Garwood Packaging v. Allen & Co Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1848
GARWOOD PACKAGING, INC., et al.,
Plaintiffs-Appellants,
v.
ALLEN & COMPANY, INC., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 98-1058-C-MS—Larry J. McKinney, Chief Judge.
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ARGUED JANUARY 9, 2004—DECIDED AUGUST 10, 2004
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Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. This is a diversity suit, governed by
Indiana law, in which substantial damages are sought on
the basis of promissory estoppel. The suit pits Garwood
Packaging, Inc., which created a packaging system designed
to increase the shelf life of fresh meat, and its two princi-
pals, Garwood and McNamara, against Allen & Company
(an investment company) and a vice-president of Allen
named Martin. We shall refer to the plaintiffs collectively as
2 No. 03-1848
“GPI” and the defendants collectively as “Allen.” The district
court granted summary judgment in favor of Allen and
dismissed the suit.
There is a threshold question: whether GPI’s appeal was
timely. The notice of appeal was filed within 30 days of the
entry of judgment, but the judgment had not dismissed the
suit as to one of the defendants and was therefore, on its
face anyway, not final and appealable. GPI then dismissed
its suit against the remaining defendant and filed a new
notice of appeal, but did so more than 30 days after the
dismissal of that defendant had removed the cloud on the
finality of the district court’s judgment. The district judge
granted GPI’s motion to file a late notice of appeal, but
failed in doing so to make a finding that GPI’s tardiness had
been due to “excusable neglect.” A district court may extend
the time for filing a notice of appeal only if the appellant
demonstrates to the court’s satisfaction “excusable neglect
or good cause.” Fed. R. App. P. 4(a)(5)(A)(ii). The ruling is
regarded as discretionary, e.g., United States v. Brown, 133
F.3d 993, 996 (7th Cir. 1998); Brotherhood of Ry. Carmen v.
Chicago & North Western Transportation Co., 964 F.2d 684, 686
(7th Cir. 1992); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355,
362 (2d Cir. 2003), and so when there is no indication that
discretion was actually exercised, a remand is necessary
unless the issue is so one-sided (which is not the case here)
that it could have been resolved only one way. Cf. Prizevoits
v. Indiana Bell Tel. Co., 76 F.3d 132, 133-34 (7th Cir. 1996).
No remand is necessary here on a different ground, or
rather grounds. One is that the notice of appeal may not
have been premature, because the judgment may already
have been final. The defendant who was not formally dis-
missed from the case at the same time as the other defen-
dants had never been served with the complaint, and it was
much too late to serve him by the time the judgment was
No. 03-1848 3
entered against the other defendants. Since he had never be-
come and never could become a party, the judgment that
did not mention him was nevertheless final, complete, and
appealable. Manley v. City of Chicago, 236 F.3d 392, 395 (7th
Cir. 2001); Ordower v. Feldman, 826 F.2d 1569, 1571-73 (7th Cir.
1987); Federal Savings & Loan Ins. Corp. v. Tullos-Pierremont, 894
F.2d 1469 (5th Cir. 1990), and cases cited there.
It might be objected that these cases conflate a good reason
for entering a final decision with entry of the final decision
itself. Suppose a plaintiff filed suit and then appealed the
same day, before the district court even looked at the case,
and defended his precipitate action by saying that he knew
he would lose in the district court under circuit precedent
(which he would urge the court of appeals to overrule, but
which would bind the district court) and since his suit was
doomed in the district court it was as if there were a final
judgment and he should therefore be able to appeal imme-
diately. But in the cases that we have cited, as in the present
case, the defendant who hadn’t been dismissed with the
others had never actually become a party because he had
never been served. The significance of the fact that he could
no longer be served was that the dismissal of the suit could
not be regarded as a dismissal without prejudice as to him;
it was therefore securely final.
The alternative ground for regarding the decision of the
district court as final and appealable is based on Rule 4(a)(2)
of the Federal Rules of Appellate Procedure. The rule
provides that a notice of appeal filed after the court an-
nounces its decision but before the judgment is entered shall
be treated as if filed when the judgment was entered. In
other words, once the decision is announced, a premature
notice of appeal lingers until the final decision is entered.
FirstTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S.
269 (1991); Otis v. City of Chicago, 29 F.3d 1159, 1166 (7th Cir.
4 No. 03-1848
1994) (en banc). Here a decision was announced and a
notice of appeal filed (the first notice). It took effect when,
the last defendant having been dismissed, the decision
became final.
So the appeal was timely and we can proceed to the
merits.
GPI had flopped in marketing its food-packaging system
and by 1993 had run up debts of $3 million and was broke.
It engaged Martin to help find investors. After an initial
search turned up nothing, Martin told GPI that Allen
(Martin’s employer, remember) would consider investing $2
million of its own money in GPI if another investor could be
found who would make a comparable investment. The
presence of the other investor would reduce the risk to
Allen not only by augmenting GPI’s assets but also by vali-
dating Allen’s judgment that GPI might be salvageable,
because it would show that someone else was also willing
to bet a substantial sum of money on GPI’s being salvage-
able. To further reduce its risk Allen decided to off-load half
its projected $2 million investment on other investors.
Martin located a company named Hobart Corporation
that was prepared to manufacture $2 million worth of GPI
packaging machines in return for equity in the company.
Negotiations with Hobart proved arduous, however. There
were two sticking points: the amount of equity that Hobart
would receive and the obtaining of releases from GPI’s
creditors. Hobart may have been concerned that unless the
creditors released GPI the company would fail and Hobart
wouldn’t be able to sell the packaging systems that it man-
ufactured. Or it may have feared that the creditors would
assert liens in the systems. All that is clear is that Hobart
insisted on releases. They were also important to the other
investors whom Allen wanted to bring into the deal, the
ones who would contribute half of Allen’s offered $2
million.
No. 03-1848 5
Martin told Garwood and McNamara (GPI’s principals)
that he would see that the deal went through “come hell or
high water.” Eventually, however, Allen decided not to
invest, the deal collapsed, and GPI was forced to declare
bankruptcy. The reason for Allen’s change of heart was that
the investors who it thought had agreed to put up half of
“Allen’s” $2 million had gotten cold feet. When Allen
withdrew from the deal, no contract had been signed and no
agreement had been reached on how much stock either
Allen or Hobart would receive in exchange for their con-
tributions to GPI. Nor had releases been obtained from the
creditors.
GPI’s principal claim on appeal, and the only one we need
to discuss (the others fall with it), is that Martin’s unequivo-
cal promise to see the deal through to completion bound
Allen by the doctrine of promissory estoppel, which makes
a promise that induces reasonable reliance legally enforceable.
Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001); First National
Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949, 954
(Ind. 1991); Consolidation Services, Inc. v. KeyBank National
Ass’n, 185 F.3d 817, 822 (7th Cir. 1999) (Indiana law);
Restatement (Second) of Contracts § 90(1) (1981); 1 E. Allan
Farnsworth, Farnsworth on Contracts § 2.19 (3d ed. 2004). If
noncontractual promises were never enforced, reliance on
their being enforceable would never be reasonable, so let us
consider why the law might want to allow people to rely on
promises that do not create actual contracts and whether the
answer can help GPI.
The simplest answer to the “why” question is that the doc-
trine merely allows reliance to be substituted for consider-
ation as the basis for making a promise enforceable. First
National Bank of Logansport v. Logan Mfg. Co., supra, 577
N.E.2d at 954; Workman v. United Parcel Service, Inc., 234 F.3d
998, 1001 (7th Cir. 2000); Consolidation Services, Inc. v.
6 No. 03-1848
KeyBank National Ass’n, supra, 185 F.3d at 822; Porter v.
Commissioner, 60 F.2d 673, 675 (2d Cir. 1932) (L. Hand, J.). On
this view promissory estoppel is really just a doctrine of
contract law. The most persuasive reason for the require-
ment of consideration in the law of contracts is that in a
system in which oral contracts are enforceable—and by
juries, to boot—the requirement provides some evidence that
there really was a promise that was intended to be relied on
as a real commitment. Gibson v. Neighborhood Health Clinics,
Inc., 121 F.3d 1126, 1131 (7th Cir. 1997); Scholes v. Lehmann,
56 F.3d 750, 756 (7th Cir. 1995); Krell v. Codman, 28 N.E. 578(Mass. 1891) (Holmes, J.); Lon L. Fuller, “Consideration and
Form,” 41 Colum. L. Rev. 799, 799-801 (1941). Actual reliance,
in the sense of a costly change of position that cannot be
recouped if the reliance turns out to have been misplaced, is
substitute evidence that there may well have been such a
promise. Consolidation Services, Inc. v. KeyBank National Ass’n,
supra, 185 F.3d at 822; Yontz v. BMER Interprises, Inc., 632
N.E.2d 527, 530 (Ohio App. 1993). The inference is especially
plausible in a commercial setting, because most
businesspeople would be reluctant to incur costs in reliance
on a promise that they believed the promisor didn’t consider
himself legally bound to perform.
In other words, reasonable reliance is seen as nearly as
good a reason for thinking there really was a promise as bar-
gained-for reliance is. In many such cases, it is true, no prom-
ise was intended, or intended to be legally enforceable; in
those cases the application of the doctrine penalizes the
defendant for inducing the plaintiff to incur costs of reli-
ance. The penalty is withheld if the reliance was unreason-
able; for then the plaintiff’s wound was self-inflicted—he
should have known better than to rely.
A relevant though puzzling difference between breach of
contract and promissory estoppel as grounds for legal relief
No. 03-1848 7
is that while the promise relied on to trigger an estoppel
must be definite in the sense of being clearly a promise and
not just a statement of intentions, Security Bank & Trust Co.
v. Bogard, 494 N.E.2d 965, 968-69 (Ind. App. 1986); Wood v.
Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir. 1991) (Indiana law);
Major Mat Co. v. Monsanto Co., 969 F.2d 579, 582-83 (7th Cir.
1992), its terms need not be as clear as a contractual promise
would have to be in order to be enforceable. E.g., Janke
Construction Co. v. Vulcan Materials Co., 527 F.2d 772, 777
(7th Cir. 1976) (Wisconsin law); Hawkins Construction Co. v.
Reiman Corp., 511 N.W.2d 113, 117 (Neb. 1994); Neiss v. Ehlers,
899 P.2d 700, 707 (Ore. App. 1995). Indiana may go furthest
in this direction: “Even though there were insufficient terms
for the enforcement of an express oral contract, and unful-
filled pre-existing conditions prohibiting recovery for breach
of a written contract . . ., we are not precluded from finding
a promise under these circumstances. Indeed, it is precisely
under such circumstances, where a promise is made but
which is not enforceable as a ‘contract,’ that the doctrine of
promissory estoppel is recognized.” First National Bank of
Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 955.
The reason for this difference between breach of contract
and promissory estoppel is unclear. A stab at an explanation
is found in Rosnick v. Dinsmore, 457 N.W.2d 793, 800 (Neb.
1990), where the court said that “promissory estoppel only
provides for damages as justice requires and does not
attempt to provide the plaintiff damages based upon the ben-
efit of the bargain. The usual measure of damages under a
theory of promissory estoppel is the loss incurred by the
promisee in reasonable reliance on the promise, or ‘reliance
damages.’ Reliance damages are relatively easy to deter-
mine, whereas the determination of ‘expectation’ or ‘benefit
of the bargain’ damages available in a contract action
requires more detailed proof of the terms of the contract.”
The only problem with this explanation is that its premise
8 No. 03-1848
is mistaken; if the promise giving rise to an estoppel is clear,
the plaintiff will usually be awarded its value, which would
be the equivalent of the expectation measure of damages in
an ordinary breach of contract case. Goldstick v. ICM Realty,
788 F.2d 456, 463-64 (7th Cir. 1986); Restatement, supra, § 90
comment d. The rationale in both cases is that the benefit of
the contract to the promisee is a good proxy for the opportu-
nities that he forewent in making the contract. Walters v.
Marathon Oil Co., 642 F.2d 1098, 1100-01 (7th Cir. 1981); L.L.
Fuller & William R. Perdue, Jr., “The Reliance Interest in
Contract Damages: 1,” 46 Yale L.J. 52, 60 (1936) (“physicians
with an extensive practice often charge their patients the full
office call fee for broken appointments. Such a charge looks
on the face of things like a claim to the promised fee; it seems
to be based on the ‘expectation interest’. Yet the physician
making the charge will quite justifiably regard it as compen-
sation for the loss of the opportunity to gain a similar fee
from a different patient”). Of course, if the promise is
unclear, damages will be limited to expenses incurred in
reasonable reliance on the vague promise, First National
Bank of Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 952,
955-56, but that would be equally true in a breach of
contract case in which the promise that the defendant had
broken was unclear.
But even though the court is “not precluded from finding
a promise” by its vagueness, id. at 955, the vaguer the alleged
promise the less likely it is to be found to be a promise. Mays
v. Trump Indiana, Inc., 255 F.3d 351, 358-59 (7th Cir. 2001)
(Indiana law); All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d
862, 868-69 (7th Cir. 1999); Restatement, supra, § 33(3) and
comment f. And if it is really vague, the promisee would be
imprudent to rely on it—he wouldn’t know whether reli-
ance was worthwhile. The broader principle, which the
requirement that the promise be definite and at least mini-
mally clear instantiates, is that the promisee’s reliance must
No. 03-1848 9
be reasonable; if it is not, then not only is he the gratuitous
author of his own disappointment, but probably there wasn’t
really a promise, or at least a promise intended or likely to
induce reliance. The “promise” would have been in the na-
ture of a hope or possibly a prediction rather than a commit-
ment to do something within the “promisor’s” power to do
(“I promise it will rain tomorrow”); and the “promisee”
would, if sensible, understand this. He would rely or not as
he chose but he would know that he would have to bear the
cost of any disappointment.
We note, returning to the facts of this case, that there was
costly reliance by GPI, which forewent other opportunities
for salvation, and by Garwood and McNamara, who moved
from Indiana to Ohio to be near Hobart’s plant where they
expected their food-packaging system to be manufactured,
and who forgave their personal loans to GPI and incurred
other costs as well. The reliance was on statements by Martin,
of which “come hell or high water” was the high water mark
but is by no means an isolated example. If GPI’s evidence is
credited, as it must be in the procedural posture of the case,
Martin repeatedly confirmed to GPI that the deal would go
through, that Allen’s commitment to invest $2 million was
unconditional, that the funding would be forthcoming, and so
on; and these statements induced the plaintiffs to incur costs
they would otherwise not have done.
But were these real promises, and likely to be understood
as such? Those are two different questions. A person may
say something that he intends as merely a prediction, or as
a signal of his hopes or intentions, but that is reasonably
understood as a promise, and if so, as we know (this is the
penal or deterrent function of promissory estoppel), he is
bound. Tipton County Farm Bureau Cooperative Ass’n, Inc. v.
Hoover, 475 N.E.2d 38, 42 (Ind. App. 1985). But what is a rea-
sonable, and indeed actual, understanding will often depend
10 No. 03-1848
on the knowledge that the promisee brings to the table.
McNamara, with whom Martin primarily dealt, is a former
investment banker, not a rube. He knew that in putting
together a deal to salvage a failing company there is many
a slip ‘twixt cup and lips. Unless blinded by optimism or
desperation he had to know that Martin could not mean
literally that the deal would go through “come hell or high
water,” since if Satan or a tsunami obliterated Ohio that
would kill the deal. Even if Allen had dug into its pockets
for the full $2 million after the investors who it had hoped
would put up half the amount defected, the deal might well
not have gone through because of Hobart’s demands and
because of the creditors. GPI acknowledges that the Internal
Revenue Service, one of its largest creditors, wouldn’t give
a release until paid in full. Some of GPI’s other creditors also
intended to fight rather than to accept a pittance in ex-
change for a release. Nothing is more common than for a
deal to rescue a failing company to fall apart because all the
creditors’ consent to the deal cannot be obtained—that is
one of the reasons for bankruptcy law. Again these were
things of which McNamara was perfectly aware.
The problem, thus, is not that Martin’s promises were in-
definite, which they were not if GPI’s evidence is credited,
but that they could not have been reasonably understood by
the persons to whom they were addressed (mainly
McNamara, the financial partner in GPI) to be promises
rather than expressions of optimism and determination.
Security Bank & Trust Co. v. Bogard, supra, 494 N.E.2d at 968-
69; Workman v. United Parcel Service, Inc., supra, 234 F.3d at
1001-02; Wood v. Mid-Valley Inc., supra, 942 F.2d at 428; Major
Mat Co. v. Monsanto Co., supra, 969 F.2d at 582-83. To move
to Ohio, to forgive personal loans, to forgo other searches for
possible investors, and so forth were in the nature of
gambles on the part of GPI and its principals. They may
have been reasonable gambles, in the sense that the pros-
No. 03-1848 11
pects for a successful salvage operation were good enough
that taking immediate, even if irrevocable, steps to facilitate
and take advantage of the expected happy outcome was
prudent. But we often reasonably rely on things that are not
promises. A farmer plants his crops in the spring in reason-
able reliance that spring will be followed by summer rather
than by winter. There can be reasonable reliance on state-
ments as well as on the regularities of nature, but if the
statements are not reasonably understood as legally enforce-
able promises there can be no action for promissory
estoppel.
Suppose McNamara thought that there was a 50 percent
chance that the deal would go through and believed that
reliance on that prospect would cost him $100,000, but also
believed that by relying he could expect either to increase
the likelihood that the deal would go through or to make
more money if it did by being able to start production sooner
and that in either event the expected benefit of reliance
would exceed $100,000. Then his reliance would be reason-
able even if not induced by enforceable promises. The num-
bers are arbitrary but the example apt. GPI and its principals
relied, and may have relied reasonably, but they didn’t rely
on Martin’s “promises” because those were not promises
reasonably understood as such by so financially sophisticated
a businessman as McNarama. McInerney v. Charter Golf, Inc.,
680 N.E.2d 1347, 1352-53 (Ill. 1997); Gruen Industries, Inc. v.
Biller, 608 F.2d 274, 281-82 (7th Cir. 1979); Clardy Mfg. Co. v.
Marine Midland Business Loans Inc., 88 F.3d 347, 358, 360-61
(5th Cir. 1996). So we see now that the essence of the
doctrine of promissory estoppel is not that the plaintiff have
reasonably relied on the defendant’s promise, but that he
have reasonably relied on its being a promise in the sense of
a legal commitment, and not a mere prediction or aspiration
or bit of puffery.
12 No. 03-1848
One last point. Ordinarily the question whether a plaintiff
reasonably understood a statement to be a promise is a ques-
tion of fact and so cannot be resolved in summary judgment
proceedings. But if it is clear that the question can be answered
in only one way, there is no occasion to submit the question
to a jury. See Mason & Dixon Lines, Inc. v. Glover, 975 F.2d
1298, 1303-05 (7th Cir. 1992); J.C. Wyckoff & Associates, Inc. v.
Standard Fire Ins. Co., 936 F.2d 1474, 1493 (6th Cir. 1991).
This, we believe, is such a case.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-10-04