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The Meyers Printing Cos., Inc. v. Desa, LLC: US DIstrict Court : CONTRACT | AGENCY - actual, apparent authority or agency; notice, inquiry;

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
The Meyers Printing Companies, Inc.,
d/b/a Meyers Printing Company
a/k/a Meyers,
Plaintiffs,
v. MEMORANDUM OPINION AND
ORDER
Civil No. 06-255 ADM/AJB
Desa, LLC and Echo, Incorporated,
Defendants.
Echo, Incorporated,
Third Party Plaintiff,
v.
Techtronic Industries North America, Inc.,
Third Party Defendant.
Desa, LLC,
Third Party Plaintiff,
v.
Techtronic Industries North America, Inc.,
Third Party Defendant.
1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
2
______________________________________________________________________________
Michael P. Coaty, Esq., Coleman, Hull & van Vliet, PLLP, Minneapolis, MN, argued on behalf
of The Meyers Printing Companies, Inc.
Lester I. Adams, Jr., Esq., Pedley Zielke Gordinier & Pence, PLLC, Louisville, KY, argued on
behalf of Desa, LLC; John B. Stanis, Esq., Masuda, Funai, Eifert & Mitchell, Ltd., Schaumburg,
IL, argued on behalf of Echo Incorporated; J. Alison Morris, Esq. and Justin H. Perl, Esq.,
Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, argued on behalf of Techtronic
Industries North America, Inc.
______________________________________________________________________________
I. INTRODUCTION
On June 27, 2007, the undersigned United States District Judge heard oral argument on
Defendant Desa, LLCs (Desa) Motion for Summary Judgment [Docket No. 46] and
Defendant Echo, Incorporateds (Echo) Motion for Summary Judgment [Docket No. 51]. In
its Complaint [Docket No. 1], Plaintiff The Meyers Printing Companies, Inc. (Meyers) asserts
claims for breach of contract, account stated, and unjust enrichment against Desa and Echo
(collectively Defendants). For the reasons set forth herein, Defendants Motions are granted in
part and denied in part.
II. BACKGROUND1
Meyers is a Minnesota corporation with its principal place of business in Minneapolis.
Compl. 1. Meyers produces point-of-purchase displays that are installed in retail stores such as
The Home Depot (Home Depot). Carron Dep. [Docket No. 58] at 10. Desa is a foreign
corporation with its principal place of business in Bowling Green, Kentucky. Desas 3d Party
Compl. [Docket No. 27] 1. Echo is an Illinois corporation with its principal place of business
3
in Lake Zurich, Illinois. Echos 3d Party Compl. [Docket No. 24] 1. Third Party Defendant
Techtronic Industries North America, Inc. (TTI) is foreign corporation with its principal place
of business in Anderson, South Carolina. Id. 2; TTIs Answer to Echos 3d Party Compl.
[Docket No. 36] 2. Desa, Echo, and TTI are competitors who manufacture and sell outdoor
power equipment, including trimmers, clippers, blowers, and chain saws, to retailers such as
Home Depot.
In early 2004, Home Depot decided to change, or reset, the displays for the outdoor
power equipment in its stores. Home Depot decided to reset the displays because customers
haphazardly returned the products to the shelves, creating a disorderly appearance. Moore Dep.
[Docket No. 60] at 22-23. In March 2004, Home Depot asked Steve Moore (Moore), Director
of Marketing of TTIs Outdoor Products Division, to design new displays for Home Depots
outdoor power equipment. Id. at 12, 23-24. In May 2004, Moore presented a design proposal to
Home Depot, and further revisions were made. Id. at 32-33.
Around this time, Home Depot asked Moore if TTI would serve as the category captain
of the reset project. Id. at 27. As category captain, TTI would get a good, suitable working
design developed, presented, approved by all parties [including other outdoor power equipment
manufacturers], produced, and launched in Home Depots approximately 1,600 stores. Id. at
32. By July 2004, Home Depot informed DESA, Echo, and other outdoor power equipment
manufacturers that the in-store displays would be reset, and that TTI would be the captain of the
reset project. Id. at 33-34. In addition to TTI, Desa, and Echo, the outdoor power equipment
manufacturers involved in the reset project were Black & Decker, Toro, MTD, and Electrolux
Home Products (all the manufacturers collectively are the Home Depot Vendors).
2 Unless otherwise specified, all references to a Desa Ex. are to Docket No. 49.
4
Home Depot and the Home Depot Vendors agreed on a display design that required the
manufacture and installation of product display pods that would hold each companys specific
products. See Desa Ex. [Docket No. 49] C-1 to C-4.2 By early September 2004, Moore solicited
quotes from printing companies for production of the new displays and accompanying printed
materials, and shipment to Home Depots stores. Moore Dep. at 47. Moore also sought a
company that would serve as the bank, meaning that the company selected would secure
partial payment from each of the Home Depot Vendors to comprise the total cost. Id. at 58, 103,
132. By early October 2004, Moore selected Meyers to produce and ship the displays because
Meyers submitted the lowest quote and Meyers agreed to be the bank. Id. at 54-55, 59.
On October 7 and 8, 2004, Home Depot and the Home Depot Vendors met at Home
Depots Innovation Center in Atlanta, Georgia, to review prototypes of the new reset displays.
Id. at 38-39. In a letter attached to an October 29, 2004, email, Moore informed the Home Depot
Vendors that Meyers would produce the displays. The letter stated in part:
Hello everyone. As we draw near to the important start of final production deadlines for
the 3,200 blower bay kits, the 3,200 chain saw bay kits and the estimated 1,750 Hedge
Trimmer Bay kits, all scheduled for the Jan. -Feb. 05 reset period, I wanted to also get
you on-board with the selected supplier.
Familiar to most of you, Meyers Display out of Minneapolis, is a top-notch, ISO
Certified, P.O.P. [point of purchase] producer. The primary benefit of having them work
on behalf of all of us is not only their winning quote, but their high quality end product
and the under-one-roof capability that we need at this time. With the bay back wall and
wing graphics, the vacuum-formed product troughs/cradles, and the C-Channel and Fact
Tag (card) material all coming from one source, our efficiency is maximized.
From the latest changes to the design set-up that came from our recent Atlanta meeting,
we are reviewing the final costs and how that will affect each company. Scott Carron of
Meyers will be in touch with each of you to set up your account. Your share of the
respective bay expense will be reworked per the (latest) line-up mix, per category, as
3 The estimates only included Meyers anticipated charges for producing the displays and
shipping them to Home Depots stores. TTI handled the installation of the displays, and those
costs are not at issue.
5
confirmed by Jeanine Huebner [of Home Depot], straight and simple. We foresee no
surprises with this product based allocation.
Dep. Ex. 20 [Docket No. 54]. Scott Carron (Carron), Meyers account executive for the reset
project, also received the email and the letter. Id.; Carron Dep. at 11.
In mid-November 2004, the Home Depot Vendors again met at Home Depots
Innovation Center. Dep. Ex. 45 (Desa Ex. E). In a November 18, 2004, memorandum, Victoria
Michal (Michal), Director of Sales for TTIs Outdoor Products Group, provided the other
Home Depot Vendors with Meyers estimates of the cost of the new displays. Dep. Ex. 6
[Docket No. 54]. Carron of Meyers received a copy of the memorandum, which estimated that
the total cost would be 9,131 for the blower displays, 4,044 for the chain saw displays,
and ,770 for the hedge trimmer displays, for a total cost of 5,945. Dep. Ex. 6; Carron
Dep. at 51. Desas estimated share was ,213 for the chain saw displays and ,346 for the
hedge trimmer displays, for a total of ,559. Dep. Ex. 6. Echos estimated share was ,748
for the blower displays, ,069 for the chain saw displays, and ,346 for the hedge trimmer
displays, for a total of 4,163. Id. The November 18 memorandum stated that these estimates
were based upon every aspect of the job . . . . Shipping charges have been included here.
Shipments will be direct to store via Meyer Display.3 Id. The estimates were based on costs for
ground shipping. Moore Dep. at 79.
In late November and early December 2004, Moore and Michal of TTI communicated
with Carron of Meyers to monitor whether Meyers could produce the displays in accordance
with the anticipated reset schedule for January and February 2005. Michal Dep. [Docket No. 62]
6
at 39-41. On December 14, TTI emailed Meyers a copy of the reset schedule. Dep. Ex. 51
(Desa Ex. E). Carron was shocked by the number of resets scheduled in early January. Carron
Dep. at 95. Previously, Moore of TTI told Carron that 200 stores per week would be reset
during the first two weeks of the reset project, and that the resets would not be needed in stores
until mid-January. Moore Dep. at 158; Carron Dep. at 33, 64-65. However, the reset schedule
provided to Meyers on December 14 provided that 283 stores would be reset during the week of
January 2, 2005, 575 during the week of January 9, and 294 during the week of January 16.
Dep. Ex. 51. On December 22 or 23, 2004, Moore and Michal of TTI and Carron and Tom
Kukuk (Kukuk), Vice President of Sales at Meyers, participated in a conference call. Moore
Dep. at 87-88. During the call, Carron and Kukuk disclosed for the first time that Meyers had
subcontracted production of the display pods to the Display Center in Missouri. Id. at 88.
Moore was very surprised, and he feared that Meyers would be unable to meet the reset schedule
because Meyers would have less control over the Display Center than Meyers would have had
over its own employees. Id. at 88-89. The conversation got loud, but Kukuk told Moore and
Michal that he would turn up the heat regarding production of the pods. Id. at 91. Around this
time, Carron asked Moore whether the reset schedule could be modified to reduce the number of
resets in early January. Carron Dep. at 92-94. Moore responded that Home Depot would not
change the reset schedule. Id.
To meet the reset schedule, which was further revised based on the needs of Home
Depot, Meyers incurred added costs due to overtime labor expenses incurred by the Display
Center for production of the pods, and due to expedited shipping of the display kits to Home
Depot stores. Carron Dep. at 39-40, 44-45, 111; Moore Dep. at 110-11, 161. Kukuk Dep. at
7
141-43. Instead of shipping the kits by ground, Meyers shipped a substantial number of the
display kits by air for next-day or two-day delivery. Carron Dep. at 163-69; Dep. Ex. 65.
Kukuk Dep. at 142-43. By early January 2005, Carron of Meyers and Moore of TTI were aware
that overtime labor and expedited shipping would increase the Home Depot Vendors costs for
the reset project. Moore Dep. at 107; Carron Dep. at 117-18.
However, neither Meyers nor TTI communicated the increased costs to the other Home
Depot Vendors. Kukuk and Carron presumed that TTI, as category captain, had responsibility to
communicate with the other Home Depot Vendors and the authority to speak on their behalf.
Kukuk Dep. at 80, 159; Carron Dep. at 266. Moore presumed that Meyers, as the bank, would
communicate the increased costs to the Home Depot Vendors. Moore Dep. at 121. Consistent
with this understanding, around January 14, 2005, Moore emailed Carron a template letter that
Meyers could use to communicate with the Home Depot Vendors. Dep. Exs. 77 (Desa Ex. M),
84 (Desa Ex. M). The template, addressed to Black & Decker, discussed the reset project cost
allocation, and stated in part:
Shipping is the lone variable not included at this time due to the fact that we (Meyers) are
in the middle of shipping currently and the original numbers forecast were underestimated.
Each brand will be re-billed their respective percentage for the end-of-project
freight charges.
Here is the B&D charge in need of approval so that the January partial billing can
commence.
Dep. Ex. 84. The template letter included a chart listing the revised estimated expenses. Id. The
chart listed the shipping expense as not yet available. Id. Meyers did not distribute this letter,
and neither Meyers nor TTI communicated with the other Home Depot Vendors regarding the
anticipated cost overruns.
4 The amount is slightly different from the November 18, 2004, estimate of 4,163
because Echo calculated its percentage of the estimated cost to two additional decimal places.
8
Before January 2005, Meyers only contact with the Home Depot Vendors was to solicit
credit applications in late November and early December 2004. Kukuk Dep. at 158. On January
12, 2005, Carron discussed Meyers billing procedures with Kent Ralston (Ralston) of Desa.
Dep. Ex. 106 (Desa Ex. E). Carron and Ralston agreed that Meyers would bill Desa in four
equal installments. Id. Meyers sent Desa an invoice dated January 14, 2005, for ,000, and an
invoice dated January 28, 2005, also for ,000. Dep. Exs. 109 (Desa Ex. E) and 112 (Desa Ex.
E). These invoices were consistent with dividing the November 18, 2004, ,559 estimate of
Desas share of the reset project into four equal invoices. Desa paid these invoices in March
2005. Dep. Ex. 124 (Desa Ex. E). Desa first learned that there might be cost overruns in early
March 2005, when Moore gave Ralston a heads up. Dep. Ex. 117 (Desa Ex. E).
Meyers communication with Echo was similarly limited. Except for Meyers
solicitation of Echos credit application, Meyers and Echo had no contact until January 12, 2005,
when Carron emailed Dave Korpieski (Korpieski) of Echo to request a purchase order so
Meyers could begin partial billing. Dep. Ex. 8 [Docket No. 54]. On January 25, 2005, Echo
faxed Meyers a purchase order for 3,492.88, which corresponded with the November 18,
2004, estimate of Echos share of the reset project expenses.4 Dep. Ex. 16 [Docket No. 54].
Echos purchase order stated:
Positively no claims or charges will be allowed by Buyer for additional work or material,
or for drayage or packing and no substitution of material or changes in price will be
permitted except on written authority from the Buyer.
Id. After receiving Echos purchase order, Meyers issued a January 28, 2005, invoice to Echo
9
for ,000. Dep. Ex. 17 [Docket No. 54]. Echo paid the invoice in March 2005. Dep. Ex. 23
[Docket No. 54].
In April 2005, Meyers provided TTI with final production and shipping costs, and TTI
determined the pro rata portions of each Home Depot Vendor. Moore Dep. at 115-16. In May
2005, Meyers sent invoices to the Home Depot Vendors. Meyers sent Desa an invoice for
,413 and an invoice for 1,121. Dep. Ex. 115 (Desa Ex. E). Combined with the January
invoices, Desa was billed 0,534 by Meyers for the reset project. Desa paid ,000 of the
May 2005 invoices; combined with its previous payments, Desa paid ,000, the approximate
amount of its November 18, 2004, estimated costs. Desa refused to pay additional amounts,
leaving an unpaid balance of 2,534. Meyers sent Echo May 2005 invoices of 5,291 and
8,845. Dep. Exs. 24-26 [Docket No. 54]. Combined with the January invoice, Meyers billed
Echo 2,136 for the reset project. In total, Echo paid 3,493, the amount of its purchase
order, leaving an unpaid balance of 8,643. All other Home Depot Vendors paid their
balances in full.
After unsuccessful efforts to obtain payment from Desa and Echo, Meyers initiated this
litigation on December 19, 2005. Meyers asserts claims against Desa and Echo for breach of
contract, account stated, and unjust enrichment. Desa and Echo have filed third party complaints
impleading TTI.
III. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
10
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party may not rest on mere
allegations or denials, but must demonstrate on the record the existence of specific facts which
create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Breach of Contract
It is undisputed that a contract existed between Meyers and Desa in the amount of the
November 18, 2005, estimate of ,000. Pl.s Mem. in Oppn to Summ. J. [Docket No. 64] at
16. Likewise, Meyers and Echo agree that a contract existed between them obligating Echo to
pay 3,493 of the total cost of the reset project. However, the parties vigorously dispute
whether Desa and Echo are liable for the additional amounts billed by Meyers. Meyers argues
that TTI, as category captain of the reset project, was the Home Depot Vendors agent and
therefore it had the implied authority to modify the respective contracts by authorizing overtime
and expedited shipping charges. In the alternative, Meyers contends Desa and Echo are liable
under theories of apparent authority or agency by estoppel.
1. Implied Authority
[N]o one can become the agent of another except by the will of the principal, and the
principal is bound by the agents acts only to the extent of the authority, actual or apparent,
which he has conferred upon the agent. Burchard v. Hull, 74 N.W. 163, 164 (Minn. 1898).
11
Express authority is that authority which the principal directly grants to the agent. Implied
authority includes only those powers which are essential to carry out the duties expressly
delegated. Hockemeyer v. Pooler, 130 N.W.2d 367, 377 (Minn. 1964). Additionally, one who
deals with an agent is put to a certain burden of reasonableness and diligence. Every person
who undertakes to deal with an agent is put on inquiry and must discover whether the agent has
the authority to complete the proposed act. Truck Crane Serv. Co. v. Barr-Nelson, Inc., 392
N.W.2d 824, 827 (Minn. 1983), quoting W. Concord Conservation Club v. Chilson, 306 N.W.2d
893, 896 (Minn. 1981).
It is undisputed that neither Desa nor Echo authorized TTI to incur the charges for
overtime labor and expedited shipping. However, Meyers argues that Desa and Echo each
approved or acquiesced in TTIs role as category captain of the reset project, and that TTIs
authority to act as category captain carried with it the implied authority to incur the expenses for
overtime labor and expedited shipping which obligated Desa and Echo to pay those expenses.
Meyers implied authority argument is based on TTIs status as category captain of the reset
project and the fact that TTI received purchase orders from Desa and Echo. See Kukuk Dep. at
159, 190; Carron Dep. at 266.
TTIs duties as category captain of the reset project were not reduced to writing. Kukuk
testified that the category captain concept has been utilized in the retail sector for 15, 20 years,
and that typically a retailer take[s] the largest provider in a particular category and identif[ies]
them as a Category Captain, and they [the category captain] take the lead on, usually, a store
reset. Kukuk Dep. at 16, 151. Kukuk asserted that a category captain typically has authority to
speak on behalf of noncaptain vendors. Id. at 159. Moore of TTI described TTIs category
12
captain responsibilities as get[ing] a good, suitable working design developed, presented,
approved by all parties, produced, and launched in Home Depots stores. Moore Dep. at 32.
Michal of TTI stated that TTIs role as category captain was to manage the project, primarily
for the benefit of Home Depot, by communicating executional and logistical information
between Home Depot, the Home Depot Vendors, and Meyers. Michal Dep. at 20.
Meyers contends that by acquiescing in TTIs status as category captain and by
submitting purchase order numbers, Desa and Echo gave TT[I] actual, implied authority to
amend the respective contracts to do whatever was necessary and proper to complete the reset
schedule. Pl.s Mem. in Oppn to Mot. for Summ. J. at 16. In response, Desa and Echo both
argue it was unreasonable as a matter of law for Meyers to assume that TTI could amend their
respective contracts, especially because TTI, Desa, and Echo are direct competitors. Desa and
Echo emphasize that each Home Depot Vendor set up its own account with Meyers. Desa and
Echo also argue that Moores January 14, 2005, email with the draft form letter should have put
Meyers on notice that the Home Depot Vendors were unaware of the additional costs being
occurred. Additionally, Echo refers to its purchase order of January 25, 2005, which included
language that additional amounts must be approved in writing.
On this record, the Court finds there are genuine issues of material fact regarding the
scope of TTIs authority to bind Desa and Echo. A fact finder could determine it was
unreasonable for Meyers to assume that TTIs role as category captain included authority to
obligate its direct competitors to pay for substantial cost overruns. However, based on Kukuks
testimony, there is some support that it is customary for a category captain of a reset project to
speak for the other parties involved. There is no evidence that Desa or Echo placed limitations
13
on TTIs authority when they agreed to participate in the reset project in November 2005.
Additionally, the evidence shows that all communications regarding cost estimates were
distributed to the Home Depot Vendors by TTI, not Meyers. Therefore, there is a genuine issue
of material fact as to whether it was reasonable for Meyers to assume that TTI was
communicating with the other Home Depot Vendors when TTI authorized the overtime labor
and expedited shipping costs. Summary judgment is denied to Desa and Echo on Meyers
breach of contract claim.
However, the Court finds as a matter of law that Echos January 25, 2005, purchase order
put Meyers on notice of TTIs lack of authority to obligate Echo to future costs (after January 25,
2005) for overtime labor and expedited shipping. As noted above, one who deals with an agent
is put to a certain burden of reasonableness and diligence. Truck Crane Serv. Co., 392 N.W.2d
at 827. Echos purchase order for 2,492.88 unequivocally provided that no changes in price
will be permitted except on written authority from the buyer. Dep. Ex. 16. Regardless of any
implied authority inherent in TTIs role as category captain, after Meyers receipt of Echos
purchase order it was unreasonable as a matter of law for Meyers to continue to believe TTI had
implied authority to bind Echo to additional overtime labor and expedited shipping costs beyond
the 3,492.88 amount of Echos invoice.
2. Apparent Authority and Agency by Estoppel
Meyers advances two additional theories in support of its breach of contract claims
against Desa and Echo. Meyers first argues Desa and Echo are liable for the full amounts billed
to each because each clothed TTI with apparent authority to approve Meyers overtime labor and
expedited shipping costs. Apparent authority is that authority which a principal holds an agent
14
out as possessing, or knowingly permits an agent to assume. Foley v. Allard, 427 N.W.2d 647,
652 (Minn. 1988). The elements of apparent authority are:
The principal must have held the agent out as having authority, or must have knowingly
permitted the agent to act on its behalf; furthermore, the party dealing with the agent
must have actual knowledge that the agent was held out by the principal as having such
authority or had been permitted by the principal to act on its behalf; and the proof of the
agents apparent authority must be found in the conduct of the principal, not the agent.
Hockemeyer, 130 N.W.2d at 375.
For the reasons discussed above regarding Meyers implied authority argument, there is a
genuine issue of material fact regarding whether Echo and Desa held TTI out as having authority
to obligate them to pay the overtime labor and expedited shipping expenses. However, as with
Meyers implied authority claim, Echo can not be held liable under a theory of apparent
authority for overtime and expedited labor costs incurred by Meyers after Meyers received
Echos January 25, 2005, purchase order.
Meyers also contends Desa and Echo are each liable for their outstanding balances under
agency by estoppel. Agency by estoppel arises . . . where the principal by his culpable
negligence permits his agent to exercise powers not granted to him, even though the principal
have no notice or knowledge of the conduct of the agent. Dispatch Printing Co. v. Natl Bank
of Commerce, 124 N.W. 236, 240 (Minn. 1910). Agency by estoppel is very similar to apparent
authority, except that [a]pparent authority is not founded in negligence of the principal, but in
the conscious permission of acts beyond the powers granted, whereas the rule of estoppel has its
basis in the negligence of the principal in failing properly to supervise and control the affairs of
the agent. Id.
Meyers cannot prevail on its agency by estoppel argument because there is no evidence
15
that either Desa or Echo were negligent. Meyers conclusorily asserts that Desa and Echo should
have known that TTI approved overtime labor and expedited shipping costs. However, TTIs
duties as category captain were to communicate executional and logistical information to the
other Home Depot Vendors. Thus, Meyers has no basis to argue that Desa and Echo were
negligent for not determining that TTI failed to inform them of the use of overtime labor and
expedited shipping.
C. Account Stated
Count 2 of Meyers Complaint asserts a claim for account stated. An account stated is a
manifestation of assent by a debtor and creditor to a stated sum as an accurate computation of an
amount due the creditor. A partys retention without objection for an unreasonably long time of a
statement of account rendered by the other party is a manifestation of assent. Am. Druggists
Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 573 (Minn. Ct. App. 1984). Desa and Echo
argue they are entitled to summary judgment on Meyers account stated claim because they both
objected within days of receiving their respective invoices from Meyers in May 2005. See Dep.
Exs. 27 [Docket No. 54], 118 (Morris Aff. [Docket Nos. 82-83] Ex. A).
In response, Meyer asserts without citation to the record that TTI, as agent for both Desa
and Echo, approved all of Meyers invoices including the costs incurred regarding overtime and
expedited shipping costs. Pl.s Mem. in Oppn to Mot. for Summ. J. at 25. Meyers brief fails
to specify when these alleged invoices where delivered to TTI and whether those invoices
specifically stated amounts due from Echo and Desa. Therefore, the undisputed evidence is that
Desa and Echo objected to the amounts stated in their respective May 2005 invoices shortly after
receiving the invoices. Moreover, Meyers understood that as the bank it must look to the
16
individual Home Depot Vendors for payment, and Desa and Echo each created their own
individual accounts with Meyers for billing purposes. Therefore, Meyers argument that TTI
had authority to approve invoices of amounts owed by Desa and Echo is rejected. Desa and
Echo are each entitled to summary judgment on Meyers claims of account stated.
D. Unjust Enrichment
Count 3 of Meyers Complaint asserts a claim for unjust enrichment. However, the
existence of an express contract precludes recovery under the theories of quasi-contract, unjust
enrichment, or quantum meruit. Sterling Capital Advisors v. Herzog, 575 N.W.2d 121, 126
(Minn. Ct. App. 1998). Desa and Meyers agree that a contract existed between them, and Echo
and Meyers similarly agree that a contract existed between them. Desa and Echo argue that the
express terms of their respective contracts are evidenced by the November 18, 2004, cost
estimates and their respective purchase orders. Meyers argues those express terms were
modified by TTIs instructions to use overtime labor and expedited shipping. Regardless of
which argument prevails, an express contract existed. Therefore, Meyers cannot recover under
the theory of unjust enrichment, and Desa and Echo are granted summary judgment on Count 3
of Meyers Complaint.
17
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendant Desa, LLCs Motion for Summary Judgment [Docket No. 46] is
GRANTED IN PART AND DENIED IN PART;
2. Defendant Echo, Incorporateds Motion for Summary Judgment [Docket No. 51]
is GRANTED IN PART AND DENIED IN PART; and
3. Counts 2 and 3 of the Complaint [Docket No. 1] are DISMISSED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: October 2, 2007.
 

 
 
 

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Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement
        offer.

I accepted a settlement
        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

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Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.