Sustainability Management Partners, LLC v. Tessler Construction Company, Inc.

Filing 117

MEMORANDUM Opinion and Order: The Court denies SMP's Motion 102 for partial summary judgment. It finds that the Proposal and the Purchase Order together comprise the Parties' Agreement. See the attached order for details. Signed by the Honorable Iain D. Johnston on 3/5/2025: (yxp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Sustainability Management Partners, LLC
Plaintiff,

Case No.: 3:23-cv-50113

v.

Judge Iain D. Johnston

Tessler Construction Company, Inc.,
Defendant.

MEMORANDUM OPINION AND ORDER
***
Here’s the short of it: Plaintiff Sustainability Management Partners, LLC (“SMP”)
delivered some materials to Tessler Construction Company, Inc. (“Tessler”). It’s
almost certainly someone else’s fault—maybe Tessler, maybe a developer, maybe a
permitting regime—but SMP didn’t install the materials, as the contract apparently
required. SMP says Tessler’s in breach because it hasn’t paid the balance. The
Parties make it more complicated: Tessler, for example, changes its position
throughout this litigation and throws Hail Mary legal arguments; SMP oversimplifies
its contractual obligations and demands varying specific payments based on those
oversimplifications. SMP moved for summary judgment on two of its three claims
(breach of contract and account stated), but under these circumstances the Court
can’t grant it. Details below.
***
Background
There’s a piece of property out in South Elgin, Illinois. Back in or around 2021, a
company called “GRP South Elgin” wished to develop that property, so it hired a
general contractor, Tessler Construction. Ronald Tessler and his spouse co-own and
operate Tessler. Dkt. 103 ¶ 4; dkt. 112 ¶ 4. Among other things, the planned
commercial space needed heating, ventilation, and air conditioning (in construction
lingo, HVAC) systems. Tessler didn’t personally provide or install those systems,
instead relying on other entities who perform such work. SMP is one of those
companies, providing “specialized” HVAC systems to commercial customers. Dkt.

1

103, Ex. 1 ¶ 2. Apparently a middle-man, SMP obtains the HVAC systems from
manufacturers who also install the equipment.
Proposal and Purchase Order
On December 13, 2021, Darline Moore, the sole member of SMP, emailed a proposal
(“the Proposal”) to a Tessler employee. 1 Dkt. 103, Ex. 4. SMP “propose[d] to furnish
the equipment listed below,” in accordance with the Proposal’s later terms and
conditions. Id. The Proposal then lists entries, with model numbers, quantities, and
descriptions. Id. Some of those entries are pieces of equipment (e.g. a “Variable
Speed Air-Cooled Screw Chiller”), whereas others reflect the installation labor (e.g.
“Start-up” or “First Year Labor.”). Id. The Proposal’s quoted price is $1,005,188.00,
excluding taxes. Id.
According to SMP, 98% of the Proposal price was “the cost of the Project Materials.”
Dkt. 103 ¶ 12 (citing Moore Affidavit ¶ 5). “Project Materials,” per SMP, consists of
both the equipment and the labor (a/k/a “start-up”) entries listed above, dkt. 103 ¶ 5
(terming the nine entries “collectively, ‘Project Materials’”); Tessler says the entries
reflecting labor aren’t “equipment.” Dkt. 112 ¶ 5. So, citing evidence that SMP
purchased the equipment from Koch Air for only $792,182.00, Tessler says only 79%
of the Proposal are colloquially materials. Dkt. 112 ¶ 12; dkt. 112, Ex. 1.
The Proposal also includes a “Terms and Conditions of Sale” page. Notable provisions
in this case include:
•

•

•

“SMP’s Terms Control. SMP’s Terms and Conditions of
Sale (‘Terms’) shall control and prevail over any contrary
terms in Buyer’s purchase order, unless otherwise agreed
to in a writing signed by [SMP]. Additional terms proposed
by Buyer shall be deemed to have been rejected unless
specifically agreed to in writing signed by [SMP].” Id.
“Shipping, Delivery, and Risk of Loss. . . . Upon receipt
of shipment, it shall be the responsibility of Buyer or the
consignee receiving shipment to check material and secure
written acknowledgment on the carrier’s bill of lading for
any shortages, loss or damage. . . .” Another provision
limits cancelations and returns, imposing timing and
notification requirements. Id.
“Force Majeure. SMP shall not be responsible for delays
in deliveries due to . . . [certain events] . . and other
contingencies beyond SMP’s control resulting in

1 Unless it’s otherwise relevant, the Court will attribute employee action directly to Tessler

or SMP for purposes of deciding this Motion.

2

•

impossibility of performance of SMP’s duties and
obligations.” Id.
Additionally, that Indiana law governs any dispute; the
prevailing party in litigation is entitled to costs and
reasonable attorney fees; and any quoted prices “shall be
increased in amount equal” to taxes. Id.

The next day, on December 14, 2021, Tessler emailed SMP a single-page “Purchase
Order Contract” (the “Purchase Order”). Dkt. 103, Ex. 5. The brief document
confirmed the quoted price and payment structure and noted that SMP shall “supply
and deliver all equipment/materials per [the Proposal].” The Court quotes the
substantive language in its entirety:
CONTRACT AMOUNT $1,005,188.00
Payment Terms: 25% down payment in the amount of
$251,297.00 to purchase equipment. Terms are Net 45
days.
Balance due after material is delivered to site, inspected
and accepted by Tessler Construction Company, Inc. Terms
are Net 45 days.
Time is of the essence with this contract. All
equipment/material shall be immediately purchased. All
efforts shall be made to deliver[] material/equipment to the
site ASAP.
Sustainability Management Partners shall supply and
deliver all equipment/materials per [the Proposal].
All materials required by this purchase order are to be
shipped to project location unless otherwise stated.
Those are the only terms listed. After a dividing black line, the document states
“[a]cceptance of this Purchase Order contract includes any terms and conditions
listed above and becomes the Agreement between the parties.” Tessler and SMP
signed the Purchase Order that same day. 2 Id. Lacking the down payment funds,
Tessler arranged for the developer, GRP South Elgin to pay SMP the $251,297.00.
Dkt. 103 ¶¶ 14–16; dkt. 112 ¶¶ 14–16.
Delivery Issues

2 It’s inconsequential, but Tessler says SMP signed the Purchase Order on December 16,

2021. Dkt. 112, pg. 15 ¶ 4. The Purchase Order shows a signature dated December 14, 2021.

3

In an affidavit, SMP claims “all Project Materials were delivered” on or before July
29, 2022. Dkt. 103 ¶ 20; dkt. 103, Ex. 1. Recall that SMP’s “Project Materials”
includes both equipment and labor. But, as Tessler highlights, SMP’s own Exhibit
shows that many products weren’t even shipped until August 3 and 4. See dkt. 103,
Ex. 7. And no one ever provided the start-up labor. So, either “Project Materials” is
ill-defined or they weren’t “delivered” in August 2022.
Neither the Proposal nor the Purchase Order discuses installation procedures, i.e.
how it would happen, when it would occur or who was responsible for initiating it.
The Proposal only addresses how Tessler would reject or question the equipment
delivery. However, on August 25, 2022, Tessler received an email from Koch/Carrier 3
with a “pre-start up checklist.” Dkt. 103 ¶ 27; dkt. 103, Ex. 6. SMP was on the email
chain. Id. The email explained that to “coordinate a start up date,” Carrier “requires
the checklist . . . to be completed and returned.” Id. Tessler responded the next day,
saying “Thank you for [] sending these items.” Id. 4
Tessler admits that it “never returned the ‘pre-startup’ checklists,’” dkt. 112 ¶ 30. It
explained that start-up couldn’t occur because there were “no utilities” and that the
construction “permit expired.” Dkt. 112 ¶ 31 (Tessler Dep. 61:4–11. Without
electricity, the HVAC equipment couldn’t operate. At other times, Tessler claims the
equipment couldn’t function without certain missing pieces. DSOF, dkt. 112 ¶¶ 10–
13. 5 According to Tessler, GRP South Elgin hadn’t paid the electricity company, so
the electricity company cut off electricity. Tessler Dep. 61:4–11. At least some of the
construction permits expired on August 7, 2022, and were then renewed “at some
point.” Tessler Dep. 65:7–12. Tessler concedes that SMP wasn’t at fault for the
permitting or utility issues. Dkt. 112 ¶ 32.
According to SMP, Tessler never objected to the delivery or contended that the
delivery didn’t match the Proposal. Dkt. 103 ¶ 21. Tessler provided no evidence that
it communicated its utility or permit issues to SMP around the delivery time.
Instead, it cites a few messages from December 2022 and January 2023—months
after the initial delivery and receipt of an invoice—showing Tessler complaining
about missing parts or inoperative units. Dkt. 112 ¶ 21. SMP says those are unsworn
statements and, in any event, the items at issue in those messages weren’t part of the
original Proposal. Dkt. 113, pg. 3. Based on this record, the Court can’t determine
3 Koch and/or Carrier are apparently the manufacturers.

4 Tessler denies it received this notification, saying “[t]he evidence cited does not support the

claims. Plaintiff’s Exhibit 6 is an invoice and says nothing of checklists.” Dkt. 112 ¶ 27. It’s
true SMP’s Exhibit 6 contains a few different items, one of which is an invoice, but it includes
the email chain. The Court assumes Tessler overlooked that portion.
5 Tessler’s Response to SMP’s statement of facts, and its proposed additional facts are in the
same docket entry. To make things clear, the Court includes “DSOF” to distinguish Tessler’s
Response from its proposals.

4

what issues Tessler was referring to in those communications, but it’s undisputed
that December 2022 was the first time Tessler raised some objection.
Invoices
In an affidavit, SMP claims it sent Tessler an invoice on September 20, 2022. Dkt.
103, Ex. 1. SMP calls that the “Original Invoice,” and cites to its Exhibit 8. Dkt. 103
¶ 33. However, Exhibit 8 is an invoice labeled “Revision 2.” Dkt. 103, Ex. 8. And
though it’s “Date[d]” 9/20/2022, so are the other invoices sent on later dates. See Exs.
6, 9. There’s otherwise no evidence SMP sent or Tessler received a 9/20/2022 invoice.
The Parties, however, agree that an invoice was sent and received on October, 27,
2022, attached to an email from SMP calling it a “revised invoice.” Dkt. 103 ¶ 35;
Dkt. 112, pg. 11. That invoice (Ex. 6) is titled “revised” and dated 9/20/2022, showing
an outstanding balance of $810,433.00. The invoice explicitly includes reference to
“start-up” costs. Id. On December 9, 2022, SMP followed-up with Tessler regarding
the October 27 invoice, writing “just wanted to make sure you had this invoice with
the revised taxes.” Id., pg. 3. Tessler responded, “That matches what we have.” Id.
From December 15, 2022 through January 10, 2023, Tessler and SMP exchanged
messages regarding nonpayment and allegedly undelivered products. See DSOF dkt.
112 ¶¶ 10–18; dkt. 113 ¶¶ 12–18. For example, on December 15, Tessler asked SMP
“What’s going on with the AHU disconnects?” Dkt. 112, Ex. 5. And on December 21,
SMP told Tessler that SMP hadn’t received payment. Dkt. 112, Ex. 6. Tessler
responded that equipment issues need to be resolved before payment. Id. The two
had similar conversations on January 5, 2023. Dkt. 112, Ex. 7. On January 9, 2023,
Tessler wrote that “[it] would pay half the invoice and the other half when it’s
repaired.” Dkt. 112, Ex. 8. The Court isn’t sure what “it” refers to. SMP responded,
saying it doubted Tessler’s plan would be “good enough” for the manufacturers. Id.
SMP further noted the manufacturer “would like everything paid except the change
orders and also the additional $50K taken of[f] for VFD word everything else is done.”
Id.
On January 10, 2023, SMP sent a “Second Revised Notice” for $641,767.72. Dkt. 112,
Ex. 11. The attached invoice is the same as SMP’s Exhibit 8, which SMP apparently
mistakenly identified as the original. Dkt. 114 ¶ 19. The January 10 invoice
subtracts $50,000 from the prior invoice, reflecting “VFD retainage.” DSOF dkt. 112
¶ 19; dkt. 114 ¶ 19. Unlike the prior invoice, the January 10 one omits “Includes
startup.” Dkt. 112 DSOF ¶ 20; dkt. 114 ¶ 20. SMP says the parties never agreed to
the January 10 invoice so it’s “immaterial,” but the Court disagrees.
Deposition Statements
SMP deposed Tessler in this case on May 16, 2024. The following colloquy occurred:
5

Q. Okay. And I've been through the text messages and the
emails between you and Darline and repeatedly you're just
saying we haven't paid SMP because Ross hasn't paid us,
as in Tessler, right?
A. That’s correct.
Q. I mean, is that really obviously what's going on here, is
that Tessler Construction wants to pay SMP, but it can't
because it hasn't been paid by Ross?
A. Yeah. We -- that's how general contractors work, is that
we have a customer, we get paid, and then we pay the
subcontractors. That's exactly how it works, yes.
Q. And there's no dispute that SMP is owed that money,
but you just don't have it?
A. That’s correct. And there’s no dispute from GRP that we
did all the work that we did, either.
Dkt. 103, Ex. 2. Tessler denies that SMP should be paid pursuant to the contract.
Dkt. 112 ¶ 37. Tessler doesn’t address its earlier testimony, instead referencing the
email chains contesting payment. Id.
Analysis
a.

Defining the Agreement

The Parties dispute what constitutes their agreement. SMP contends that the
Proposal and the Purchase Order comprise the Agreement, whereas Tessler argues
that Purchase Order revoked the Proposal, so only the former controls. As will
become clear, Tessler’s position is meritless.
Start with the text of each signed document. The Proposal states “SMP’s Terms and
Conditions of Sale (‘Terms’) shall control and prevail over any contrary terms in
Buyer’s purchase order, unless otherwise agreed to in a writing signed by [SMP].
Additional terms proposed by Buyer shall be deemed to have been rejected unless
specifically agreed to in writing signed by [SMP].” Dkt. 103 Ex. 4. As SMP argues,
the Proposal explicitly anticipated how the Proposal and the Purchase Order would
coexist, making clear that the Proposal presumably governs. Submitting the
Purchase Order, Tessler agreed. So, barring any “contrary terms” in the Purchase

6

Order, it’s indisputable that the Proposal and the Purchase Order govern
harmoniously. 6
To find a contradiction, Tessler twists a sentence in the Purchase Order, distorting
“Acceptance of this Purchase Order contract includes any terms and conditions listed
above and becomes the Agreement between the parties.” That language, Tessler
asserts, wasn’t intended merely to incorporate any above-line text, but rather
terminate everything in the Proposal.
Tessler relies on McCarty v. Version Allsteel Press Co., 411 N.E.2d 936, 944–45 (Ill.
App. Ct. 1980). 7 Though superficially similar, McCarty ultimately lends Tessler no
support. In that forty-five-year-old case, a seller sent a proposal to a buyer. Id. at
940–43. That proposal included certain indemnification terms and provided that the
seller’s proposal governs over the buyer’s purchase order. Id. The buyer responded
with a seven-page purchase order, including a “detailed list of ‘General Specifications’
and ‘Included Items.’” Id. Each page repeatedly informed the seller that “[n]o
additional or different terms that may be contained in [seller’s] forms or otherwise
proposed by vendor will be binding upon” seller unless accepted and signed. Id. And
the purchase order actually contained relevant terms, imposing a warranty on the
seller. Id. The buyer stressed those conflicting terms again and again, at least seven
times. Id. An Illinois appellate court found that the purchase order governed the
dispute. Id.
Contrast Tessler’s Purchase Order. Unlike McCarty’s seven-page, carefully-drafted
purchase order, Tessler’s 100-word confirmation contains practically no new
information. It’s a stretch to even call them “terms and conditions.” But even if
they’re such and even if they conflict with the Proposal’s, McCarty’s still inapposite.
The buyer in that case explicitly and repeatedly reminded the seller that, upon signing
the order, the seller’s proposed terms meant nothing. Tesser, by contrast, rests on
the implicit inference that if the signed Purchase Order becomes the agreement, then
it necessarily (and silently) extinguishes everything in the Proposal. That’s a leap in
ordinary contract interpretation, see U.C.C. § 2-207 (requiring “express” conditional
language) and absurd when, as in this case, the Purchase Order hardly has terms—
let alone conflicting ones—of its own.

Tessler tries forcing the Parties back-and-forth into rigid contract boxes, calling the
Proposal the “offer” and the Order a “counteroffer.” Such labels are less useful when, as in
this case, the documents clearly interact with one another. The Court instead must
determine if and how the Order modifies the Proposal, and whether SMP agreed to such
modifications. See U.C.C. § 2-207.
7 Tessler also excises a phrase from Am. Bankers Ins. Co. of Florida v. Shockley, 3 F.4th 322,
331 (7th Cir. 2021). As SMP notes, that insurance policy dispute doesn’t meaningfully inform
this case.
6

7

Tessler knows that too. As SMP highlights, Tessler’s Answer admits that “[t]he
purchase order and SMP proposal collectively represented the parties’ agreement.” 8
After obtaining a new attorney, Tessler for the first time argues in its Response that
only the Purchase Order controls the dispute. That gives the Court an independent
basis to ignore Tessler’s arguments but because it also rejects the substantive
argument, the Court won’t further address Tessler’s inconsistencies. So, the Court
finds that the Proposal and the Purchase Order together comprise the Parties’
Agreement.
b.

Governing Law

With those agreements in place, the Court turns to the governing law. The Proposal
demands that the transaction “shall be governed by and interpreted in accordance
with the laws of the State of Indiana.” Dkt. 103, Ex. 4, pg. 6. Exercising its diversity
jurisdiction over this case, the Court “applies the choice-of-law rules of the state in
which it sits.” Gunn v. Cont’l Cas. Co., 968 F.3d 802, 808 (7th Cir. 2020) (citing Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)). Illinois courts, in turn, generally
honor an agreement’s choice-of-law provision. Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 770 N.E.2d 177, 194 (Ill. 2002). Tessler raises no public policy or
other objection that would dislodge the ordinary rule. 9 So, the Court honors the
Proposal’s terms and applies Indiana law. The Parties further agree that Article 2 of
the U.C.C. governs the dispute. Dkt. 104, pg. 5; dkt. 111, pg. 5. 10
c.

Summary Judgment

Summary judgment is proper “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 genuine dispute of material fact exists if a reasonable jury
could return a verdict for the nonmovant, construing the evidence and all reasonable
inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986); Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir. 2008). SMP

8 Specifically, Tessler answered “Tessler states that the documents speak for themselves, and denies

any additional terms of any alleged agreement between Tessler and SMP exist outside the terms of
[the Proposal] and [the Purchase Order]” (emphasis added). Dkt. 22 ¶ 11. Because they never denied
those two documents comprised the Agreement, they legally admitted it. See F.R.C.P. R. 8.
9 Tessler erroneously assumes the Proposal doesn’t apply based on its argument discussed above. So,
it concludes that Illinois law applies, offering no argument in the alternative—not that one would be
persuasive.
10 In its Response, Tessler later contends that parts of the U.C.C. don’t apply, specifically those dealing
with acceptance and objection, arguing that the Parties “varied” the U.C.C.’s terms. Dkt. 111, pg. 10.
That’s a tough argument, but it intersects with performance and breach issues. As discussed below,
the Court ultimately denies SMP’s Motion specifically because those issues are still unclear. So it
can’t decide whether or to what extent the Parties definition of performance or breach—whatever that
might be—diverges from the U.C.C.

8

moves for summary judgment on two of its claims, (1) breach of contract and (2)
account stated. 11 The Court addresses each in turn.
1.

Breach of Contract

Under Indiana law, the “essential elements of any breach of contract claim are the
existence of a contract, the defendant’s breach thereof, and damages.” Ent. U.S.A.,
Inc. v. Moorehead Commc’ns, Inc., 897 F.3d 786, 793 (7th Cir. 2018) (citing Old. Nat’l
Bank v. Kelly, 31 N.E.3d 522, 531 (Ind. App. 2015). Indiana contract law requires a
plaintiff to prove its damages with reasonable certainty. Ent. U.S.A., Inc., 897 F.3d
at 793. The burden falls on plaintiff because damages are an element of a breach of
contract action. Id.
SMP falls short on the breach and damages prongs. SMP asserts that it delivered
the “Project Materials” to Tessler and that Tessler failed to timely reject the items
per the U.C.C. So, SMP concludes Tessler breached. Tessler claims that some
materials were still missing months after the initial delivery in August 2022. But
let’s assume Tessler’s wrong and SMP properly delivered all physical materials in
that initial shipment. SMP still can’t carry its burden, because it imprecisely defines
“Project Materials.” The Proposal promises to “furnish the equipment listed below.”
That list, in turn, includes physical equipment and “start-up” items, i.e. labor costs.
Oversimplifying the issue, SMP lumps those two groups together, referring to them
collectively throughout its Statement of Facts as “Project Materials.” Dkt. 103, pgs.
2–3. SMP then contends that “all Project Materials were delivered on or before July
29, 2022.” SMP’s own documents refute that delivery date, but regardless it admits
that it never provided the start-up labor. So, by definition, it didn’t furnish all of the
“Project Materials.” Nevertheless, SMP says it fully performed its obligations.
Now, perhaps Tessler was required to complete the pre-start-up forms. And it was
likely Tessler’s job to timely notify SMP once it realized it had permitting and
electricity problems. 12 The record indeed suggests that Tessler failed to act properly.
But it might also be true that Tessler isn’t legally responsible for the “start-up” costs
if SMP never provided them. The Agreement is silent on all of these material issues.
Defining “Project Materials” as it does, SMP makes it seem that everything’s settled:
SMP delivered and Tessler didn’t pay. SMP might ultimately be right, but the
situation is clearly more complicated. Without litigating the scope of the Parties’
agreement, their course of conduct, and similar performance, the Court can’t
summarily conclude whether SMP performed or Tessler breached. And as discussed
11 Count I is a claim for account stated, and Count II is a claim for breach of contract.

Analytically, it
makes sense to address them in reverse order.
12 Tessler and SMP also disagree whether performance was rendered impossible, and if so, who’s
responsible. Impossibility may go both to the performance (SMP unable to start-up) and Tessler’s
defense (lacking permits and electricity). Impossibility, on its own, is a nuanced factual question, one
that SMP fails to show is ripe for summary judgment.

9

in the next section, it’s impossible to say based on this record what Tessler would owe
assuming it breached.
It’s true Tessler fails to explain its many inconsistent positions, a problem it will have
to confront at trial. Tessler largely admitted at its deposition that at least part of the
reason it didn’t pay SMP was because Tessler didn’t have the money. Indeed, at that
deposition, Tessler all but admits that it failed to perform, raising possible Rule 11
concerns that the Court may address at a later point. With much of the Materials
delivered and no post-deposit payment, Tessler faces a steep hill in arguing it’s not
in some breach. But based on these facts, the Court simply can’t make that
determination.
2.

Account Stated

Because the Court denies SMP’s Motion as to the breach of contract claim, it can’t
conclude whether or to what extent Tessler owes money. Under Indiana law, “[a]n
account stated is an agreement between the parties that all items of an account and
balance are correct, together with a promise, expressed or implied to pay the balance.”
745 N.E. 2d. 233, 236 (Ind. Ct. App. 2001). SMP admits Illinois law is largely
identical. “An ‘account stated’ is a form of proving damages for a breach of a promise
to pay on a contract.” Air Tiger Express, Inc. v. Barclay, No. 08-cv1945, 2008 U.S.
Dist. LEXIS 51432 (N.D. Ill 2008).
Without sufficiently demonstrating breach, SMP nevertheless contends that Tessler
owes “$753,891.00 plus tax.” Dkt. 18 ¶ 53. That number reflects one of SMP’s
invoices, which apparently stems from the Proposal’s price, minus the down payment.
See dkt. 103, Ex. 6, pg. 5. Even assuming SMP showed breach, it’s premature to
award precise damages. SMP points to Tessler’s deposition, in which he admitted
Tessler owes money. See dkt. 103, pg. 7. But SMP mischaracterizes that testimony,
saying Tessler admitted SMP “should be paid pursuant to the contract.” Id. (emphasis
added). Tessler didn’t say that. Owing money and owning the specific figure are two
separate questions. SMP also cites a brief email exchange in which SMP sent the
$753,891.00 invoice and Tessler responded “that matches what we have.” SMP says
that evidence conclusively establishes that Tessler owes such an amount. It doesn’t.
SMP further muddies the water, attaching three invoices to its Motion. It claims it
sent an invoice in September and another in October, and a third in January. One is
labeled “Revision 2,” another “Revised.” One asks for $641,767.72, another for
$753,891.00, reflecting a “deduction.” There’s later discussion about waiving $50K.
All that’s to say even if Tessler owes money, indeed even if it owes money for the
unprovided start-up costs, the Court can’t possibly just pick a disputed sum. So, the
Court denies Tessler’s Motion regarding the account stated claim.
Conclusion
10

For the reasons above, the Court denies SMP’s Motion for summary judgment on
Counts I and II. It finds that the Proposal and the Purchase Order together comprise
the Parties’ Agreement. See F.R.C.P. R. 56(g).
The Court adds a quick note: Under the Agreement, Tessler may well owe reasonable
attorneys’ fees if it loses this case, a not unlikely outcome. The Court knows many
skilled mediators, including ones experienced in construction-related disputes. Wise
attorneys would take advantage of such resources under these circumstances. Hint,
hint.
Entered: March 5, 2025

By:__________________________
Iain D. Johnston
U.S. District Judge

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