United States District Court, E.D. Wisconsin
DECISION AND ORDER ON PLAINTIFF'S AND
DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
Joseph, United States Magistrate Judge.
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.
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.)
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.)
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.)
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.)
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.)
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.)
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
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
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 ...