W Agripacking v. Fresh Touch Distrib., Inc.
| Decision Date | 27 August 2015 |
| Docket Number | No. CIV 12-738-TUC-CKJ,CIV 12-738-TUC-CKJ |
| Parties | W AGRIPACKING, S.A. DE C.V., Plaintiff, v. FRESH TOUCH DISTRIBUTING, INC., and MELONS WEST OF NEW YORK, INC., Defendants. MELONS WEST OF NEW YORK, INC., Counterclaimant/Crossclaimant, v. W AGRIPACKING, S.A. DE C.V., and FRESH TOUCH DISTRIBUTING, INC. Counterdefendant/Crossdefendant. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is the Motion for Summary Judgment (Doc. 115) filed by Melons West of New York, Inc. ("Melons West"). W. Agripacking, S.A. de C.V. ("Agripacking") has filed a response and Melons West has filed a reply. The Court finds it would not be assisted by oral argument and declines to set this matter for hearing.
Melons West had been buying and selling Fairytale pumpkins (pumpkin) and was the biggest buyer of other hard shell squash from produce distributor Fresh Touch Distributing,Inc. ("Fresh Touch"); they had been doing business together since 2006. (Plaintiff's Statement of Facts ("WA SOF") ¶¶ 2-3) The principal of Fresh Touch, Patricia Lugo ("Lugo") met the principal of Agripacking, Jose Woolfolk, Jr. ("Woolfolk"), in October 2011. In late 2011, Jason Gisser ("Gisser"), a Melons West salesperson, suggested that Lugo look into having pumpkin grown in Mexico for purchase by Melons West. (WA SOF ¶ 4) In November 2011, Lugo talked to Woolfolk about growing pumpkin. Lugo told Woolfok that she "had a great buyer, which was Melons West of New York, and [asked Agripacking] if they were interested in growing that pumpkin, and they said yes." (WA SOF ¶ 6) Lugo and Woolfolk had many conversations, both face to face and by telephone. Lugo told Woolfolk that she had already talked to Melons West and that Lugo was ready for Agripacking to grow the pumpkin. Lugo initially proposed that Agripacking grow 100 truckloads, of which there would be "fifty truckloads that we were going to contract with Melons West of New York." (WA SOF ¶ 8)
Woolfolk recalls that Lugo first approached him in September or October 2011 about an agreement with Melons West to grow pumpkin. (WA SOF, Ex. B, 26:6-24) Agripacking asserts that Lugo's initial proposal was for 100 truckloads, at $0.22 per pound, not $0.19. (WA SOF, Ex. B, 28:16-29:1) Further, Agripacking states that, after a series of meetings between Lugo and Woolfolk, an oral agreement was reached in November or December of 2011 to sell the pumpkin squash to Melons West; a written contract would be prepared later. Woolfolk repeatedly requested and insisted that Lugo provide Agripacking with a written contract between Melons West, Agripacking, and Fresh Touch. (WA SOF ¶ 10) Woolfolk insisted to Lugo that Melons West be a party to the contract with Agripacking because Agripacking was concerned about Fresh Touch's financial strength and ability to handle a large number of truckloads. (WA SOF ¶ 11) Woolfolk asserts Agripacking would not have signed a two-party contract only with Fresh Touch. (WA SOF ¶ 12) Agripacking had historically required three-party contracts in other large transactions, e.g., with Fresh Farms (broker) and WalMart (Buyer). In the same November to December 2011 timeframe, Lugo told Gisser that Agripacking could grow the pumpkin.
Melons West asserts that Agripacking and Fresh Touch had entered into an oral agreement for Agripacking to grow and supply pumpkin to Fresh Touch in exchange for Fresh Touch advancing certain costs, including seed, and a portion of Fresh Touch's sale proceeds by November 2011. Melons West asserts this agreement was solely between Agripacking and Fresh Touch (Melons West Statement of Facts ("MW SOF") ¶ 3), and under it, Fresh Touch was to pay Agripacking directly for the pumpkin Fresh Touch received. (MW SOF ¶ 5) In April of 2012, after substantial performance had begun on the oral agreement with the pumpkin already planted and near harvest, Melons West entered into a written contract to purchase pumpkin from Fresh Touch. Melons West points out that Woolfolk testified that he understood the agreement required Melons West to purchase the pumpkin from Fresh Touch. (MW SOF ¶ 24) Woolfolk further testified that he understood Agripacking was selling the pumpkin to Fresh Touch, Fresh Touch would pay Agripacking, and then Fresh Touch would sell the pumpkin to Melons West. (MW SOF ¶ 25) Woolfolk also testified that he did not expect Melons West to be directly obligated to pay Agripacking for the pumpkin. (MW SOF ¶ 26)
Agripacking asserts that Lugo testified that Woolfolk called her in March 2012 to get a contract with Melons West and Fresh Touch. (WA SOF ¶18) Lugo drafted the agreement. Lugo testified that she was the first of the three parties to sign the contract, Woolfolk signed it second, and Gisser signed it about a week later.1 Agripacking asserts Gisser had no questions regarding Agripacking being a party to the contract. When asked why it took from November 2011 to April 12, 2012 for Gisser to sign, Lugo testified that there (WA SOF ¶ 23)
Agripacking asserts it was Fresh Touch and Melons West's practice to reach terms and then several months later enter into a written, and sometimes oral, contract. Lugo offered Agripacking a written contract, and told Woolfolk that there would be a contract with a commitment from Melons West to purchase fifty truckloads. When asked why she included a signature line for Agripacking, Lugo testified because Woolfolk "wanted to be in it." (WA SOF ¶ 26) Lugo testified that Woolfolk wanted to be "in" the contract to reassure him that Melons West would pick up the allocated truckloads, and pay for them. (WA SOF ¶ 27) Agripacking delayed harvesting and shipping the pumpkins until it received a signed copy of the agreement. (WA SOF ¶ 29) Though Melons West signed in mid-April, Agripacking did not receive a signed copy until early May.
The written agreement at issue in this case includes a Fresh Touch letterhead and provides:
(MW SOF Ex. 1) Additionally, the initials "P.L." are handwritten above the term "$0.19 P/LB." (MW SOF ¶ 8)
Agripacking's argument (as opposed to its Statement of Facts) indicates that Melons West received 11 truckloads of pumpkin from Agripacking. Response (Doc. 121), p. 16. Melons West asserts Fresh Touch sold Melons West pumpkin from a different grower, when Agripacking did not provide Fresh Touch pumpkin. (MW SOF ¶¶ 31-32) Further, Melons West asserts Agripacking never invoiced Melons West for any pumpkin, and never otherwise requested or received any payments from Melons West. (MW SOF ¶¶ 36-39) Agripacking asserts, however, that it sought payment through its counsel on August 28, 2012 (Agripacking Controverting Statement of Fact ("WA CSOF") ¶ 36) Melons West asserts Fresh Touch sold Melons West pumpkin from a different grower, when Agripacking did not provide Fresh Touch pumpkin. (MW SOF ¶¶ 31-32)
On October 10, 2012, Agripacking filed a Complaint with this Court alleging a Breach of Contract, a Breach of Third Party Beneficiary Contract, a Failure to Account and Pay Promptly, a violation of the Uniform Commercial Code, a Failure to Pay According to Account Stated, and a Conversion against Defendants Fresh Touch and Melons West. Agripacking also alleged an additional claim of Breach of Contract only against Fresh Touch.
On December 10, 2012, Fresh Touch filed an Answer, Crossclaim and Counterclaim. On October 9, 2013, Melons West filed an Answer, Crossclaim and Counterclaim.
Summary judgment may be granted if the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The moving party has the initial responsibility of informing the court of the basis for its motion, and identifying those portions of "thepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "set forth specific facts showing that there is a genuine [material] issue for trial." Id., 477 U.S. at 248 (internal quotes omitted); see also Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992) (). The nonmoving party must...
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