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Fultz & Son, Inc. v. Browning-Ferris Industries of Ohio, Inc.

United States District Court, N.D. Ohio, Eastern Division

July 12, 2019

FULTZ & SON, INC., Plaintiff,



         This matter is before the Court on Browning-Ferris Industries of Ohio, Inc.'s Motion for Summary Judgment as to Plaintiffs Complaint. (ECF # 52). The motion has been fully briefed and is ready for disposition. (ECF # 57, 58, 63, 64). Having considered all of the arguments of the parties, and having reviewed the undisputed facts and applicable law, the Court finds that Defendant's motion should be GRANTED in part and DENIED in part.


         Fultz & Son, Inc. ("FSI"), is a small commercial and residential waste hauler. On February 13, 2015, FSI entered into an Asset Purchase Agreement with Browning-Ferris Industries of Ohio, Inc. ("Browning") whereby Browning would purchase FSI's hauling routes for industrial, residential, and commercial solid waste, and recyclable waste for $8.5 million. (ECF #52 at 3). The Asset Purchase Agreement incorporated several sub-agreements, including a Supply Agreement. The Supply Agreement outlined a five-year contract during which Browning would deliver to FSI "(1) all roll-off loads that contain C&D Waste within the Territory, (2) the waste from certain roll-off customers that produce dry industrial waste roll-off loads[2] to be negotiated by the parties on a case-by-case basis, (3) all old corrugated cardboard ("OCC") collected within the Territory, and (4) all single-stream recyclables ("SSR") collected within the Territory. (ECF #1-1, Recital E). The Supply Agreement defined C&D Waste as "any and all waste that is not Unacceptable Waste, resulting from the construction, remodeling, clean-up and demolition operations on houses, commercial and industrial buildings and other structures." (ECF #1-1, Section 1.2). "Unacceptable Waste" is defined as "any and all Municipal Solid Waste or other wastes that the Landfill or the MRF Facility. . . is not authorized to accept for disposal pursuant to its permits, licenses and/or the applicable regulations of the Ohio EPA ....). (ECF #1-1, Section 1.6). Following the purchase of its assets by Browning, FSFs revenue was to be derived from (1) "tipping fees" from Browning for the unloading or "tipping" of C&D roll-off boxes under the terms set forth in the Supply Agreement, and (2) the revenues from the resale of C&D, OCC, and SSR on the commodities market.

         Disputes between the parties surfaced almost immediately after the agreements were executed. Among other things, FSI claimed that Browning did not deliver all of the C&D roll-off boxes that it was required to send FSI under the terms of the Supply Agreement. Browning countered that FSI had improperly raised the SSR processing fees. The disagreements escalated over the first half of the year, and by August 1, FSI stopped accepting SSR loads from Browning. (ECF #1, ¶54). Browning took the position that FSFs failure to accept SSR loads was a material breach of the Supply Agreement, and stopped delivering OCC loads the same month. (ECF #1, ¶ 56). The FSI facility ceased operations and began liquidation on August 21, 2015. (ECF # 1, ¶57).

         On January 6, 2017, FSI filed a two-count Complaint against Browning in the Northern District of Ohio. Count One of the Complaint alleges that Browning breached the Supply Agreement and Count Two alleged Browning fraudulently induced FSI to enter into the Supply Agreement. (ECF#1). Plaintiff now concedes that there is insufficient evidence to maintain its claim of fraud, and has withdrawn that claim. (ECF #57, fn. 8). Thus, Plaintiffs only claim remaining is for breach of contract.

         Along with its Answer, Defendant, Browning filed a Counterclaim against FSI, as well as a Third-Party Complaint against its owner Larry A. Fultz and against Kendra Fultz. (ECF #14). Defendant, Browning asserts claims for: (1) Breach of the Asset Purchase Agreement and Supply Agreement against FSI and Larry Fultz; (2) Civil Conversion against FSI; (3) Contractual Indemnity against FSI and Larry Fultz; (4) Unjust Enrichment against FSI; and, (5) Breach of Noncompetition and Nonsolicitation Agreements against FSI, Larry Fultz, and Kendra Fultz. Browning also seeks declaratory relief against FSI, and Larry and Kendra Fultz. (ECf #14). Plaintiff FSI filed a Partial Motion to dismiss Count 4 of the Counterclaim (ECF #25), which was denied. (ECF #25, 31).

         This case is now before the Court on Defendant, Browning's Motion for summary judgment as to plaintiffs complaint. Browning argues that FSFs only alleged damages are precluded by the terms of the Asset Purchase Agreement, and are otherwise not viable because they are not reasonably certain and have not been causally tied to Browning's alleged breach of the Supply Agreement. (ECF #52).

         Summary Judgment Standard

         Summary judgment is appropriate when the court is satisfied "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). The burden of showing the absence of any such "genuine issue" rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). Inmost civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         Once the moving party has satisfied its burden of proof, the burden then shifts to the non-mover. The non-moving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep 't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). In lieu of presenting evidence, Fed.R.Civ.P. 56(c) also allows that a party may show that the opposing party's evidence does "not establish the presence of a genuine dispute" or that the adverse party "cannot produce admissible evidence to support the fact."

According to Fed.R.Civ.P. 56(e),
[i]f a party fails to properly support an assertion of fact, or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) issue any other appropriate order

         In sum, proper summary judgment analysis entails "the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may ...

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