Skyrise Construction Group LLC v. Annex Construction LLC

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-1461
SKYRISE CONSTRUCTION GROUP, LLC,
Plaintiff-Appellant,
v.
ANNEX CONSTRUCTION, LLC,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-00381 — Nancy Joseph, Magistrate Judge.
ARGUED SEPTEMBER 25, 2019 — DECIDED APRIL 21, 2020
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Skyrise Construction Group, LLC, a
subcontractor, sued Annex Construction, LLC, a general
contractor, for breach of contract, promissory estoppel,
negligent misrepresentation, violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et
seq., and violation of the Wisconsin Deceptive Trade Practices
2 No. 19-1461
Act, Wis. Stat. 100.18. The district court granted summary
judgment in favor of the defendants on all claims. We affirm.
I.
In the early summer of 2017, Annex Construction, LLC
(“Annex”), issued a request for bids from subcontractors for a
project to construct housing units near the University of
Wisconsin-Oshkosh (“Project”). Skyrise Construction Group,
LLC (“Skyrise”) answered that call for bids by submitting a
proposal on July 7, 2017, to supply the rough framing carpen-
try labor for the Project at a price of $899,662. Skyrise submit-
ted a second bid that same day for $970,000, revised to include
a charge for “stick building.”1 Annex rejected the July 7 bids,
and Skyrise followed up with a July 19 bid for $950,000. The
July 19 bid caught Annex’s interest, and Tom Tomaszewski,
the President of Annex, responded that same day with an
emailed “Letter of Intent” (“Letter”) to John Trojan, Skyrise’s
project manager. In that Letter, Tomaszewski expressed “the
intention of Annex” to “enter into a contract with Skyrise” for
the rough carpentry work for the Project, and informed Skyrise
that Annex would “work on getting you contract documents
in the near future.” R. 19, at 12. On the basis of that Letter,
Skyrise immediately blocked out the Project on its calendar
and declined to pursue or accept other work during the period
that it expected the Project to proceed.
1
“Stick building” involves constructing all of the framing on site, as
opposed to modular building, which employs prefabricated components.
See https://en.wikipedia.org/wiki/Stick-built_construction (last visited April
14, 2020).
No. 19-1461 3
On August 2, Annex emailed the promised contract to
Skyrise. The draft document (hereafter “Proposed Contract”)
consisted of a six-page “Agreement Between Contractor and
Subcontractor,” containing the general parameters of the
agreement; a fourteen-page Exhibit A labeled “Subcontract
General Conditions,” consisting of eleven articles and numer-
ous sub-articles detailing subjects such as design, construction,
timing, payment terms, insurance, modifications, and dispute
resolution; Exhibit B, a page labeled “The Construction
Documents,” with a link to an internet site; Exhibit C, a page
labeled “The Project Schedule,” which was otherwise blank;
and Exhibit D, a page labeled “Lien Waiver and Contractor’s
Affidavit Forms,” which was also otherwise blank. The
Proposed Contract declared, in part, that it represented the
entire agreement between the parties, superceding all prior
negotiations in any form. R. 19, at 17.
Skyrise believed that the framing work was scheduled to
begin in the first week of October, but the subcontractor
delayed signing and returning the Proposed Contract.2 More
than a month later, on September 6, Annex again emailed the
Proposed Contract to Skyline. The next day, Trojan sent an
2
The timing provisions of the Proposed Contract specified that the work
would proceed according to the Project Schedule, a document that was
blank when the Proposed Contract was initially presented to Skyrise. Those
same timing provisions warned that Annex retained the right to modify the
schedule and the sequence of the work, and that the subcontractor would
be expected to accommodate those changes. On summary judgment, we
must credit Skyrise’s assertion that Tomaszewski orally represented to
Skyrise that the Project would be ready for Skyrise to begin the framing
work in early October 2017.
4 No. 19-1461
email to Tomaszewski explaining that he (Trojan) was “still
reviewing the contracts and ... should have it back to you
tomorrow.” R. 18, at 8. But instead of returning the Proposed
Contract the next day, Trojan sent a request a week later on
behalf of Skyrise’s managing member, Ignacio Garcia: Trojan
asked that Tomaszewski “sign our proposal and return [it] to
Skyrise Construction while he [Garcia] is reviewing your
contract documents.” R. 19, at 15. On September 22,
Tomaszewski complied with this request, signing the July 19
bid proposal and writing on the face of the document, “Con-
tract exhibit A.” R. 19, at 13–14. Skyrise still did not sign and
return the Proposed Contract.
Annex requested that Skyrise personnel attend a meeting
at the construction site on October 9, and Skyrise complied.
Skyrise personnel saw that the project was not ready for
framing, and the parties began to discuss a possible expanded
role for Skyrise in getting the Project completed on schedule.
A few days later, on October 11, Tomaszewski received an
email containing the Proposed Contract, signed by Garcia and
marked with handwritten edits to the payment terms and also
to two items involving the scope of the work to be completed.3
Garcia later asserted that Tomaszewski had orally agreed to
the edits regarding payment terms, and that Garcia was merely
fixing errors in the terms related to the scope of work. Annex
never signed this revised version of the Proposed Contract.
3
Skyrise asserts that it signed and mailed a hard copy of the Proposed
Contract on August 10. Apparently, that document was sent to an old
address for Annex. Tomaszewski received a scanned copy by email on
August 11.
No. 19-1461 5
Throughout October, the parties continued to discuss a
potentially broader scope of work for Skyrise. On October 31,
Skyrise submitted a vastly expanded proposal seeking a
contract for framing, siding, windows, and drywall, totaling
$3,864,643. On November 2, Tomaszewski sent an email to
Trojan and Garcia stating:
We are going to go ahead and pass on this guys. I
appreciate the hard work however I am going to
bring in a large framing company we have a very
good relationship with and can meet our timeframe
and schedule at a much lower cost.
I will have our council [sic] get you a letter on the
original contract that you signed in the near future.
R. 19, at 62. The very next day, Annex’s general counsel sent by
email and overnight mail a letter formally rejecting Skyrise’s
October 31 proposal and also stating that Annex “will not be
accepting and countersigning the Agreement as marked-up by
Subcontractor and is therefore null and void.” R. 19, at 63.
Skyrise then filed this diversity suit against Annex, seeking
damages for breach of contract, promissory estoppel, negligent
misrepresentation, violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act, 815 ILCS 505/1 et seq.
(“Illinois Act”), and violation of the Wisconsin Deceptive Trade
Practices Act, Wis. Stat. 100.18 (“Wisconsin Act”). On cross-
motions for summary judgment, the district court granted
judgment in favor of Annex on all counts and denied Skyrise’s
motion. Skyrise appeals.
6 No. 19-1461
II.
On appeal, Skyrise contends that fact disputes preclude
judgment on every count. On the breach of contract claim,
Skyrise asserts that a contract was formed either on September
22, when Tomaszewski signed the July 19 bid, or on October 10
when Skyrise signed and returned Annex’s contract. In the
alternative, Skyrise seeks damages for promissory estoppel,
contending that it reasonably relied on the Letter of Intent and
Annex’s oral representations over the next two months when
it decided to block off its schedule for the Project and decline
other work during the period that it expected to be working on
the Project. For the three remaining claims, Skyrise relies on the
same core of facts in arguing that Annex made misrepresenta-
tions and engaged in deceptive conduct on which Skyrise
relied to its detriment.
We review the district court’s grant of summary judgment
de novo, examining the record in the light most favorable to
Skyrise and construing all reasonable inferences from the
evidence in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). Summary judgment is appropriate when there
are no genuine disputes of material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson, 477 U.S. at 250; Yahnke, 823 F.3d at 1070. We may
affirm summary judgment on any basis we find in the record.
Nature Conservancy v. Wilder Corp. of Del., 656 F.3d 646, 653 (7th
Cir. 2011).
Although federal law governs procedure in a case in which
federal court jurisdiction is premised on diversity of citizen-
No. 19-1461 7
ship, state law applies to substantive issues. Fednav Int’l, Ltd. v.
Continental Ins. Co., 624 F.3d 834, 838 (7th Cir. 2010); RLI Ins.
Co. v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008). The
Proposed Contract specifies that it “shall be governed by the
laws of the state where the Project is located,” which in this
case is Wisconsin. R. 19, at 22. In a diversity case involving a
contract that stipulates which state’s law is to govern, a federal
court must follow state law in deciding whether to enforce the
stipulation. Wood v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir.
1991). Wisconsin generally honors stipulations as to choice of
law unless they conflict with public policy. American Family
Mut. Ins. Co. v. Cintas Corp. No. 2, 914 N.W.2d 76, 82 (Wis.
2018). Because nothing here is contrary to Wisconsin’s public
policy, Wisconsin law governs the contract claim. For the other
claims, with the exception of the claim premised on the Illinois
Act, “[w]hen neither party raises a conflict of law issue in a
diversity case, the applicable law is that of the state in which
the federal court sits.” RLI Ins., 543 F.3d at 390. Thus, with the
exception noted, Wisconsin law applies to the substantive
issues in the other claims as well.
A.
We begin with Skyrise’s claim for breach of contract. The
first step in evaluating a breach of contract claim is to deter-
mine whether a valid contract exists. Steele v. Pacesetter Motor
Cars, Inc., 672 N.W.2d 141, 144 (Wis. Ct. App. 2003). Creation
of a contract requires an offer, an acceptance, and consider-
ation. Marks v. Houston Cas. Co., 881 N.W.2d 309, 328 (Wis.
2016); Paul R. Ponfil Trust v. Charmoli Holdings, LLC, 935
N.W.2d 308, 311 (Wis. Ct. App. 2019). “The existence of an offer
8 No. 19-1461
and acceptance are mutual expressions of assent, and consider-
ation is evidence of the intent to be bound to the contract.”
NBZ, Inc. v. Pilarski, 520 N.W.2d 93, 96 (Wis. Ct. App. 1994).
Agreements to agree are not enforceable contracts under
Wisconsin law. Dunlop v. Laitsch, 113 N.W.2d 551, 554 (Wis.
1962).
Skyrise maintains that a contract was formed either when
Annex signed the July 19 bid on September 22, or when Skyrise
signed and returned the Proposed Contract on October 10.
Neither theory succeeds under Wisconsin law. At the time that
Annex signed the July 19 bid, the undisputed record demon-
strates that neither party believed or intended that the signed
bid would create a contract. In Wisconsin, the party seeking to
enforce a contract must demonstrate that there was a “meeting
of the minds,” that is, that the parties intended to form a
contract. Household Utilities, Inc. v. Andrews, 236 N.W.2d 663,
669 (Wis. 1976); Skycom Corp. v. Telstar Corp., 813 F.2d 810, 814
(7th Cir. 1987). The intent of the parties is generally “derived
from a consideration of their words, written and oral, and their
actions.” Household Utilities, 236 N.W.2d at 669. Wisconsin
takes an objective view of “intent,” and therefore “[s]ecret
hopes and wishes count for nothing.” Skycom, 813 F.2d at 814.
The status of a document as a contract depends on
what the parties express to each other and to the
world, not on what they keep to themselves. It is
therefore unimportant whether [the plaintiff] ex-
No. 19-1461 9
pected this [document] to be the definitive agree-
ment; the binding force of the document depends on
public or shared expressions.
Skycom, 813 F.2d at 814–15.
When Tomaszewski signed the July 19 bid, he did so at
Trojan’s request and at the assurance of Garcia, through
Trojan, that Garcia was still reviewing Annex’s Proposed
Contract. With that understanding, Tomaszewski marked the
signed bid, “Contract exhibit A” to indicate that he intended
for it to become part of the final agreement, not a contract in
and of itself. Although Garcia later averred that he considered
the signing of the bid to signal Annex’s commitment to the
deal, his external action of contemporaneously communicating
that he was still reviewing the Proposed Contract, and
Tomaszewski’s unmistakable indication that the bid was
simply an exhibit to the larger agreement under review,
contradict this subjective interpretation of Tomaszewski’s
signature on the bid. See American Nat’l Property & Cas. Co. v.
Nersesian, 689 N.W.2d 922, 928 (Wis. Ct. App. 2004) (where the
parties understand that preliminary writings are to be followed
by a formal contract containing additional material provisions
and signed by the parties, no binding or completed contract
will be found). Both parties clearly viewed the July 19 bid as a
preliminary writing that was to be followed by the formal
Proposed Contract, which contained roughly twenty pages of
additional, material terms. When the “public or shared
expressions” of the parties are not in dispute, and those
expressions objectively demonstrate that the parties have not
yet reached an agreement, summary judgment is appropriate.
In the undisputed circumstances presented here,
10 No. 19-1461
Tomaszewski’s September 22 signing of the July 19 bid did not
create a contract because neither party manifested an objective
intent to do so at that time.
Nor was a contract created when Skyrise signed and
returned a marked-up version of the Proposed Contract on
October 11. “[M]aking material revisions to a contract offer and
then signing the revised contract offer does not constitute an
acceptance of the offer, but rather creates a counteroffer that
the other party must affirmatively accept before there is an
agreement.” Disciplinary Hearings Against Nora, 909 N.W.2d
155, 163 (Wis. 2018). See also Fricano v. Bank of Am. NA, 875
N.W.2d 143, 153–54 (Wis. Ct. App. 2015) (an acceptance that
varies the terms of the offer constitutes a rejection and a
counteroffer, and no contract is formed until the counteroffer
is accepted). In this case, Garcia made handwritten alterations
to the Proposed Contract before signing and returning it. First,
in Article 2 of the document titled “Agreement Between
Contractor and Subcontractor,” Garcia struck out the terms
“roofing felt” and “adhesives” from lists of items to be in-
stalled as part of the Project. He contended that he was simply
correcting errors in making this change. It is difficult to
determine on this record whether those alterations could be
described as material. Construing the facts in favor of Skyrise,
we will therefore treat those alterations as non-material for the
purposes of the appeal.
But in Article 4 of that same document, Garcia struck out
eight lines of an eleven-line paragraph titled “Progress Pay-
ments.” This paragraph supplied the terms for the timing of
payments and the conditions under which payments would be
made. Skyrise cannot plausibly claim that this alteration was
No. 19-1461 11
not a material change to the contract. Nevertheless, Skyrise
contends that Tomaszewski had orally agreed to the change.
Annex never signed the altered version of the Proposed
Contract and instead sent a formal rejection a few weeks later,
after the parties unsuccessfully attempted to negotiate an
expanded agreement. The Proposed Contract itself provides
that it represents the entire agreement and supercedes “all
prior negotiations, representations or agreements, whether
written or verbal” and so any claim that Tomaszewski orally
changed the agreement must fail. Instead, Garcia’s material
alteration to the Proposed Contract operated as a rejection of
the agreement and a counteroffer. Because Annex never
accepted the counteroffer, no contract was formed. The court
therefore correctly granted judgment in favor of Annex on the
claim for breach of contract.
B.
Skyrise argues in the alternative that, if no contract existed,
it is entitled to damages under the doctrine of promissory
estoppel. Wisconsin adopted that doctrine as it is set forth in
the Restatement First of Contracts. Hoffman v. Red Owl Stores,
Inc., 133 N.W.2d 267, 274 (Wis. 1965).
A claim of promissory estoppel involves three
elements: (1) whether the promise is one which the
promisor should reasonably expect to induce action
or forbearance of a definite and substantial character
on the part of the promisee; (2) whether the promise
induced such action or forbearance; and (3) whether
injustice can be avoided only by enforcement of the
promise.
12 No. 19-1461
Bicknese v. Sutula, 660 N.W.2d 289, 294 (Wis. 2003) (citing
Hoffman). See also Kramer v. Alpine Valley Resort, Inc., 321
N.W.2d 293, 295–96 (Wis. 1982) (same). The first two elements
present questions of fact and the third is a question of law.
Kramer, 321 N.W.2d at 296; C.G. Schmidt, Inc. v. Permasteelisa N.
Am., 825 F.3d 801, 807 (7th Cir. 2016). Promissory estoppel is
usually available only in limited circumstances and does not
allow “circumvention of carefully designed rules of contract
law.” C.G. Schmidt, 825 F.3d at 807 (quoting All–Tech Telecom,
Inc. v. Amway Corp., 174 F.3d 862, 869 (7th Cir. 1999)). Skyrise
asserts that fact disputes preclude summary judgment on its
promissory estoppel claim. Namely, Skyrise claims that a jury
must decide whether it was reasonable for Skyrise to forgo
bidding on other work based on the promises and actions of
Annex.
The promise on which Skyrise claims to have relied was
that “on July 19, 2017, Annex committed to Skyrise that it was
selected as the framing and window installation subcontractor
for the ... Project.” Plaintiff’s Brief at 38. In support of this
“commitment,” Skyrise cites Tomaszewski’s email that day
which stated, “thanks look forward to working together,” and
the attached Letter which professed, “it is the intention of
Annex ... to enter into a contract with Skyrise.” On appeal,
Skyrise also points to subsequent events as forming the basis
of its reliance. In particular, Skyrise cites Tomaszewski’s
September 22 signing of the bid, and Skyrise’s attendence at
No. 19-1461 13
the on-site meeting in October, which it characterizes as “part
performance.”4 But:
the reliance that makes the promise legally enforce-
able must be induced by a reasonable expectation
that the promise will be carried out. A promise that
is vague and hedged about with conditions may
nevertheless have a sufficient expected value to
induce a reasonable person to invest time and effort
in trying to maximize the likelihood that the promise
will be carried out. But if he does so knowing that he
is investing for a chance, rather than relying on a
firm promise that a reasonable person would expect
to be carried out, he cannot plead promissory
estoppel.
Cosgrove v. Bartolotta, 150 F.3d 729, 733 (7th Cir. 1998). See also
C.G. Schmidt, 825 F.3d at 809 (conditional promises are not a
reasonable basis for reliance). Such was the situation here as
both parties understood it on July 19 and throughout the
months of negotiations and discussions that followed.
Annex was interested in Skyrise’s bid and expressed that
interest with the Letter of Intent. But contemporaneously,
Annex placed significant conditions on its interest. Those
conditions took the form of approximately twenty pages of fine
4
Skyrise repeatedly refers to its attendance at the October 9 on-site
meeting as “required” by Annex, citing Garcia’s affidavit and
Tomaszewski’s deposition. But those documents do not support an
inference that attendance at this meeting was “required,” and in fact Garcia
averred only that he attended this planning meeting at Tomaszewski’s
“request.”
14 No. 19-1461
print in the Proposed Contract. Skyrise did not act reasonably
as a matter of law when, on July 19, it blocked out its schedule
and declined to pursue other bids on the basis of a Letter of
Intent that came with those significant conditions. In Wiscon-
sin, that Letter and Tomaszewski’s vague expressions of
looking forward to working together operated as nothing more
than an unenforceable agreement to agree. Dunlop, 113 N.W.2d
at 554. Annex indicated only that Skyrise would be selected if
the parties could come to terms. Although the parties contin-
ued to talk about a possible deal for another two months,
Skyrise points to nothing more than protracted negotiations
that never led to a firm promise that Skyrise could reasonably
expect to be carried out. Instead, the undisputed, objective
evidence demonstrates that both parties intended for their
relationship to be governed by a detailed contract that re-
mained under review by Skyrise for two months before Skyrise
ultimately rejected that contract by marking it with material
alterations. Skyrise “knew, or at least should have known, that
the negotiations could fall apart before the parties entered into
a binding agreement.” C.G. Schmidt, 825 F.3d at 809. It may not
recover damages under the doctrine of promissory estoppel in
these undisputed circumstances.5
5
In support of its promissory estoppel argument, Skyrise also cited
Drennan v. Star Paving Co., 333 P.2d 757 (Cal. 1958). Drennan held that when
a subcontractor makes an unqualified bid to a general contractor, knowing
that the general contractor will include the subcontractor’s offer in its own
bid to the project owner, the general contractor may reasonably rely on the
subcontractor’s bid and enforce it through the doctrine of promissory
estoppel if the contractor’s bid is subsequently accepted. Skyrise sought to
(continued...)
No. 19-1461 15
C.
The three remaining counts seek damages for the tort of
negligent misrepresentation, violation of the Illinois Act, and
violation of the Wisconsin Act. Negligent misrepresentation
“requires a showing that defendant made a misrepresentation
of fact upon which the plaintiffs relied to their detriment.”
Green Spring Farms v. Kersten, 401 N.W.2d 816, 822 (Wis. 1987).
See also Malzewski v. Rapkin, 723 N.W.2d 156, 163 (Wis. Ct. App.
2006) (the elements of negligent misrepresentation are that the
defendant made a representation of fact; that the representa-
tion was untrue; that the defendant was negligent in making
the representation; and that the plaintiff believed that the
representation was true and relied on it). Similarly, to make
out a claim under the Wisconsin Act, a plaintiff must demon-
strate that the defendant made a “representation or statement
of fact which is untrue, deceptive or misleading.” Wis. Stat.
100.18(1).6 See also K&S Tool & Die Corp. v. Perfection Mach. Sales,
5
(...continued)
enforce the inverse of this rule, arguing that, as the subcontractor, it could
hold the contractor to its bid. But, as we discussed, Skyrise’s reliance was
not reasonable under the circumstances here, and the rationale for Drennan
does not hold up in this inverted factual scenario.
6
The parties dispute whether the Wisconsin Act is applicable to the
circumstances here. Annex asserts that this consumer protection statute
does not apply to negotiations between a contractor and subcontractor. But
we need not decide this issue because the claim fails even if the statute is
applicable. Similarly, Annex asserts that the Illinois Act is inapplicable
because the parties’ negotiations did not primarily and substantially occur
in Illinois. We decline to address that issue because the claim fails even if
(continued...)
16 No. 19-1461
Inc., 732 N.W.2d 792, 798 (Wis. 2007) (to prevail on a section
100.18 claim, a plaintiff must prove that: with the intent to
induce an obligation, the defendant made a representation to
the public; the representation was untrue, deceptive or
misleading; and the representation caused the plaintiff a
pecuniary loss). Finally, to make out a claim under the Illinois
Act, a plaintiff must prove:
(1) a deceptive act or practice by the defendant, (2)
the defendant's intent that the plaintiff rely on the
deception, (3) the occurrence of the deception in a
course of conduct involving trade or commerce, and
(4) actual damage to the plaintiff that is (5) a result
of the deception.
De Bouse v. Bayer, 922 N.E.2d 309, 313 (Ill. 2009). See also 815
ILCS 505/2.
As is apparent, each of these claims requires that the
plaintiff demonstrate a false statement of fact or deceptive
conduct by the defendant. Skyrise asserts for each count that
the misleading or deceptive statement was that Skyrise “had
the framing work,” Plaintiff’s Brief at 44, 47, 53. As the district
court correctly concluded, however, the record evidence does
not show that Annex ever represented to Skyrise that it had the
framing subcontract.
Skyrise relies on the same evidence that it supplied in
support of its claims for breach of contract and promissory
estoppel: the Letter of Intent and accompanying email;
6
(...continued)
we assume that Skyrise can prove facts that meet that standard.
No. 19-1461 17
Tomaszewski’s signature on the July 19 bid; Tomaszewski’s
statement at the October 9 on-site meeting that framing could
begin in December; oral statements by Tomaszewski that
Garcia could change certain terms in the contract; a construc-
tion schedule showing a start date for framing; and Annex’s
silence for three weeks following Garcia’s return of the altered
Proposed Contract.7 Skyrise fails to explain how any of this
was false or misled Skyrise about the nature of the situation.
Instead, it is simply evidence of protracted negotiations that
never resulted in a firm agreement.
There is some irony in Skyrise’s claim that it was falsely led
to believe that it had a firm deal when Skyrise itself held onto
the Proposed Contract for two months, twice assuring Annex
that it was still reviewing the draft agreement, and then
altering it in a material manner before returning it. Because
Skyrise has failed to provide evidence of any misleading
statement or deceptive conduct by Annex, the district court
7
Some of the assertions which Skyrise characterizes as deceptive or
misleading are not supported by the record citations provided in the
Plaintiff’s Brief, and we will therefore not consider those assertions. For
example, Skyrise claims that Tomaszewski made deceptive statements at an
October 24 meeting at Annex’s office in Frankfort, Illinois, citing two
paragraphs of Garcia’s affidavit in support. Neither paragraph supports a
claim of a false statement on October 24 or any other date, however. In one
paragraph, Garcia averred that, on October 9, Tomaszewski asked Garcia
to work up an expanded bid proposal. In the other, Garcia averred that in
emails on October 25, 26 and 27, Tomaszewski sought a reduction in the
figures of the expanded proposal but “never indicated Skyrise didn’t have
the framing contract.” Skyrise does not explain how any of these statements
by Tomaszewski were misleading or deceptive, or how they supported a
claim that Annex falsely told Skyrise that it “had the framing work.”
18 No. 19-1461
was correct to grant judgment in favor of Annex on all three of
the remaining counts.
AFFIRMED.