Electrolux Home Prod v. Whitesell Corp
Filing
1408
ORDER granting in part and denying in part 1290 Motion for Summary Judgment. Defendant's motion for summary judgment is granted in part as to the parts numbers listed herein. Plaintiff Whitesell Corporation is entitled to judgment to be entered at a later time in the amount of $6,429.06. Defendant's motion for summary judgment is denied as to the remaining parts listed herein. Signed by Chief Judge J. Randal Hall on 8/13/2020. (pts)
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
*
Plaintiff,
*
*
V.
*
CV 103-050
*
ELECTROLUX HOME PRODUCTS, INC.,
*
HUSQVARNA, A.B., and HUSQVARNA
OUTDOOR PRODUCTS, INC.,
*
*
ic
Defendants.
ORDER
Presently pending before the Court is Defendant Husqvarna,
A.B., and Husqvarna Outdoor Products, Inc.'s {''Husqvarna") motion
for
summary
judgment
Corporation's
Discrepancy
evidence
as
to
("Whitesell")
Claims.
This
respecting
Count
Complaint ("SAC").
Certain
of
Accounts
Plaintiff
Receivable
motion
seeks
VI
Whitesell's
of
Whitesell
consideration
Second
Pricing
of
the
Amended
Upon consideration of the parties' briefs, the
record, and the relevant law, the Court GRANTS IN PART and DENIES
IN PART the motion for summary judgment as discussed herein.
I.
BACKGROUND
On December 14, 2000, the parties to this lawsuit executed a
purported
Supply
Agreement
entitled
"Strategic
Partnership
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 2 of 20
Agreement" ("SPA").^
(See SPA, Ex. 1 to SAC, Doc. No. 578-1.)
Pursuant to the SPA, Defendants agreed to buy all of their current
and future requirements for certain goods from Whitesell during
the term of the Agreement, and Whitesell agreed to supply all of
Defendants' requirements for such goods.
The SPA, however, never
defined the "goods" that were subject to the agreement. And, while
the parties nevertheless began their supply relationship shortly
after execution of the SPA, understandably disputes concerning the
scope of goods ensued. In fact, the first dispute that came before
the Court in March 2003 concerned whether certain parts used at
Defendants' Orangeburg, South Carolina plant fell within the scope
of the SPA.
As
once
described
by
the
"numerous stops and starts."
No. 541, at 2).
Court,
the
case
has
suffered
(See Order of Nov. 12, 2013, Doc.
In the interim, the parties entered into a
Settlement Memorandum dated May 28, 2003 (Settlement Memorandum,
Ex. 2 to SAC, Doc. No. 578-2) and a Consent Order dated May 17,
2005 (Consent Order, Ex. 4 to SAC, Doc. No. 578-4), which are
relevant here.
Ultimately, Whitesell filed its SAC on June 5,
^ Defendant Electrolux Home Products, Inc. and Whitesell were the
original parties to the SPA.
its outdoor products division
transferred the business to
("Husqvarna").
The instant
supplied only to Husqvarna.
On June 12, 2006, EHP transferred
to Husqvarna A.B., which in turn
Husqvarna Outdoor Products, Inc.
motion apparently concerns parts
2
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 3 of 20
2014.
The SAC along with Defendants' Answers and Counterclaims
thereto are the operative pleadings in the case.
Count VI of the SAC, entitled "Breach of Contract (Failure to
Pay Invoices)," complains that Defendant Husqvarna has refused to
pay "valid and undisputed invoices" for parts Whitesell supplied
to it.
(Doc. No. 578, H 170.)
Lists of these past due invoices
pertaining to Husqvarna are attached to the SAC as Exhibits 6 and
7, which reference invoice numbers and the amount due to Whitesell
on each invoice.
numbers.
Exhibits 6 and 7 do not refer to individual part
According to Husqvarna's calculations, Whitesell claims
through Exhibits 6 and 7 that Husqvarna owes over $4,000,000 for
unpaid invoices.
(Husq.'s Mot. for Summ. J. as to Certain Accounts
Receivable Pricing Discrepancy Claims, Doc. No. 1290, at 4.)
On April 12, 2019, Whitesell submitted the report of its
financial accounting expert, Mr. Peter Karutz.
amended on August 12, 2019.
The report was
(Karutz Report, Doc. No. 1314-13.)
According to Schedule 6.1 of the report, Mr. Karutz has opined
that Husqvarna is liable to Whitesell in the amount of $1,549,769
on the Pricing Discrepancy Claims. It appears from excerpts in the
record. Schedule 6.1 is organized on a part number basis.
a particular part at issue,
So, for
Mr. Karutz identifies an invoice
number, the invoice date, the quantity of that part, the price per
part charged by Whitesell on the invoice, and the price per part
Husqvarna actually paid on the invoice.
3
The discrepancy between
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 4 of 20
price charged and price paid is then listed in terms of money owed
to Whitesell.2'3
(See generally Schedule 6.1 Excerpts in Exs. A-V
& X-Z to Husq.'s Mot. for Summ. J.)
Husqvarna's motion for summary judgment targets 25 different
parts.
As to these parts, Whitesell claims that Husqvarna owes
the pricing discrepancy between the price charged by Whitesell on
the part and the price Husqvarna actually paid on that part.
A
so-called "pricing discrepancy" claim as to a specific part spans
multiple invoices and years of supply.
Through its motion for
summary judgment, Husqvarna contends that the price it actually
paid on the specifically identified parts is the price called for
by the parties' supply agreements as a matter of law.
Thus,
because Husqvarna paid the contractually mandated price, it owes
no more to Whitesell and is entitled to summary judgment.
2 Mr. Karutz also computed prejudgment interest at a rate of 7%
per annum on Schedule 6.1.
2
Husqvarna's expert, Mr. Charles M. Phillips, breaks down the
difference between Whitesell's invoice claim in its SAC and the
Karutz Report as follows:
Of the over 1500 invoices listed on
Exhibits 6 and 7 of the SAC, Whitesell has now excluded 326 of
them but added 317 new invoices.
Moreover, 651 of the invoices
now reflect a different amount owing from the SAC to the Karutz
Report.
(See Defs. Mot. to Strike Prejudgment Interest Claim,
'
Doc. No. 1305, Ex. A (identified as Phillips Report, Am. Schedule
7).)
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 5 of 20
II.
LEGAL STANDARD
The Court should grant summary judgment only if "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
The
purpose of the summary judgment rule is to dispose of unsupported
claims or defenses which, as a matter of law, raise no genuine
issues
of
material
fact
suitable
for
trial.
Catrett, 477 U.S. 317, 322-23 (1986).
Celotex
Corp.
v.
Facts are "material" if
they could affect the outcome of the suit under the governing
substantive law.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A dispute of those material facts "is 'genuine' . .
[only] if the evidence is such that a reasonable jury could
return
a
verdict
existence
of
a
for
the
nonmoving
scintilla
of
party."
evidence
Id.
in
"The
support
of
mere
the
[nonmovant's] position will be insufficient" for a jury to return
a verdict for the nonmoving party.
Id. at 252; accord Gilliard v.
Ga. Dep't of Corrs., 500 F. App'x 860, 863 (11th Cir. 2012) .
As required, this Court will view the record evidence "in the
light most favorable to the [nonmovant] ," see Matsushita Elec.
Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and
will
"draw
all
justifiable
inferences
in
[the
non-movant's]
favor," see United States v. Four Parcels of Real Prop., 941 F.2d
1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and
quoted source omitted).
Additionally, the party opposing summary
5
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 6 of 20
judgment "may not rest upon the mere allegations or denials in its
pleadings.
Rather, its responses . . . must set forth specific
facts showing that there is a genuine issue for trial."
Walker v.
Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990).
The Clerk gave the nonmoving party in this matter, Whitesell
Corporation, notice of the summary judgment motion and the summary
judgment rules, of the right to file affidavits or other materials
in opposition, and of the consequences of default.
1292.)
Therefore,
the
notice
requirements
of
(Doc. No.
Griffith
v.
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are
satisfied.
The Court notes that Husqvarna failed to file a separate
statement of facts as required by Local Rule 56.1.^
Instead, upon
Whitesell's prompting in opposition, Husqvarna attached to its
Reply
Brief
a
counterstatement
separate
to
statement
Whitesell's
of
material
statement
of
facts
material
thereby correcting the deficiency albeit belatedly.
and
a
facts,
Whitesell
contends that the motion for summary judgment must be denied based
upon Husqvarna's non-compliance.
The Court declines to do so
because Whitesell has suffered no prejudice.
^
Husqvarna explains that because its motion required the
explanation of extensive data and factual information, it opted to
include these facts in the context of its brief rather than repeat
the same facts in a separate statement. (Husq.'s Reply Br., Doc.
No. 1379, at 7 n.8.)
The Court admonishes Husqvarna that Rule
56.1 does not provide exceptions.
6
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 7 of 20
III.
Husqvarna
contends
LEGAL ANALYSIS
that
the
pricing
provisions
of
the
parties' supply agreements determine the amount Whitesell could
charge for the subject parts.
The majority of the parts subject
to Husqvarna's motion for summary judgment (22 of the 25 parts)
are so-called wireform parts, the pricing for which are governed
by the Settlement Memorandum and Consent Order.
The Settlement
Memorandum provides:
In addition to the annual rebate provided in Section 7
of this Memorandum, all Exhibit "B-1" Brunner, wireform
or substitute parts transitioned to Whitesell will
receive a five percent (5%) discount from the EHP piece
price, plus freight, now being paid by EHP, unless other
terms and pricing are mutually agreed to by the parties
in writing.
(Settlement Memorandum, H 3.)
The Consent Order was issued at a
time that Husqvarna's Orangeburg plant had redesigned many of its
tractor models in connection with its "Tractor Excellence" project
commonly referred to as "TEX."
May
17,
2005,
provision for
reaffirmed
Accordingly, the Consent Order of
the
then existing
Settlement
wireforms
but
Memorandum's
also
created
pricing
a
new
pricing provision for the "redesigned" wireforms used in the TEX
models, stating:
Wireform Pricing to be completed reflecting a 5% price
reduction per part price savings off of Northern Wire
and Mitchell Bissell pricing for all current Orangeburg
wireforms as of 12-01-04 and also the same 5% savings on
all McRae wireform pricing as of 12-01-04 from all
suppliers being replaced.
Due to the new platform
designs being implemented in 2005, all new replacement
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 8 of 20
or redesigned wireforms due to design modifications for
the Northern Wire and Mitchell Bissell parts shall be
priced at 4% less than verified Northern Wire and
Mitchell Bissell quoted prices and shall be eligible for
a 2% rebate represented (sic) a total savings of 6%
annually.
(Consent Order, Doc. No. 30, Ex. 1.)
For
its
part,
Whitesell
disputes
that
these
pricing
provisions are the only source upon which the parties may rely to
establish
the
applicable
price
per
part.
Rather,
Whitesell
contends that a higher price for each part was established through
the parties' course of conduct, as more fully explained below.
The remaining three parts subject to Husqvarna's motion for
summary judgment are "new parts," i.e., parts that had not been
purchased previously from another supplier.
The new parts are
subject to a pricing provision in the SPA, which will be discussed
more fully in Section III.B., infra.
A.
Wireform Parts
As stated, 22 parts at issue
herein are
wireform
parts.
According to Husqvarna, the correct pricing for each of these parts
may be determined by simply applying a 5% discount on the incumbent
supplier's price as of December 1, 2004 per the pricing provisions
quoted above.
In furtherance thereof, Husqvarna provides the
actual incumbent supplier purchase data for each of these parts.
From that price, Husqvarna applies a 5% discount and calculates
the price that should have been paid for each part.
Whitesell
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 9 of 20
contends these parts should have a higher price.
For the first
eight parts, Whitesell ties its claimed prices to evidence other
than
the
actual
incumbent
supplier
purchase
data.
For
the
remaining 14 parts, Whitesell does not dispute the starting point
for each part's price is the incumbent supplier price.
Instead,
Whitesell claims that price should be discounted only 1%, not 5%.
Wireform Part Nos. 187101, 196338/ 155452, 175606, 187784, 8393J,
109228X & 198725
For
these
eight
parts,
Husqvarna
claims
that
the
contractually mandated price is the incumbent supplier's price as
of December 1, 2004 less a 5% discount.
In reality, Husqvarna
either paid that price per part (in two instances) or paid a price
close to the incumbent pricing, resulting in a slight over- or
underpayment by Husqvarna.
For instance, with respect to Part
Nos. 196338 & 175606, Husqvarna paid the incumbent supplier's price
as of December 1, 2004 less a 5% discount during the entire term
of the parties' relationship.
For Part Nos. 155452 and 187784,
Husqvarna's starting point was based on a purchase it made from
its incumbent supplier a few months after December 1, 2004 less a
5% discount - both of which resulted in a slight overpayment by
Husqvarna.
For the remaining parts.
Part Nos. 187101, 8393J,
109228X and 198725, Husqvarna paid a price that was close to the
incumbent
supplier's
price
as
of
December
1,
2004
less
a 5%
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 10 of 20
discount, but its payments resulted in slight underpayments to
Whitesell.
This information is summarized below:
Incumbent
Incumbent
Actual Price
Under/Over
Supplier's Price per
Part No.
Supplier's
Payment
($-3,573.66)
$0
$1,009.82
$0
$3,209.33
($-2,543.21)
($-300.62)
($-11.57)
Part as of 12-01-04®
187101
196338
155452
175606
187784
8393J
109228X
198725
Price less 5%
per Part paid
by Husq.
.13 (Ex.A-1)
.36 (Ex. B-3)
.17712 (Ex. C-3)
.1235
.1140
.610(Ex. D-3)
.7 (Ex. E-3)
.396 (Ex. F-3)
.522(Ex. G-2)
.466(Ex. H-3)
.3420
.3420
.168264
.1710
.5795
.5795
.665
.817
.3762
.2883
.4959
.4784
.4427
.4370
Whitesell claims it is entitled to a much higher price than
the incumbent supplier price of December 1, 2004, summarized as
follows:
Incumbent
Whitesell's
Whitesell's
Supplier's Price
Claim of Price
Damages Claim
less 5% discount
Per Part
187101
.1235
1.1580
196338
.3420
1.3666
155452
.168264
.2784
Part No.
$392,726.70
$97,382.08
$39,639.94
.9500
175606
.5795
.82370
187784
.665
1.3870
8393J
.3762
.57600
109228X
.4959
1.0910
198725
.4427
.8858
$39,825.85
$12,034.98
$8,324.02
$10,517.04
$911.06
5 These prices are supported by evidence from Husqvarna's 2015
discovery production of prices paid to prior suppliers for parts
subject to Whitesell's Pricing Discrepancy Claims. The referenced
Exhibits are excerpts from this production filtered by part number
and are attached to Husqvarna's motion for summary judgment, doc.
no. 1290.
10
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 11 of 20
Whitesell's claimed prices per part are based on what it
refers to as a course of conduct.
According to Whitesell, it
provided Husqvarna with a quote on a part.
Doc. No. 1361-2, H 9.)
(Aff. of John Duffner,
The part was approved through the part
production approval process (''PPAP") and loaded by Husqvarna onto
Whitesell's Demand Flow
supply.
(Id.)
Center ("DFC") for Whitesell to begin
Whitesell then ships the parts to Husqvarna
pursuant to the DFC.
(Id.)
Whitesell contends that the acts of
loading the part onto the DFC and accepting shipment of the part
indicate Husqvarna's approval and acceptance of the quoted price.
As an example of this scenario, Whitesell sent a quote to Husqvarna
on Part No. 175606 on January 25, 2007, quoting a price per part
of .82370.
Presumably, Husqvarna approved the part production,
loaded it on the DFC, and took delivery of the part.
According to
Whitesell, because Husqvarna had the price quote in hand before
this conduct, without questioning or objecting to the price, it
should be the price with respect to its Price Discrepancy Claim.
It is undisputed that Husqvarna never paid this price for this
part; rather, Husqvarna continued to pay the incumbent supplier's
price as of December 1, 2004 less a 5% discount for the entirety
of their relationship.
By way of further example, for Part Nos.
196338, 155452 and 187784, Whitesell relies upon a pricing schedule
entitled "McRae Wireform Pricing 03-29-06" for its claimed higher
price.
It is undisputed that Husqvarna took delivery of these
11
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 12 of 20
parts throughout their relationship, but it never paid the higher
price reflected on this schedule.
Essentially, Whitesell's contention that the Court should
accept Whitesell's price quotes to Husqvarna rather than the
contractually mandated price of the incumbent supplier is one of
waiver.
Whitesell argues,
[T] he parties mutually agreed to the
prices which were contained on Whitesell's quotes, those on which
[Husqvarna] relied on to place a purchase order by virtue of adding
the parts on the DFC, and those which [Husqvarna] clearly agreed
to, accepted, and used."
(Whitesell's Resp. to Mot. for Summ. J.,
Doc. No. 1360, t 36; see also H 34 (''There are clear genuine issues
of material fact related to whether [Husqvarna] waived its ability
to enforce
the
pricing provisions in
the
parties'
agreements
through its course of conduct.")
The Court starts with the observation that Whitesell does not
dispute
the
Settlement
applicability
Memorandum
and
of
the
Consent
pricing
Order
provisions
relative
to
of
the
incumbent
prices as of December 1, 2004 less a 5% discount on these eight
parts.
Nor does Whitesell dispute the claimed price per part
derived by Husqvarna upon applying these provisions.
Whitesell
argues that the Court must go beyond the agreements to conclude
that the evidence creates a triable issue of fact as to waiver.
Continued performance under a contract may constitute waiver
of a contractual right; such waiver
12
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 13 of 20
may be express, or may be inferred from actions, conduct,
or a course of dealing. Waiver of a contract right may
result from a party's conduct showing his election
between two inconsistent rights.
Acting on the theory
that the contract is still in force, as by continuing
performance, demanding or urging further performance, or
permitting the other party to perform and accepting or
retaining
the
benefits
under
the
contract,
may
constitute
attendant
waiver
facts,
of
the
taken
breach.
together,
However,
must
all
amount
to
the
an
intentional relinquishment of a known right, in order
that a waiver may exist.
Young V. Oak Leaf Builders, Inc., 626 S.E.2d 240, 243 (Ga. Ct.
App. 2006) (quoted source omitted); see also Yash Solutions, Inc.
V. New York Global Consultants Corp., 834 S.E.2d 126, 133 (Ga. Ct.
App. 2019) ("An implied waiver is one shown by a party's decisive,
unequivocal conduct reasonably inferring the intent to waive.").
Furthermore, "[w]here the only evidence of an intention to waive
is what a party does or forbears to do, the actions, or omissions
to act relied upon must be so manifestly consistent with a waiver
of a right that no other reasonable explanation of his conduct is
possible."
Rockwell Int'l Corp. v. Riddick, 668 F. Supp. 674, 679
(N.D. Ga. 1987) (emphasis added).
Here, Whitesell claims that Husqvarna waived its right to
insist upon the pricing provisions in the agreements when it
accepted its higher quotes by entering the parts into the DFC and
accepting delivery of the parts.
This conduct, however, is not
"manifestly consistent with a waiver" when Husqvarna continued to
pay for the parts at the prices dictated by their agreements.
Indeed, other than its say so, Whitesell has presented no evidence
13
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 14 of 20
that Husqvarna's loading the part into the DFC constituted approval
of its higher quote.
law.
That is simply not enough under the case
That is to say, Husqvarna did not do anything to manifest
its intent to accept the higher quoted price.
Quite the opposite,
Husqvarna loaded the part into the DFC, accepted delivery, and
paid at the contractually agreed upon prices in the face
invoices that charged the higher prices.
of
If anything, this is
manifest intent not to accept the higher prices.
In
short,
Husqvarna's
Whitesell
"decisive,
has
not
provided
unequivocal
conduct"
any
or
evidence
of
"intentional
relinquishment of a known right" from which a jury could reasonably
infer that it intended to waive its right to insist upon the
contractually agreed upon pricing.®
Instead, the evidence shows
that Husqvarna insisted upon enforcing the pricing provisions of
the Settlement Memorandum and the Consent Order to determine the
appropriate
price
of
these
eight
wireform
parts,
i.e.,
the
incumbent supplier price as of December 1, 2004 less a 5% discount.
Accordingly,
Husqvarna
is
entitled
to
summary
judgment
with
respect to Whitesell's Pricing Discrepancy Claims in that the
appropriate price that should have been invoiced on Part Nos.
187101, 196338, 155452, 175606, 187784, 8393J, 109228X and 198725
is determinable as a matter of law.
®
Having so concluded, and upon
The issue of waiver is decided by a jury only when the evidence
is in conflict.
Yash, 824 S.E.2d at 133.
Here, there is
evidence of Husqvarna's conduct reasonably suggesting waiver.
14
no
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 15 of 20
application of the pricing provisions as a matter of law, the Court
further concludes that Whitesell is entitled to payment in the
principal amount
of $6,429.06, the amount Husqvarna underpaid
Whitesell on the subject invoices.®
Judgment will be entered in
Whitesell's favor at a later time.
Wireform Part Nos. 192757, 187556, 187414, 170015, 182402, 193413,
175652, 188202, 165932, 169498, 193412, 190736, 169497 & 180218
With respect to these fourteen parts, Whitesell does not
dispute that their pricing is based upon the incumbent supplier's
price as of December 1, 2004.
The dispute between the parties
arises with respect to the proper discount to be applied to that
price.
Husqvarna paid the invoices at a 5% discount as provided
for in the
Settlement Memorandum
and
Consent Order.
Whitesell
invoiced these parts at only a 1% discount, however.
Whitesell
contends that the 5% discount called for by the agreements must be
reduced to 1% by deduction of the 2% annual rebate and 2% early
payment discounts.
Based upon this pricing discrepancy, Whitesell
claims it is owed over $80,000 on invoices related to these parts.
The
annual
Settlement
rebate
Memorandum,
discount
appears
providing
that
in
Section
Whitesell
7
of
shall
the
pay
Defendants a 2% rebate on their total calendar year purchases from
The issue of prejudgment interest as it pertains to Count VI will
be resolved in the Court's Order on Defendants' Motion to Strike
Whitesell's Claims for Prejudgment Interest (doc. no. 1305).
® In the absence of a counterclaim, the Court will not award
Husqvarna the amount it overpaid on these invoices.
15
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 16 of 20
Whitesell beginning in 2003.
Memorandum
contradicts
The plain language of the Settlement
Whitesell's
contention
that
rebate must be deducted from the 5% pricing discount.
this
annual
The pricing
provision of the Settlement Memorandum provides that the 5% pricing
discount is "in addition to the annual rebate provided in Section
7 of this Memorandum."
added).)
The
(Settlement Memorandum, § 3 (emphasis
early payment discount referenced by Whitesell
appears in the SPA, but not in Section 5.0 entitled "Pricing."
Rather, Section 4 of the SPA entitled "Payment Terms" provides
that a 2% discount of the invoice amount "may be taken if an
invoice is paid and funds received prior to 20 days from receipt
of goods."
(SPA, § 4.0.)
The SPA does not contemplate that these
early pay discounts will play into the appropriate price of a part,
particularly since the discount is only realized upon early payment
of the invoiced amount.
To
be
Memorandum
sure,
and
the
the
pricing
Consent
provisions
Order
do
not
of
the
support
Settlement
Whitesell's
application of these 2% discounts to the pricing discount of 5%.
And, Whitesell has presented no evidence creating an ambiguity
with respect to the application of a full 5% discount to the
incumbent supplier's price as of December 1, 2004 as provided in
the agreements.
Moreover, it is not lost upon the Court, in
consideration of Whitesell's motion as a whole, that Whitesell did
not seek these same deductions to the 5% discount in assessing its
16
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 17 of 20
Price
Discrepancy
Claims
on
the
discussed in this section, supra.
first
eight
wireform
parts
That is to say, in calculating
damages as to those eight wireform parts, Mr. Karutz used the full
5%
discount
Husqvarna's
of
the
alleged
incumbent
supplier's
underpayment
as
price
compared
to
to
determine
Whitesell's
claimed higher prices.
Upon
the
foregoing,
the
Court
properly paid the invoices related
incumbent supplier's
price
as
of
concludes
to these
December 1,
that
14
Husqvarna
parts at the
2004
less
a 5%
discount in accordance with the pricing provisions applicable to
wireform
parts.
Accordingly,
Whitesell is owed
nothing,
and
Husqvarna is entitled to summary judgment on Whitesell's Pricing
Discrepancy Claims respecting Part Nos. 192757, 187556, 187414,
170015, 182402, 193413, 175652, 188202, 165932, 169498, 193412,
190736, 169497 and 180218.
B.
New Parts
The three remaining parts subject to Husqvarna's motion for
summary judgment are Part Nos. 71020748, 199162 and 73971000.
These parts are considered "new parts" in that they had not been
previously purchased from another supplier.
As such, the SPA
provides "New Good(s) Pricing" as follows:
All new Goods shall be priced at a Whitesell Unit Price
comparative with the Whitesell Unit Price charged for
the most similar Good in Exhibit B used as a reference
guide for a Good having similar characteristics and sold
in similar volumes.
17
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 18 of 20
(SPA, § 5.6.)
The
Court
first
observes
that
without
an
Exhibit
B,
Husqvarna's motion is not based upon a strict application of the
contract's pricing provision as a matter of law.
The Court is
also unable to determine a definitive timeline of events from the
record.
tiered"
What appears to be so is that Whitesell used a "two-
approach
by
quoting
an
"domestic" price on each part.
"import"
price
and
a
higher
Whitesell contends that the two
prices were necessary to account for different lead times.
Based
upon these quotes, Husqvarna paid the lower import price even
though Whitesell invoiced the higher domestic price.
For its part,
Whitesell references Section 17.1 of the SPA and claims the lower
import price was not to take effect until a certain production
capacity was reached.
By way of illustration. Part No. 199162 was originally quoted
at an "import" price of $.0996 per piece and at a "domestic" price
of $.15370 per piece on April 27, 2005.
Summ. J., Ex. Y-2, at 2-3.)
(See Husq.'s Mot. for
The only difference in the two quotes
is the applicable "lead times."
(See id.)
There is nothing in
the record to show which price was accepted by Husqvarna, though
it apparently loaded the lower price of $.0996 in the DEC and paid
that price throughout the parties' relationship. On May 19, 2006,
however, Whitesell informed Husqvarna that its pricing at the lower
rate was incorrect, did not comport with the quoted price, and
18
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 19 of 20
should be updated immediately ''[t]o avoid further accruals."
at 6.)
Husqvarna presumably refused to correct the price as
requested,
Whitesell
(Id.
though
now
the
claims
record
contains
Husqvarna
owes
no
written
$26,974.26
objection.
on
invoices
pertaining to this part.
Through its motion for summary judgment, Husqvarna claims
that this ''two-tiered pricing quote" contravenes the applicable
pricing provision.
Yet, the application of the applicable pricing
provision is impossible, and without undisputed evidence in the
record to support Husqvarna's position that the lower price is the
contractually mandated price, the Court is unable to resolve the
issue as a matter of law.
In short, there appears to be genuine disputes of material
fact regarding the appropriate price of these parts.
Unlike the
other 22 parts at issue here, the Court cannot apply a contractual
pricing provision to resolve the matter.
And, because the parties
hotly dispute what price should have been applied even in the first
instance,
Husqvarna is
not entitled
to summary judgment
respect to Part Nos. 71020748, 199162 and 73971000.
with
A jury must
decide the issue.
IV.
CONCLUSION
Upon the foregoing. Defendant Husqvarna's motion for summary
judgment
as
to
Certain
of
Plaintiff
19
Whitesell's
Accounts
Case 1:03-cv-00050-JRH Document 1408 Filed 08/13/20 Page 20 of 20
Receivable Pricing Discrepancy Claims (doc. no. 1290) is GRANTED
IN PART and DENIED IN PART.
The appropriate price per part on 22
of the 25 subject parts is determinable as a matter of law by
reference to the pricing provisions of the parties' agreements.
Therefore, Defendant Husqvarna's motion for summary judgment is
granted
Claims
in
part
on
respecting
Plaintiff
Part
Nos.
Whitesell's
187101,
Pricing
196338,
Discrepancy
155452,
175606,
187784, 8393J, 109228X, 198725, 192757, 187556, 187414, 170015,
182402, 193413, 175652, 188202, 165932, 169498, 193412, 190736,
169497 and 180218.
Upon application of the pricing provisions,
Plaintiff Whitesell Corporation is entitled to judgment to be
entered at a later time in the amount of $6,429.06.
Defendant
Husqvarna's motion for summary judgment on Plaintiff Whitesell's
Pricing Discrepancy Claims respecting Part Nos. 71020748, 199162
and 73971000 is denied.^
ORDER ENTERED at Augusta, Georgia, this /^ay of August,
2020.
)GE
STATES DISTRICT COURT
tERN DISTRICT OF GEORGIA
5 The Court notes Husqvarna's contention that it is entitled to
summary judgment on any Pricing Discrepancy claim that is not
included in the Karutz Report. Obviously, to the extent a claim
is not included in the Karutz Report, there would be a failure of
proof on the issue of damages.
Whitesell does not dispute
Husqvarna's motion in this regard.
20
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