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Brandon International, Inc. v. Clark-Reliance Corp.

June 25, 2008

BRANDON INTERNATIONAL, INC. PLAINTIFF AND COUNTERCLAIM DEFENDANT,
v.
CLARK-RELIANCE CORPORATION, DEFENDANT AND COUNTERCLAIMANT.



The opinion of the court was delivered by: Donetta W. Ambrose, Chief U.S. District Judge

AMBROSE, Chief District Judge.

OPINION AND ORDER

In this breach of contract case, Defendant/Counterclaimant, Clark-Reliance Corporation, ("Clark"), filed an motion for summary judgment arguing that no enforceable contract exists between itself and Plaintiff, Brandon International, Inc. ("Brandon"), and thus, summary judgment should be granted as a matter of law. I disagree and decline to enter summary judgment for the reasons set forth below.

1. Factual & Procedural History

The facts are undisputed unless otherwise noted.

In April of 2006, Mark Chiarelli, President of Brandon, contacted a broker, Richard Ames, and requested his help in finding a small business for Plaintiff to buy. (Docket entry 46, fact no. 6). In July of 2006, Defendant hired Mr. Ames as its broker for the sale of one of its divisions, HYCOA. (Docket entry 46, fact no. 7). Subsequently, Mr. Ames contacted Plaintiff about the opportunity to purchase HYCOA. (Docket entry 46, fact no. 8). On August 11, 2006, Plaintiff requested some additional information about HYCOA from Defendant's CFO, which resulted in Plaintiff requesting that Defendant's Mazak machine be included in the deal. (Docket entry 46, fact no. 9). Defendant agreed and the Mazak machine remained part of the deal until sometime in December of 2006. (Docket entries 46, 48 and 53, fact no. 10).

On August 16 2006, Plaintiff sent a letter of intent ("LOI") to Mr. Ames suggesting a sale of all of HYCOA's assets. (Docket entry 46, fact no. 11). The LOI specifically stated that Plaintiff and Defendant would execute a "purchase agreement." (Docket entry 47-2, p. 55 and docket entry 47-3, p.1-2). The LOI also stated that no party would be bound until a definitive purchase agreement was executed. (Ibid). Both Plaintiff and Defendant signed the LOI. (Ibid).

Following the execution of the LOI, the parties exchanged several offers and counteroffers relating to the price of the acquisition of HYCOA's assets. (Docket entry 46, fact nos. 18-20). In September of 2006, Plaintiff and Defendant signed an "Offer to Purchase." (Docket entry 47-3, p. 3). This September Offer to Purchase contained a statement written in all capital letters, which had previously read, "This is a legally binding document, read it carefully." However, one or both of the parties crossed out this statement. (Ibid.)

About one month after signing this document, the parties revised the September Offer to Purchase and executed a second Offer to Purchase, (see, Ex. A to Plaintiff's complaint at docket entry 1, hereinafter " the October Offer to Purchase"). The October Offer to Purchase incorporated the handwritten notations found on the September Offer to Purchase and included some new handwritten notes. (Ibid.) Importantly, the October Offer to Purchase lacked the sentence, "[t]his is a legally binding document, read it carefully" which had been previously crossed out in the September Offer to Purchase. (Ibid.)However, the October Offer to Purchase contained the following sentences above the respective parties' signature lines: "P[urchaser] hereby agrees to buy on the terms set forth above" and "[t]he Seller agrees to sell on the terms set forth above." (Ibid.) The October Offer to Purchase also contained a merger clause which stated:

This document constitutes the entire understanding of the parties and there are no oral agreements, understandings, or representations relied upon by the parties. Any modifications must be in writing and signed by the parties. (Ibid.)

The October Offer to Purchase contained an "Amendment/ Addendum" which indicated that the purchase price of $250,000 would be paid for "substantially all the assets of HYCOA[,]" specifically excluding "any equipment that is solely used in the manufacture of JR-33 family of transfer valves." (Ibid.) The Amendment/Addendum also indicated that by the closing date,*fn1 Plaintiff would pay a separate sum for "inventory." (Ibid.) This amount due for inventory would be determined based on a formula set forth in the Amendment/Addendum. (Ibid.)

After the parties executed the October Offer to Purchase, Plaintiff asked Defendant's Broker (Ames) if he had spoken to his attorney about drafting a "formal agreement based on the [October Offer to Purchase] agreement..." (Docket entry 47-3, p. 11). In November, Ames' attorney prepared and circulated a draft asset purchase agreement, bulk sale notice, business sales agreement and covenant not to compete. (Docket entry 46 and 48, fact no. 47). Although both parties started to revise the draft asset purchase agreement, neither party ever signed it. (Docket entry 46, fact nos. 49-50, 52).

On December 6, 2006, Defendant sent Plaintiff a list of the equipment Defendant intended to retain after the closing and Plaintiff objected to the retention of most of the equipment on the list.

(Docket entry 46, fact nos. 54-55). Shortly thereafter, the deal between Plaintiff and Defendant seriously deteriorated, and the parties disagree as to the cause. Plaintiff claims the deal faltered when Defendant became aware of the value of the Mazak machine (approximately $425,000) and tried to retain it, or, in the alternative, have Plaintiff agree to increase the purchase price by an additional $250,000. (Docket entry 48, fact nos. 63, 65). Conversely, Defendant argues that Plaintiff wanted to reduce the purchase price to $100,000. (Docket entry 46, fact nos. 63, 65). Plaintiff concedes that it offered to ...


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