Logistec USA Inc. v. Daewoo International Corporation et al

Filing 83

ORDER granting 21 Defendant's Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 3/27/2014. (csr)

3hi the initeb stato flitrict Court
for the boutbern flitritt of georgia
Prunolukk Atbtoton
LOGISTEC USA, INC.,
Plaintiff,
VS.

DAE WOO INTERNATIONAL
CORPORATION, and
DAE WOO INTERNATIONAL
(AMERICA) CORPORATION,
Defendants.

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CV 213-027

ORDER

Presently before the Court is a Motion for Summary
Judgment filed by Defendant Daewoo International (America) Corp.
See Dkt. No. 21. For the reasons stated below, Defendant's
motion is GRANTED.
PROCEDURAL BACKGROUND

Plaintiff Logistec USA, Inc. ("Logistec") filed a complaint
against Defendants Daewoo International Corporation ("Daewoo
Int'l") and Daewoo International (America) Corporation ("Daewoo
America") seeking both damages as well as equitable relief on
February 19, 2013. See Dkt. No. 1. Logistec asserted claims
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against both defendants for breach of contract, promissory
estoppel, equitable estoppel, breach of good faith and fair
dealing, and attorney's fees. Id. Defendant Daewoo America moved
for summary judgment on the claims pending against it on July 8,
2013. See Dkt. No. 21. Logistec filed a Motion for Voluntary
Dismissal for Counts I, III, and IV pending against Daewoo
America only. See Dkt. No. 38. This Court granted that motion
(Dkt. No. 48), leaving the only claims pending against Daewoo
America to be those of promissory estoppel (Count II) and
attorney's fees (Count V)
FACTUAL BACKGROUND

Daewoo Int'l and Logistec signed a contract ("the
Agreement") on June 13, 2012. The Agreement specified that
Daewoo Int'l would deliver woodchips in bulk to Logistec, which
Logistec would receive and store. Dkt. No. 1-1, pg. 2, 11 2.002.03. Daewoo Int'l would pay Logistec in accordance with the
agreement, which specifies:
LOGISTEC shall charge DAEWOO and DAEWOO shall pay for
contracted services according to the rate schedule
attached to this Agreement as Appendix A. DAEWOO shall
make payment or DAEWOO INTERNATIONAL (AMERICA) CORP, a
subsidiary company of DAEWOO, having its principal
office at 300 Frank W. Burr Blvd., Suite 23, Teaneck,
NJ 07666 (herein referred to as "DWA"), on behalf of
DAEWOO, may make payment but is under no obligation or
duty to do so for DAEWOO.

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Id. at pgs. 4-5, ¶ 4.00. The initial term of the Agreement
commenced on October 1, 2012 and was scheduled to terminate on
September 30, 2017. Id. at pg. 2, ¶ 1.00. The signatory parties
were Daewoo Int'l and Logistec, as reproduced below.

THIS Storage and Handling Agreement ('Agrocmenr) made this 7th day of
June 2012, between LOGISTEC USA INC., having fts pnnpe1 office at 22
Newcastle Street, Bwriswick, GeorgIa 31521 (IereiaFtor referred to as
WGISTEC') and DAEWOO INTERNATIONAL CORPORATION, having Its
pilneipal ofHoc at 84-11, Namdanmunno 5-ga s Ctuinggii, Scout, Korea
(hereinafter referred to as "DAEWOO).

IN WrTNESS WHEREOF, the parties hereto have ceused this
Agrcemit to be executed as of the day wW year fust tueii written.
LDGJSTEG LISA INC.

VZ.
DAIE

DAEWQO INTERNATIONAL CORP
BY:

I

DATF-

Id. at pg. 1, 12.
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A dispute arose about woodchip delivery, and Logistec never
received payment. Dkt. No. 37-4, 66: 22-23. Daewoo Intl
contends that it did not deliver woodchips to Logistec because
Logistec installed a trailer tipper that Daewoo Int'l deemed
improper to perform Logistec's part of the Agreement. Id. at 27:

Daewoo America is a wholly owned subsidiary of Daewoo
Int'l. Dkt. No. 37, Exh. C, 23: 1-3. Daewoo America is involved
in trading commodities, particularly steel and chemicals,
between the United States and other countries. Id. at 23: 8-18.
The relationship between Daewoo America and Daewoo Int'l is such
that Daewoo America buys products and sells them to Daewoo
Int'l, and vice versa. There are contracts between the two
entities when business is conducted between them, but not when
Daewoo America has separate business that does not pertain to
Daewoo Int'l. Id. at 25: 8-18.
Jong Bae ("Bae") works as Assistant Manager for Daewoo
America. Id. at 16: 1-2. Although he is not employed by Daewoo
Int'l, he testified that he sometimes works as an agent for
Daewoo Int'l. Id. at 17: 17-22. Bae played a role in negotiating
the agreement with Logistec by speaking "on many occasions"
about the terms of the Agreement to Frank Vannelli ("Vannelli")
Id. at 115: 1-24. Vannelli is the Logistec employee who
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negotiated and signed the Agreement on behalf of Logistec. Dkt.
No. 37, Exh. G, 167: 3-11. The discussions with Logistec
representatives were by telephone and also email. Dkt. No. 37,
Exh. C, 116: 2. Bae transmitted changes to Hyu Yang Han ("Han"),
Manager of Raw Materials Team IV for Daewoo Int'l, but Bae did
not have any responsibility in approving the Agreement on behalf
of either Daewoo America or Daewoo Int'l. Id. at 154: 11-23.
Negotiations were conducted with the intention that Daewoo
America would be the signatory on the Agreement with Logistec.
However, in May 2012, Mr. Yoon, president of Daewoo America,
told Bae that he was not comfortable with entering the wood chip
business because it was risky. Id. at 28: 1-24. This decision
was communicated to Han via email and verbally, and Han accepted
the decision and sent written correspondence confirming that
Daewoo Int'l would be the party executing the Agreement. Id. at
33: 17-25; Dkt. No. 37, Exh. F, ¶ 6. During the week of May 30
- June 6, 2012, Vannelli received specific notice via telephone
that Daewoo Int'l would be executing the Agreement rather than
Daewoo America. Dkt. No. 37, Exh. F, ¶ 5. It is undisputed that
Daewoo Int'l and Logistec were the only signatories to the
Agreement. It is further undisputed that Logistec was aware that
only Daewoo Int'l would sign the contract and not Daewoo
America. See Id.
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Sugu Thuraisamy ("Sugu"), who created both CanKor Resources
and Megahan to facilitate the supply of wood chips to Daewoo
Int'l, served as an agent of Daewoo Int'l in negotiating the
Agreement. Dkt. No. 37, Exh. C, 79: 17-21, 80: 8-15; Dkt. No.
59, Exh. C,

39: 13-25, 40: 1, 12-19, 42: 7-8, 22-25, 43: 1-11,

49: 14-15. Sugu testified that his role was to help Daewoo Int'l
develop business. Dkt. No. 59, Exh. C, 42: 3-8.
The heart of Logistec's promissory estoppel claim against
Daewoo America is that although Logistec realized that only
Daewoo Int'l would sign the contract and although the contract
specifically states that Daewoo America is not obligated to pay
Logistec, Logistec decided to sign the contract and enter into
the Agreement because Daewoo America "was to have a continued
role (physically in the United States) in ensuring performance
of Daewoo Int'l's obligations, including payment to Logistec."
Dkt. No. 37, Exh. F, ¶ 5.
Vannelli affied, "Mr. Thuraisamy also represented to me
that although Daewoo America would not be executing the
Agreement, Daewoo America would specifically remain involved and
have a consistent presence in the United States to facilitate
and ensure performance of Daewoo Int'l's obligations under the
Logistec Agreement." Id. Vannelli testified that if Logistec was
uncomfortable signing with the parent company, Logistec could

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have said no to the new arrangement. Dkt. No. 37, Exh. G, 168:
18-25. Vannelli emphasized the importance to Logistec that there
was a physical presence in the United States to ensure delivery
of the product as well as to facilitate payment. Dkt. No. 37,
Exh. F, ¶ 7. Vannelli further noted that after the Agreement was
signed, Sugu represented via telephone to Vannelli that "Daewoo
America would be assisting and facilitating the performance of
Daewoo Int'l's obligation to deliver woodchips to Logistec's
facilities for shipment to Turkey." Id. at ¶ 8.
0-~% p i1 i

Summary judgment is only appropriate "if the movant shows
that 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). A material fact is one that could impact the outcome
in a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine only where the jury could issue a
verdict in the nonmoving party's favor. Id. In determining
whether summary judgment is appropriate, the Court will view the
evidence "in the light most favorable to the opposing party."
Adickes v.S.H. Kress

&

Co., 398 U.S. 144, 157 (1970).

The moving party bears the burden of showing a lack of genuine
issue of material fact. Adickes, 389 U.S. at 157. The moving
party should do so by identifying "particular parts of materials
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in the record" which indicate "the absence . . . of a genuine
dispute." Fed. R. Civ. P. 56(c) (1) (A) . It is only after the
moving party has fulfilled this burden that the party opposing
summary judgment bears a burden of responding. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The nonmovant will defeat a
motion for summary judgment by presenting evidence "such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248.
DISCUSSION

All parties agree that Georgia law applies. According to
Georgia law:
A promise which the promisor should reasonably
expect to induce action or forbearance on the
part of the promisee or a third person and which
does induce such action or forbearance is binding
if injustice can be avoided only by enforcement
of the promise. The remedy granted for breach may
be limited as justice requires.
O.C.G.A. § 13-3-44(a). "A promise is a manifestation of an
intention to act or refrain from acting in a specified way, so
made as to justify a promisee in understanding that a commitment
has been made." Mooney v. Mooney, 538 S.E.2d 864, 868 (Ga. Ct.
App. 2000) (quoting DPLM, Ltd. v. J.H. Harvey Co., 526 S.E.2d
409, 412 (Ga. Ct. App. 1999)).

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Promissory estoppel provides that in certain occasions,
reliance by a party upon the promise of another is "sufficient
consideration, in and of itself, to render the executory promise
enforceable against the promisor." Kernira, Inc. v. Williams
Investigative & Sec. Serv., Inc., 450 S.E.2d 427, 431 (Ga. Ct.
App. 1994) . "However, reliance alone does not a promise make;
there must be something approaching a meeting of the minds, or a
mutual understanding that a promise is being made upon which the
promisee may reasonably be expected to rely." Foley Co. v.
Warren Eng'g., Inc., 804 F.Supp. 1540, 1546 (N.D. Ga. 1992).
Rather, under Georgia law, the Plaintiff must show that:
(1) the defendant made a promise or promises; (2) the
defendant should have reasonably expected the
plaintiffs to rely on such promise; (3) the plaintiffs
relied on such promise to their detriment; and (4) an
injustice can only be avoided by the enforcement of
the promise, because as a result of the reliance,
plaintiffs changed their position to their detriment
by surrendering, forgoing, or rendering a valuable
right.
Rental Equip. Group, LLC v. MACI, LLC, 587 S.E.2d 364, 367 (Ga.
Ct. App. 2003) (citing Pabian Outdoor-Aiken, Inc. v. Dockery, 560
S.E.2d 280, 282 (Ga. Ct. App. 2002)).
For a successful promissory estoppel claim, "while the
promise need not meet the formal requirements of a contract, it
must, nonetheless, have been communicated with sufficient
particularity to enforce the commitment." Mooney, 538 S.E.2d at

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868. It is here, that Plaintiff's claim fails. There is no
evidence of a promise communicated with sufficient particularity
to enforce commitment. The most specific promise Plaintiff has
offered up deals with "remaining involved" and having a
"consistent presence in the United States" in order for Daewoo
America to do what the written contract specifically disavows—
ensure performance. No jury could ever find such overly general
terms as "remain involved" and "consistent presence" to be
particular enough to be capable of enforcement. The Eleventh
Circuit has explained that promissory estoppel has "no
application unless the evidence is clear and convincing and the
terms of the promise are definite." West Indies Network-I, LLC
v. Nortel Networks, (CALA) Inc., 243 Fed. Appx. 482, 485 (11th
Cir. 2007) (affirming district court's rejection of promissory
estoppel claim where alleged promise to secure equity financing
was not definite and certain). "Promissory estoppel 'does not
apply . . . to vague, indefinite promises.'" Jones v. White, 717
S.E.2d 322, 329 (Ga. Ct. App. 2011) (quoting Mooney, 538 S.E.2d
at 868. Further, "[p]romissory estoppel does not . . . apply to
promises of uncertain duration." Lovell v. Georgia Trust
Bank, 734 S.E.2d 847, 865 (Ga. Ct. App. 2012) (quoting Georgia
Investments Int'l., Inc. v. Branch Banking and Trust Co., 700
S.E.2d 662, 664 (2010)); see also Iraola & CIA, S.A. v.
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Kimberly-Clark Corp., 325 F.3d 1274, 1281-82 (11th Cir.
2003) (affirming district court's dismissal of promissory
estoppel claim where medical supply contract was for an
"indefinite duration") . As an example, in Bridges v. Reliance
Trust Co., the Georgia Court of Appeals affirmed summary
judgment of a promissory estoppel claim because an alleged
promise to make a loan that contained no specific interest rate
or maturity date was too vague. 422 S.E.2d 277, 279-80 (Ga. Ct.
App. 1992)
Even if there were a promise that was definite and clear,
which there is not, justifiable reliable, too, is lacking.
According to the Eleventh Circuit,

"[i)t usually is unreasonable

to rely on a substantial promise that has not been reduced to
writing." Johnson v. Univ. Health Serv., Inc., 161 F.3d 1334 0

,

1340 (11th Cir. 1998) (noting that reliance was unreasonable
where conversations constituted ambiguous discussions of
individual contractual terms, which did not amount to "a verbal
exchange that even loosely resembled the making of a full
contract"). While justifiable reliance is ordinarily a factual
inquiry for a jury to resolve, necessarily, the plaintiff must
provide some evidence that reliance was justified. In any event,
it would be impossible to order compliance with an alleged
promise so vague in terms, detail, and duration.
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In the present case, every alleged promise is of an
extremely vague and indefinite nature, as well as of an
uncertain duration. As noted above, under Georgia law, such
promises are insufficient to support a promissory estoppel
claim. Without evidence of a definite promise, Plaintiff's
promissory estoppel claim fails as a matter of law.
Consequently, summary judgment is granted on this claim.
CONCLUSION

For the reasons stated above, Defendant's motion is
The Clerk of Court is directed to enter the appropriate

GRANTED.

judgment.

SO

ORDERED,

this 27TH day of March, 2014.

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LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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