United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
For Richelieu Foods, Inc., a Delaware Corporation, Plaintiff: Dennis John Cotter, LEAD ATTORNEY, Matthew Walker Horn, Smith Amundsen, L.L.C., Chicago, IL; John Francis Horvath, Horvath & Weaver, P.C., Chicago, IL.
For Ray Emerick's Warehouse Co., Inc., Defendant: John Francis Horvath, LEAD ATTORNEY, Horvath & Weaver, P.C., Chicago, IL.
For New Horizon Warehouse Distribution Center, Inc., An Illinois Corporation doing business as New Horizon Distribution Systems, Inc., Defendant: John Francis Horvath, LEAD ATTORNEY, Renata M. Zloza, Rosemarie J. Guadnolo, Horvath & Weaver, P.C., Chicago, IL.
OPINION AND ORDER
SARA L. ELLIS, United States District Judge.
Plaintiff Richelieu Foods, Inc. (" Richelieu" ), a private label food company, brought this lawsuit against Defendants New Horizon Warehouse Distribution Center, Inc. (" New Horizon" ) and Ray Emerick's Warehouse Co., Inc. (" Emerick" ) for breach of contract and fraud arising out of New Horizon's alleged failure to properly invoice Richelieu for warehouse storage charges. Before the Court is New Horizon's motion for summary judgment , which is granted in part and denied in part. There is a disputed question as to whether New Horizon waived enforcement of the notice provision through its course of conduct in attempting to address billing disputes after the time to dispute the majority of the invoices at issue had passed. A dispute also exists as to whether the parties agreed to modify the billing provisions of their agreement through their course of conduct. Finally, there is a disputed question as to whether Richelieu justifiably relied on New Horizon's alleged billing misrepresentations or should have instead conducted its own investigation based on the information available to it. But because there is no evidence that New Horizon agreed to maintain invoicing accuracy at a 99.5% standard, Richelieu may not pursue its breach of contract or fraud claims with respect to that issue.
Richelieu is a private label food company that operates manufacturing facilities throughout the country, including in Elk Grove Village, Illinois. On July 1, 2009, Richelieu entered into a warehouse services agreement with New Horizon for warehouse storage and services at New Horizon's facilities in Itasca, Illinois. Pursuant to that agreement, New Horizon was to provide Richelieu with storage for Richelieu's food products, handling, and other accessorial services at New Horizon's warehouse facility. Section 2.6 of the agreement provided:
[Richelieu] requires, and [New Horizon] agrees to provide at the Facility, the use of, at all times during the Term of this Agreement, 3,000 storage rack positions in [New Horizon's] ambient storage area and 250 storage rack positions in [New Horizon's] refrigerated storage area. Each storage rack position is able to accommodate one pallet of Product configured as stated in Exhibit B to this Agreement. . . . [Richelieu] agrees to pay [New Horizon] a set monthly storage fee (the " Fixed Monthly Storage Charge" ) as set forth in Exhibit A to this Agreement for the 3,250 storage rack positions whether or not Products are stored in any or all of the 3,250 storage rack positions. [New Horizon] shall invoice the Fixed Monthly Storage Charge monthly in advance on or before
the first day of each month during the Term of this Agreement. In the event that [Richelieu] requires more than 3,000 storage rack positions in the ambient storage area and/or more than 250 storage rack positions in the refrigerated storage area (individually and collectively " Overflow Storage" ) for the storage of Products during any one or more months during the Term of this Agreement, [Richelieu] shall pay the per pallet Overflow Storage Charge stated in Exhibit A to this Agreement for each pallet of Product in Overflow Storage as of the last day of each such month during the Term of this Agreement.
Ex. C to Def.'s L.R. 56.1 Stmt. § 2.6. Exhibit A to the agreement provided several different overflow storage rates, for " Dry 15 Days Inbound Storage," " Dry 15 Days Recurring Storage," " Refrigerated 15 Days Inbound Storage," and " Refrigerated 15 Days Recurring Storage." Id. Ex. A. Pursuant to Exhibit A, the Overflow Storage Charge was to be charged on a 15-day basis. Exhibit A also specified the price for handling and other services. Section 2.3 of the agreement, titled " Price and Payment Terms," provided:
All invoices issued by [New Horizon] are payable upon receipt by [Richelieu]. [Richelieu] must notify [New Horizon] of any dispute relating to any invoice or portion thereof within thirty (30) days of receipt of the invoice or will have waived such dispute.
Id. § 2.3. James Campbell, Richelieu's vice president of manufacturing at its Elk Grove Village facility, was aware of the 30-day notice provision.
Exhibit B to the Agreement provided certain key performance indicators (" KPI" ) for the agreement. Specifically, New Horizon was required to provide order accuracy, on time shipping, and inventory accuracy (as it related to physical inventory) at a 99.5% standard, and damage monitoring at a 99.975% standard. Inventory accuracy is a comparison of the book record showing of products to the actual quantity of products in the warehouse. The agreement did not specify a KPI for invoicing accuracy.
To keep track of its products, Richelieu used an enterprise resource planning (" ERP" ) system called JustFood, which was specifically designed for food processing and manufacturing. JustFood included an inventory program that identified inventory by location, so that it was possible to determine how many stock keeping units (" sku" ) or cases were at New Horizon at any given time. Richelieu also had a general spreadsheet that it could use to estimate the number of pallets of product necessary for a certain number of cases or skus.
Additionally, when goods were transferred from Richelieu's Elk Grove Village facility to New Horizon, Richelieu generated a bill of lading and a packing slip. The bill of lading included a general description of the products included in the shipment and the number of pallets being transported. The packing slip indicated the total number of cases that were transported. When New Horizon received the goods, it issued a warehouse receipt to Richelieu. The receipts identified the particular skus and number of cases received. The receipts were sent to Richelieu's Vicky Knaack or Mark Windt, the plant controller at the Elk Grove Village facility. Richelieu would then match the warehouse receipt against the bill of lading to ensure there were no discrepancies. If there were discrepancies, Windt would contact New Horizon to have them addressed.
For Richelieu goods shipped from New Horizon to Richelieu customers, Richelieu received bills of lading and packing slips generated by New Horizon. These outbound
bills of lading included the total number of cases and pallets that left the warehouse and described the items shipped. The bills of lading and packing slips were sent to Richelieu's customer service department in Iowa. Richelieu would then invoice its customers and reduce its inventory in the JustFood ERP system.
New Horizon sent a number of different invoices to Richelieu for its services. It issued weekly invoices for accessorial services. These invoices summarized all the items that New Horizon received from Richelieu's facility as well as all shipments that left New Horizon's facility over the previous week. Windt's receptionist performed a full audit of these weekly invoices to ensure they were correct. New Horizon also invoiced Richelieu monthly for the Fixed Monthly Storage Charge and on the 1st and 15th of the month for any Overflow Storage Charges. Windt reviewed these invoices for reasonableness, after which, if there were no issues, he would initial the invoices and send them to corporate headquarters for processing and payment. Richelieu paid all invoices from May 2009 through the end of December 2011.
On July 22, 2010, Windt emailed Gail Boulos, the administrative assistant to Laura Dickerson, New Horizon's president. Windt inquired about Invoice 300098H, asking " Can you help me understand how this report is calculated vs. the monthly storage?" Ex. 5 to Ex. B to Def.'s L.R. 56.1 Stmt. at D0047. After some discussion among Windt, Boulos, ...