Opinion
Civil Action No. 3:00-CV-2026-D
April 2, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff The Goodyear Tire Rubber Company ("Goodyear") sues defendant CIT Technology Financing Services, Inc., f/k/a Newcourt Leasing Corporation d/b/a ATT Capital Leasing Services, Inc. ("CIT"), seeking to recover on theories of sworn account, quantum meruit, and breach of contract for equipment that Goodyear leased to its franchisees and that it contends CIT agreed (but has refused) to finance by purchasing the franchisees' lease obligations. Goodyear and CIT have filed cross-motions for summary judgment. At issue are 14 unpaid invoices from Goodyear to CIT. The court grants in part and denies in part CIT's motion and denies Goodyear's motion. The court also directs the parties to engage in mediation or face-to-face settlement negotiations in the presence of counsel and an authorized representative with authority to enter a binding settlement.
CIT filed its motion on December 31, 2001 and Goodyear responded on February 19, 2002. CIT did not file a reply brief within the time permitted by N.D. Tex. R. 7.1(f), although it essentially incorporated reply-type arguments in its March 11, 2002 response to Goodyear's cross-motion. Goodyear filed its cross-motion on February 19, 2002. CIT filed its response on March 11, 2002. Goodyear did not file a reply brief within the time permitted by Rule 7.1(f).
The invoices are addressed to ATT Capital Leasing Services, Inc.
I
This lawsuit arises from an arrangement under which Goodyear purchased equipment for its franchisees, leased the equipment to them, and CIT provided financing by purchasing the leases. By invoices dated between November 1995 and June 1997, Goodyear submitted to CIT 14 invoices for which it claimed payment. CIT paid one invoice but refused to pay the others, citing inadequate documentation. Goodyear originally sued CIT for $122,189.32, but it maintains in its summary judgment briefing that it has established the right to recover $83,593.45, plus interest and attorney's fees. CIT contends that Goodyear is not entitled to relief on any of the theories on which it sues.
II
The court turns to CIT's motion, which is the first filed. CIT points the court to the absence of evidence that Goodyear is entitled to recover based on the 14 invoices at issue. See D. Br. at 2-4.
A
When, as here, the summary judgment movant will not have the burden at trial concerning a cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celolex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once it does so, the nonmovant must then go beyond its pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, it must produce evidence to establish the existence of each element for which it bears the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991). Here, because CIT has pointed to the lack of evidence, Goodyear must produce evidence that would permit a reasonable trier of fact to find in its favor. Summary judgment is mandatory if Goodyear fails to meet this burden, Little, 37 F.3d at 1076. Goodyear's failure to adduce proof on any essential element renders all other facts immaterial. Celotex Corp., 477 U.S. at 323.
B
In response to CIT's motion, Goodyear has introduced evidence that it is entitled to recover $83,593.45, plus interest and attorney's fees, based on seven invoices. See P. Feb. 19, 2002 App. 1-44. The court grants summary judgment dismissing Goodyear's claims that are based on the remaining invoices ( i.e., the invoice that CIT has already paid (No. K-054589) and the others that Goodyear has not addressed in its response).
CIT argues that Goodyear cannot recover for sworn account because it does not sue based on an account of goods and merchandise sold to CIT; it cannot recover under quantum meruit because Goodyear admits in its petition that it conferred a benefit on its own franchisees, it did not provide valuable goods or services to CIT; and it cannot recover for breach of contract because it has failed to produce the agreement on which it sues or the terms of the agreement, and it has failed to prove that it has met, and that CIT breached, obligations under the agreement. The court addresses these theories of recovery in the context of the seven invoices about which Goodyear has presented evidence in its summary judgment response.
CIT correctly argues that Goodyear cannot recover based on a sworn account because title to the leased equipment did not pass from Goodyear to CIT. Goodyear purchased goods and merchandise from its franchisees, but it did not purchase them from CIT. Instead, Goodyear sold CIT the franchisees' lease obligations for the goods and merchandise. The transaction between Goodyear and CIT was not a purchase and sale involving the transfer of title to personal property and thus cannot form the basis of a suit on an account under Texas law. See Land Liquidators of Tex., Inc. v. Houston Post Co., 630 S.W.2d 713, 714 (Tex.App. 1982, no writ).
Concerning its quantum meruit theory, Goodyear maintains that it is entitled to recover $83,593.45 because it conferred on CIT a benefit in the form of equipment lease applications to be financed through and submitted to CIT without any need for CIT to solicit this business, and this arrangement provided CIT the ability to receive a stream of payments on the leased equipment, including finance charges. These assertions are not supported by citations to specific summary judgment evidence that would permit a reasonable trier of fact to find in Goodyear's favor. Goodyear's global citation to a collection of 36 pages from its appendix, see P. Mem. at 6 (citing P. App. 5-40), is inadequate. As this court has held before:
Even before the court adopted [N.D. Tex. Civ. R.] 56.5(c) in 1998, but especially after it was promulgated, it has been settled in this district that a party seeking or opposing summary judgment may not cite multiple, undifferentiated pages of the record when making an assertion about the summary judgment evidence.Bradshaw v. Mfktg. Specialists Sales Co., Civil Action No. 3:98-CV-1312-D, slip op. at 5 (N.D. Tex. Mar. 29, 2001) (Fitzwater, J.) (footnotes omitted).
Moreover, Goodyear's quantum meruit theory does not correspond to the one that it alleges in its state court petition or that it quantifies in response to CIT's summary judgment motion. In its state court petition, Goodyear asserts that it "provided and sold goods and services to [CIT] for which a benefit was conferred on [CIT] in that [CIT] received the use and benefit of the goods provided by [Goodyear]." Pet. § V (emphasis added). Goodyear did not assert that it conferred benefits in the form of the availability of lease applications and the ability to receive finance charges. In its petition and in its response to CIT's summary judgment motion, Goodyear quantifies its recovery under this theory based on what it contends it is owed under the invoices. See Pet. § V (seeking $122,189.32) and P. Mem. at 6 (seeking $83,593.45). This measure of damages is calculated on the basis that the goods and services are the equipment, and it undercuts Goodyear's argument that the quantum meruit claim is founded on any other goods or services. Because Goodyear has abandoned the quantum meruit theory that it alleged in its petition and has not supported with adequate evidence the new version contained in its summary judgment response, the court dismisses this claim.
Regarding Goodyear's breach of contract claim, Goodyear has adduced evidence that the parties had a contract under which CIT would pay Goodyear upon receipt of satisfactory invoices ("K-documents"). See P. App. 43-44. It has also introduced evidence that creates a genuine issue of material fact whether CIT breached the contract by not paying the seven invoices in question. See id. at 1-40. Indeed, it is somewhat difficult to understand why CIT advances some of the arguments on which it relies, while acknowledging in the same brief that (1) it entered into an arrangement with Goodyear to purchase franchisee lease obligations upon compliance with certain conditions and (2) in fact performed under the agreement by paying $19,658.80 for Invoice No. K-054589. See D. Br. at 2. This seems to suggest that the parties in fact had a contract and that the focus of this lawsuit should be on whether Goodyear complied with the contractual conditions for receipt of payment and is entitled to payment and whether CIT has any defenses to payment. The court holds that there is a genuine issue of material fact whether Goodyear is entitled to recover on a theory of breach of contract regarding the seven invoices that remain at issue.
The court grants CIT's motion for summary judgment dismissing Goodyear's claims as to all but the seven invoices at issue, and limits Goodyear to attempting to prove at trial that it can recover based on these invoices under a breach of contract theory.
III
Goodyear filed a motion for summary judgment on February 19, 2002. This motion is denied as untimely because Goodyear filed it after the court-ordered deadline (as extended). Even if the motion had been timely filed, Goodyear is moving for summary judgment on claims about which it will have the burden of proof at trial. It therefore has a more onerous summary judgment burden than does CIT. Goodyear "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Because it has not done so, its motion is denied.
IV
This is a case that Goodyear and CIT should settle, not incur the expense and delay of trying. It is set on the court's two-week docket of July 1, 2002. Accordingly, by May 31, 2002 the parties must either (1) participate in mediation before a mediator of their mutual choosing or (2) participate in face-to-face settlement negotiations in the presence of their counsel and an authorized representative of each party with authority to enter into a binding settlement. The mediator's report or the parties' settlement report must be submitted to the court by June 7, 2002 at noon.
CIT's December 31, 2001 motion for summary judgment is granted in part and denied in part. Goodyear's February 19, 2002 cross-motion for summary judgment is denied
SO ORDERED.