Fin Brand v. Take 2 Dough

2011 DNH 219

Opinion

Fin Brand v . Take 2 Dough CV-09-451-JL 12/22/11

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Fin Brand Positioning, LLC Martin Eldon Lapham, and Julie Lapham

v. Civil N o . 09-cv-405-JL Opinion N o . 2011 DNH 219 Take 2 Dough Productions, Inc. David Tully, and Dawn Tully

SUMMARY ORDER

Defendants David and Dawn Tully and their company, Take 2

Dough Productions, Inc. have moved for reconsideration of this

court’s order denying their motion for summary judgment in part

and granting it in part. Fin Brand Positioning, LLC v . Take 2

Dough Prods., Inc., 2011 DNH 200 (“Order”). Defendants argue

that the court made numerous errors of law or fact in ruling that

they were not entitled to summary judgment on the plaintiffs’

claims for promissory estoppel, unjust enrichment, and violation

of the Consumer Protection Act (“CPA”).

The facts relevant to the motion for summary judgment are

fully related in the Order. In essence, plaintiffs Fin Brand

Positioning, LLC, Marty Lapham, and Julie Lapham allege that

defendants promised them an ownership share in a company that

sold pizza dough at retail, but later reneged after obtaining the

benefit of plaintiffs’ efforts in developing that business. They

assert claims for breach of contract, promissory estoppel, unjust

1 enrichment, and unfair and deceptive practices in violation of

the CPA. In the Order, the court granted summary judgment to

defendants on the breach of contract claim, concluding (among

other things) that the terms of the alleged contracts were too

indefinite to enforce. Order at 15-18. As to the other claims,

however, the court denied the motion for summary judgment,

concluding that the existence of genuine issues of material fact

remained. Id. at 18-27.

As fully explained infra, defendants’ motion for

reconsideration fails to demonstrate any “manifest error of fact

or law” in these rulings. L.R. 7.2(e). The motion is therefore

denied.

I. Promissory estoppel

Defendants first argue that the court erred in not granting

them summary judgment on the promissory estoppel claim. They

argue that because that claim is “premised on the same indefinite

and unenforceable ‘promises’ that underlay the breach of contract

claim” -- on which, as just discussed, the court granted summary

judgment to defendants –- it must suffer the same fate.

Defendants’ argument fails for a number of reasons. Not

least of these is that defendants never once raised this argument

in their memoranda in support of their motion for summary

judgment, and did not do so at oral argument even when the court

2 explained repeatedly that it would likely grant summary judgment

for the defendants on the breach of contract claim. Rather, in

moving for summary judgment on the promissory estoppel claim,

defendants argued that plaintiffs could not recover under that

theory because (a) all of the alleged reliance took place before

any of the alleged promises; and (b) the parties’ relationship

was governed by an express agreement, making the doctrine of

promissory estoppel inapplicable. See document n o . 39-1 at 18-

2 1 ; document n o . 45 at 7-8. The memoranda do not betray the

faintest whiff of an argument that the alleged promises on which

plaintiffs sought to recover were too vague or indefinite to

enforce. As this court has previously cautioned, “[a] motion for

reconsideration generally does not provide a vehicle for a party

to undo its own procedural failures or allow a party to advance

arguments that could and should have been presented to the

district court prior to judgment.” Skinner v . Salem Sch. Dist.,

718 F. Supp. 2d 186, 193 (D.N.H. 2010) (quotation marks omitted).

Even if defendants had timely raised this argument in their

motion, it would not have entitled them to summary judgment,

anyway. While, as described in the Order, an agreement’s

“general structure and specific provisions” must be sufficiently

definite to be enforceable in contract, Order at 1 5 , the same is

not true of the promises upon which a promissory estoppel claim

is premised. The New Hampshire Supreme Court suggested as much

3 in Jackson v . Morse, 152 N.H. 48 (2005), a case defendants

themselves cite (albeit only selectively).

In Jackson, the court held that the trial court had erred in

permitting the jury to determine whether the proper measure of

damages on a promissory estoppel claim was the expected value of

the promise or the damages plaintiffs incurred in reasonable

reliance on i t . Id. at 52-54. The appropriate measure, the

court concluded, was a question of law to be determined by the

trial court based upon the “facts and equities” of each case.

Id. at 5 2 . Such facts and equities, the court remarked, include

the clarity and definiteness of the promise: “while expectation

damages are usually awarded when the promise is clear or

definite, damages in the case of an indefinite or unclear promise

will be limited to expenses incurred in reasonable reliance on

the vague promise.” Id. at 53 (quoting Garwood Packaging, Inc.

v . Allen & Co., Inc., 378 F.3d 6 9 8 , 703 (7th Cir. 2004)).

This court draws from Jackson, then, the same conclusion

recently drawn by another judge of this district, i.e., that “a

promissory estoppel claim may proceed based on an indefinite or

unclear promise, although the measure of damages is affected.”1

1 A promise’s lack of definiteness or clarity also arguably affects whether the plaintiff’s reliance on the promise was reasonable. C f . Armstrong v . Rohm & Haas Co., Inc., 349 F. Supp. 2d 7 1 , 83 n.16 (D. Mass. 2004) (concluding that plaintiffs could not establish that reliance on “vague and indefinite” promise was reasonable for purposes of promissory estoppel claim). Based upon the record evidence in this case, though, the court cannot

4 Aftokinito Props., Inc. v . Millbrook Ventures, LLC, 2010 DNH 1 4 4 ,

at 17 (DiClerico, J . ) . Thus, the fact that the promises on which

plaintiffs seek to recover are “uncertain and indefinite,” as

defendants argue, does not entitle them to summary judgment,

though it may affect the measure of plaintiffs’ damages at trial.

In apparent recognition of this aspect of Jackson,

defendants argue that plaintiffs “seek only expectation damages,”

and that “[t]here is neither an allegation of reliance damages in

the complaint, nor any evidence of it in the record.” But

plaintiffs’ second amended complaint expressly alleges that they

“did, in fact, rely on [defendants’] promises to their detriment

by investing their knowledge, experience, time, skills, and ideas

into the new business venture” and that plaintiffs “are entitled

to recover their losses from the Defendants.” Document n o . 35 at

1 0 , ¶¶ 4 8 , 5 0 . The complaint supplements these claims with

allegations of specific instances of reliance. And, in

responding to defendants’ motion for summary judgment, plaintiffs

substantiated their allegations with admissible evidence. See

Order at 19-20. Defendants’ contention that reliance damages are

not at issue in this case is therefore without merit.2

say that the alleged promises were so unclear and indefinite as to have precluded plaintiffs from reasonably relying on them as a matter of law. 2 To the extent defendants’ motion for reconsideration asks the court to limit the legal and temporal scope of plaintiffs’ promissory estoppel claim, that request is denied. Again, any

5 II. Unjust enrichment

Defendants next argue that the court erred in denying

summary judgment as to the unjust enrichment claim based in part

upon its conclusion that there was “a potential dispute of fact

as to whether Marty’s work on the Mini Proofing Box” (a special

box to package the retail dough) fell within the scope of a prior

contract between Julie Lapham and defendants (the “January 30

Agreement”). Whereas the court concluded that the January 30

Agreement was facially ambiguous as to this point, Order at 23-

2 4 , defendants now argue that there is nothing at all ambiguous

about the agreement when read as a whole, and that the record

evidence supports but one conclusion: the parties intended the

January 30 Agreement to encompass Marty’s work on the Mini

Proofing Box.

The court disagrees. First, as explained in the Order, the

critical provision of the agreement provides that Fin Brand,

Marty Lapham’s company, will provide defendants with “electronic

artwork for the new product name, logo, and package design.” Id.

at 2 3 . This provision is ambiguous on its face as to whether

Marty and Fin Brand will provide “package design” - which could

argument as to the proper scope of plaintiffs’ claim was not presented in defendants’ motion for summary judgment and is not grounds for reconsidering the Order. In any event, such an argument is more appropriately raised in the context of a motion in limine or a request for jury instructions; defendants remain free, of course, to raise their arguments in that context.

6 arguably, but not necessarily, be read to include work on the

Mini Proofing Box - or just “electronic artwork for package

design” - which inarguably would not include that work. The fact

that other provisions of the January 30 Agreement (which, it

should be noted, Fin Brand and Marty did not sign) provided that

Julie would provide “package design” does not bring Marty’s work

on the Mini Proofing Box within its scope (indeed, Julie herself

had minimal involvement in the development of the b o x ) .

Second, the other record evidence “that the parties intended

the design of the Mini Proofing Box to be covered by the January

30 Agreement,” which the court previously acknowledged, id. at

23-24, does not resolve the meaning of that agreement as a matter

of law. There is also record evidence supporting an opposite

conclusion: for example, there is testimony that David Tully

attempted to persuade plaintiffs to assign the rights to the Mini

Proofing Box to the new dough business. This at least suggests

he did not believe that defendants already owned the rights to

the Mini Proofing Box by virtue of the January 30 Agreement. On

summary judgment, of course, the court “views all facts and draws

all reasonable inferences in the light most favorable to the non-

moving party.” Estrada v . Rhode Island, 594 F.3d 5 6 , 62 (1st

Cir. 2010). The court simply applied this standard in denying

summary judgment as to the unjust enrichment claim. Defendants’

7 motion for reconsideration of that ruling is denied.3

III. Consumer Protection Act

Finally, defendants maintain that the court erred in denying

summary judgment in their favor as to the CPA claim. Their

request for reconsideration makes two principal arguments:

first, that the court incorrectly identified the jury as the

fact-finder as to this claim; and second, that the court did not

properly evaluate the record evidence or applicable case law.

Neither argument changes the court’s ruling as to the CPA claim.

First, defendants argue that “[t]hroughout its analysis of

the CPA claim, [the court] postulated that a jury might find for

plaintiffs on this or that element of the claim,” and that

because CPA claims are tried to a judge, not a jury, this somehow

affects the outcome on summary judgment. The court acknowledges

its misstatement: although “many [CPA] claims have been tried

before juries,” parties are not entitled to trial by jury on

them. Hair Excitement, Inc. v . L’Oreal U.S.A., Inc., 158 N.H.

363, 369-70 (2009). But the court’s misstatement does not affect

3 Even if the court agreed with defendants as to the scope of the January 30 Agreement, defendants would not be entitled to summary judgment on the unjust enrichment claim. As stated in the Order, work on the Mini Proofing Box was not the only potentially unjust “enrichment” defendants received from plaintiffs. Order at 2 3 . Thus, even if the Mini Proofing Box were subtracted from the equation, plaintiffs’ unjust enrichment claim would survive.

8 its summary judgment analysis in the least: a court can no more

resolve factual disputes on a summary judgment record for itself

than it can for a jury. See, e.g., Carroll v . Metro. Ins. &

Annuity Co., 166 F.3d 8 0 2 , 808 (5th Cir. 1999) (“[F]indings

involving material facts genuinely in dispute are reserved to the

finder of fact, whether judge or jury, at the trial stage of the

proceedings.”). Thus, the result would be no different if the

word “jury” in the Order were replaced with “finder of fact.”

Lest the Order result in any misunderstanding, though, the court

will do just that, and will issue a new order replacing the two

mentions of “jury” in its analysis of the Consumer Protection Act

claim with “finder of fact.”

Defendants’ second argument merely recycles the same points

they made in support of their motion for summary judgment. But a

motion for reconsideration is not an appropriate vehicle for

“revisiting a party’s case and rearguing theories previously

advanced and rejected.” Doe v . Friendfinder Network, Inc., 2008

DNH 0 9 8 , at 1 (quoting Palmer v . Champion Mortg., 465 F.3d 2 4 , 30

(1st Cir. 2006)). Instead, “[m]otions to reconsider are granted

only where the movant shows a manifest error of law or newly

discovered evidence.” Adam v . Hensley, N o . 07-cv-338, 2008 WL

2949230, *1 (D.N.H. July 3 0 , 2008) (quoting Kansky v . Coca-Cola

Bottling Co., 492 F.3d 5 4 , 60 (1st Cir. 2007)). Defendants have

shown neither.

9 IV. Conclusion

For the reasons set forth above, the defendants’ motion for

reconsideration4 is DENIED.

SO ORDERED.

Joseph N . Laplante United States District Judge District of New Hampshire

Dated: December 2 2 , 2011

cc: Philip L . Pettis, Esq. Scott A . Daniels, Esq. James F. Laboe, Esq.

4 Document n o . 4 8 .