W Agripacking SA de CV v. Fresh Touch Distributing Incorporated et al

Filing 148

ORDER Melons West of New York, Inc.'s 115 Motion for Summary Judgmentis GRANTED IN PART AND DENIED IN PART. Summary judgment in granted in favor of Melons West and against Agripacking as to Agripackings claims of a Failure to Pay According to Account Stated (Count 6) and Conversion (Count 7). The parties shall submit a Joint Pre-Trial Statement (Proposed Order) as to the remaining claims within 30 days of the date of this Order. Signed by Judge Cindy K Jorgenson on 8/27/2015.(KEP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 ) ) ) Plaintiff, ) ) vs. ) FRESH TOUCH DISTRIBUTING, INC.,) and MELONS WEST OF NEW YORK,) ) INC., ) ) Defendants. _________________________________ ) ) MELONS WEST OF NEW YORK, INC.,) ) ) Counterclaimant/Crossclaimant, ) ) vs. ) W AGRIPACKING, S.A. DE C.V., and) FRESH TOUCH DISTRIBUTING, INC. ) ) ) Counterdefendant/Crossdefendant. ) W AGRIPACKING, S.A. DE C.V., 9 10 11 12 13 14 15 16 17 18 19 20 21 No. CIV 12-738-TUC-CKJ ORDER Pending before the Court is the Motion for Summary Judgment (Doc. 115) filed by 22 Melons West of New York, Inc. (“Melons West”). W. Agripacking, S.A. de C.V. 23 (“Agripacking”) has filed a response and Melons West has filed a reply. The Court finds it 24 would not be assisted by oral argument and declines to set this matter for hearing. 25 26 I. Factual and Procedural Background 27 Melons West had been buying and selling Fairytale pumpkins (pumpkin) and was the 28 biggest buyer of other hard shell squash from produce distributor Fresh Touch Distributing, 1 Inc. (“Fresh Touch”); they had been doing business together since 2006. (Plaintiff’s 2 Statement of Facts (“WA SOF”) ¶¶ 2-3) The principal of Fresh Touch, Patricia Lugo 3 (“Lugo”) met the principal of Agripacking, Jose Woolfolk, Jr. (“Woolfolk”), in October 4 2011. In late 2011, Jason Gisser (“Gisser”), a Melons West salesperson, suggested that Lugo 5 look into having pumpkin grown in Mexico for purchase by Melons West. (WA SOF ¶ 4) 6 In November 2011, Lugo talked to Woolfolk about growing pumpkin. Lugo told Woolfok 7 that she “had a great buyer, which was Melons West of New York, and [asked Agripacking] 8 if they were interested in growing that pumpkin, and they said yes.” (WA SOF ¶ 6) Lugo 9 and Woolfolk had many conversations, both face to face and by telephone. Lugo told 10 Woolfolk that she had already talked to Melons West and that Lugo was ready for 11 Agripacking to grow the pumpkin. Lugo initially proposed that Agripacking grow 100 12 truckloads, of which there would be “fifty truckloads that we were going to contract with 13 Melons West of New York.” (WA SOF ¶ 8) 14 Woolfolk recalls that Lugo first approached him in September or October 2011 about 15 an agreement with Melons West to grow pumpkin. (WA SOF, Ex. B, 26:6-24) Agripacking 16 asserts that Lugo’s initial proposal was for 100 truckloads, at $0.22 per pound, not $0.19. 17 (WA SOF, Ex. B, 28:16-29:1) Further, Agripacking states that, after a series of meetings 18 between Lugo and Woolfolk, an oral agreement was reached in November or December of 19 2011 to sell the pumpkin squash to Melons West; a written contract would be prepared later. 20 Woolfolk repeatedly requested and insisted that Lugo provide Agripacking with a written 21 contract between Melons West, Agripacking, and Fresh Touch. (WA SOF ¶ 10) Woolfolk 22 insisted to Lugo that Melons West be a party to the contract with Agripacking because 23 Agripacking was concerned about Fresh Touch’s financial strength and ability to handle a 24 large number of truckloads. (WA SOF ¶ 11) Woolfolk asserts Agripacking would not have 25 signed a two-party contract only with Fresh Touch. (WA SOF ¶ 12) Agripacking had 26 historically required three-party contracts in other large transactions, e.g., with Fresh Farms 27 (broker) and WalMart (Buyer). In the same November to December 2011 timeframe, Lugo 28 told Gisser that Agripacking could grow the pumpkin. -2- 1 Melons West asserts that Agripacking and Fresh Touch had entered into an oral 2 agreement for Agripacking to grow and supply pumpkin to Fresh Touch in exchange for 3 Fresh Touch advancing certain costs, including seed, and a portion of Fresh Touch’s sale 4 proceeds by November 2011. Melons West asserts this agreement was solely between 5 Agripacking and Fresh Touch (Melons West Statement of Facts (“MW SOF”) ¶ 3), and 6 under it, Fresh Touch was to pay Agripacking directly for the pumpkin Fresh Touch 7 received. (MW SOF ¶ 5) In April of 2012, after substantial performance had begun on the 8 oral agreement with the pumpkin already planted and near harvest, Melons West entered into 9 a written contract to purchase pumpkin from Fresh Touch. Melons West points out that 10 Woolfolk testified that he understood the agreement required Melons West to purchase the 11 pumpkin from Fresh Touch. (MW SOF ¶ 24) Woolfolk further testified that he understood 12 Agripacking was selling the pumpkin to Fresh Touch, Fresh Touch would pay Agripacking, 13 and then Fresh Touch would sell the pumpkin to Melons West. (MW SOF ¶ 25) Woolfolk 14 also testified that he did not expect Melons West to be directly obligated to pay Agripacking 15 for the pumpkin. (MW SOF ¶ 26) 16 Agripacking asserts that Lugo testified that Woolfolk called her in March 2012 to get 17 a contract with Melons West and Fresh Touch. (WA SOF ¶18) Lugo drafted the agreement. 18 Lugo testified that she was the first of the three parties to sign the contract, Woolfolk signed 19 it second, and Gisser signed it about a week later.1 Agripacking asserts Gisser had no 20 questions regarding Agripacking being a party to the contract. When asked why it took from 21 November 2011 to April 12, 2012 for Gisser to sign, Lugo testified that there “was something 22 mutual between [Agripacking], myself, and myself and [Melons West], where there’s that 23 – there was a relationship, and it was a good relationship. So it was really nothing to worry 24 25 26 27 28 1 Melons West asserts that Gisser understood that he had the authority to sign a contract with a distributor, such as Fresh Touch, but the authority to sign multi-load contracts with a grower like Agripacking was reserved to Melons West’s principal, Michael Cutler. (MW SOF¶12) Melons West asserts this is consistent with Cutler’s delegation of authority. (MW SOF ¶ 12) Agripacking asserts Gisser’s understanding of his authority is not relevant and that the statement is not relevant as the agreement at issue is not a multi-load contract. -3- 1 about. I had been dealing with [Melons West] for the past five, six years, never had any 2 problems at all. Really didn’t find it a need to rush that contract or hound either one of them.” 3 (WA SOF ¶ 23) 4 Agripacking asserts it was Fresh Touch and Melons West’s practice to reach terms 5 and then several months later enter into a written, and sometimes oral, contract. Lugo 6 offered Agripacking a written contract, and told Woolfolk that there would be a contract with 7 a commitment from Melons West to purchase fifty truckloads. When asked why she 8 included a signature line for Agripacking, Lugo testified because Woolfolk “wanted to be in 9 it.” (WA SOF ¶ 26) Lugo testified that Woolfolk wanted to be “in" the contract to reassure 10 him that Melons West would pick up the allocated truckloads, and pay for them. (WA SOF 11 ¶ 27) Agripacking delayed harvesting and shipping the pumpkins until it received a signed 12 copy of the agreement. (WA SOF ¶ 29) Though Melons West signed in mid-April, 13 Agripacking did not receive a signed copy until early May. 14 15 The written agreement at issue in this case includes a Fresh Touch letterhead and provides: 16 April 4, 2012 17 Melons West of New York, Inc. 110 Terrace Dr. Olyphant, PA 18447 18 19 20 This acknowledges the mutual agreement between Fresh Touch Distributing, Inc. Melons West of New York, Inc. regarding contracted pricing for FAIRY TALE PUMPKIN 24" BINS, 22 The above-named item will be sold to Melons West of New York, Inc. at a price of $0.19 P/LB F.O.B. for the time period of April 24, 2012 thru June of 2012. The approximate quantity to be purchased is 50 TRUCKLOADS. 23 This agreement is approved and recognized by the signatures below. 24 //s Jason Gisser Melons West of New York, Inc. Jason Gisser (Buyer) 21 25 //s P. Lugo Fresh Touch Distributing, Inc. Patricia Lugo (Distributor) 27 //s Jose Antonio Woolfolk-Bravo W Agripacking Jose Antonion Woolfolk-Bravo (Grower) 28 NON-PERFORMANCE Neither Fresh Touch Distributing, Inc. or Melons West of 26 -4- 1 2 New York, Inc., shall be held liable for non-performance of this agreement due to natural disaster, fire, war, strike, terrorism, government legislation or regulation or for any other cause beyond the reasonable control Fresh Touch Distributing, Inc. or Melons West of New York. 3 (MW SOF Ex. 1) Additionally, the initials “P.L.” are handwritten above the term “$0.19 4 P/LB.” (MW SOF ¶ 8) 5 Agripacking’s argument (as opposed to its Statement of Facts) indicates that Melons 6 West received 11 truckloads of pumpkin from Agripacking. Response (Doc. 121), p. 16. 7 Melons West asserts Fresh Touch sold Melons West pumpkin from a different grower, when 8 Agripacking did not provide Fresh Touch pumpkin. (MW SOF ¶¶ 31-32) Further, Melons 9 West asserts Agripacking never invoiced Melons West for any pumpkin, and never otherwise 10 requested or received any payments from Melons West. (MW SOF ¶¶ 36-39) Agripacking 11 asserts, however, that it sought payment through its counsel on August 28, 2012 12 (Agripacking Controverting Statement of Fact (“WA CSOF”) ¶ 36) Melons West asserts 13 Fresh Touch sold Melons West pumpkin from a different grower, when Agripacking did not 14 provide Fresh Touch pumpkin. (MW SOF ¶¶ 31-32) 15 On October 10, 2012, Agripacking filed a Complaint with this Court alleging a Breach 16 of Contract, a Breach of Third Party Beneficiary Contract, a Failure to Account and Pay 17 Promptly, a violation of the Uniform Commercial Code, a Failure to Pay According to 18 Account Stated, and a Conversion against Defendants Fresh Touch and Melons West. 19 Agripacking also alleged an additional claim of Breach of Contract only against Fresh Touch. 20 On December 10, 2012, Fresh Touch filed an Answer, Crossclaim and Counterclaim. 21 On October 9, 2013, Melons West filed an Answer, Crossclaim and Counterclaim. 22 23 II. Summary Judgment Legal Standard 24 Summary judgment may be granted if the movant shows “there is no genuine issue 25 as to any material fact and that the moving party is entitled to judgment as a matter of law.” 26 Rule 56(c), Federal Rules of Civil Procedure. The moving party has the initial responsibility 27 of informing the court of the basis for its motion, and identifying those portions of “the 28 -5- 1 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 2 affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material 3 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 4 Once the moving party has met the initial burden, the opposing party must "go beyond 5 the pleadings" and "set forth specific facts showing that there is a genuine [material] issue 6 for trial." Id., 477 U.S. at 248 (internal quotes omitted); see also Cusson-Cobb v. O'Lessker, 7 953 F.2d 1079, 1081 (7th Cir. 1992) (cannot rely on the allegations of the pleadings, or upon 8 conclusory allegations in affidavits). The nonmoving party must demonstrate a dispute “over 9 facts that might affect the outcome of the suit under the governing law” to preclude entry of 10 summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Further, the 11 disputed facts must be material. Celotex Corp., 477 U.S. at 322-23. Further, "a party cannot 12 manufacture a genuine issue of material fact merely by making assertions in its legal 13 memoranda." S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter 14 Kiddle & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). 15 The dispute over material facts must be genuine. Anderson, 477 U.S. at 248, 106 16 S.Ct. at 2510. A dispute about a material fact is genuine if “the evidence is such that a 17 reasonable jury could return a verdict for the nonmoving party.” Id. A party opposing a 18 properly supported summary judgment motion must set forth specific facts demonstrating a 19 genuine issue for trial. Id. Mere allegation and speculation are not sufficient to create a 20 factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th 21 Cir. 1995) (per curiam). “If the evidence is merely colorable or is not significantly probative, 22 summary judgment may be granted.” Anderson, 477 U.S. at 249-50. However, the evidence 23 of the nonmoving party is to be believed and all justifiable inferences are to be drawn in his 24 favor. Id. at 255. Further, in seeking to establish the existence of a factual dispute, the non- 25 moving party need not establish a material issue of fact conclusively in his favor; it is 26 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 27 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d 626, 631 (9th Cir. 28 1987). -6- 1 III. Consideration of Admissible Evidence 2 Additionally, the Court is only to consider admissible evidence. Moran v. Selig, 447 3 F.3d 748, 759-60 (9th Cir. 2006) (pleading and opposition must be verified to constitute 4 opposing affidavits); FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) 5 (declarations and other evidence that would not be admissible may be stricken). Moreover, 6 “at the summary judgment stage, courts do not focus on the admissibility of the evidence’s 7 form. [Courts] instead focus on the admissibility of its contents.” Marceau v. International 8 Broth. of Elec. Workers, 618 F.Supp.2d 1127, 1141-42 (D.Ariz. 2009). 9 A "genuine" issue of "material" fact cannot be created by a party simply making 10 assertions in its legal memoranda. Varig Airlines, 690 F.2d at 1238. Declarations and other 11 evidence that would not be admissible may be stricken. FDIC v. New Hampshire Ins. Co., 12 953 F.2d 478, 484 (9th Cir. 1991). Indeed, a “conclusory, self-serving affidavit, lacking 13 detailed facts and any supporting evidence, is insufficient to create a genuine issue of 14 material fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 n. 2 (9th Cir. 2007), citation 15 omitted. Moreover, statements must allege personal knowledge. See Skillsky v. Lucky 16 Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990) ("Like affidavits, deposition testimony that 17 is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine 18 issue of material fact sufficient to withstand summary judgment."); see also Block v. Los 19 Angeles, 253 F.3d 410, 419 n. 2 (9th Cir. 2001); Radobenko v. Automated Equip. Corp., 520 20 F.2d 540, 544 (9th Cir. 1975), quoting Perma Research & Development Co. v. Singer Co., 21 410 F.2d 572, 578 (2nd Cir. 1969) (“[i]f a party who has been examined at length on 22 deposition could raise an issue of fact simply by submitting an affidavit contradicting his 23 own prior testimony, this would greatly diminish the utility of summary judgment as a 24 procedure for screening out sham issues of fact”). Additionally, the court is to review the 25 record as a whole, but must disregard evidence favorable to the moving party that the jury 26 is not required to believe and must give credence to the uncontradicted and unimpeached 27 evidence of the moving party, at least “‘to the extent that that evidence comes from 28 disinterested witnesses.’” Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S.Ct. -7- 1 2097, 2110 (2000), citation omitted. 2 The controverting statements and objections place the statements in context and 3 clarify them. Although the Court will not address each dispute, the Court will only consider 4 the admissible evidence that is supported by specific facts that may show a genuine issue of 5 material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 6 (1986). 7 8 IV. Validity of Contract 9 For a valid contract to exist, there must have been an offer, acceptance of the offer, 10 consideration, sufficient specification of terms so that the obligations involved can be 11 ascertained, K–Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 212, 677 12 P.2d 1317, 1320 (App.1983), and the parties must have intended to be bound by the 13 agreement, Schade v. Diethrich, 158 Ariz. 1, 9, 760 P.2d 1050, 1058 (1988) (“the 14 requirement of certainty is not so much a contractual validator as a factor relevant to 15 determining the ultimate element of contract formation—the question whether the parties 16 manifested assent or intent to be bound”). Additionally, “[i]t is well established that, in an 17 action based on breach of contract, the plaintiff has the burden of proving the existence of 18 a contract, breach of the contract, and resulting damages.” Chartone, Inc. v. Bernini, 207 19 Ariz. 162, 170, 83 P.3d 1103, 1111 (App. 2004). Arizona “permits the consideration of 20 extrinsic evidence . . . on the issue of contract interpretation.” 1 Ariz. Prac., Law of Evidence 21 § 104:8 (4th ed. 2013) (citations omitted). Further, parol evidence is appropriate for 22 consideration in resolving a motion for summary judgment. See e.g., Taylor v. State Farm 23 Mut. Auto. Ins. Co., 175 Ariz. 148, 854 P.2d 1134 (1993). 24 The Supreme Court of Arizona has stated: 25 We cited with approval the Second Restatement of Contracts' [§ 24] definition of an offer as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” [Tallent v. National General Insurance Co., 185 Ariz. 266, 268, 915 P.2d 665, 667 (1996).] Thus, whether an offer has been made does not depend on the offeree's understanding of the terms of the offer, but instead on whether a reasonable person would understand that an offer has been made and that, upon acceptance, the 26 27 28 -8- 1 offeror would be bound. [Citation omitted.] 2 Ballesteros v. American Standard Ins. Co., 226 Ariz. 345, 348, 248 P.3d 193, 196 (2011). 3 An acceptance is a manifestation of assent to the terms of an offer in the manner invited or 4 required by the offer. Contempo Const. Co. v. Mountain States Tel. & Tel. Co., 153 Ariz. 5 279, 281, 736 P.2d 13, 15 (App. 1987). “Consideration is defined as bargained for exchange 6 whereby the promisors . . . receive some benefit or the promisee . . . suffers a detriment.” 7 Coup v. Scottsdale Plaza Resort, LLC, 823 F.Supp.2d 931, 943 (D.Ariz. 2011). 8 Further, the Supreme Court of Arizona has stated: 9 10 The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance. 11 Restatement § 33(3). 12 . . . But the actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon. In such cases courts endeavor, if possible, to attach a sufficiently definite meaning to the bargain. 13 14 Id. comment a (emphasis added). 15 Schade, 158 Ariz. at 9, 760 F.3d at 1058. “The requirement of certainty is not so much a 16 contractual validator as a factor relevant to determining . . . whether the parties manifested 17 assent or intent to be bound.” Schade, 158 Ariz. at 9. “Any requirement of ‘reasonable 18 certainty’ is satisfied if the agreement that was made simply provides ‘a basis for determining 19 the existence of a breach and for giving an appropriate remedy.’” Estate of Decamacho ex 20 rel. guthrie v. La Solana Care and Rehab, Inc., 234 Ariz. 18, 21, 316 P.3d 607, 610 (App. 21 2014) (citations omitted). Additionally, “[m]utual assent is ascertained from objective 22 evidence, not from the hidden intent of the parties. Objective evidence includes written and 23 spoken words as well as acts.” Johnson v. Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 24 384, 132 P.3d 825, 828 (2006). 25 Melons West asserts neither Agripacking nor Melons West communicated to the other 26 any offers for a contract for the sale or purchase of pumpkins. In fact, Melons West asserts 27 it is undisputed that Agripacking and Melons West never communicated with one another 28 -9- 1 at all, let alone manifested any willingness to enter into a transaction with each other as to 2 the purchase/sell of pumpkin. 3 Agripacking nor Melons West ever made an offer to the other for the pumpkin, neither party 4 had an offer to accept. Melons West asserts the written agreement memorializes the offer 5 and acceptance between Melons West and Fresh Touch. Additionally, Melons West’s 6 signatory, Gisser, had no intent to contract with Agripacking and knew he was without the 7 authority to accept an offer for a multi-load contract with a grower. The absence of any 8 communications or negotiations between the parties precludes any contracting intent or a 9 meeting of the minds. Further, Melons West asserts that, because neither 10 Additionally, Melons West asserts there is no mutuality of obligation between 11 Agripacking and Melons West. For example, Gisser testified that it was his assumption that 12 Agripacking signed the written agreement as a witness and not a party. Melons West points 13 to Lugo’s testimony to show that Melons West and Fresh Touch did not intend for 14 Agripacking to be a party to the written agreement, and understood that Agripacking signed 15 as a non-party witness. (MW SOF ¶¶ 14, 19-21) Indeed, Melons West2 asserts Agripacking 16 admits that Melons West had no obligation to pay Agripacking for pumpkin. (MW SOF ¶ 17 263) Agripacking further admits it was required to sell pumpkin to Fresh Touch (MW SOF 18 ¶ 25), that the agreement requires Melons West to purchase pumpkin from Fresh Touch 19 (SOF¶24), and that Melons West and Fresh Touch could perform all terms of the Fresh 20 Touch Contract without Agripacking’s involvement: 21 Agripacking asserts, however, that the existence of the contract is not disputed, only 22 whether Agripacking was a party to the contract. Therefore, Agripacking does not address 23 whether the elements of a valid contract exist as to Agripacking. This appears to be based 24 25 2 26 27 28 As to the assertions of Melons West regarding statements attributed to Agripacking, Agripacking points out that it was not deposed. 3 Woolfolk testified that he did not expect Melons West to be obligated to directly pay for the pumpkin. - 10 - 1 on a theory that Fresh Touch was acting as a “middle man” between Agripacking and Melons 2 West. In considering the elements of the agreement in this case, the Court considers that all 3 parties, including Melons West, must have intended to be bound by the agreement with each 4 other. See e.g. Tabler v. Industrial Com’n of Arizona, 202 Ariz. 518, 47 P.3d 1156 (App. 5 2002). Furthermore, “[t]he determination of the parties' intent must be based on objective 6 evidence, not the hidden intent of the parties.” Tabler, 202 Ariz. at 521, 47 P.3d at 1159. 7 This may include consideration of the surrounding circumstances and conduct of the parties.” 8 Id. 9 While the determination of intent is a question of fact, id., there must be a genuine 10 dispute as to whether Melons West intended to be bound by the agreement for Agripacking 11 to survive summary judgment. Agripacking asserts that the signing of the agreement by 12 Gisser on behalf of Melons West with Agripacking’s signature already on the agreement 13 shows Melons West intended to agree be bound to accept (and pay for) pumpkin from 14 Agripacking. However, Agripacking has not presented any authority that the signature and 15 designation alone establishes a party intends to be bound to that signer. 16 Agripacking and Melons West dispute the significance of Agripacking being a 17 signatory to the agreement without otherwise having been named in the agreement. A person 18 is not a party to a contract simply because its name appears somewhere on the written 19 document. Ferrell v. Elrod, 63 Tenn.App. 129, 147, 469 S.W.2d 678, 682-83 (1971). 20 Indeed, a person who signs a contract, but is neither named in the body of that contract nor 21 undertakes any obligations or receives any benefits by its terms, is not a party to it. See, In 22 re Dickerson’s Estate, 600 S.W.2d 714, 717 (Tenn. 1980) (signature alone contains no 23 promise to answer for debt) (citing Ferrell). However, courts have also held that a signatory 24 not named in a contract may be a contracting party. Woodcock v. Udell, 97 A.2d 878, 881 25 (Del. Super. Ct. 1953). 26 Agripacking and Melons West each cite cases in support of their positions. As 27 referenced by Melons West, “[i]t is a general rule of interpretation of contracts that when the 28 body of a contract purports to set out the names of the parties thereto and a person not named - 11 - 1 in the body of the contract signs the contract and nothing in the contract indicates that such 2 person signed as a party, then such person is not bound as a party to the contract and is not 3 liable thereunder.” In re Dickerson's Estate, 600 S.W.2d 714, 716 (Tenn. 1980). Similarly, 4 a treatise summarizes the issue as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Generally, when the body of a contract purports to set out the names of the parties thereto and a person not named in the body of the contract signs the contract, and there is nothing in the contract to indicate that such person signed as a party, such person is not bound by the contract and hence is not liable thereunder. In other cases, it has been held that under the circumstances the person who signed but was not named in the body of the contract as a party thereto was nevertheless liable on the contract. Also, in cases involving unilateral contracts or surety or guaranty bonds, the person who signed, although not named in the body of the contract, was held liable on the contract as a party thereto. According to some authority, the rule that a person who signs an instrument, but is not named therein is not a party thereto, is applicable only where the instrument itself distinctly designates others as parties. It has been held that where a person signs an instrument with the intention of being a party thereto and the omission of such person's name from the body thereof was unintentional, such person will be considered as a party to the contract. Although a person may not be named in a contract where others are so designated, he or she nevertheless may be held liable as a party to the contract where the text of the instrument concludes with a phrase, in words or to the effect that "we bind ourselves," etc. 17A Am. Jur. 2d Contracts § 414 (May 2015) (citations omitted). Another treatise states: The term "party," in the context of a contract, means those with whom the contract is actually made or entered into, and one is a party to an agreement not only by promising to do certain things but also by being the recipient of another's obligation to perform. The determination as to who are the parties to a contract is decided on a case by case basis, and generally, the identity of the parties to a contract is ascertained from an examination of the written instrument. If the identity of the parties is not clear on the face of the writing, the identities must be determined as a question of intent under the general rules of construction. Thus, where the identity of the parties to a contract is not clear, all of the facts and circumstances surrounding the making of the contract may be considered to determine who are the actual parties. Extrinsic evidence is admissible if the identity of the parties to a contract is ambiguous. A person is not made a party to a contract merely by being named or described in it, or merely by the fact that the contract is referred to in a writing which evidences another contract to which such person is a party. . . A person has the right to determine who will be the person's debtor or obligor, or the other contracting party, and it is not permissible to thrust another on such person without his or her consent. 17A C.J.S. Contracts § 462 (June 2015) (citations omitted). 26 In other words, the determination of whether a signatory is a party to the agreement 27 is to be determined on a case-by-case basis, looking at the terms of the written agreement or 28 determining the intent under general rules of construction. It appears the agreement purports - 12 - 1 to name Fresh Touch and Melons West as the contracting parties. However, Agripacking 2 argues that the statement that “[t]his agreement is approved and recognized by the signatures 3 below” is intended to have the effect similar to "we bind ourselves[.]" 17A Am. Jur. 2d 4 Contracts § 414 (citations omitted). Moreover, although a person is not party to a contract 5 simply because its name appears somewhere on the written document, Ferrell v. Elrod, 63 6 Tenn.App. 129, 147, 469 S.W.2d 678, 682-83 (1971), here Agripacking is not just named, 7 but designated as “Grower.” Agripacking cites to Mudd v. Goostree, 2013 WL 1402157 8 (Tenn.Ct.App. 2013), as an example of a signature with a designation sufficient to bind a 9 party. However, the contract in Mudd was a lease for which the designation at issue was a 10 tenant – by the very nature of the agreement a tenant was a necessary party. 11 Indeed, the designation of Agripacking as “Grower” supports a conclusion that a 12 genuine dispute exists as to whether Agripacking had been designated as a party. See e.g. 13 St. Regis Apartment Corp. v. Sweitzer, 32 Wis.2d 426, 145 N.W.2d 711 (1996) (approving 14 use of parol evidence to resolve ambiguity of whether signatory was a party). Similarly, 15 Agripacking points out that Melons West asserts Fresh Touch included Agripacking’s 16 signature line as a courtesy, but that Melons West thought Agripacking was signing as a 17 witness. In other words, it is disputed why the Agripacking signature was included. 18 Additionally, the circumstances surrounding the agreement support Agripacking’s position. 19 For example, the delay in the signing of the agreement could mean the parties were working 20 together and trusted each other. Further, the designation of the roles each signatory played 21 supports an interpretation that Fresh Touch was the “middle man” and, ultimately, 22 Agripacking was growing the product for Melons West to purchase. Lastly, it is not clear 23 if the “approval” of the agreement was meant to bind each of the parties to each other. 24 Simply put, the terms (including the designations and the signatories) present a reasonable 25 inference that the parties all intended to be bound to each other. See e.g. AROK Constr. Co. 26 v. Indian Constr. Servs., 174 Ariz. 291, 295, 848 P.2d 870, 874 (App.1993) (citation omitted) 27 (“[The realist approach] emphasizes standards rather than rules, and assigns to courts the task 28 of upholding the agreements parties intended to make.”) The Court finds that there is a - 13 - 1 genuine dispute as to whether the fact that Agripacking is not named in the body of the 2 agreement means it is not a party to the agreement. 3 4 V. Agripacking’s Claims Requiring Valid Contract Between Agripacking and Melons West 5 Because there is a genuine dispute as to the intent of Melons West to be bound by an 6 agreement with Agripacking, there is a dispute as to whether there is an enforceable contract 7 between Agripacking and Melons West. 8 Agripacking’s claims for breach of contract and a violation of the Uniform Commercial Code 9 is not appropriate. The Court finds summary judgment as to 10 As to Agripacking’s claim that Melons West failed to account and pay promptly, the 11 parties dispute whether Agripacking requested payment from Melons West. Specifically, 12 Agripacking asserts it contacted Melons West on August 28, 2012, through counsel, to 13 request Melons West pay for the pumpkin pursuant to the April 4, 2012, agreement. The 14 Court finds there is a genuine dispute as to the existence of an enforceable contract and 15 whether a request for payment was made. The Court finds summary judgment on this issue 16 is not appropriate. 17 As to Agripacking’s account stated claim, the Arizona Court of Appeals has stated 18 that “an account stated ‘signifies an agreed balance between the parties to a settlement; that 19 is, that they have agreed after an investigation of their accounts that a certain balance is due 20 from one to the other.’” Citibank, N.A. v. Okonkwo, No. 1 CA–CV 13–0329, 2014 WL 21 1851960 *3 (Ariz.App. May 6, 2014) (quoting Holt v. W. Farm Servs., Inc. 110 Ariz. 276, 22 278, 517 P.2d 1272, 1274 (1974)). Evidence has not been presented to establish that there 23 is a genuine dispute as an agreed balance between Agripacking and Melons West. The Court 24 will grant summary judgment in favor of Melons West and against Agripacking as to this 25 claim. 26 27 28 VI. Agripacking’s Claim for Breach of Third-Party Beneficiary Contract In Arizona, to establish a third-party beneficiary breach of contract claim,“. . . the - 14 - 1 contract must indicate an intention to benefit the third party beneficiary, . . .the contemplated 2 benefit must be both intentional and direct, and . . . it must be clear that the parties intended 3 to recognize the third party as the primary party in interest.” Valles v. Pima County, 642 4 F.Supp.2d 926, 956 n.6 (D. Ariz. 2009) (citing Norton v. First Fed. Sav., 128 Ariz. 176, 178, 5 624 P.2d 854, 856 (1981)). It is not enough that a contract may operate to a person's benefit, 6 but it “must appear that the parties intended to recognize the [person] as the primary party 7 in interest and as privy to the promise.” Sherman v. First Am. Title Ins., 201 Ariz. 564, 567, 8 38 P.3d 1229, 1232 (App. 2002) (citation omitted); Tanner Cos. v. Ins. Mktg. Servs., Inc., 9 154 Ariz. 442, 444, 743 P.2d 951, 953 (App.1987) (stating a party may not recover as a third 10 party beneficiary “if it is merely an incidental beneficiary . . . rather than one for whose 11 express benefit the [contract] was made”). Whether a person is an incidental or direct 12 beneficiary is a question of construction, which is a question of law for the court. Nahom v. 13 Blue Cross and Blue Shield of Arizona, Inc., 180 Ariz. 548, 553, 885P.2d 1113, 1118 (App. 14 1994); Maganas v. Northroup, 135 Ariz. 573, 575, 663 P.2d 565, 567 (1983). However, the 15 Court of Appeals of Arizona has found third party beneficiary status where the beneficiary 16 was not specifically named but qualified for a status identified in the contract (sub- 17 contractor). U.S. Fidelity and Guar. Co. v. Farrar’s Plumbing and Heating Co., Inc., 158 18 Ariz. 354 (Ariz.App. 1988). 19 In this case, Agripacking was specifically named as the Grower in the agreement. 20 There is a genuine issue of material fact, the significance of this designation, in dispute – it 21 is not clear whether Fresh Touch and Melons West intended to recognize Agripacking as a 22 primary party in interest. See e.g. RAJI Contract 15. The Court finds summary judgment 23 as to this claim is not appropriate. 24 25 VII. Agripacking’s Claim for Conversion 26 In Arizona, “[c]onversion is defined as ‘an act of wrongful dominion or control over 27 personal property in denial of or inconsistent with the rights of another.’ To maintain an 28 action for conversion, a plaintiff must have had the right to immediate possession of the - 15 - 1 personal property at the time of the alleged conversion.” Case Corp. v. Gehrke, 208 Ariz. 2 140, 143, 91 P.3d 362, 365 (App. 2004) (citations omitted). “At early common law there was 3 some question as to whether money could be the subject of a conversion because of its lack 4 of specific identification.” Autoville, Inc. v. Friedman, 20 Ariz. App. 89, 91, 510 P.2d 400, 5 402 (1973). “However, the modern rule, in which Arizona joins, is that money can be the 6 subject of a conversion provided that it can be described, identified or segregated, and an 7 obligation to treat it in a specific manner is established.” Id. “Money is not the proper 8 subject of a conversion claim when the claim is used merely ‘to collect on a debt that could 9 be satisfied by money generally.’” Liberty Life Ins. Co. v. Myers, CV 10–2024–PHX–JAT, 10 2013 WL 530317 * 12 (D.Ariz. Fed. 12, 2013) 11 Agripacking’s conversion claim seeks to “collect on a debt that could be satisfied by 12 money generally.” Case Corp., 208 Ariz. at 143, 91 P.3d at 365. Under Arizona law, such 13 money cannot be subject of a conversion claim. Id.; see also Koss Corp. v. American Exp. 14 Co., 233 Ariz. 74, 90, 309 P.3d 898, 914 (App. 2013). Summary judgment in favor of 15 Melons West and against Agripacking on this claim is appropriate. 16 17 Accordingly, IT IS ORDERED: 18 1. is GRANTED IN PART AND DENIED IN PART. 19 20 Melons West of New York, Inc.’s Motion for Summary Judgment (Doc. 115) 2. Summary judgment in granted in favor of Melons West and against 21 Agripacking as to Agripacking’s claims of a Failure to Pay According to 22 Account Stated (Count 6) and Conversion (Count 7). 23 3. The parties shall submit a Joint Pre-Trial Statement (Proposed Order) as to the remaining claims within 30 days of the date of this Order.4 24 25 26 4 27 28 The remaining claims alleged by Agripacking are: Count 1: Breach of Contract, Count 2: Breach of Third Party Beneficiary Contract, Count 4: Failure to Account and Pay Promptly, and Count 5: Uniform Commercial Code. - 16 - 1 2 3 4. The Clerk of Court shall mail a copy of this Order to: Jose Woolfolk W. Agripacking S.A. de C.V. 396 Boulevard Luis Encinas Hermasillo, Sonora, Mexico 83200 4 DATED this 27th day of August, 2015. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 -

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