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Skyrise Construction Group LLC v. Annex Construction LLC

United States District Court, E.D. Wisconsin

February 20, 2019



          Nancy Joseph, United States Magistrate Judge.

         Skyrise Construction Group, LLC, a subcontractor providing construction services for the commercial building industry, sues Annex Construction, LLC, a general contractor who develops student housing near university campuses throughout the Midwest, for breach of contract, promissory estoppel, negligent misrepresentation, and violations of the Wisconsin and Illinois Deceptive Trade Practices Acts. Both parties move for summary judgment. Skyrise argues that the evidence establishes that the parties entered into a contract and Annex breached it. Alternatively, Skyrise argues that it is entitled to relief on its extra-contractual claims. Conversely, Annex argues the evidence establishes that the parties did not enter into a contract; rather, they simply engaged in protracted negotiations. Annex further argues Skyrise's alternative theories of recovery fail as a matter of law. For the reasons further explained below, Skyrise's motion for summary judgment is denied and Annex's motion for summary judgment is granted.


         In the early summer of 2017, Annex issued bid requests seeking bids from subcontractors to work on its Annex 71 Oshkosh 140 Unit Student Housing Project through an electronic platform called “iSqFt, ” used to solicit subcontractors to submit bids for the scope of work necessary to complete the project. (Pl.'s Proposed Findings of Fact (“PPFOF”) ¶ 1, Docket # 26 and Def.'s Response to PPFOF (“Def.'s Resp.”) ¶ 1, Docket # 29.) Skyrise developed an estimate to complete the rough framing and window installation work on the project and on or about July 7, 2017, electronically submitted a $970, 000.00 bid to perform the work. (Id. ¶¶ 2-3.) In 2017, Annex's Tom Tomaszewski was the sole corporate officer who negotiated and ultimately decided on which subcontractor bids Annex would accept for construction services at the Annex 71 project. (Id. ¶ 4.)

         On July 19, 2017, Skyrise's John Trojan (the project manager), at the direction of Ignacio Garcia (managing member of Skyrise, LLC), electronically emailed a revised bid for $950, 000.00 to perform the rough framing and window installation work. (Id. ¶ 6.) Neither party signed this document. (Id.) Upon receipt of Skyrise's revised bid, Tomaszewski sent an email containing a letter of intent. (Id. ¶ 7.) The letter of intent stated that it was “the intention of Annex Construction, LLC to enter into a contract with Skyrise Construction Group, LLC for rough carpentry work associated with the Annex 71 project . . . . I look forward to working with you on the project. We will work on getting you contract documents in the near future.” (Declaration of Thomas Tomaszewski (“Tomaszewski Decl.”), ¶ 6, Ex. C, Docket # 23 and Docket # 23-1 at 7-8.)

         Upon receipt of the letter of intent, Skyrise added the Annex 71 project to Skyrise's fall work schedule, setting aside 16-18 weeks of framing and window installation work at the project to start the first week of October 2017. (PPFOF ¶ 11 and Def.'s Resp. ¶ 11.) On August 2, 2017, Annex emailed a proposed contract document to Skyrise. (Id. ¶ 12.) On September 6, 2017, Annex emailed Skyrise the proposed contract a second time for its review. (Id. ¶ 14.) On September 7, 2017, Skyrise sent Annex an email stating that Trojan was “still reviewing the contract and should have it back to [Annex] tomorrow.” (Id. ¶ 15.)

         On September 13, 2017, Skyrise, by Trojan, emailed Annex stating that Garcia was requesting that Annex sign the bid proposal and return it to Skyrise while Garcia was reviewing the contract documents. (Id. ¶ 16; Tomaszewski Decl. ¶ 9, Ex. G, Docket # 23-1 at 67.) Garcia avers that it is Skyrise's standard practice to have the bid signed and returned to Skyrise. (Affidavit of Ignacio Garcia (“Garcia Aff.”) ¶ 13, Docket # 18.) On September 22, 2017, Tomaszewski signed Skyrise's July 19, 2017 bid and emailed a copy to Skyrise. (PPFOF ¶ 17 and Def.'s Resp. ¶ 17.) Tomaszewski wrote “Contract Exhibit A” on the signed proposal. (Tomaszewski Decl. ¶ 10, Ex. H, Docket # 23-1 at 70-71.)

         On October 11, 2017, Tomaszewski received an email from Amy Harnish, also of Annex, forwarding documents received at Annex's previous address. (Tomaszewski Decl. ¶ 11, Ex. I, Docket # 23-1 at 72.) The documents consisted of the revised proposed contract with handwritten edits by Garcia. (Id.; PPFOF ¶ 28 and Def.'s Resp. ¶ 28.) Garcia signed this document on behalf of Skyrise; however, Annex never signed this document. (Docket # 23-1 at 78; PPFOF ¶ 28 and Def.'s Resp. ¶ 28.)

         Throughout October 2017, the parties engaged in discussions regarding an expanded scope of work for Skyrise. (PPFOF ¶ 32 and Def.'s Resp. ¶ 32; Garcia Aff. ¶¶ 21-28; Affidavit of Attorney Gary W. Thompson ¶ 2, Deposition of Thomas Tomaszewski (“Tomaszewski Dep.”) at 29-30, Docket # 19.) On October 3, 2017, Skyrise provided Annex with a proposal for an expanded scope of work on the project. (PPFOF ¶ 32 and Def.'s Resp. ¶ 32.) Skyrise provided a revised proposal on October 31, 2017. (Tomaszewski Decl. ¶ 13, Ex. K, Docket # 23-1 at 99-101.) The parties dispute who initiated the discussions regarding expanding the scope of work-with Annex stating that Skyrise insisted on presenting an expanded scope of work (Tomaszewski Dep. at 30) and Skyrise stating that Annex approached it to do an expanded bid (Garcia Aff. ¶ 21). The parties further dispute why Skyrise bid on an expanded scope of work. Skyrise asserts that Annex was severely behind schedule on the project and Tomaszewski asked Garcia to work up an expanded bid proposal to get the project on track. (Garcia Aff. ¶¶ 18-21, 26.) Tomaszewski disputes that Annex was ever behind schedule and states that after an October 2017 on-site visit, Skyrise said that “this is no good and we can't do this, ” so Tomaszewski let them try to put something together that they thought would work. (Tomaszewski Dep. at 29-30.)

         On November 2, 2017, Annex emailed Skyrise advising as follows: “We are going to go ahead and pass on this guys. I appreciate the hard work however I am going to bring in a large framing company we have a very good relationship with and can meet our timeframe and schedule at a much lower cost. I will have our council [sic] get you a letter on the original contract that you signed in the near future.” (PPFOF ¶ 33 and Def.'s Resp. ¶ 33; Tomaszewski Decl. ¶ 14, Ex. L, Docket # 23-1 at 104.) On November 3, 2017, Annex, by counsel, sent Skyrise a written notice stating as follows: “This letter shall serve as written notice to Subcontractor that Contractor does not accept your revised proposal dated October 31, 2017. In addition, Contractor will not be accepting and countersigning the Agreement as marked-up by Subcontractor and is therefore null and void.” (PPFOF ¶ 34 and Def.'s Resp. ¶ 34; Tomaszewski Decl. ¶ 15, Ex. M, Docket # 23-1 at 105.)


         The court shall grant summary judgment 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. The mere existence of some factual dispute does not defeat a summary judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational ...

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