S.N.A. Nut Company v. Haagen-Dazs Company ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 00-4052 and 00-4100
SNA NUT COMPANY,
Plaintiff-Appellee and
Cross-Appellant,
v.
THE HÄAGEN-DAZS COMPANY, INC.,
Defendant-Appellant and
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2820—Harry D. Leinenweber, Judge.
____________
ARGUED NOVEMBER 1, 2001—DECIDED SEPTEMBER 9, 2002
____________
Before FLAUM, Chief Judge, and MANION and KANNE,
Circuit Judges.
KANNE, Circuit Judge. SNA Nut Company (“SNA”), a
debtor in Chapter 11 bankruptcy, sued Häagen-Dazs
(“HD”) for the alleged breach of five supply contracts.
Following trial in an adversary proceeding, the bankrupt-
cy court issued proposed findings of fact and conclusions
of law. Based on these proposed findings and conclusions,
the district court entered judgment in favor of SNA. On
appeal we modify the judgment of the district court and
affirm the judgment as modified.
2 Nos. 00-4052 and 00-4100
I. Background
Beginning in the 1980s, SNA manufactured and sup-
plied nut products to HD for use in the manufacture of
ice cream, and by 1994, SNA was HD’s exclusive supplier
of nut products. The products that SNA sold to HD were
manufactured according to unique recipes that were
developed jointly by SNA and HD. HD would purchase the
nut products pursuant to supply contracts, agreeing to
purchase a set volume of nut products over a set period
of time for a set price. HD’s purchasing director, Clifford
Stecker until January 1994 and Richard Reider starting
in 1994, negotiated these supply contracts with SNA’s
outside broker, Hank Rich. After agreeing on the quantity,
price, and duration, SNA would send to HD a sales con-
tract setting forth the terms of their agreement. HD would
respond by sending back to SNA a purchase order con-
taining identical terms. Neither party would sign the
other’s document. The following five supply contracts are
the subject of this litigation:
Contract for: Amount Duration of Price/Pound
(Pounds) Contract
Diced 630,000 10/4/93 - 8/31/94 $3.85
Almonds
Diced Walnuts 121,020 11/29/93 - 9/30/94 $4.10 +
.02/month or
$3.95
Macadamia 325,000 6/2/94 - 12/31/94 $2.735
Brittle
Macadamia 35,000 6/12/94 - 12/31/94 $2.735
Fines
Macadamia 200,000 6/9/94 - 12/31/94 $2.735
Minis
HD would not take delivery of an entire order at any
one time. Rather, the managers of HD’s individual plants
Nos. 00-4052 and 00-4100 3
would notify SNA when and how much nut product they
wanted “to pull.” Although SNA would not remind HD to
schedule orders, SNA would send HD a monthly “con-
tract balance” report, which recited the terms of the con-
tracts between the parties and showed how much of
each product had been pulled under each contract as of
the date of the report.
In March 1994, several of SNA’s creditors filed an in-
voluntary bankruptcy petition against it, and SNA then
converted the petition into a voluntary bankruptcy under
Chapter 11 of the Bankruptcy Code. Due to financial
problems associated with the bankruptcy, Hank Rich no-
tified HD in March 1994 that SNA was temporarily un-
able to process almonds and suggested that HD secure
an alternate almond supplier. Later that month, SNA
expressed to HD that it was willing and able to resume
fulfilling its obligations under the diced almonds con-
tract. Three months later, Reider sent Rich a letter explain-
ing that during the months of March, April, and May, HD
had secured 217,950 pounds of almonds from alternate
suppliers per Rich’s suggestion. He further requested that
the contract be reduced to reflect this difference, but SNA
refused to do so.
In January 1995, the bankruptcy court confirmed a
Chapter 11 reorganization plan for SNA. One month later,
SNA filed a lawsuit against HD to collect payments that
HD allegedly owed it for pecan and other nut products
(the “first adversary complaint”), which SNA had delivered
to HD after the filing of their bankruptcy petition. HD
then filed a counterclaim in that adversary action. Addition-
ally, HD moved for leave to file a late proof of claim in
SNA’s Chapter 11 bankruptcy case, and the bankruptcy
court granted HD’s request.
Then, on September 6, 1996, SNA filed the adversary
action at issue in this appeal, alleging that HD breached
4 Nos. 00-4052 and 00-4100
the five aforementioned supply contracts (the “second
adversary complaint”). One week later, HD filed its proof
of claim in SNA’s Chapter 11 case, and on September 27,
HD filed a timely jury demand in the second adversary
action. Subsequently, the bankruptcy court disallowed
HD’s proof of claim in SNA’s Chapter 11 bankruptcy case
with prejudice, approved a settlement agreement be-
tween the parties in the first adversary action, and held
that the settlement in that proceeding did not release SNA’s
claims against HD in the second adversary action.
Prior to trial in the second adversary proceeding, SNA
filed a motion to strike HD’s jury demand, arguing that
HD had consented to the equitable jurisdiction of the
bankruptcy court by filing a proof of claim in the bank-
ruptcy case, and the bankruptcy court entered an order
striking the jury demand. HD then sought an immedi-
ate appeal to the district court, but the district court
concluded that an immediate appeal would not advance
the litigation as trial was already set to begin shortly in
the bankruptcy court. Thus, the district court denied
HD’s motion and returned the case to the bankruptcy court.
Back before the bankruptcy court, HD filed a motion
to reconsider the denial of its jury demand, and SNA filed
a renewed motion to strike the jury demand. After consider-
ing the issue a second time, the bankruptcy court again
granted SNA’s motion to strike HD’s jury demand.
The bankruptcy court thereafter entered summary
judgment in SNA’s favor as to the existence of three of
the five supply contracts in question and on a majority of
HD’s fifteen affirmative defenses.
After considering all of the evidence presented at the
subsequent bench trial, the bankruptcy court concluded
that the evidence (1) established the terms of the remain-
ing two supply contracts in question, thus finding that
all five supply contracts existed; (2) proved that HD
Nos. 00-4052 and 00-4100 5
breached all five contracts; (3) showed that HD was
partially excused from performance under the contract for
diced almonds but was not otherwise excused; and (4)
demonstrated that HD was liable to SNA for damages in
the amount of $921,978.49 plus prejudgment interest. The
bankruptcy court made its proposed findings of fact and
conclusions of law accordingly.
HD filed objections with the district court to many of the
bankruptcy court’s proposed findings and summary judg-
ment orders entered prior to trial. In response, SNA ob-
jected to HD’s objections and filed a motion to strike
HD’s objections on multiple grounds.
After undertaking a de novo review of the bankruptcy
court’s proposed findings, the district court entered a
Memorandum Opinion and Order adopting all but two of
the findings proposed by the bankruptcy court. Relevant
to this appeal and contrary to the bankruptcy court’s
proposed findings, the district court concluded that HD
was excused from performance under the diced almonds
contract for a longer period of time than the bankruptcy
court concluded, and therefore, the district court reduced
SNA’s damage award with respect to the diced almonds
contract.
On appeal, HD argues that the district court incorrect-
ly concluded that, by filing a proof of claim against SNA
in the bankruptcy court, HD waived its right to a jury
trial in the second adversary proceeding. Second, HD
claims that it was an abuse of discretion to fail to con-
sider its alleged reliance on misleading and inaccurate
inventory information that was sent to it by SNA’s out-
side broker Rich. Third, HD claims that it was error to
exclude its “mend-the-hold” defense. Fourth, HD claims
that the district court erred in calculating damages. Final-
ly, HD claims that the district court erred in awarding
SNA prejudgment interest. On cross appeal, SNA claims
6 Nos. 00-4052 and 00-4100
that the district court erred when it modified the bank-
ruptcy court’s proposed finding as to the amount of dam-
ages SNA sustained for HD’s breach of the diced almonds
contract.
II. Analysis
A. Right to a Jury Trial
First, HD claims that it did not waive its right to a jury
trial. Whether there was a jury waiver is a legal ques-
tion that we review de novo. See In re Peachtree Lane,
Assocs., 150 F.3d 788, 798 (7th Cir. 1998). To determine
whether a party has submitted itself to the equitable
jurisdiction of the bankruptcy court, the relevant inquiry
is whether the party has submitted a claim against the
bankruptcy estate, thereby subjecting itself to the bank-
ruptcy court’s equitable power to allow or disallow claims.
See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 59 n.14,
109 S. Ct. 2782, 106 L. Ed. 26 (1989). Once a party has
triggered this process of allowance and disallowance of
claims, that party has subjected itself to the bankruptcy
court’s equitable jurisdiction and thus can no longer de-
mand a right to a trial by jury. See Peachtree Lane, 150
F.3d at 798. In Peachtree Lane, we stated
nothing in [the relevant Supreme Court precedent]
suggests that it makes any difference whether the fil-
ing of the adversary proceeding precede[d] or follow[ed]
the submission of a claim against the bankruptcy
estate. In either case, the submission of the claim
still would trigger the process of allowance and disal-
lowance of claims, thereby subjecting the claimant to
the bankruptcy court’s equitable jurisdiction.
Id. at 799 (quotations omitted).
In this case, HD filed a proof of claim in SNA’s bank-
ruptcy case on September 13, 1996, and two weeks later,
Nos. 00-4052 and 00-4100 7
HD filed a jury demand in the second adversary action.
Subsequently, on December 4, 1996, the bankruptcy court
disallowed HD’s proof of claim with prejudice when it ap-
proved a settlement in the first adversary proceeding.
We conclude that HD’s actions were sufficient to consent
to the equitable jurisdiction of the bankruptcy court be-
cause HD triggered the process of allowance and disal-
lowance of claims when it filed its proof of claim on Septem-
ber 13. See id.HD makes several arguments on appeal contending that
under the present circumstances it retained its right to
a trial by jury. We, however, find none of these arguments
persuasive. For example, HD cites to several cases where
creditors properly withdrew their proof of claim filings,
pursuant to Bankruptcy Rule 3006, and thus retained
their right to request a jury. See, e.g., Smith v. Dowden,
47 F.3d 940, 943 (8th Cir. 1995); In re 20/20 Sport,
Inc., 200 B.R. 972, 979-80 (Bankr. S.D.N.Y. 1996). These
cases, however, are unlike the present appeal because in
Dowden and 20/20 Sport the creditors properly with-
drew their proof of claim filings pursuant to Rule 3006,
whereas here HD never withdrew its proof of claim filing.
Rather, the court specifically ordered as part of the par-
ties’ settlement agreement in the first adversary proceed-
ing that HD’s proof of claim be disallowed with prejudice
and therefore, cases such as Dowden are easily distinguish-
able from the case at bar.
B. Misleading Inventory Reports
Second, HD claims that it was an abuse of discretion to
reject its argument that it detrimentally relied on mis-
leading and inaccurate inventory information sent to it
by SNA’s outside broker Rich. According to HD, these
reports showed that SNA’s inventory was minimal or non-
existent and that SNA was no longer producing any
8 Nos. 00-4052 and 00-4100
nut products. Thus, HD asserts that it was in error to
grant summary judgment on HD’s equitable estoppel
defense; or alternatively, that the district court erred in
failing to consider HD’s defense that SNA engaged in bad
faith. Further, HD claims that it was error to find that
it failed to preserve its “mend-the-hold” defense in the
pretrial order.1
1. Equitable-Estoppel and Bad-Faith Defenses
We find HD’s equitable estoppel defense waived because
at no time in HD’s two-page statement of its equitable
estoppel defense before the bankruptcy court did HD
theorize that as a basis for this defense that it relied on
misleading weekly inventory reports. See In re Kroner, 953
F.2d 317, 319-20 (7th Cir. 1992). Rather, in the pretrial
order, HD claimed equitable estoppel as a defense because
SNA led HD to believe through silence that SNA would
not enforce the contracts. Further, HD’s alternative ar-
gument that it was error to fail to consider whether
SNA acted in bad faith is also waived because the first
time HD attempts to support this theory (by claiming
that it relied on misleading weekly inventory reports) is
on appeal. See id.In any event, even if HD had preserved these two argu-
ments in the pretrial order, we would still be unpersu-
aded by HD’s appeal as we find no clear error in the fac-
tual determinations accepted by the district court. See
Thomas v. General Motors Acceptance Corp., 288 F.3d 305,
307 (7th Cir. 2002). Based on the recommended findings
the district court expressly found that SNA maintained
the ability to meet HD’s contractual requirements in
1
The particulars of the “mend-the-hold” defense are irrelevant
to this appeal as we find this affirmative defense waived.
Nos. 00-4052 and 00-4100 9
October 1994, thereby implicitly rejecting HD’s argument
that certain weekly inventory reports from that time peri-
od suggested otherwise. This finding is supported by the
testimony of Rich, who explained that the reports refer-
enced by HD only reflected finished goods in inventory
that were boxed, tested by outside microbiological lab-
oratories, stamped, and ready for delivery. These reports,
however, did not reflect unfinished product or product
delivered on the date of the report. As HD has shown no
clear error, we decline to reverse the district court on
appeal.
2. “Mend-the-Hold” Defense
HD also claims that it preserved its “mend-the-hold”
defense in the pretrial order. We have previously noted
that a pretrial conference and a pretrial order are vital
parts of the procedural scheme created by the Federal
Rules of Civil Procedure. See Gorlikowski v. Tolbert, 52
F.3d 1439, 1443 (7th Cir. 1995). Further, “[b]ecause the
parties rely on the pretrial conference to inform them pre-
cisely what is in controversy, the pretrial order is treated
as superceding the pleadings and establishes the issues
to be considered at trial.” Id. at 1443-44. Moreover, the
whole purpose of pretrial conferences and orders “is to
clarify the real nature of the dispute at issue[;] a claim or
theory not raised in the pretrial order should not be con-
sidered by the fact-finder.” Id. at 1444 (quotations omitted).
While this result may seem harsh, pretrial orders help
to prevent protracted litigation due to changing theories
and arguments such as those that we are encountering
in this case.
HD claims that it preserved its “mend-the-hold” defense
in paragraph 25 of the pretrial order and in its fourth
affirmative defense. Paragraph 25 of HD’s Pretrial Order
Statement of Uncontested Issues of Fact provides:
10 Nos. 00-4052 and 00-4100
Whether SNA filed a motion to dismiss the counter-
claim in the first adversary and asserts that the al-
leged pecan contract was rejected by operation of the
plan of reorganization, that no contract was created,
or in the alternative, that the alleged contract was a
series of divisible installment contracts based on
separate purchase orders and invoices.
Nowhere in this paragraph did HD preserve a “mend-the-
hold” defense. Further, HD’s fourth affirmative defense
in its answer mentions judicial estoppel, not a “mend-the-
hold” defense. See Harbor Ins. Co. v. Continental Bank
Corp., 922 F.2d 357, 363 (7th Cir. 1990) (distinguishing
between judicial estoppel and the “mend-the-hold” defense).
In any event, even if HD had mentioned a “mend-the-
hold” defense in its affirmative defenses, as we explained
above, a pretrial order supercedes the pleadings and a
defense not raised in a pretrial order is deemed waived. See
Gorlikowski, 52 F.3d at 1444.
C. Failure to Mitigate
Next, HD argues that it was error to deny HD’s affirma-
tive defense of failure to mitigate. HD argues that SNA
built too much inventory and could have reduced its
damages by stopping production and by selling the raw
materials it already had in stock. The following evi-
dence was presented: SNA offered testimony that estab-
lished that SNA stopped manufacturing all HD nut prod-
ucts in November 1994, following HD’s refusal to pull any
nut products under the contracts at issue. Further, five
of SNA’s employees testified regarding their efforts to re-
sell the HD nut products. They explained that they con-
tacted every SNA customer in an attempt to resell the
nut products, that they contacted companies who were
not customers, and that they enlisted outside brokers
and distributors. When some of the nut products became
Nos. 00-4052 and 00-4100 11
too old for human consumption, they sold the nut prod-
ucts to animal feed manufactures. Finally, the SNA em-
ployees testified that they were forced to destroy nut
products they could not sell as the products became ran-
cid. The aforementioned evidence is sufficient to show that
SNA did mitigate damages.
D. Damages
1. Raw Almonds and Raw Walnuts
HD offered no evidence regarding damages. In contrast,
multiple witnesses testified in the bankruptcy court
in support of SNA’s damage claim. The witnesses estab-
lished that there were three components to SNA’s dam-
ages: (1) the contracted nut products that SNA had fin-
ished processing pursuant to HD’s unique recipes and
which HD failed to pull; (2) contracted nut products SNA
did not finish processing because HD stopped pulling
the nut products; and (3) the raw almonds and walnuts
that SNA bought during the 1993 harvest to perform its
obligations under the HD contracts that HD never pulled
and that had declined in value by the end of the con-
tracts in 1994. The third component is the focus of HD’s
next argument on appeal.
With respect to the third component, the bankruptcy
court found that SNA had bought the raw nuts at the
end of the 1993 harvest to fulfill its obligations to HD
under the contracts, and between 1993 and 1994, the
price of the raw nuts fell. When HD failed to pull these
raw nuts, SNA was left holding them. Thus, when SNA
eventually resold the raw nuts to other customers, SNA
lost profits because the price of the nuts had declined.
Therefore, SNA calculated its damages by determining
its loss in profit per pound of raw nuts, and adding to
that amount the additional costs it incurred from having
to hold and store the raw materials for longer than ex-
12 Nos. 00-4052 and 00-4100
pected. The bankruptcy court agreed with SNA’s calcu-
lations, and the district court adopted the bankruptcy
court’s proposed finding.
On appeal, HD claims that the raw materials dam-
ages calculations were in error. Specifically, HD claims
that SNA should not have been awarded damages for
raw almonds and raw walnuts because such damages
were not within HD’s reasonable contemplation and
because SNA failed to establish the value of the raw nuts.
We, however, “are inclined to recognize the consider-
able discretion entrusted to the district court in calculat-
ing damages, even in cases where the court has adopted
the findings of the prevailing party. If the adopted find-
ings are sufficient to permit appellate review and are not
clearly erroneous, the appellate court must affirm the
judgment.” Hagge v. Bauer, 827 F.2d 101, 109 (7th Cir.
1987).
First, HD contends that SNA failed to prove its dam-
ages to a reasonable certainty. The Supreme Court has
stated that “[c]ertainty as to the amount [of damages] goes
no further than to require a basis for a reasoned conclu-
sion.” Palmer v. Connecticut Railway & Lighting Co.,
311 U.S. 544, 561, 61 S. Ct. 379, 85 L. Ed. 2d 336 (1941).
When HD breached its obligations under the diced al-
monds and diced walnuts contracts, it left SNA with
187,029 pounds of unprocessed raw almonds and 6,411
pounds of unprocessed raw walnuts. SNA suffered a loss
on those raw materials when the price fell between the
fall of 1993 and the fall of 1994 because no one was will-
ing to pay the price that HD had previously contracted
to pay. In order to determine their lost profits, SNA de-
termined the change in the value of the nuts by looking
at the difference in cost to procure the raw nuts between
1993 and 1994. SNA then multiplied this difference by
the amount of raw nuts it had had in its inventory for
HD and added to that amount the additional storage
Nos. 00-4052 and 00-4100 13
costs it incurred. We believe that the above calculations
are reasoned conclusions.
Further, with regard to whether such damages were
within HD’s reasonable contemplation, Reider, HD’s
purchasing director, testified that he knew that nuts
were harvested once a year and that a buyer had to
buy during the harvest to lock in a supply of nuts. Thus,
Reider would have known that SNA bought the raw al-
monds and walnuts in question in the fall of 1993 to ful-
fill its obligations to HD in 1994. Because Reider, as
purchasing director, should have known the quantity
terms of its supply contracts with SNA and that the price
of nuts can fluctuate, we see no reason why the lower
courts could not have inferred that the amount of dam-
ages were within HD’s reasonable contemplation. Thus,
we find no clear error in the damages calculations for
raw almonds and raw walnuts.
2. Diced Almonds Contract
Both parties appeal the district court’s calculation of
damages on the diced almonds contracts. We review
disputes over the actual amount of damages awarded for
an abuse of discretion. See FTC v. Febre, 128 F.3d 530,
534 (7th Cir. 1997). The bankruptcy court concluded
that HD could subtract one 90,000 pound order of diced
almonds from SNA’s damages calculation because SNA’s
outside broker, Rich, had told HD that SNA was tempo-
rarily unable to fulfill the diced almonds contract. Sub-
sequently, the district court rejected the bankruptcy
court’s proposed finding and concluded that HD was
excused from performing on the diced almonds contract
through June 1994, because until June, no one had com-
municated to HD that SNA could resume fulfilling its
obligations. Based on a letter written by Reider in June
1994, the district court concluded that HD had pur-
14 Nos. 00-4052 and 00-4100
chased 218,000 pounds of diced almonds from alterna-
tive sources. Thus, the district court determined that
HD could reduce its total obligation under the almonds
contract by 218,000 pounds, and consequently, it reduced
SNA’s damages award accordingly.
On appeal, SNA argues that the district court clearly
erred when it found that SNA failed to inform HD that
it could resume supplying almonds until June 1994.
We agree. In fact, the record contains memoranda be-
tween Rich and Reider, which clearly reveal that SNA
could resume supplying HD with almonds as early as late
March 1994. Thus, we modify the district court’s finding
with respect to the reduction in the diced-almonds con-
tract to be consistent with the proposed findings of the
bankruptcy court and will modify the judgment to provide
that HD is liable to SNA for damages in the amount of
$379,532.79 for its breach of the diced-almonds contract.
E. Prejudgment Interest
With regard to the judgment, HD claims that SNA is
not entitled to prejudgment interest. The Illinois Interest
Act provides that a creditor shall be allowed interest at
the rate of five percent per annum for all monies after
they become due on any instrument of writing. See 815
ILCS § 205/2. We will review an award of prejudgment
interest for an abuse of discretion. See Singer Co. v. Skil
Corp., 803 F.2d 336, 341 (7th Cir. 1986).
First, HD argues that SNA’s claims are not based on
instruments of writing. The record, however, established
that the five sales contracts between HD and SNA con-
stitute “instruments of writing” under the Illinois Inter-
est Act because the written sales contracts that SNA sent
to HD satisfied the UCC Statute of Frauds and thus
constituted enforceable instruments of writing. See 810
ILCS 5/2-201; see also Hennessy v. Schmidt, 583 F.2d 302,
Nos. 00-4052 and 00-4100 15
307-08 (7th Cir. 1978); L.W. Foster Sportswear Co. v.
Goldblatt Bros. Inc., 356 F.2d 906, 910 (7th Cir. 1966).
Second, HD claims that SNA’s damages were not easi-
ly determined. Specifically, HD argues that because
damages could not be ascertained by looking at the con-
tracts, SNA’s damages were not easily determinable and
prejudgment interest was inappropriate. This argument
lacks merit because as we have previously explained
damages can be easily determinable “even where the
amount due requires legal ascertainment.” Fabe v. Facer
Ins. Agency, Inc., 773 F.2d 142, 146-47 (7th Cir. 1985).
Consequently, SNA’s damages were easily determinable
even though the district court in this case was required
to ascertain the amount due, and therefore, the district
court did not abuse its discretion by awarding prejudg-
ment interest to SNA.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is modified to provide that judgment is entered in
favor of SNA Nut Company and against Häagen-Dazs in
the total amount of $921,978.49 ($379,532.79 for the al-
monds contract; $155,862.70 for the walnuts contract;
$320,353.80 for the macadamia-brittle contract; $19,453.60
for the macadamia-fines contract; and $46,775.60 for the
macadamia-miniscontract) plus prejudgment interest at
the rate of 5%. As so MODIFIED, the judgment of the dis-
trict court is AFFIRMED.
16 Nos. 00-4052 and 00-4100
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-9-02