Golabek v. Home Depot U.S.A., Inc. , 277 F. App'x 765 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 6, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SLAWOMIR GOLABEK,
Plaintiff-Appellant, No. 07-1329
(D.C. No. 06-cv-01660-EWN-MEH)
v. (D. Colo.)
HOME DEPOT U.S.A., INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.
Plaintiff Slawomir Golabek sued defendant Home Depot U.S.A., Inc. in
state court for breach of contract. Home Depot removed the case to federal court.
On the parties’ cross-motions for summary judgment, the district court granted
summary judgment to Home Depot. Golabek appeals. We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
It is undisputed that the parties had an unambiguous agreement for Golabek
to purchase and Home Depot to deliver a certain amount of copper wire at a stated
price. The agreement contained a term stating: “[t]his becomes an Agreement
upon payment and an endorsement by a Home Depot register validation.” Aplt.
App. at 109. The agreement also contained a term that allowed Home Depot the
right to limit the amount of wire to be delivered to Golabek (“limiting clause”),
id. at 20, and terms that allowed Golabek to cancel the purchase upon written
notice to Home Depot at least ten days before delivery, id. at 18. Although Home
Depot endorsed Golabek’s purchase order with a register validation when it took
Golabek’s payment, Home Depot ultimately refused to deliver the wire at the
stated price, credited Golabek the amount of the agreed purchase price he had
charged on his credit card, and refunded the remainder of the price he had paid in
cash.
After Golabek sued, Home Depot moved for summary judgment contending
that it had not breached the contract because the limiting clause allowed it to limit
the quantity of merchandise to be sold until delivery, and no sale occurred under
Colorado law because it never delivered the wire. Golabek filed his own
summary judgment motion, claiming that the limiting clause made the contract
illusory or unconscionable and should be severed.
The district court wrote a thorough and explicit order disposing the case in
favor of Home Depot. The court reasoned that both parties had the right to cancel
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the deal before delivery, and the contract, though advantageous to Home Depot,
was not ambiguous, illusory, or unconscionable. See id. at 178, 183-84. The
court bolstered its view with the conclusion that no “sale” occurred under the
Colorado Uniform Commercial Code (UCC), Colo. Rev. Stat. §§ 4-2-106,
4-2-401, because Home Depot never delivered the wire. Aplt. App. at 179.
We review the grant of summary judgment de novo, viewing the evidence
in the light most favorable to Golabek, the party that did not prevail. See Navair,
Inc. v. IFR Ams., Inc., 519 F.3d 1131, 1137 (10th Cir. 2008). Summary judgment
is proper when there is no genuine issue of material fact, and the moving party is
entitled to a judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c). We also
review the district court’s interpretation of the parties’ unambiguous agreement
de novo. See Grant v. Pharmacia & Upjohn Co., 314 F.3d 488, 491 (10th Cir.
2002). We think that the district court’s reasoning is sound, and we affirm.
Golabek argues that some of the facts upon which the district court relied
were disputed. Home Depot’s response to Golabek’s summary judgment motion
contained an affidavit stating that the reason that Home Depot did not deliver the
wire is because the market price increased to more than the price Golabek had
agreed to pay, making the deal unprofitable for Home Depot. Golabek objected
(and still does) that the affidavit was inadmissible parol evidence, and to the
extent that the district court relied upon it the court violated Rule 56 because the
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facts were disputed. We reject this argument because there was nothing in the
affidavit that was offered to alter or amend the terms of the parties’ agreement.
Golabek also makes two arguments asserting that the district court based its
interpretation of the contract on an erroneous application of law, so we are not
bound to accept its view of the agreement. First, Golabek argues that the district
court’s application of the Colorado UCC definition of a “sale” was improper. He
contends that the agreement was complete and binding without delivery, and
Home Depot was therefore bound to comply even though the “sale” might not
have been complete until delivery under the Colorado UCC. Second, Golabek
argues that the district court’s conclusion strains the language of the limiting
clause and that the clause could have been applied only until the time Home
Depot registered his order. We reject both arguments.
The district court employed the Colorado UCC definition only to
“buttress[]” its interpretation of the limiting clause. See Aplt. App. at 179. The
court stated: “there was no ‘sale’ of the wire until [Home Depot] delivered the
wire in question. It necessarily follows that [Home Depot’s] express reservation
of its right to limit the quantity of wire it sold to [Golabek] means that under the
Limiting Clause, [Home Depot] could limit the quantity of wire it delivered to
[Golabek], and could do so until the moment of delivery.” Id. It is clear that the
district court read the agreement as a whole, applied the ordinary meaning to the
words of the limiting clause, and concluded that the enforceability of the
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agreement was circumscribed by Home Depot’s right to determine exactly how
much, if any, wire it would deliver. See Radiology Prof’l Corp. v. Trinidad Area
Health Ass’n, Inc., 577 P.2d 748, 750 (Colo. 1978). We believe the case turns on
that conclusion.
We are unpersuaded by the unpublished district court case upon which
Golabek relies, where the court held that it is irrelevant to the formation of a
contract through offer and acceptance whether a “sale” took place within the
meaning of the UCC. See K.L. Enters., Inc. v. Home Depot Int’l, Inc.,
No. 4:06-CV-722-A, 2007 WL 1629236, at *5 (N.D. Tex. June 1, 2007).
Although Golabek may not have given it any thought when he ordered the wire,
the limiting clause is a significant part of the entire agreement. To say the
agreement was binding at the time he paid the agreed purchase price, we would
either have to ignore the limiting clause altogether, or try to avoid it with
Golabek’s legal legerdemain. Both of those approaches would be improper. See
Radiology Prof’l Corp., 577 P.2d at 750. If the limiting clause were not applied
in the way the district court interpreted it, it would have no significance.
Finally, we reject Golabek’s argument that the limiting clause should be
severed, because we fail to see how the clause defeated Golabek’s “reasonable
expectations” and can therefore be said to be unconscionable. See Leprino v.
Intermountain Brick Co., 759 P.2d 835, 836 (Colo. App. 1988) (citing Davis v.
M.L.G. Corp., 712 P.2d 985, 991 (Colo. 1986) (en banc)). Golabek’s money and
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credit were reimbursed to him, and he claims no damages except the benefit of the
original sale price.
The judgment of the district court is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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