Atlantis Industries v. Newbold Corp.

Full title: RE: Atlantis Industries v. Newbold Corporation

Court: Superior Court of Delaware

Date published: Sep 10, 2002

C. A. No. 01C-11-017 THG (Del. Super. Ct. Sep. 10, 2002)

Opinion

C. A. No. 01C-11-017 THG

September 10, 2002

David J. Weidman, Esquire Hudson, Jones, Jaywork Fisher

Glenn E. Hitchens, Esquire Morris, James, Hitchens Williams, LLP

Carl N. Kunz, III, Esquire Morris, James, Hitchens Williams, LLP

Thomas E. Birsic, Esquire Kirkpatrick Lockhart, LLP

Michael L. Bell, Esquire Kirkpatrick Lockhart, LLP

T. Henley Graves

Dear Counsel:

Before the Court is Plaintiff's Partial Summary Judgment Motion seeking to have a 1997 fax excluded as evidence under the Parol Evidence Rule. Specifically the 1997 fax evidences a business arrangement whereby Newbold would purchase parts from Atlantis on a "requirements" basis. Plaintiff's case is based on a contractual relationship wherein Plaintiff claims Defendant ordered specific quantities of parts, not a "requirements" agreement.

After studying positions of both Plaintiff and Defendant, I find that the application to apply the Parol Evidence Rule must be denied.

"Under no circumstances should summary judgment be granted when, from the evidence produced, there is a reasonable indication that a material fact is in dispute . . ., [or] if, upon an examination of all the facts, it seems desirable to inquire thoroughly into them in order to clarify the application of the law to the circumstances". Ebersole v. Lowengrub, 180 A.2d 467, 468-469 (Del. 1962).

In the present case there are disputes as to factual issues as to whether or not the contractual relationship between the purchaser and supplier was based upon a "requirements" arrangement or whether it was a "specific order" contractual arrangement.

Whether the 1997 fax was sent and received is unknown. Plaintiff argues the direct evidence as to whether it was received by Plaintiff is weak. But, there is evidence that the parties changed the nature of their business arrangement after the time that the 1997 fax was alleged to have been sent.

How that evidence is weighed will be up to the jury.

Both sides point to evidence and inferences which support their respective position. Thus, the waters are much too muddy to consider granting summary judgment to exclude the 1997 fax by way of the Parol Evidence Rule.

Plaintiff's Motion for Partial Summary Judgment is denied.

SO ORDERED.