Tipple Enter., LLC v. Kingsford Mfg. Co.
| Decision Date | 30 September 2014 |
| Docket Number | CIVIL ACTION NO. 1:13CV146 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | TIPPLE ENTERPRISE, LLC, a West Virginia limited liability company, Plaintiff/Counter-Defendant, v. KINGSFORD MANUFACTURING COMPANY, a foreign corporation, Defendant/Counter-Claimant. |
(Judge Keeley)
Pending before the Court are two motions for summary judgment filed by the defendant, Kingsford Manufacturing Company ("Kingsford"). In its first motion (dkt. no. 46), Kingsford seeks summary judgment on the claims of the plaintiff, Tipple Enterprise, LLC ("Tipple"), for breach of contract and punitive damages. Its second motion (dkt. no. 48) seeks summary judgment on Kingsford's counterclaim for conversion. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Kingsford's motions.
After Tipple filed this action against Kingsford, alleging that Kingsford had failed to meet its contractual obligations under the Wood Waste Agreement (the "Agreement") the parties signed on December 3, 2010, Kingsford counterclaimed, alleging that Tipple had breached the Agreement, and also owed Kingsford a substantialrefund for overpayments Kingsford mistakenly made for deliveries of wood waste.
Under the Agreement, Tipple, which is a three-member, limited liability company headquartered in Philippi, West Virginia, was obligated to supply wood waste to Kingsford, a charcoal manufacturer with a plant located in Parsons, West Virginia.1 The Agreement in pertinent part provided as follows:
A. The initial price to be paid for delivery of Wood Waste will be $34.00 per "As Received Ton" . . . , f.o.b. [Kingsford's] site . . . .
B. An "As Received Ton" of Wood Waste will consist of 2,000 pounds of material meeting the specifications set forth in Section 7 []. If any delivered material contains more than 45% moisture, [Kingsford] will be entitled to reduce the payment weight of the load to approximate the weight that would have been received if the material had contained only 45% moisture. . . .
. . .
8. TERMINATION: Either Party may terminate this Agreement immediately if: (a) the other Party is in breach and does not cure such breach within twenty (20) days following notice from the non-breaching Party; or (b) voluntary or involuntary bankruptcy proceedings are initiated with respect to the other Party. Such rights of termination will be in addition to the Parties' other legal rights and recourses, whether or not set forth in this Agreement.
. . .
18. GOVERNING LAW: This Agreement will be governed by and construed in accordance with the laws of the State of Georgia. A waiver of any breach of the term and conditions of this Agreement will not be deemed a waiver of any preceding or subsequent breach of the same or any other terms or conditions.
(Dkt. No. 3-1 at 1-5) (emphasis in original).
The dispute in this case centers on the amount of wood waste actually delivered by Tipple, the dates of those deliveries, and the payments Kingsford made for each delivery. Attached to Kingsford's summary judgment motion was a chart titled "Tipple Payments" (dkt. no. 47-2) created by Kingsford "to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court," pursuant to Fed. R. Evid. 1006. (Dkt. No. 47 at 7 n.5). The chart is attached to this Memorandum Opinion and Order as Exhibit A.
While Tipple agrees that portions of the chart are accurate, it disputes other portions. For example, Tipple agrees with the chart's representation that "in the time period of December 3, 2010 through December 3, 2011 [Kingsford] accepted 18,006.55 tons" of wood waste; however, it contends that Kingsford accepted only 2935.85 tons during the Renewal Term, while the chart indicates that Kingsford accepted 3455.42 tons. (Dkt. Nos. 47-6 at 8; 47-2 at 4). Moreover, as to the chart's tonnage entries between February 17, 2012 and April 19, 2012, Tipple "does not believe that the 'wet tons' is [sic] accurately calculated." (Dkt. No. 47-7 at 3)
Regarding the amount of wood waste delivered during the first six months of the Initial Term, Kingsford contends that Tipple delivered only 12,480.15 tons, thereby failing to meet its contractual obligation to deliver 15,000 tons within that time period. (Dkt. No. 47 at 2). Tipple does not dispute that it delivered only 12,480.15 tons, but states that it "delivered all of the wood waste it was permitted to deliver" by Kingsford during the first six months. (Dkt. No. 49-5 at 2).
Tipple also agrees that it only delivered 18,006.55 tons of wood waste during the Initial Term, but claims Kingsford's representative, Thomas J. Bonner ("Bonner"), "advised [Tipple] at various times that wood waste products would not be accepted despite the express language of the [Agreement]." (Dkt. No. 50 at 4). Indeed, affidavits from two of Tipple's members support this contention. (Dkt. No. 50 at 11-17). Furthermore, Tipple responded to an interrogatory from Kingsford as follows:
(Dkt. No. 47-6 at 5). Kingsford flatly denies that "it ever demanded that Tipple cease delivering wood waste product to its facility." As it points out, its chart establishes that Tipple continued to deliver wood waste through November 2011. (Dkt. No. 47 at 4 n.2).
While the parties agree that they communicated about Tipple's deliveries of wood waste in March 2012, the subject matter of their conversation is very much in dispute. According to Kingsford, March, 2012 is when it notified Tipple it was in breach of the Agreement. (Dkt. No. 47-4 at 2). Tipple, however, recalls the conversation as a directive from Kingsford "to discontinue all deliveries of wood waste."2 (Dkt. No. 47-3 at 2).
The parties also dispute when their next communication occurred and what was said. Kingsford contends that, in January 2013, it "orally advised Tipple that it had inadvertently overpaid Tipple by a total of $128,772 for the amount of wood waste provided during the Initial and Renewal terms of the Agreement and requested reimbursement." (Dkt. No. 47 at 3). Tipple's affiants, however,recall that they "had no information or knowledge that [Kingsford] allegedly paid $40.00 per as received ton as opposed to $34.00 per as received ton." (Dkt. No. 50 at 13, 17).
In its requests for admissions, Kingsford asked Tipple to admit that "in January, 2013, Kingsford requested that Tipple reimburse Kingsford for overpayments." (Dkt. No. 49-5 at 3). Tipple denied this request, explaining that "[Tipple] does not recall any such request [for reimbursement]." Id. Nevertheless, Tipple no longer disputes that it was overpaid by Kingsford; in response to Kingsford's interrogatories, it admitted that "it appears that [Tipple] was paid forty dollars ($40.00) per ton for deliveries made, however, [Tipple] is unable to determine when this price was paid and for what deliveries." (Dkt. No. 49-5 at 3).
On February 1, 2013, Tipple's attorney officially notified Kingsford in writing that Tipple considered Kingsford to be in breach of the Agreement based on the March 2012 conversation in which Bonner allegedly told Tipple to stop delivering wood waste. (Dkt. No. 47-3 at 2). In its notice, Tipple demanded payment for 21,064.15 tons of wood waste that Kingsford allegedly refused to purchase. Id.
On February 15, 2013, Kingsford responded to Tipple's notice of breach with a letter asserting its belief that Tipple hadbreached the Agreement "by not meeting its delivery obligations during the Initial Term" and demanding damages. (Dkt. No. 47-4 at 2-3). Kingsford also demanded reimbursement for the tonnage overpayment. Id. at 3.
Tipple sued Kingsford and its employee, Bonner, in the Circuit Court of Harrison County, West Virginia, alleging breach of contract against Kingsford, tortious interference against Bonner, and punitive damages. Kingsford removed the complaint and filed a counterclaim for conversion of the overpayment and for breach of contract. Bonner filed a motion to dismiss, which the Court granted, leaving Tipple's claims for breach of contract and punitive damages against Kingsford, and Kingsford's claims for conversion and breach of contract against...
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