United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
case illustrates that if a company wants to make sure that it
has a real deal with another company-especially a
multi-million dollar deal-put it in writing. Not just emails,
but a formal, written agreement. Tindall Corporation brought
this lawsuit against food-and-beverage conglomerate Mondelez
International, alleging breach of contract and promissory
estoppel. R. 14, Am. Compl. Tindall claims that Mondelez
awarded it a multi-million dollar contract to engineer,
fabricate, and deliver precast concrete for the construction
of a Mondelez factory in Mexico-only for Mondelez to break
its word and give the work to another company. Id.
But Mondelez disputes that the parties ever came to an
agreement. Instead, Mondelez contends, the parties engaged in
negotiations, those negotiations fizzled, and Tindall is now
trying to lay claim to money that it is not owed. R. 85,
Def.'s Mot. for Summ. J. Mondelez now moves for summary
judgment. Id. For the reasons discussed below, the
motion is granted.
deciding Mondelez's motion for summary judgment, the
Court views the evidence in the light most favorable to the
non-moving party, Tindall. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
early 2012, Mondelez International decided to construct a
new, large-scale industrial bakery. R. 87, DSOF ¶¶
1, 6. It hired Stellar Group, a construction management
company based in Florida, to help with the project, dubbed
“Project Arthur.” Id. ¶ 1, 6.
Stellar's role was to assist in the development of a
project floor plan, site plan, budget and schedule.
Id. ¶ 6.
was also responsible for vetting companies to perform the
project's precast work. See DSOF ¶ 7.
Precast work involves designing and fabricating concrete at a
manufacturing facility, and then assembling the pieces at the
construction site. Id. ¶ 8. If the
manufacturing facility is near the construction site, then
the precast pieces only need to be moved a short distance. R.
99, Pl.'s Resp. DSOF ¶ 8. But if the facility is far
away-as is sometimes the case-arrangements must be made to
transport the pieces over that distance. DSOF ¶ 8. The
alternative to precast concrete is cast-in-place concrete.
Id. There, a small concrete facility is set up on
the construction site, and the concrete is poured directly
into place. Id.
April 2012, Stellar contacted several companies and asked
them to submit proposals for various precast items for
Project Arthur. DSOF ¶ 7; Pl.'s Resp. DSOF ¶ 7.
One of those companies was Tindall Corporation, a precast
concrete manufacturer based in South Carolina. Id.
¶ 3. Tindall submitted its initial proposal for precast
fabrication in May 2012. DSOF ¶ 9; R. 88-5, DSOF at Exh.
5, May Proposal. The May Proposal identified a “Base
Proposal Scope of Work, ” priced at $9, 734, 000 and
two “Alternates, ” potential add-on packages that
were priced $6, 647, 200 and $4, 782, 200. May Proposal;
Pl.'s Resp. DSOF ¶ 9. Tindall proposed to produce
the precast at its plant in San Antonio, Texas. DSOF ¶
July 2012 to November 2012, Chris Palumbo, Tindall's Vice
President for Business Development, regularly discussed the
project with Stellar. R. 100, PSOF ¶ 2; R. 101, Palumbo
Aff. ¶ 5. Palumbo provided Stellar with information that
they had requested about precast engineering, pricing, and
scheduling. PSOF ¶ 2.
relationship continued to progress as the year drew to a
close. Palumbo submitted a revised precast budget to Michael
Smith, Stellar's Director of Project Development, in
October 2012, PSOF ¶ 3, and Stellar representatives
visited Tindall's San Antonio plant in November to vet
the facility, id. ¶ 5. Shortly afterwards,
Tindall representatives travelled with Stellar to Mexico,
where Mondelez had decided to build Project Arthur.
Id. As of this point, Tindall had dealt exclusively
with Stellar; although a Mondelez representative was
scheduled to join the November trip to Tindall's San
Antonio plant, he had to pull out due to illness.
this time, Tindall also started talking to Stellar about
providing the precast engineering services for Project
Arthur, on top of the precast manufacturing. DSOF ¶ 71.
On November 26, Tindall submitted an initial proposal to
provide the engineering services for $75, 000. DSOF ¶
72; R. 88-10, DSOF at Exh. 10. This proposal was later
updated in February 2013 and March 2013. DSOF ¶ 72; R.
88-19; DSOF at Exh. 19; R. 89-1, DSOF at Exh. 21.
December 2012, Tindall submitted a formal bid to provide
precast design, fabrication, and delivery for Project Arthur
for the lump-sum price of $23, 269, 600. DSOF ¶ 15; PSOF
¶ 6; R. 100-9, PSOF at Exh. 9, Tindall Bid. Upon
reviewing all of the bids it received, Stellar recommended to
Mondelez that it “give the package to Tindall.”
DSOF ¶ 16. By March 2013, Stellar was hinting to Tindall
that it would soon receive the contract from Mondelez. PSOF
The March 20 Meeting
and Mondelez had their first direct contact on March 20,
2013, at a meeting at Stellar's headquarters in
Jacksonville, Florida (call it the “March 20
Meeting”). DSOF ¶ 21. Tindall was represented by
Palumbo, and Mondelez by Carlos Nicot, the Project Arthur
Procurement Lead. Id. Michael Smith also attended
the meeting. Id.
alleges that, during this meeting, Palumbo and Nicot entered
into an oral agreement. Palumbo testified that Nicot awarded
Tindall a precast engineering, fabrication, and delivery
contract and directed Tindall to reserve capacity in the San
Antonio factory for Project Arthur. PSOF ¶ 14. Palumbo
further testified that he and Nicot “agreed to the
price, the scope, our concessions, [and] the schedule”
of the work. Id. Specifically, Palumbo averred that,
towards the end of the meeting, Nicot said something along
the lines of “I can work with you guys. I know I can
work with you guys, ” which Palumbo took as his assent
to the terms discussed that day. DSOF ¶ 22.
disputes that he offered the precast contract to Tindall,
entered into any agreements, or directed Tindall to reserve
capacity. R. 110, Def.'s Resp. PSOF ¶ 14. He admits,
however, that he and Palumbo discussed Alternates (the
potential add-on packages) and that he authorized Stellar to
pay Tindall $177, 000 for precast engineering services.
The March 21 Emails
next day, Palumbo and Nicot exchanged a series of emails that
will be central to this outcome of this case. DSOF ¶ 26;
R. 89-2, DSOF at Exh. 22, March 21 Emails. Palumbo kicked off
the chain with an email to Nicot, copying Smith, with the
subject line, “Project Arthur-Tindall Precast-Recap of
March 20 2013 meeting-next steps” (call this email the
“Palumbo Email”). March 21 Emails. In the body,
Palumbo wrote: “Carlos-Thank you for your time
yesterday. Below is my understanding of our discussion
regarding an agreement for Project Arthur precast scope and
next steps.” Id. He then listed a number of
“Items, ” consisting of what he believed to be
agreed terms, as well as scheduling notes and action items:
1. Tindall will use the December 14, 2012 proposal as a base
scope for purposes of our agreement.
2. Tindall and Stellar identified a number of changes and
associated added costs and deductions to the December 14
scope. Stellar provided a summary the (sic) base cost and
changes to date during our meeting.
3. Tindall has received the latest project drawings as of
March 20, 2013 and will validate the scope of the precast and
all changes and values no later than April 29, 2013.
4. The March 20, 2013 documents will become the basis for
Tindall/Mondelez precast supply agreement and price.
5. As part of the overall contract, Tindall will provide the
first $200, 000 of accepted changes to the scope at no cost
to the project.
6. Tindall will reduce the proposed $477, 000 engineering fee
by $300, 000 to $177, 000 plus reimbursable expenses.
7. Tindall will provide storage of manufactured product at
Tindall's San Antonio plant for a maximum of two months
at no cost. Tindall will charge $250 per piece per month for
any precast stored more than two months at our plant.
8. Tindall has included a total of $305, 000 in our price for
our field services on-site during construction. The services
include two Tindall personnel on-site during delivery and
erection of the precast structure in addition to four local
personnel to support any field adjustments necessary to the
precast. Tindall will agree to pass through the actual cost
of salaries for these employees and contract labor and
expenses without the addition of any overhead & profit.
9. Payments to Tindall will be in U.S. dollars.
10. Mondelez plans to assign the Tindall contract to the
project General Contractor, Copachisa. Copachisa will be
responsible for payment to Tindall net 60 days.
11. Mondelez will guarantee payment of Tindall's
12. Carlos will provide email to Palumbo regarding Copachisa
financial position and summary of review by Mondelez
excluding any confidential information.
13. Mondelez will provide Tindall with a $3, 000, 000 down
payment the day the contract for fabrication and delivery is
14. Tindall will provide a bond for the $3, 000, 000 down
payment. The cost of a $3, 000, 000 down payment ...