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December 30, 2002


The opinion of the court was delivered by: Michael M. Mihm, United States District Judge


Before the Court are two motions for summary judgment-one filed by Consolidation Coal Company (Consol) and one filed by Central Illinois Light Company (CILCO). For the following reasons, Consol's Motion for Summary Judgment [#14] is GRANTED, and CILCO's Cross-Motion for Partial Summary Judgment on the Issue of the Statute of Frauds [#29] is DENIED.


CILCO is an electric utility. Its Edwards Generating Station is a coal-fired power plant. Consol, a subsidiary of CONSOL Energy Inc., is a coal mining company. It has an underground mine in southern Illinois near Rend Lake. In recent years, Consol has sold CILCO some coal from the Rend Lake Mine.

Around September 2000, CILCO and Consol began negotiating a new contract for the supply and purchase of coal for the years 2001 and 2002. The proposed arrangement would have required Consol to supply a certain amount of coal to CILCO's Edwards Station at a fixed price during 2001 and 2002. CILCO alleges that on December 11, 2000, John Bach (Bach)-CONSOL's District Sales Manager-conveyed an oral proposal to Sandy Isbell (Isbell)-CILCO's fuel analyst-for the sale of 1,500,000 tons of coal to CILCO over the two-year period from 2001 to 2002. On December 13, 2000, Isbell sent a letter to Bach summarizing Consol's latest counterproposal as it was understood by CILCO and requesting confirmation from Consol that the summarized terms were correct. There is no written documentation stating that the proposal was confirmed by Consol or accepted by CILCO.

There is a question of fact regarding whether CILCO and Consol entered into an oral agreement in which Consol agreed to sell and CILCO agreed to purchase 1,500,000 tons of coal during the years 2001 and 2002. CILCO alleges that such an oral agreement was reached during a telephone conference between Bach and Isbell on December 14, 2000. Consol denies that it entered into an oral agreement, contending instead that Bach and Isbell merely discussed Consol's latest proposal as a "good starting point."

From January through April, 2001, Bach and Isbell exchanged numerous emails and draft contracts, participated in multiple telephone conferences, and met in person to discuss the proposed written contract. During that time, Consol sold to CILCO 361,798 tons of coal from its Rend Lake Mine at the price of $22.75 per ton-the price consistently agreed to in the draft contracts exchanged between CILCO and Consol. In May 2001, Consol ceased selling coal to CILCO, and discontinued its negotiations with CILCO. The parties never entered into a written agreement for the sale of coal.


I. Standard of Review

A motion for summary judgment will be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552 (1986). The moving party may meet its burden of showing an absence of material facts by demonstrating "that there is an absence of evidence to support the non-moving party's case." Id. at 2553. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).

If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex Corp., 106 S.Ct. at 2553. This Court must then determine whether there is a need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party. Anderson, 106 S.Ct. at 2511; Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

II. Statute of Frauds

Under 810 ILCS ...

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