Horbach, Eugene v. Kaczmarek, Alvis , 288 F.3d 969 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3102
EUGENE HORBACH, individually and
as assignee of TYRREE CORPORATION,
a dissolved Illinois corporation,
and EUGENE HORBACH, on behalf of
TYRREE CORPORATION, a dissolved
Illinois corporation,
Plaintiff-Appellant,
v.
ALVIS KACZMAREK and One Three Six, Inc.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 5180--Elaine E. Bucklo, Judge.
ARGUED MAY 14, 2001--DECIDED April 30, 2002
Before BAUER, ROVNER, and DIANE P. WOOD,
Circuit Judges.
ROVNER, Circuit Judge. In 1989, TyrRee
Corporation agreed to purchase a tire
pyrolysis system (a series of machines
that shred, heat, and convert old tires
into commercially viable by-products)
from Shred Pax Corporation. TyrRee
allegedly paid Shred Pax more than $1.7
million for the assembly and storage of
the machinery but ultimately did not
accept delivery, concluding that it had
not gotten what it had paid for. In 1995,
following TyrRee’s dissolution, Eugene
Horbach, TyrRee’s majority shareholder
and assignee, filed suit against Shred
Pax (which by then had changed its name
to One Three Six, Inc., but for the sake
of convenience we will ignore the name
change), and its majority shareholder and
president, Alvis Kaczmarek./1 In
pertinent part, Horbach’s complaint
sought relief on theories of contractual
breach, fraud, rescission, constructive
trust/ unjust enrichment, and conversion.
The district court dismissed these
claims, finding that the allegations did
not support a claim for conversion and
that the other claims were untimely. We
affirm.
I.
Because the district court dismissed
this case at the pleading stage, we
accept the allegations in Horbach’s
complaint as true. E.g., Johnson v.
Rivera, 272 F.3d 519, 520 (7th Cir.
2001).
Horbach and Aaron Gellman formed TyrRee,
an Illinois corporation, in August of
1989 with the goal of owning and
operating tire pyrolysis plants. Horbach,
a citizen of the State of Washington,
subscribed to 71 percent of TyrRee’s
stock. Gellman later assigned to Horbach
his 21 percent interest in TyrRee, making
Horbach the owner of approximately 92
percent of TyrRee’s outstanding shares.
On September 5, 1989, TyrRee entered
into a preliminary letter agreement with
Shred Pax for the purchase of a tire
pyrolysis system. That agreement
contemplated the subsequent execution of
a formal purchase order for the
equipment, which the parties completed
and signed on September 26, 1989. The
purchase order provided that Shred Pax
would design and manufacture the
equipment in accordance with
specifications attached to the order and
have it ready for delivery and testing on
or before February 1, 1990. The order
gave TyrRee the right to inspect, test,
and approve the equipment before it
accepted delivery. The testing envisioned
by the purchase order involved "full and
continuous operation" of the equipment
over a period of seven days. R. 20 Ex. 4
para. 7.
At a meeting which took place on or
about February 9, 1990, Shred Pax
informed TyrRee that the equipment was
ready for testing and installation.
TyrRee had not yet located a suitable
site at which it could engage in full-
scale testing of the system, however, so
the parties agreed that Shred Pax would
continue to hold the equipment in
exchange for a monthly storage fee until
TyrRee was able to locate such a site.
TyrRee also wanted Shred Pax to make
certain modifications to the pyrolysis
system that would take additional time to
complete.
On April 6, 1990, Shred Pax sent a
letter to TyrRee confirming that the
pyrolysis system, as modified, was ready
for testing. This letter purported to
constitute the formal "Equipment Notice"
contemplated by the purchase agreement,
entitling Shred Pax to a specified
installment payment from TyrRee. TyrRee
subsequently advised Shred Pax that it
would not be able to conduct acceptance
testing of the equipment prior to July
and suggested that Shred Pax should
conduct the testing itself at a place and
time of its own choosing. Apparently,
however, Shred Pax opted to wait for
TyrRee and continue collecting a storage
fee while it did so. Further
modifications to the equipment were
ordered in September 1990.
TyrRee dissolved on September 9, 1990.
All of the company’s rights under the
initial letter agreement and purchase
order were assigned to Horbach.
On or about February 5, 1991, an agent
for Horbach visited the facility in
Portland, Oregon, where the pyrolysis
equipment was being stored. Instead of a
completed system, however, the agent
discovered only scattered components that
did not appear to have been manufactured
in compliance with the purchase order.
Shred Pax subsequently explained to
Horbach that not all of the equipment
was, in fact, located in Portland, and
that it would take 60 days to assemble
the pyrolysis system for acceptance
testing. That testing never took place.
On April 18, 1991, Horbach’s attorney
notified Shred Pax that the purchase
order was cancelled because Shred Pax had
failed to manufacture and deliver the
equipment in accordance with the terms of
the order. By this time, Horbach had
already paid more than $1.76 million
toward the purchase and storage of the
equipment and related items. Horbach
demanded the return of his money, but
Shred Pax refused.
Horbach filed suit against Shred Pax and
Kaczmarek in 1995. As we noted at the
outset, the district court subsequently
dismissed each of the claims that arose
from the purchase order. Horbach v.
Kaczmarek, 915 F. Supp. 18 (N.D. Ill.
1996); Horbach v. Kaczmarek, 934 F. Supp.
981 (N.D. Ill. 1996)./2
The court found the breach of contract
claim untimely. 915 F. Supp. at 22-23.
The court noted at the outset that the
Illinois Commercial Code specifies a
four-year limitations period for such a
claim. See 810 ILCS 5/2-725(1). The
defendants argued that the limitations
had begun to run on February 1, 1990, the
date that the purchase order had
specified for delivery of the equipment.
At the latest, the period began to run on
February 5, 1991, when Horbach’s agent
inspected the equipment and realized that
it had not been completed in conformance
with the terms of the purchase order.
Horbach, however, had waited until
September 11, 1995, to bring suit--too
long under even the most generous
calculation of the four-year limitations
period. Horbach asserted that Shred Pax
had fraudulently concealed its breach of
the purchase order and that he should
therefore have the benefit of the longer,
five-year limitations period applicable
to cases of fraudulent concealment. See
735 ILCS 5/13-215. But, as the district
court pointed out, the Illinois Supreme
Court has held that this limitations
period governs only when the defendant’s
concealment has left the plaintiff with
less than a reasonable time to sue under
the otherwise-applicable statute of
limitations. See Anderson v. Wagner, 402
N.E.2d 560, 573 (Ill. 1979), appeal
dismissed sub nom. Woodward v. Burnham
City Hosp., 449 U.S. 807, 101 S. Ct. 54
(1980); see also, e.g., Morris v.
Margulis, 754 N.E.2d 314, 319-20 (Ill.
2001); Barratt v. Goldberg, 694 N.E.2d
604, 609 (Ill. App. 1998). Here, Horbach
had at least three years left in which to
bring suit as of February 1991, when the
inspection of the equipment revealed that
it was not ready for delivery. The
district court found three years to
constitute a reasonable period of time in
which to bring suit and for that reason
found the limitations period for claims
of fraudulent concealment not to apply.
915 F. Supp. at 22. Horbach suggested
that Anderson and its progeny were
inconsistent with the express language of
the fraudulent concealment statute, but
the district court observed that it was
"not at liberty to ignore clear state law
authority." Id.
The court dismissed the equitable claims
for rescission and constructive trust
pursuant to the doctrine of laches. Id.
at 23. That doctrine applies when the
plaintiff has waited for an unreasonable
length of time to assert his claim and
the defendant has been prejudiced by the
delay. People v. Wells, 696 N.E.2d 303,
312 (Ill. 1998); Van Milligan v. Board of
Fire & Police Commissioners of Village of
Glenview, 630 N.E.2d 830, 833 (Ill.
1994). "The doctrine is grounded in the
equitable notion that courts are
reluctant to come to the aid of a party
who has knowingly slept on his rights to
the detriment of the opposing party."
Tully v. State, 574 N.E.2d 659, 662 (Ill.
1991). Illinois courts follow the general
rule that where the limitations period
governing claims at law has expired,
laches will bar the equitable claims,
even if the defendant has not shown
prejudice. See Meyers v. Kissner, 594
N.E.2d 336, 340-41 (Ill. 1992); see also,
e.g., Golden v. McDermott, Will & Emery,
702 N.E.2d 581, 589 (Ill. App. 1998).
Thus, because Horbach had waited to file
suit until the statute of limitations on
his breach of contract claim had already
run, laches demanded the dismissal of the
accompanying equitable claims. 915 F.
Supp. at 23.
Although the fraud claim was subject to
a longer, five-year period of
limitations, see 735 ILCS 5/13-205, the
court found that claim to be untimely as
well. Pursuant to the discovery rule,
commencement of the pertinent limitations
period may be delayed until such time as
the plaintiff knew or should have known
that he was wrongfully injured. See
generally Hermitage Corp. v. Contractors
Adjustment Co., 651 N.E.2d 1132, 1135
(Ill. 1995). Illinois courts have applied
this rule to torts arising out of
contractual relationships. See id. at
1136 (collecting cases). Horbach argued
that the limitations period began to run
no sooner than February 5, 1991, relying
on the complaint’s allegation that he
remained ignorant of Shred Pax’s
wrongdoing until his agent inspected the
equipment on that date. However, the
complaint also revealed that Shred Pax
had informed TyrRee in April of 1990 that
the equipment was ready for delivery and
testing; and notwithstanding Shred Pax’s
efforts to schedule inspection and
testing of the system, TyrRee and Horbach
had waited for more than ten months to
look at the equipment. Horbach had
alleged no reason for this delay. Had
Horbach inspected the equipment promptly
after Shred Pax had announced that it was
ready, the court observed, he would have
discovered his injury. The court
therefore concluded that the statute of
limitations began to run sometime before
September of 1990 and that Horbach’s
fraud claim, filed in September 1995, was
too late. 915 F. Supp. at 24.
Following the dismissal of these claims,
Horbach obtained the court’s permission
to file a second amended complaint which
set forth additional allegations that
Horbach believed would resuscitate the
fraud claim and which also asserted a new
claim for conversion./3 In the district
court’s eyes, however, the second amended
complaint fared no better than the first.
With respect to the fraud claim, the
court found the new allegations
insufficient to justify Horbach’s delay
in discovering the alleged fraud. 934 F.
Supp. at 985-86. Horbach alleged that the
pyrolysis equipment was highly complex
and that he lacked the technical
knowledge and skill to assess the quality
of that equipment himself. The only way
to determine whether the system met the
requirements of the purchase order,
Horbach asserted, was to test it, which
he could not reasonably have done before
September of 1990. But the court noted
that when Horbach’s agent finally
inspected the equipment in February 1991,
its shortcomings (and thus Shred Pax’s
alleged fraud) were readily apparent. In
fact, the complaint revealed that there
was no integrated "system" at all, but
only scattered components. This was
something that any qualified inspector--
if not a lay person like Horbach himself-
-would have readily determined upon
examining the equipment. The court again
found no plausible basis for inferring
that the injury could not have been
discovered prior to September of 1990.
Id. at 985. Horbach also suggested that
it was not unreasonable for him to
postpone inspection of the system until
February of 1991 because he had requested
modifications to the system after
February 1990. However, the court pointed
out that Shred Pax had completed these
modifications by the time it announced in
April 1990 that the equipment was ready
for testing and delivery, and TyrRee did
not request additional changes until late
September 1990. For that five-month
period, then, TyrRee believed the
equipment was ready for testing. Horbach
offered no reasonable excuse for not hav
ing inspected the equipment during that
time. Id. Finally, Horbach asserted that
his inspection of the equipment was
delayed by his ongoing search for a site
where the equipment could not only be
tested but permanently installed.
However, as the district court pointed
out, the complaint indicated that on
April 6, 1990, in its letter announcing
the readiness of the equipment, Shred Pax
informed TyrRee that it would proceed
with testing of the equipment at a site
of its own choosing in the event TyrRee
was unable to locate a site within
fourteen days. The parties understood,
then, that inspection and testing of the
equipment was not to be postponed any
longer based on Horbach’s search for a
permanent installation site. In fact, as
we noted earlier, Shred Pax did not test
the equipment--a fact, the district court
added, that might have tipped off TyrRee
that something was amiss. Even so,
Horbach postponed his inspection for ten
months--a delay that the court believed
was not justifiable. Id. at 986.
Accordingly, the court dismissed the
fraud claim for a second time.
The court found no basis in the
allegations of the complaint for a
conversion claim. Id. The theory
underlying this claim was that Shred Pax
and Kaczmarek had improperly converted
Horbach’s money to their own use by
accepting his periodic payments for the
completion and storage of the pyrolysis
system all the while knowing that they
were not entitled to those payments due
to the inadequate state of the equipment.
The court found this rationale defective
for two reasons. First, because the
purchase order entitled the defendants to
periodic advance payments, Horbach could
not show that the money he had paid
belonged at all times to him. Horbach’s
remedy, upon discovery that the equipment
had not been completed, was to sue for
breach of contract rather than
conversion. Id. Second, in order to
establish the conversion of money under
Illinois law, a plaintiff must show that
he had "a ’right to a specific fund or
specific money in coin or bills.’"
Sutherland v. O’Malley, 882 F.2d 1196,
1200 (7th Cir. 1989), quoting Mid-
American Fire & Marine Ins. Co. v.
Middleton, 468 N.E.2d 1335, 1339 (Ill.
App. 1984). Horbach, however, was not
claiming entitlement to a specific fund
or account (let alone specific coins or
bills), but rather a particular amount of
money. His claim thus did not meet this
particular criterion of a conversion
claim. 934 F. Supp. at 986.
II.
Horbach challenges four aspects of the
district court’s judgment. First, he
contends that the longer limitations
period for fraudulent concealment should
apply to his breach of contract claim.
Second, assuming that his breach of
contract claim is timely, Horbach
contends that his equitable claims are
timely as well, and that the court erred
in invoking laches to dispose of them.
Third, Horbach maintains that one cannot
say as a matter of law that he should
have known of the defendants’ alleged
fraud earlier, and that, consequently,
the district court should not have
dismissed his fraud claim as untimely.
Finally, Horbach asserts that his
complaint states a valid claim for
conversion. As this case was dismissed at
the pleading stage, our review is of
course de novo. E.g., Vorhees v. Naper
Aero Club, Inc., 272 F.3d 398, 401 (7th
Cir. 2001).
A. Timeliness of the Breach of Contract
Claim
Horbach contends that the district court
erred in applying the four-year
limitations period to his claim for
breach of contract rather than the longer
five-year period that the Illinois
legislature has specified for cases in
which the defendant has fraudulently
concealed a cause of action from the
person to whom that cause belongs. See
735 ILCS 5/13-215. As we noted above, the
district court applied the four-year
period based on the Illinois Supreme
Court’s opinion in Anderson, 402 N.E.2d
560. Anderson construed the fraudulent
concealment statute to apply only when
the defendant’s concealment has deprived
the plaintiff of a reasonable amount of
time in which to bring suit under the
statute of limitations that would
ordinarily apply. Id. at 573. In this
case, when Horbach discovered in February
1991 that the pyrolysis system was not
complete as Shred Pax had represented,
Horbach still had three years in which to
bring suit before the four-year
limitations period specified for
contractual claims expired. The district
court thought that three years was more
than enough time in which to bring suit
and so, pursuant to Anderson and its
progeny, declined to apply the longer
limitations period for cases of
fraudulent concealment. See, e.g., id. at
573 (seven to sixteen months following
discovery of fraudulent concealment is a
reasonable amount of time in which to
bring suit). Horbach does not suggest
that the district court misinterpreted
Anderson but argues instead that
Anderson’s holding is inconsistent with
the language of the fraudulent
concealment statute. Horbach Br. 12.
Horbach believes that given the
opportunity, the Illinois Supreme Court
would reconsider and overrule its holding
in Anderson, and on that basis he
contends that this court should not
consider itself bound by this precedent.
See West v. American Tel. & Tel. Co., 311
U.S. 223, 236, 61 S. Ct. 179, 183 (1940)
("When [state’s highest court] has
spoken, its pronouncement is to be
accepted by federal courts as defining
state law unless it has later given clear
and persuasive indication that its
pronouncement will be modified, limited
or restricted.") (emphasis supplied).
We discern no basis for ignoring the
Illinois Supreme Court’s opinion in
Anderson, however. Sitting in diversity,
this court must look to state law on
matters of substance, Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 58 S. Ct. 817
(1938), including the relevant statute of
limitations, e.g., Doe v. Roe No. 1, 52
F.3d 151, 154 (7th Cir. 1995). The
parties agree that in this case, the law
of Illinois governs. Anderson embodies
the Illinois Supreme Court’s
interpretation of the fraudulent
concealment statute and leaves no doubt
that the statute does not apply where, as
here, the plaintiff discovers his injury
in plenty of time to file suit within the
limitations period that would otherwise
apply.
Horbach suggests that the Illinois
Supreme Court’s subsequent opinion in
Hermitage Corp. v. Contractors Adjustment
Co., supra, 651 N.E.2d 1132, signals a
retreat from Anderson, but we disagree.
In Hermitage, the court was concerned
with the discovery rule, which, as we
noted earlier, delays the commencement of
the statute of limitations in certain
cases until such time as the plaintiff
knew or should have known that he had
been injured. See id. at 1135. The
defendant urged the Illinois Supreme
Court to hold, as some lower courts had
done, that the discovery rule would not
postpone the start of the limitations
period past the date of injury so long as
the plaintiff still had a reasonable
amount of time to bring suit once he
became aware (or should have become
aware) that he had been injured. The
defendant cited the court’s holding in
Anderson in support of this argument. But
the court noted that it had already
covered this ground in Sharpe v. Jackson
Park Hosp., 441 N.E.2d 645 (1982), where
it had rejected the notion that
Anderson’s construction of the fraudulent
concealment statute created any exception
to or limitation upon the discovery rule.
Id. at 646-47; see Hermitage, 651 N.E.2d
at 1137-38. The discovery rule, the court
re-emphasized in Hermitage, delays the
start of the limitations period, whereas
the fraudulent concealment statute
extends the limitations period. Id. at
1137. Anderson’s "reasonable time" rule
applies only in the latter situation. See
id. "[B]ecause this case does not involve
a fraudulent concealment issue that might
extend the statute of limitations,"
Hermitage concluded, "we do not address
Anderson." Id. at 1138.
In short, Hermitage does not signal a
retreat from Anderson. The court merely
recognized that the discovery rule and
the fraudulent concealment statute
operate in two different ways, and that
consequently it would be inappropriate to
engraft Anderson’s "reasonable time"
limitation onto the discovery rule. See
also Highsmith v. Chrysler Credit Corp.,
18 F.3d 434, 442 n.7 (7th Cir. 1994). Any
notion that the court is on the verge of
abandoning Anderson is put to rest by the
court’s decision just last year in Morris
v. Margulis, supra, in which it applied
the "reasonable time" rule without
reservation. 754 N.E.2d at 319-20.
B. Timeliness of the Equitable Claims
Relying on the fact that the statute of
limitations had run on Horbach’s claim
for breach of contract, the district
court found that his equitable claims
ought to be dismissed on the basis of
laches. Horbach does not quarrel with the
court’s application of the laches
doctrine, but rather reiterates his
contention that his breach of contract
claim was timely. But we have rejected
that argument, and so have no need to
further consider the dismissal of his
equitable claims.
C. Timeliness of the Fraud Claim
Horbach had five years from the date he
knew or reasonably should have known that
the defendants had perpetrated a fraud
upon him in which to file suit. 735 ILCS
5/13-205. Horbach did not actually
discover the alleged fraud until February
1991, when his agent inspected the
pyrolysis equipment. He filed suit within
five years of that date; but the question
presented here is whether he should have
known of his injury sooner. Specifically,
we must ask whether Horbach should have
discovered his injury sooner than
September 1990 (five years before he
brought suit). The district court thought
that he should have done so, given that
Shred Pax had informed Horbach that the
equipment was ready for testing in April
1990 and a simple inspection would have
revealed that the system had not been
completed. Horbach contends that the
district court was not entitled to make
this determination as a matter of law. He
suggests that in view of the complexity
of the equipment, his own lack of
expertise, and the modifications he had
asked Shred Pax to make, the only way to
determine whether the system met the
specifications set forth in the purchase
order was to test it, and this he was not
in a position to do before September of
1990. The mere fact that a visual
inspection would have identified the
alleged fraud does not mean that he was
obligated to conduct such an inspection,
Horbach argues.
We agree with the district court,
however, that Horbach’s own allegations
reveal that he could and should have
discovered his injury prior to September
of 1990. Although Horbach makes much of
the complexity of the pyrolysis system,
his own lack of expertise, and the need
for testing (which imposed its own set of
demands) to determine whether the
machinery conformed to the purchase
order, the complaint makes clear that
Shred Pax’s purported fraud was readily
apparent to the naked, non-expert eye.
When Horbach’s agent visited the Portland
facility, he found no pyrolysis system at
all, but only scattered components, and
the components that he could see did not
conform to specifications. R. 20 para.
80. Thus, the complexity of the machinery
did nothing to cloak Shred Pax’s
purported fraud. Shred Pax’s alleged
misrepresentation--that the system was
complete and ready for testing--would
have been immediately apparent to anyone
conducting an inspection. Under these
circumstances, Horbach’s delay in making
such inspection was not reasonable. Shred
Pax had announced the completion of the
equipment, both parties apparently
assumed that testing of the equipment was
imminent, Horbach had already paid well
in excess of $1 million for the
equipment, and Shred Pax was charging
TyrRee and Horbach a monthly storage fee
for the equipment pending the selection
of a permanent installation site. For all
of these reasons, we believe that Horbach
should have discovered Shred Pax’s
alleged fraud prior to September of 1990.
The district court correctly dismissed
the fraud claim as untimely.
D. The Conversion Claim
Horbach alleges in his second amended
complaint that between April 1 and
September 10, 1990, he deposited some
$56,800 with the defendants in reliance
upon their representation that the
pyrolysis equipment was complete and in
consideration for defendants’ agreement
to hold the equipment. In fact, Horbach
alleges, the equipment was far from ready
and as a result the defendants were not
entitled to those payments; yet, the
defendants refused his demand for the
return of his money. Horbach contends
that these allegations are sufficient to
establish a viable claim for conversion.
"’The essence of conversion is the
wrongful deprivation of one who has a
right to the immediate possession of the
object unlawfully held.’" In re Thebus,
483 N.E.2d 1258, 1260 (Ill. 1985),
quoting Bender v. Consolidated Mink
Ranch, Inc., 441 N.E.2d 1315, 1320 (Ill.
App. 1982); see also National Union Fire
Ins. Co. of Pittsburgh, Pa. v. Wilkins-
Lowe & Co., 29 F.3d 337, 340 (7th Cir.
1994) (per curiam). An asserted right to
money normally will not support a claim
for conversion. Only if the money at
issue can be described as "specific
chattel," Thebus, 483 N.E.2d at 1260--in
other words, "a specific fund or specific
money in coin or bills," Mid-America Fire
& Marine Ins. Co. v. Middleton, supra,
468 N.E.2d at 1339--will conversion lie.
Moreover, the plaintiff’s right to the
money must be absolute. See Thebus, 483
N.E.2d at 1260, quoting Jensen v. Chicago
& W. Ind. R.R. Co., 419 N.E.2d 578, 593
(Ill. App. 1981). "It must be shown that
the money claimed, or its equivalent, at
all times belonged to the plaintiff and
that the defendant converted it to his
own use." Thebus, 483 N.E.2d at 1261
(emphasis supplied); see also National
Union Fire Ins. Co., 29 F.3d at 340.
The district court correctly dismissed
Horbach’s conversion claim. Even if we
assume that the money Horbach paid to
defendants for the completion and storage
of the pyrolysis equipment properly could
be characterized as specific chattel,
Horbach cannot show that his right to
possession of that money was absolute. As
his complaint reveals, Horbach made the
payments in question to the defendants by
agreement in exchange for their
commitment to complete and store the
equipment while he continued the search
for an appropriate testing and
installation site. The incomplete state
of the equipment, and its failure to
conform to the agreed-upon
specifications, may have given rise to an
obligation on the defendants’ part to
return of some or all of the money that
he had paid to them. But Horbach cannot
show that the money at all times belonged
unconditionally to him. His agreement
with the defendants obligated him to pay
them that money; and the defendants’
receipt of that money thus cannot be
described as unauthorized or wrongful in
the sense that a claim for conversion
requires.
III.
For the reasons we have discussed, we
AFFIRM the district court’s decision to
dismiss Horbach’s claims for breach of
contract, rescission, constructive
trust/unjust enrichment, fraud, and
conversion.
FOOTNOTES
/1 Although Horbach named One Three Six as a defen-
dant below, the company has opted not to appear
in this appeal.
/2 Horbach asserted a number of other claims based
on an alleged agreement with Kaczmarek to pur-
chase approximately 80 percent of Shred Pax’s
stock. The disposition of those claims is not at
issue in this appeal.
/3 The second amended complaint additionally at-
tempted to assert a new claim for breach of
contract based on Shred Pax’s agreement to store
the pyrolysis equipment pending acceptance test-
ing. The district court determined that this
agreement amounted to no more than a modification
of the purchase order and thus was likewise
barred by the four-year statute of limitations.
934 F. Supp. at 984-85. Horbach does not chal-
lenge this reasoning on appeal.