Tipple Enterprise, LLC v. Kingsford Manufacturing Company et al

Filing 75

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT: It is ORDERED that Defendant's 46 Motion for Summary Judgment, 48 Motion for Summary Judgment are granted in part and denied in part. Signed by District Judge Irene M. Keeley on 9/30/14. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIPPLE ENTERPRISE, LLC, a West
Virginia limited liability company,
Plaintiff/
Counter-Defendant,
v.

//

CIVIL ACTION NO. 1:13CV146
(Judge Keeley)

KINGSFORD MANUFACTURING COMPANY,
a foreign corporation,
Defendant/
Counter-Claimant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
Pending before the Court are two motions for summary judgment
filed

by

the

(“Kingsford”).

defendant,

Kingsford

Manufacturing

Company

In its first motion (dkt. no. 46), Kingsford seeks

summary judgment on the claims of the plaintiff, Tipple Enterprise,
LLC (“Tipple”), for breach of contract and punitive damages.

Its

second motion (dkt. no. 48) seeks summary judgment on Kingsford’s
counterclaim for conversion.

For the reasons that follow, the

Court GRANTS IN PART and DENIES IN PART Kingsford’s motions.
I. FACTUAL BACKGROUND
After Tipple filed this action against Kingsford, alleging
that Kingsford had failed to meet its contractual obligations under
the Wood Waste Agreement (the “Agreement”) the parties signed on
December 3, 2010, Kingsford counterclaimed, alleging that Tipple
had breached the Agreement, and also owed Kingsford a substantial

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
refund for overpayments Kingsford mistakenly made for deliveries of
wood waste.
A.

The Agreement
Under the Agreement, Tipple, which is a three-member, limited

liability company headquartered in Philippi, West Virginia, was
obligated

to

supply

wood

waste

to

Kingsford,

a

charcoal

manufacturer with a plant located in Parsons, West Virginia.1

The

Agreement in pertinent part provided as follows:
1. PURCHASE OF WOOD WASTE: During the Initial Term (as
defined in Section 3 below), [Tipple] will sell and
[Kingsford] will purchase at least Twenty-four Thousand
(24,000) “As Received Tons” . . . per year of Wood Waste
. . . .
Minimum quantities to be purchased by
[Kingsford] during any Renewal Term . . . may vary and
will be determined prior to the start of any Renewal
Period.
. . .
3.
TERM: The initial term of this Agreement shall
commence on [December 3, 2010] and shall continue for a
period of one [] (1) year thereafter (the “Initial
Term”), subject to earlier termination pursuant to the
provisions of this Agreement.
Seller will deliver a
minimum of 15,000 ton [sic] the first six (6) months of
this [A]greement.
Unless either Party elects to
terminate this Agreement by written notice to the other
Party at least sixty (60) days prior to the Initial Term,

1

Kingsford is a Delaware corporation with its principal place of
business in California.
Each of Tipple’s three members is a West
Virginia citizen.

2

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
this Agreement will renew for an additional one (1) year
term (the “Renewal Term”). . . .
4.

PRICE AND PAYMENT:

A. The initial price to be paid for delivery of Wood
Waste will be $34.00 per “As Received Ton” . . . , f.o.b.
[Kingsford’s] site . . . .
B. An “As Received Ton” of Wood Waste will consist of
2,000 pounds of material meeting the specifications set
forth in Section 7 [defining the composition of wood
waste]. If any delivered material contains more than 45%
moisture, [Kingsford] will be entitled to reduce the
payment weight of the load to approximate the weight that
would have been received if the material had contained
only 45% moisture. . . .
. . .
8.
TERMINATION: Either Party may terminate this
Agreement immediately if: (a) the other Party is in
breach and does not cure such breach within twenty (20)
days following notice from the non-breaching Party; or
(b) voluntary or involuntary bankruptcy proceedings are
initiated with respect to the other Party. Such rights
of termination will be in addition to the Parties’ other
legal rights and recourses, whether or not set forth in
this Agreement.
. . .
18. GOVERNING LAW: This Agreement will be governed by
and construed in accordance with the laws of the State of
Georgia.
A waiver of any breach of the term and
conditions of this Agreement will not be deemed a waiver
of any preceding or subsequent breach of the same or any
other terms or conditions.
(Dkt. No. 3-1 at 1-5) (emphasis in original).

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
B.

Factual Allegations
The dispute in this case centers on the amount of wood waste

actually delivered by Tipple, the dates of those deliveries, and
the payments Kingsford made for each delivery.

Attached to

Kingsford’s summary judgment motion was a chart titled “Tipple
Payments” (dkt. no. 47-2) created by Kingsford “to prove the
content of voluminous writings, recordings, or photographs that
cannot be conveniently examined in court,” pursuant to Fed. R.
Evid. 1006.

(Dkt. No. 47 at 7 n.5).

The chart is attached to this

Memorandum Opinion and Order as Exhibit A.
While Tipple agrees that portions of the chart are accurate,
it disputes other portions.

For example, Tipple agrees with the

chart’s representation that “in the time period of December 3, 2010
through December 3, 2011 [Kingsford] accepted 18,006.55 tons” of
wood waste; however, it contends that Kingsford accepted only
2935.85 tons during the Renewal Term, while the chart indicates
that Kingsford accepted 3455.42 tons.
at 4).

(Dkt. Nos. 47-6 at 8; 47-2

Moreover, as to the chart’s tonnage entries between

February 17, 2012 and April 19, 2012, Tipple “does not believe that
the ‘wet tons’ is [sic] accurately calculated.”
3).

4

(Dkt. No. 47-7 at

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
Regarding the amount of wood waste delivered during the first
six months of the Initial Term, Kingsford contends that Tipple
delivered

only

12,480.15

tons,

thereby

failing

to

meet

its

contractual obligation to deliver 15,000 tons within that time
period.

(Dkt. No. 47 at 2).

Tipple does not dispute that it

delivered only 12,480.15 tons, but states that it “delivered all of
the wood waste it was permitted to deliver” by Kingsford during the
first six months.

(Dkt. No. 49-5 at 2).

Tipple also agrees that it only delivered 18,006.55 tons of
wood

waste

during

the

Initial

Term,

but

claims

Kingsford’s

representative, Thomas J. Bonner (“Bonner”), “advised [Tipple] at
various times that wood waste products would not be accepted
despite the express language of the [Agreement].”
4).

(Dkt. No. 50 at

Indeed, affidavits from two of Tipple’s members support this

contention. (Dkt. No. 50 at 11-17). Furthermore, Tipple responded
to an interrogatory from Kingsford as follows:
Presently, [Tipple] recalls in approximately mid 2011
having one or more discussions with Mr. Bonner as a
representative of [Kingsford] regarding the status of
wood waste delivery. At that time Mr. Bonner advised
[Tipple] that no further wood waste product was necessary
as [Kingsford] had a more than sufficient supply.
Additionally, representatives of [Tipple] recall that in
March of 2012 [Tipple] was advised to not deliver any
wood
waste
products
until
further
informed.
Representatives of [Tipple] recall that on or about
5

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
October, 2012 [Tipple] was told to resume sending wood
waste products to [Kingsford].
(Dkt. No. 47-6 at 5).

Kingsford flatly denies that “it ever

demanded that Tipple cease delivering wood waste product to its
facility.” As it points out, its chart establishes that Tipple
continued to deliver wood waste through November 2011.

(Dkt. No.

47 at 4 n.2).
While the parties agree that they communicated about Tipple’s
deliveries of wood waste in March 2012, the subject matter of their
conversation is very much in dispute. According to Kingsford,
March, 2012 is when it notified Tipple it was in breach of the
Agreement. (Dkt. No. 47-4 at 2). Tipple, however, recalls the
conversation as a directive from Kingsford “to discontinue all
deliveries of wood waste.”2
The

parties

also

(Dkt. No. 47-3 at 2).

dispute

occurred and what was said.

when

their

next

communication

Kingsford contends that, in January

2013, it “orally advised Tipple that it had inadvertently overpaid
Tipple by a total of $128,772 for the amount of wood waste provided
during the Initial and Renewal terms of the Agreement and requested
reimbursement.”

(Dkt. No. 47 at 3).

2

Tipple’s affiants, however,

According to Kingsford’s chart, however, Tipple made deliveries
of wood waste in April 2012 and January 2013. (Dkt. No. 47-2 at 4, 5).

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
recall that they “had no information or knowledge that [Kingsford]
allegedly paid $40.00 per as received ton as opposed to $34.00 per
as received ton.”

(Dkt. No. 50 at 13, 17).

In its requests for admissions, Kingsford asked Tipple to
admit that “in January, 2013, Kingsford requested that Tipple
reimburse Kingsford for overpayments.”

(Dkt. No. 49-5 at 3).

Tipple denied this request, explaining that “[Tipple] does not
recall any such request [for reimbursement].”

Id.

Nevertheless,

Tipple no longer disputes that it was overpaid by Kingsford; in
response to Kingsford’s interrogatories, it admitted that “it
appears that [Tipple] was paid forty dollars ($40.00) per ton for
deliveries made, however, [Tipple] is unable to determine when this
price was paid and for what deliveries.”

(Dkt. No. 49-5 at 3).

On February 1, 2013, Tipple’s attorney officially notified
Kingsford in writing that Tipple considered Kingsford to be in
breach of the Agreement based on the March 2012 conversation in
which Bonner allegedly told Tipple to stop delivering wood waste.
(Dkt. No. 47-3 at 2).

In its notice, Tipple demanded payment for

21,064.15 tons of wood waste that Kingsford allegedly refused to
purchase.

Id.

On February 15, 2013, Kingsford responded to Tipple’s notice
of breach with a letter asserting its belief that Tipple had
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
breached the Agreement “by not meeting its delivery obligations
during the Initial Term” and demanding damages.
2-3).

(Dkt. No. 47-4 at

Kingsford also demanded reimbursement for the tonnage

overpayment.

Id. at 3.
II. PROCEDURAL BACKGROUND

Tipple sued Kingsford and its employee, Bonner, in the Circuit
Court

of

Harrison

County,

West

Virginia,

alleging

breach

of

contract against Kingsford, tortious interference against Bonner,
and punitive damages.

Kingsford removed the complaint and filed a

counterclaim for conversion of the overpayment and for breach of
contract. Bonner filed a motion to dismiss, which the Court
granted,

leaving

Tipple’s

claims

for

breach

of

contract

and

punitive damages against Kingsford, and Kingsford’s claims for
conversion and breach of contract against Tipple.
Although he is no longer a party, Bonner remains a critical
witness in this case. (Dkt. No. 43 at 2)(“Bonner is an important
witness

not

only

for

[Kingsford],

but

also

for

[Tipple].”).

Unfortunately, during the pendency of this litigation, he has been
on

extended

medical

leave

and

unavailable

for

deposition.

Nevertheless, Kingsford recently represented to Tipple that Bonner

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
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will be retiring “some time in the immediate future,” and that “he
would be provided for deposition upon his retirement.”

Id.

Despite Bonner’s continuing unavailability, Kingsford moved
for summary judgment on August 1, 2014.

With respect to Tipple’s

claims, it argues that Tipple “cannot satisfy its burden with
respect to proving that the behavior of Kingsford resulted in the
alleged harm and damage suffered.”

(Dkt. No. 47 at 1).

Kingsford

further argues that any agreement governing the Renewal Term
violated the statute of frauds and was therefore unenforceable.
Alternatively, it argues that Kingsford could not have violated any
agreement during the Renewal Term because such agreement did not
include a minimum purchase requirement.

Id. at 12-15. Finally,

Kingsford argues that “the parties are in agreement as to the
overpayment and the amount of the overpayment.”

(Dkt. No. 49 at

6).
In response, Tipple alleges that it was “ready, willing and
able” to meet its obligations under the Agreement, but that
Kingsford “did not purchase,” or “refused to purchase,” the minimum
amount. (Dkt. No. 50 at 2-3). Tipple also reiterates its allegation
that Bonner “advised [Tipple] that no significant quantities of
wood waste would be accepted.” Id. at 4. Furthermore, with respect
to Kingsford’s conversion claim, Tipple asserts that it “was not
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
provided with any documentation regarding the price paid [per ton],
therefore, [Tipple] had no way to ascertain the amount paid.”

Id.

at 5.
Based on Bonner’s unavailability, Tipple relies on Fed.
Civ.

P.

56(d)

to

emphasize

the

inappropriateness

of

R.

summary

judgment at this juncture. Fed. R. Civ. P. 56(d) provides as
follows:
(d) When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Because Bonner remains unavailable for deposition, Tipple
argues that the Court should exercise its discretion and defer any
ruling on Kingsford’s dispositive motions.
Alternatively,

it

contends

that

there

are

(Dkt. No. 50 at 7).
genuine

issues

of

material fact in dispute regarding certain conversations that
occurred after the parties entered into their Agreement.3
3

Under the parol evidence rule, terms of a written agreement “may
not be contradicted by evidence of any prior agreement or of a
W. Va. Code § 46-2-202 (emphasis
contemporaneous oral agreement.”
added).
Because Tipple’s alleged conversations with Bonner occurred

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
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In reply, Kingsford argues that the Court should not credit
Tipple’s affidavits.4 It further argues that any alleged agreement
covering the Renewal Term is unenforceable under West Virginia’s
statute of frauds. Finally, it contends that Tipple has implicitly
acquiesced to several of its arguments by failing to respond to
them.5
III. STANDARD OF REVIEW
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate
stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

during
the
term
of
the
Agreement,
rather
than
before
or
contemporaneously, evidence of those conversations would not be
precluded. See Mountaineer Contractors, Inc. v. Mountain State Mack,
Inc., 268 S.E.2d 886, 892 (W. Va. 1980) (permitting evidence of oral
representations because they were made after the original contract
negotiations had ended).
4

Under the “sham affidavit” rule, “a party cannot create a genuine
issue of fact sufficient to survive summary judgment simply by
contradicting his or her own previous sworn statement (by, say, filing
a later affidavit that flatly contradicts that party’s earlier sworn
deposition) without explaining the contradiction or attempting to resolve
the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999). The rule does not apply here because Kingsford has not pointed
to any contradiction between Tipple’s affidavits and its previous sworn
statements.
5

During oral argument on Kingsford’s motions, counsel for Tipple
withdrew his client’s claims for reliance and punitive damages.
See
Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 80 (W. Va. 1986)
(“Generally, punitive damages are unavailable in an action for breach of
contract unless the conduct of the defendant constitutes an independent,
intentional tort.”).

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
answers, or other materials” show 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), (c)(1)(A).

When ruling on

a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party.

Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000).

The Court must avoid weighing the evidence or determining

the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

nonexistence of genuine issues of fact.
477 U.S. 317, 323 (1986).

of

establishing

the

Celotex Corp. v. Catrett,

Once the moving party has made the

necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

reasonably find for the nonmoving party.

12

trier

of

fact

Id. at 248–52.

could

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]

IV. DISCUSSION
The parties hotly dispute facts that impact two important
questions in the case. First, did Kingsford overpay Tipple for each
delivery, and, if so, by how much? Second, did Bonner, Kingsford’s
agent, direct Tipple to stop making deliveries of wood waste? Based
on these material factual disputes, summary judgment on all issues
clearly is inappropriate.

Nevertheless, several legal issues

raised by Kingsford’s motions, including (I) the state substantive
law to be applied, (ii) whether a valid, enforceable contract
existed during the Renewal Term, and (iii) the parties’ obligations
under the Agreement, are ripe for review.
A.

Governing Law
In

resolving

the

legal

issues

surrounding

the

parties’

contractual dispute, the Court must first determine which state’s
substantive law applies.

Paragraph 18 of the Agreement contains a

“governing law” provision that designates the law of Georgia as the
applicable law.

In determining whether to enforce that provision,

or to apply some other state’s law, the Court looks first to West
Virginia’s

conflict

of

laws

rules.

13

See

Albemarle

Corp.

v.

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
AstraZeneca UK Ltd., 628 F.3d 643, 652-53 (4th Cir. 2010).
Generally,

as

to

the

enforceability

of

“governing

law”

provisions, the West Virginia Supreme Court of Appeals has held
that
[a] choice of law provision in a contract will not be
given effect when the contract bears no substantial
relationship with the jurisdiction whose laws the parties
have chosen to govern the agreement, or when the
application of that law would offend the public policy of
this state.
Syl. Pt. 1, Gen. Elec. Co. v. Keyser, 275 S.E.2d 289, 290 (W. Va.
1981). Here, no one argues that the public policy of West Virginia
would be violated by the application of Georgia law. Nevertheless,
neither the Agreement nor the parties bear any relationship, let
alone a “substantial” relationship, to Georgia.

Therefore, under

West Virginia’s conflict of laws rule regarding governing law
provisions, the parties’ choice of Georgia’s contract law will not
be given effect.

See id.

The question remains as to what state’s law should govern the
Court’s interpretation of the Agreement if Georgia law does not
apply.

It is clear that, “[u]nder the law of West Virginia . . .

the law of the state in which the contract is executed and to be
performed governs adjudication of claims arising out of that
agreement.”

Nat’l Union Fire Ins. Co. v. Lambert, 462 Fed. App’x
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299, 302 n.1 (4th Cir. 2012) (citing Howe v. Howe, 625 S.E.2d 716,
721 (2005)).

Here, the parties’ Agreement was executed and

performed entirely within West Virginia. Therefore, the Court will
apply the substantive law of West Virginia.
B.

Renewal
Neither party terminated the Agreement by written notice in

accord with Paragraph 3 during the Initial Term.

Thus, the Court

must determined whether, by operation of Paragraph 3, the parties’
failure to terminate gave rise to a new agreement governing their
rights and obligations for the Renewal Term.
Paragraph 3 provides that, “[u]nless either Party elects to
terminate this Agreement by written notice to the other Party at
least sixty (60) days prior to the Initial Term, this Agreement
will renew for an additional one (1) year term (the “Renewal
Term”). (Dkt. No. 47-1 at 2) (emphasis in original). Importantly,
Paragraph 1 provides that “[m]inimum quantities to be purchased by
[Kingsford] during any Renewal Term (as defined in Section 3 below)
may vary and will be determined prior to the start of any Renewal
Period.”

Id. (emphasis added).

The parties concede that they never agreed on a “minimum
quantities” term for the Renewal Term, as required by Paragraph 1.
Nevertheless, Tipple contends that a valid contract existed as to
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
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the Renewal Term, and that its terms were identical to those
governing the parties’ rights and obligations during the Initial
Term.

Kingsford first argues that, under West Virginia’s statute

of frauds, no enforceable contract for the Renewal Term existed;
however, it also contends that the $34/ton price term from the
Initial Term applied to any deliveries made by Tipple during and
after the Renewal Term.
1. Validity
Initially, the Court must determine whether to construe the
Agreement as one contract covering two years, or as one contract
that covered a single year and provided the option of creating a
separate contract for the second year.

If the Agreement contained

no conditions for automatic renewal, the Court might consider it a
single contract governing both the Initial and Renewal Terms.

But

see Safeco Ins. Co. v. Hamm, 718 F. Supp. 744, 746 (E.D. Mo. 1989)
(“With automatic renewals of insurance policies, each renewal is a
new contract.

Renewal of the insurance policy constitutes a

separate and distinct contract for the period of time covered by
the renewal.”).

The Agreement’s proviso that the minimum purchase

requirement “will be determined prior to the start of any Renewal
Term,” is a strong indicator, however, that the parties’ failure to

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determine the minimum purchase requirement precluded automatic
renewal.
Even if a new contract arose from automatic renewal, however,
it was not validly formed.

To determine whether a valid contract

for the Renewal Term existed, the Court turns to first principles
of contract law.

“The fundamentals of a legal contract are

competent parties, legal subject matter, valuable consideration and
mutual assent.

There can be no contract if there is one of these

essential elements upon which the minds of the parties are not in
agreement.”

Syl. Pt. 4, State ex rel. AMFM, LLC v. King, 740

S.E.2d 66, 68 (W. Va. 2013) (internal quotation marks and citation
omitted).
Here, Tipple concedes that it and Kingsford never agreed on
the minimum amount of wood waste Tipple would deliver and Kingsford
would purchase during the Renewal Term.

Without mutual assent, no

valid contract for the Renewal Term could have been formed.

See

David Frisch, 2A Anderson U.C.C. § 2-306:38 (3d ed.) (“[A] contract
specifying that the buyer may buy from the seller and that the
seller will then sell such a quantity as the buyer chooses is not
a requirements contract.

In the absence of a guaranteed minimum

purchase, such a contract is illusory and, as a result, cannot be
enforced.”).

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2. Statute of Frauds
Even if a valid contract for the Renewal Term had been formed,
Kingsford argues it was unenforceable under West Virginia’s statute
of frauds. If valid, the Renewal Term agreement proposed by Tipple
would

be

governed

by

Article

2

of

West

Virginia’s

Uniform

Commercial Code (“UCC”), W. Va. Code § 46-2-201, et seq.6

The

statute of frauds contained in Article 2 provides:
Except as otherwise provided in this section a contract
for the sale of goods for the price of $500 or more is
not enforceable by way of action or defense unless there
is some writing sufficient to indicate that a contract
for sale has been made between the parties and signed by
the party against whom enforcement is sought or by his
authorized agent or broker.
A writing is not
insufficient because it omits or incorrectly states a
term agreed upon but the contract is not enforceable
under this paragraph beyond the quantity of goods shown
in such writing.
§ 46-2-201(1) (emphasis added).
The Renewal Term agreement proposed by Tipple would fall
within the statute of frauds as a contract for the sale of goods
(wood waste) for $500 or more (24,000 tons x $34 = $816,000).
Therefore, a writing would be required under West Virginia law.

6

Article 2 of the UCC applies to “transactions in goods.” § 46-2102. “‘Goods’ means all things (including specially manufactured goods)
which are movable at the time of identification to the contract for
sale.” § 46-2-105(1).

18

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
Because

no

writing

exists,

any

Renewal

Term

agreement

is

unenforceable.
C.

Parties’ Obligations
Depending on the time period involved, Tipple and Kingsford

had varying rights and obligations under the Agreement.
1. First Six Months
Paragraph 3 of the Agreement provided that “[Tipple] will
deliver a minimum of 15,000 ton [sic] the first six (6) months of
this agreement.”

(Dkt. No. 47-1 at 2).

Notably, the Agreement

provided no corresponding obligation that Kingsford had to purchase
15,000 tons within the first six months.

Tipple has offered no

evidence to dispute Kingsford’s assertion that Tipple delivered
only 12,480.15 tons between December 3, 2010 and June 3, 2011.
Moreover, according to Tipple’s interrogatory response, Bonner did
not repudiate the Agreement until “mid 2011,” i.e., after the end
of the first six-month period. (Dkt. No. 47-6). Therefore, if any
breach occurred during the first six months, it resulted from
Tipple’s failure to meet its minimum delivery requirement.
2. Initial Term
Paragraph 1 of the Agreement provided that, “[d]uring the
Initial Term (as defined in Section 3 below) , [Tipple] will sell
and

[Kingsford]

will

purchase

at

19

least

Twenty-four

Thousand

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
(24,000) ‘As Received Tons’ (‘Initial Quantity’) per year of Wood
Waste . . . .”

(Dkt. No. 47-1 at 2) (emphasis in original).

Furthermore, Paragraph 4.A stated that “[t]he initial price to be
paid for delivery of Wood Waste will be $34.00 per ‘As Received
Ton’ (as defined below), f.o.b. [Kingsford’s] site.”

Id.

Tipple

thus was clearly obligated to deliver at least 24,000 tons during
the Initial Term, and Kingsford was obligated to purchase at least
24,000 tons at $34.00 per ton during the Initial Term.
Neither party disputes that Tipple delivered only 18,006.55
tons of wood waste during the Initial Term.

As to the 5993.45 ton

deficit, Kingsford argues that Tipple breached the Agreement by
failing to deliver the additional wood waste. Tipple, on the other
hand, asserts that Bonner repudiated the Agreement in mid 2011 by
directing that “no further wood waste product was necessary as
[Kingsford] had a more than sufficient supply.”
Bonner, who has yet to be deposed, has neither admitted nor
denied directing Tipple to stay delivery of wood waste during the
initial term. Thus, at this point, a genuine dispute of material
fact exists that precludes summary judgment. Should Bonner deny
making such a statement, Tipple’s evidence to support Kingsford’s
repudiation would rest solely on its own interrogatory responses
and affidavits, a slim reed indeed.

20

See Rogers v. Cotton, Nos.

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
4:08CV3891, 4:09CV1290, 2012 WL 396194, at *7 (D.S.C. Jan. 18,
2012) (“Plaintiff’s own self-serving statements, without more, are
insufficient to create a genuine dispute of fact.”) (citing Nat’l
Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000); White
v.

Boyle,

538

F.2d

1077,

1079

(4th

Cir.

1976)).

The

Court,

therefore, will defer its ruling on whether Kingsford is entitled
to summary judgment on Tipple’s breach of contract claim as to the
Initial Term until after Bonner is deposed.
3. Renewal Term
Based on the Court’s conclusion that any agreement between
Tipple and Kingsford concerning the Renewal Term was neither valid
nor enforceable, it follows that neither party has any rights or
obligations to assert regarding a purported breach during the
Renewal Term.

Thus, Tipple’s allegation that Kingsford breached

its contractual obligations during the Renewal Term fails, given
that Kingsford had no obligations during that period.

Moreover,

Kingsford’s allegation that it overpaid Tipple for wood waste
delivered during the Renewal Term also fails because there was no
written

contract

(aside

from

any

individual

purchase

governing the price of wood waste during that period.

21

orders)

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
V. CONCLUSION
A.

Legal Conclusions
Based

on

the

undisputed

evidence

before

it,

the

Court

concludes as a matter of law that:
1.

Tipple breached the parties’ Agreement by failing to
deliver 15,000 tons of wood waste during the first six
months of the Initial Term;

2.

Kingsford overpaid Tipple during the Initial Term by an
amount to be determined; and

3.

No contract existed for the Renewal Term, and the parties
had no obligations or rights under the Agreement after
December 3, 2011.

B.

Remaining Issues
Two material factual issues remain in dispute:
1.

Did Bonner repudiate the Agreement in mid-2011?

2.

By

how

much

did

Kingsford

overpay

Tipple

for

each

delivery during the Initial Term?
For these reasons, the Court GRANTS IN PART and DENIES IN PART
Kingsford’s motions for summary judgment.
to trial as scheduled.
It is so ORDERED.

22

The case should proceed

TIPPLE ENTERPRISE, LLC v. KINGSFORD MANUFACTURING CO.

1:13CV146

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 46, 48]
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: September 30, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

23