Wesdem v. Illinois Tool Works ( 2023 )

Case: 22-50769 Document: 00516781026 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 9, 2023
No. 22-50769
Lyle W. Cayce
____________
Clerk
Wesdem, L.L.C.,
Plaintiff—Appellant,
versus
Illinois Tool Works, Incorporated, doing business as ITW
Evercoat,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-987
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
This case involves a contract dispute between an automobile-product
manufacturer and one of its distributors. The distributor, plaintiff-appellant
Wesden, LLC,1 appeals the district court’s Rule 12(b)(6) dismissal of its
_____________________
1
There is some degree of confusion about plaintiff’s name. Plaintiff filed suit in
state court as “Wesdem, LLC” and maintained that spelling once in federal court. The
case caption in the district court therefore said “Wesdem.” At some point in the litigation,
plaintiff started referring to itself as “Wesden.” The district court noted that the parties
were using both “Wesdem” and “Wesden,” but that it “appear[ed] that ‘Wesden’ [wa]s
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fraud claim and summary-judgment dismissal of its breach-of-contract claim
against the manufacturer, defendant-appellee Illinois Tool Works, Inc. d/b/a
ITW Evercoat (“ITW”). For the following reasons, we AFFIRM.
I.
Wesden alleges as follows in its first amended complaint and its
attachments. ITW manufactures a line of automobile products called “Auto
Magic.” On September 5, 2018, ITW’s “Zone Manager,” Skip Wier, met
with Troy Breeden, the owner of Wesden, to discuss the possibility of
Wesden’s becoming a distributor of Auto Magic products by purchasing an
existing distributor, Texas Auto Products (“TAP”). At the time, TAP had
been selling Auto Magic products through Amazon.
Wesden alleges that, at the meeting, Wier “gave Mr. Breeden
assurances” that, if Wesden purchased TAP and began distributing ITW’s
products, Wesden “could continue to sell [ITW]’s products through
Amazon and other similar companies for as long as it wanted.” Wesden
further alleges that Wier told Breeden that ITW “would never stop
[Wesden] from developing its markets to sell [ITW]’s products, and that
[Wesden] could sell to any customer, including Amazon.” Wier allegedly
“promised” that ITW would “never steal [Wesden]’s markets and/or
clients, nor would it hamper [Wesden]’s future growth through e-commerce
marketplaces such as Amazon, if [Wesden] sold to customers through third
party e-commerce marketplaces” like Amazon.
_____________________
the Plaintiff’s legal name.” The district court thereafter used “Wesden.” But then,
plaintiff filed its notice of appeal as “Wesdem.” The case caption in this court therefore
says “Wesdem.” But both parties tell us in their briefs that plaintiff’s name is Wesden.
We therefore use “Wesden.”
2
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Wesden purchased TAP for $250,000 and became a distributor for
ITW. On October 24, 2018, Wier sent Breeden an email, which, according
to Wesden, “stated in writing the substance of the [p]arties’ [a]greement.”
Wier’s email to Breeden said:
Troy,
It finally happened, we got approval. Your account number is
101140. Our credit manager is on the conservative side. He
has given you a credit limit of $10K until he sees a credit history
pattern. Your terms are net 30 days. . . . Thank you for joining
the Auto Magic family and I apologize for taking so long to get
this done.
For almost two years after this approval, Wesden sold Auto Magic products,
including through online marketplaces like Amazon.
The parties’ dispute began in the summer of 2020, when ITW sent a
notice to its distributors “announcing and implementing” an “Authorized
Distributor Program,” as described in an attached policy. In the notice, ITW
told its distributors that the policy “prohibits sales of Auto Magic products
[on] any online marketplace, such as Amazon, eBay or Walmart, without
[ITW’s] prior written consent.”2
Wesden immediately requested permission to continue to sell through
online marketplaces but was denied. On July 14, 2020, Wier emailed Breeden
the “response” from ITW’s home office. ITW explained:
The management team believes the value of the distributors is
to train, educate and sell product to end-users in their
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2
The attached policy included this prohibition in bold letters, telling distributors:
“You shall not offer for sale or sell Products on or through any website, online marketplace
(including, but not limited to, Amazon, eBay, or Walmart Marketplace), mobile
application, or other online forum other than a Permissible Website without the prior
written consent of ITW Evercoat.”
3
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geographic area. The intent is not for a distributor to compete
on a national basis through an internet platform. . . . This
agreement will impact a few of our distributors but will protect
the majority of the distribution base. It is with this background
an exception will not be granted.
After relaying this correspondence from ITW, Wier said to Breeden, “I have
some thoughts on how we might get around some of this. I’ll give you a call
in the morning to discuss.”
Wier and Breeden were not able to “get around” the prohibition. On
July 29, 2020, Wesden sued ITW in Texas state court, alleging breach of
contract and other related claims. On August 21, 2020, ITW removed the
case to federal court, invoking diversity jurisdiction under 28 U.S.C. § 1332.3ITW then moved to dismiss the complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, and Wesden filed an amended complaint, adding a
claim for fraud on the basis of Wier’s alleged representations at the initial
September 2018 meeting. ITW moved again for 12(b)(6) dismissal of all
claims.
_____________________
3
In the district court, both parties made the common mistake of alleging Wesden’s
citizenship based on its principal place of business. But Wesden is an LLC, whose
citizenship is determined not by its business operations but instead by the citizenship of all
of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). On
appeal, the parties were instructed to address whether complete diversity exists. Defective
jurisdictional pleadings may be amended, even on appeal. 28 U.S.C. § 1653; Burdett v.
Remington Arms Co., 854 F.3d 733, 734 n.1 (5th Cir. 2017); Warren v. Bank of Am., N.A.,
717 F. App’x 474, 475 n.4 (5th Cir. 2018).
In its brief, ITW directs us to record evidence that Wesden’s sole member is Troy
Breeden, and that Breeden is a citizen of Texas. ITW properly alleged in the district court
that it is a citizen of Delaware and Illinois. Wesden does not contest ITW’s allegations on
appeal or otherwise dispute that Breeden is a citizen of Texas. We are therefore satisfied
that the parties are completely diverse. See id.4
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On March 12, 2021, the district court granted ITW’s motion in part,
dismissing Wesden’s claims for promissory estoppel, unjust enrichment,
fraud, and tortious interference. Relevant here, the court found that Wesden
failed to state a claim for fraud because its allegations did not support an
inference (i) that ITW had no intention of performing on its promise at the
time Wier made his statements to Breeden, or (ii) that Wier knew his
statements were false or that he spoke with recklessness as to their truth. The
court denied ITW’s motion to dismiss as to Wesden’s breach-of-contract
claim, explaining that ITW’s arguments depended on further record
development and that Wesden’s allegations were sufficient to survive past
the pleadings stage.
Following discovery, ITW moved for summary judgment on
Wesden’s breach-of-contract claim. Based on the summary-judgment
record, the district court granted ITW’s motion in full, explaining that, while
the parties had entered into “some type of agreement,” the agreement was
unenforceable under Texas’s statute of frauds. Judgment was entered in
favor of ITW.
Wesden now appeals, contending that the district court erred in
(i) dismissing its fraud claim under Rule 12(b)(6) and (ii) granting summary
judgment for ITW on the breach-of-contract claim. Wesden contends that
the 12(b)(6) dismissal of its fraud claim was improper because it had plausibly
alleged that ITW wanted to learn Wesden’s “online strategy” so it could
“eventually cut the middleman . . . out to capture greater profits.” Wesden
further argues that summary judgment on its breach-of-contract claim was
improper because there remain material fact disputes as to key terms in the
contract.
We address each argument turn.
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II.
We first take up Wesden’s fraud claim. We review a district court’s
12(b)(6) dismissal of a claim de novo, accepting all well-pleaded facts as true
and viewing them in the light most favorable to the plaintiff. Shandong
Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir.
2010) (citations omitted). The plaintiff’s complaint must contain “factual
matter” that, if accepted as true, is sufficient to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). When a plaintiff alleges a claim of fraud,
Rule 9(b) of the Federal Rules of Civil Procedure requires that the plaintiff
“state with particularity the circumstances constituting [the] fraud.” Fed.
R. Civ. P. 9(b).
Texas law governs Wesden’s fraud claim in this diversity case.
McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009) (citation omitted). A
fraud claim under Texas law requires that
(1) the defendant made a material misrepresentation; (2) the
defendant knew at the time that the representation was false or
lacked knowledge of its truth; (3) the defendant intended that
the plaintiff should rely or act on the misrepresentation; (4) the
plaintiff relied on the misrepresentation; and (5) the plaintiff’s
reliance on the misrepresentation caused injury.
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Int’l Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 228 (Tex.
2019) (citation omitted).4 Wesden has recited all of these elements in its
complaint.
The issue here reduces to the plausibility of Wesden’s fraud claim.
Construing the complaint in Wesden’s favor, the claim is that, at the
September 2018 meeting, ITW promised Wesden that it could sell Auto
Magic products through online marketplaces like Amazon and that ITW
would not stop Wesden from doing so or otherwise appropriate those online
markets for itself.5 But this representation was false, and ITW knew it was
false, or was at least reckless as to its truth, when it made the representation.
ITW made this misrepresentation “to induce [Wesden] into trusting
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4
The Texas Supreme Court listed these elements in describing a fraudulent-
inducement claim, but fraudulent inducement is “a species of common-law fraud” that,
importantly, shares these same basic elements. Int’l Bus. Machs. Corp., 573 S.W.3d at 228
(quoting Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018)); see, e.g., Zorrilla v. Aypco
Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (listing an abbreviated version of these
elements as comprising a claim for common-law fraud); Ernst & Young, LLP v. Pac. Mut.
Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (same).
5
The district court disregarded the alleged “misrepresentations” that were vague
or indefinite and thus not cognizable as the basis of a fraud claim. We do the same. For
example, Wesden may not maintain a fraud claim based on ITW’s alleged representations
that ITW “would treat [Wesden] as a family member” or that “[d]istributors were the life
blood of [ITW]’s business and [ITW] w[ould] always support the Distributor.” See
Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 558-59 (Tex. App.—San Antonio 1998)
(affirming the dismissal of a fraud claim because there were no “promises or assurances
specific or definite enough upon which reliance c[ould] be reasonably made”); Glob.
Integrated Bldg. Sys. v. Target Logistics, LLC, No. 06-2637, 2009 WL 259360, at *8 (S.D.
Tex. Feb. 3, 2009) (“In proving justifiable reliance in a claim for fraud . . . , the alleged
representation relied upon cannot be vague and indefinite.” (citing Texas cases)).
Setting aside the allegations of ITW’s vague assurances, and accounting for the
duplicative overlap across the other alleged representations, Wesden’s complaint alleges
one essential false promise: that ITW would not stop Wesden from selling Auto Magic
products through online marketplaces. It is this theory that we take up in assessing the
fraud claim’s dismissal under Rule 12(b)(6).
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[ITW]” so that Wesden “would become a distributor . . . to increase
[ITW]’s profit and stock price,” only so it could later “breach [its] contract[]
with the distributor[] and reap the benefit of the distributor[’s] efforts and
expense.”
Our role at the 12(b)(6) stage is to determine whether this is plausible.
To this end, we must determine whether Wesden’s complaint contains
“factual content” that allows us to “draw the reasonable inference” that
ITW committed fraud as alleged. See Iqbal, 556 U.S. at 678. Recognizing
that this is a “context-specific task that requires [us] to draw on [our] judicial
experience and common sense,” id. at 679, we conclude that Wesden’s
complaint does not permit a reasonable inference of fraud.
Fatally, Wesden’s alleged facts do not support the inference that
(i) ITW’s representation was false and (ii) it knew it was false when made.
The alleged misrepresentation was a promise of future performance, and in
Texas, “[a] promise of future performance constitutes an actionable
misrepresentation if the promise was made with no intention of performing
at the time it was made.” Aquaplex, Inc. v. Rancho La Valencia, Inc., 297
S.W.3d 768, 774 (Tex. 2009) (quoting Formosa Plastics Corp. v. Presidio Eng’rs
& Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).
Wesden’s alleged facts do not allow us to reasonably infer that, in
September 2018, ITW had “no intention” of adhering to its promise to
permit Wesden’s sales on Amazon and similar marketplaces. See id. While
Wesden alleges that the promise was false and that ITW knew it was false,
these conclusory allegations are “unadorned” and “devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555, 557). The only fact remotely supporting Wesden’s false-when-made
allegation is ITW’s eventual company-wide prohibition, nearly two years
later, on distributors’ online-marketplace sales. But as the Texas Supreme
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Court has explained, a “[f]ailure to perform, standing alone, is no evidence
of the promissor’s intent not to perform when the promise was made.”
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986); see
Shangdong, 607 F.3d at 1033-35 (applying the guidance of Spoljaric at the
12(b)(6) stage).
To be sure, ITW’s alleged nonperformance “is a circumstance to be
considered with other facts to establish intent.” Spoljaric, 708 S.W.2d at 435.
But Wesden alleges no “other facts” suggesting that ITW intended not to
perform. On the contrary, as the district court observed, Wesden’s alleged
facts support the opposite inference. Wesden explains that it successfully sold
Auto Magic products on Amazon and other third-party online markets for
almost two years after starting as a distributor in October 2018. Accounting
for this fact, Wesden’s fraud claim thus rests on the inference that ITW
promised Wesden that it could sell on Amazon and the like for as long as it
wanted,6 then allowed Wesden to do so without interruption for nearly two
years, but then—as planned all along—pulled the rug out from under
Wesden to take over its hard-earned markets under the guise of a new
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6
Wesden emphasizes in its brief that its claim is not against Wier but instead
against ITW. Wesden contends that, whether or not Wier knew of ITW’s “full
intentions,” ITW was at least “reckless in allowing [Wier] to make the representation he
made.” But this reframing does not save Wesden’s fraud claim. The claim rests entirely
on representations made by Wier as—in Wesden’s own words—ITW’s “authorized
representative” at the September 2018 meeting. Indeed, Wesden begins its list of alleged
misrepresentations by stating that, “[t]o induce [Wesden] to become a distributor for
[ITW], Wier made the following fraudulent representations and warranties . . . .” In sum,
Wesden’s complaint alleges misrepresentations by ITW only through Wier. We reject
Wesden’s attempt to modify its pleadings through its appellate brief.
In any case, even if we interpreted Wesden’s complaint to allege that ITW
fraudulently misled Wier, thereby resulting in Wier’s misrepresentations to Wesden, the
complaint still fails to pass 12(b)(6) muster. Wesden alleges no facts supporting a fraud
theory premised on actions taken by ITW, the entity, as distinct from Wier, its agent in all
relevant respects.
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distributor policy. While this is a hypothetical possibility, Wesden’s failure
to allege any “details that would corroborate” this yearslong “fraudulent
scheme,” Shandong, 607 F.3d at 1034, means that it is not a “reasonable
inference,” Iqbal, 556 U.S. at 678; cf. G & C Land v. Farmland Mgmt. Servs.,
587 F. App’x 99, 104-05 (5th Cir. 2014) (affirming the summary-judgment
dismissal of a Texas fraud claim on the basis that a promise of future
performance was not actionable fraud because the promisor’s multiple
attempts to perform belied any showing that it had no intention of
performing). With no factual content supporting its theory, Wesden’s fraud
claim amounts to bare speculation.
Accordingly, even as we view the allegations in the light most
favorable to Wesden, we find that Wesden “ha[s] not nudged [its] claim[]
across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. At
the very most, Wesden’s complaint contains facts that are “merely
consistent with” fraud, and thus “stops short of the line between possibility
and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557)). Wesden’s fraud claim was therefore properly
dismissed under Rule 12(b)(6).
We affirm the district court’s dismissal of the fraud claim.
III.
Wesden also appeals the district court’s summary-judgment dismissal
of its claim for breach of contract. We review a district court’s grant of
summary judgment de novo. Glassell Non-Operated Ints., Ltd. v. EnerQuest Oil
& Gas, LLC, 927 F.3d 303, 306 (5th Cir. 2019) (citations omitted). Summary
judgment is warranted “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).
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Again, Texas law governs the parties’ dispute. Glassell, 927 F.3d at
306. In Texas, a breach-of-contract claim requires the plaintiff to show
“(1) the existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach of the contract by the defendant; and
(4) damages to the plaintiff as a result of the defendant’s breach.” Williams
v. Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir. 2018) (per curiam)
(quoting Caprock Inv. Corp. v. Montgomery, 321 S.W.3d 91, 99 (Tex. App.—
Eastland 2010)). ITW has invoked the statute of frauds to assert that the
parties’ agreement is unenforceable.
Under Texas’s statute of frauds,7
a contract for the sale of goods for the price of $500 or more is
not enforceable by way of action or defense unless there is some
writing sufficient to indicate that a contract for sale has been
made between the parties and signed by the party against whom
enforcement is sought or by his authorized agent or broker. A
writing is not insufficient because it omits or incorrectly states
a term agreed upon but the contract is not enforceable under
this paragraph beyond the quantity of goods shown in such
writing.
Tex. Bus. & Com. Code § 2.201(a). Such a writing must “afford a basis
for believing that the offered oral evidence rests on a real transaction.” Id.
cmt. 1. While the writing “need not contain all the material terms of the
contract,” it must contain a quantity term. Id. (“The only term which must
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7
The Texas statute of frauds is a codification of the Uniform Commercial Code’s
(“UCC”) statute of frauds. Cont’l Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 787 (Tex.
App.—Houston 2001). Distributorship agreements, like the one at issue here, are in
essence for the sale of goods and are thus governed by the UCC. Id. at 788; Coburn Supply
Co. v. Kohler Co., 342 F.3d 372, 375 (5th Cir. 2003) (“In Texas, distributorship agreements
are generally controlled by the UCC.” (citing Texas law)). Neither party disputes this
point.
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appear is the quantity term . . . .”); Lenape Res. Corp. v. Tenn. Gas Pipeline
Co., 925 S.W.2d 565, 570 (Tex. 1996) (“[A] contract for the sale of goods for
the price of $500 or more is not enforceable absent some writing evidencing
a contract for the sale that has been signed and that specifies a quantity.”).
The statute of frauds is an affirmative defense. Gerstacker v. Blum
Consulting Eng’rs, Inc., 884 S.W.2d 845, 849 (Tex. App.—Dallas 1994),
(citing Tex. R. Civ. P. 94)). “Once the party pleading the statute of frauds
meets the initial burden of establishing its applicability, the burden shifts to
the nonmovant to establish that the statute was satisfied or that an exception
exists . . . .” Ruth v. Collazo Holdings, LLC, No. 11-19-182, 2021 WL
1706192, at *4 (Tex. App.—Eastland Apr. 30, 2021) (describing the statute
of frauds applicable to real property (citing Dynegy, Inc. v. Yates, 422 S.W.3d
638, 641 (Tex. 2013))).
Here, Wesden does not dispute that its agreement with ITW was for
goods at a price of $500 or more and therefore comes within the ambit of the
§ 2.201 statute of frauds. Nor does Wesden argue that any exception to the
statute of frauds applies. Instead, Wesden disputes whether the contract fails
for lack of a quantity term.
Wesden’s primary contention is that its agreement did not need to
specify a quantity because it was a requirements contract. Under a
requirements contract, a buyer promises to purchase all of its required goods
exclusively from the seller. Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d
957, 963 (5th Cir. 1999); Tex. Bus. & Com. Code § 2.306(a). To
support this argument, Wesden points to record evidence that Breeden and
Wier did not “discuss limiting the volume of sales,” and that there were no
“alternative sources available” for Wesden to buy Auto Magic products.
Wesden emphasizes in its reply brief that ITW is the sole holder of the Auto
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Magic trademark, so “the entire distribution structure” is “premised on
exclusivity.”
But Wesden’s argument misses the mark. A requirements contract
still must satisfy the statute of frauds, which demands a written quantity
term. As this court has explained, “[w]hile the quantity term in requirements
contracts need not be numerically stated,” there must nonetheless “be some
writing which indicates that the quantity to be delivered under the contract
is a party’s requirements.” Merritt-Campbell, 164 F.3d at 963 (citation
omitted) (applying the Texas statute of frauds). In such a scenario, “the
quantity to be specified is ‘a party’s requirements.’” Id. (citation omitted);
see Propulsion Techs., Inc. v. Attwood Corp., 369 F.3d 896, 904 (5th Cir. 2004)
(“The formality of written quantity term is satisfied by a written specification
that buyer will buy exclusively from seller or will buy its ‘requirements’ from
seller.”); FFP Mktg. Co. v. Medallion Co., 31 F. App’x 159 (table), 2001 WL
1751430, at *2 (5th Cir. Dec. 19, 2001) (explaining that, in a requirements
contract, “although the amount to be delivered does not have to be
numerically stated, there must be some writing that indicates that the amount
to be delivered is the party’s requirements or up to a specified quantity”
(applying the Texas statute of frauds)). To survive summary judgment,
therefore, Wesden must point to evidence that the parties’ agreement
contained a written quantity or exclusivity term. We conclude that Wesden
has not done so.
The parties’ agreement is memorialized in Wier’s October 2018 email
to Breeden, welcoming Breeden to the “Auto Magic family.” But the email
does not specify a quantity of goods nor does it state that Wesden will buy
exclusively from ITW. The email does state that ITW’s credit manager has
given Wesden “a credit limit of $10K until he sees a credit history pattern.”
Wesden asserts—in one sentence in his reply brief—that “the $10,000 credit
line is itself a quantity of product in writing.” But Wesden cites no authority
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in support of this proposition, nor does he elaborate at all on the argument.
In any case, other courts applying substantively identical statutes of frauds
have disfavored the notion that a written line of credit satisfies the quantity-
term requirement. See, e.g., Miller v. Wimsatt Bldg. Materials Corp., No.
206217, 1999 WL 33438775, at *2 (Mich. Ct. App. July 23, 1999) (concluding
that “a line of credit, absent any reference to the specifics of the contract,
specifically the quantity of goods to be delivered, does not create an
enforceable contract that complies with [Michigan’s] statute of frauds.”);
Int’l Poultry Processors v. Wampler Foods, Inc., No. 98-4612, 1999 WL
33456488, at *4 (E.D. Pa. Apr. 29, 1999) (considering written evidence that
a food supplier had extended credit to its buyer but noting that the writings
still failed to “specify a quantity of goods or denote other terms of sale” and
thus violated the UCC statute of frauds, as adopted by Pennsylvania and
Virginia). We reach a similar conclusion here. The $10,000 figure is a credit
limit; it is not a “specif[ication of] a quantity” of goods that Wesden would
buy from ITW. Lenape, 925 S.W.2d at 570. Accordingly, Wier’s October
2018 email to Breeden does not contain the terms necessary to satisfy the
statute of frauds.
The email, though, has an attachment. Wesden contends that the
attachment satisfies the quantity-term requirement because it shows that the
parties agreed to an “‘unlimited’ quantity in writing, which is very specific.”
But this is not so. The attachment is an empty order form listing the per-unit
price for each Auto Magic product. There is no quantity or exclusivity term
in the price list. This document does not satisfy the quantity- or exclusivity-
term requirement under the statute of frauds.
Wesden points to no other writings to make its showing. Accordingly,
Wesden has identified no written term either specifying a quantity of goods
or stating that Wesden will buy all of its requirements from ITW. The
contract thus fails to satisfy the statute of frauds and is therefore
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unenforceable. See Tex. Bus. & Com. Code § 2.201(a) (“[T]he
contract is not enforceable under this paragraph beyond the quantity of goods
shown in such writing.”); id. cmt. 1 (“The only term which must appear is
the quantity term . . . .”); FFP Mktg., 31 F. App’x 159, 2001 WL 1751430, at
*3 (“[T]he alleged [requirements] contract does not provide a specific
quantity term. Consequently, the statute of frauds bars its enforcement.”).
We affirm the district court’s grant of summary judgment on
Wesden’s claim for breach of contract.
IV.
The judgment of the district court is AFFIRMED.
15