, those emails were between VTNA personnel and between VTNA and TEC representatives only; none of the emails were sent to plaintiff.

VTNA ultimately refused to sign the agreement. On July 24, 2003, Bell told Strong that it was withdrawing its proposed support for TEC's end of the deal. VTNA confirmed that in an email from Bell several days later.

B. The Cross-Appeal: Document Exchange

The cross-appeal arises in the context of the trial court's ruling on VTNA's motion to dismiss under ORCP 17 and concerns an exchange of documents following VTNA's decision not to execute the July 18, 2003, contract. Given that we review any findings of fact in support of the trial court's ruling on that motion for any evidence, we state the facts in the light most favorable to the court's ruling.

As we have noted, on July 24, Bell told Strong that VTNA would not support TEC in its proposed contract with plaintiff. On July 28, Bell sent Strong an email confirming that VTNA was withdrawing its support for the agreement and instructing TEC to take no further action on it. Later that same day, May asked Strong to send a copy of the final July 18, 2003, agreement, and Strong faxed May a copy of the agreement. VTNA contends that, during that conversation, Strong told May that VTNA was withdrawing itssupport for the agreement; May, however, recalls no such disclosure at the time.

Two days later, May signed the agreement and gave it to David Jostad, plaintiff's general counsel. Jostad createda cover letter, using a draft that he had prepared earlier, on July 25, 2003. The cover letter's date was changed to July 30, and it referred to the July 28 fax of the agreement. Jostad gave the papers to May for the latter's signature. The signed cover...