IFC Credit Corp v. Burton Industries ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2768
IFC CREDIT CORP., an Illinois
corporation,
Plaintiff-Appellant,
v.
BURTON INDUSTRIES, INC., and
CLARK JOHNSON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5906—Ronald A. Guzmán, Judge.
____________
ARGUED APRIL 10, 2008—DECIDED JULY 30, 2008
____________
Before FLAUM, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. This is the third appeal that
we have addressed related to the wide-spread fraud
committed by the bogus telecommunications provider,
NorVergence, Inc. See IFC Credit Corp. v. United Bus. &
Indus. Fed. Credit Union, 512 F.3d 989, 991 (7th Cir. 2008);
IFC Credit Corp. v. Aliano Bros. Gen. Contrs., Inc., 437 F.3d
606, 607 (7th Cir. 2006). We need not address that fraud
directly, however; it serves only as the backdrop for the
2 No. 07-2768
lawsuit IFC Credit Corp. brought against Burton Indus-
tries, Inc., and its president Clark Johnson (and to whom
we will collectively refer as “Burton”). IFC Credit alleged
that Burton breached the equipment lease that it entered
into with NorVergence, and which IFC Credit subse-
quently purchased. Both parties sought summary judg-
ment; the district court granted Burton’s motion, and
denied IFC’s motion. We affirm.
I. HISTORY
In January 2004, NorVergence approached Burton, a
manufacturer of robotic-automation systems, with a
deal that Burton could not refuse: NorVergence claimed
that its telecommunications equipment line, which was
purportedly spearheaded by the Merged Access Transport
Intelligent Xchange device (or MATRIX for short),1 could
provide Burton with top-notch telecommunications
services at rock-bottom costs. Burton was hooked by
NorVergence’s promises of savings, and on February 5,
2004, the two companies’ representatives met to draft a
lease for NorVergence’s equipment. At that meeting,
Burton’s Vice President Jeff Johnson agreed to lease one
MATRIX device for five years, and he signed two docu-
ments to consummate the deal: a Hardware Applica-
1
Curious readers might take a page from Keanu Reeves and
ask, “What is the MATRIX?” The answer is that the MATRIX
was nothing—it was a box filled with a series of wires and an
everyday network router that, despite NorVergence’s prom-
ises, served no purpose in a telecommunications network,
much less provided vast savings. See IFC Credit Corp., 512 F.3d
at 991.
No. 07-2768 3
tion and an Equipment Rental Agreement. However,
NorVergence subsequently determined that the Equip-
ment Rental Agreement should instead be signed by
Burton’s President, Jeff’s father Clark Johnson. After some
back-and-forth between Burton and NorVergence re-
garding the forms Clark needed to sign, Clark signed
the Equipment Rental Agreement about one month later.
The Equipment Rental Agreement and Hardware
Application together contained four provisions that are
pertinent to this appeal. First, the Equipment Rental
Agreement contained a “hell-or-high-water clause,” stating
that Burton’s obligation to make its lease payments was
“unconditional despite equipment failure, damage, loss
or any other problem.” Second, the Equipment Rental
Agreement contained an assignment clause limiting the
claims that Burton could bring against any company
that purchased the Agreement from NorVergence; specifi-
cally, the clause provided that Burton agreed that it
would not assert against the new owner “any claims,
defenses or set-offs” that it might have against
NorVergence. The Equipment Rental Agreement also
contained a merger clause that stated that the “terms and
conditions” of the Agreement were the “complete and
exclusive statement” of the Agreement, and that “[t]erms
or oral promises not contained” in the Agreement
would “not be legally enforced.” Finally, the Hardware
Application stated that the Equipment Rental Agreement
was not binding upon either Burton or NorVergence until
(1) Burton’s “application [was] approved for the MATRIX
Hardware Solution”; (2) “the system [was] mounted in
[Burton’s] phone closet”; and (3) Burton submitted a
“‘Delivery and Acceptance Receipt’ ” to NorVergence.
On May 14, 2004, NorVergence delivered to Burton the
MATRIX equipment it leased. Burton’s general manager,
4 No. 07-2768
David Yanniello, accepted the equipment and signed the
Delivery and Acceptance Receipt that accompanied it.
When Yanniello asked when the equipment would be
installed, the delivery person informed Yanniello that he
would return another day to mount the equipment in
Burton’s phone closet. However, the delivery person
never returned, and no other individual from NorVergence
ever installed the MATRIX equipment. In fact, the em-
ployees at Burton never removed the equipment from its
box.
Four days after NorVergence delivered the MATRIX
equipment, IFC Credit purchased Burton’s equipment lease
from NorVergence. But seeing that the MATRIX equipment
was never installed, Burton refused to make its lease
payments to IFC Credit. IFC Credit subsequently sued
Burton for breach of contract. Discovery ensued, and both
companies eventually filed cross-motions for summary
judgment. For its part, Burton argued, among other
things, that the Equipment Rental Agreement was not a
fully integrated contract by itself, and that the district
court should turn to the Hardware Application to deter-
mine Burton’s obligations. Burton further pointed out
that the Hardware Application stated that it was not
bound by the Equipment Rental Agreement until the
MATRIX equipment was “mounted in [its] phone closet.”
And because the equipment never was “mounted in [its]
phone closet,” Burton argued, no equipment lease ever
existed. IFC Credit, in turn, contended that it was due
summary judgment for two reasons. First, the company
asserted that because the Equipment Rental Agreement
contained a merger clause, Illinois’s parol evidence rule
barred the district court from considering the Hardware
Application and the Equipment Rental Agreement to-
No. 07-2768 5
gether. As such, IFC Credit continued, the Equipment
Rental Agreement’s “hell-or-high-water clause” obligated
Burton to make the lease payments to which it agreed,
even if the MATRIX equipment was never mounted in
its phone closet. IFC Credit also argued that, in any event,
the Equipment Rental Agreement’s assignment clause
precluded Burton from exercising any defense against
IFC Credit for its non-payment.
The district court granted Burton’s motion for sum-
mary judgment, and denied IFC Credit’s motion. The
court disagreed with IFC Credit that the parol evidence
rule prevented it from looking to the Hardware Applica-
tion to ascertain Burton’s obligations under the Equip-
ment Rental Agreement. Looking, then, at the Hardware
Application, the court determined that the Equipment
Rental Agreement did not bind either Burton or
NorVergence to its terms until the MATRIX system was
“mounted in [Burton’s] phone closet.” And because the
MATRIX system was never “mounted in [the] phone
closet,” the court stated, Burton was correct to assert that
no equipment lease existed. The court thus concluded
that Burton had no obligation to make its lease payments,
dooming IFC Credit’s arguments that Burton had the
duty to pay under the Equipment Rental Agreement’s
“hell-or-high-water” and assignment clauses. The court
then granted Burton’s motion for summary judgment,
and denied IFC Credit’s motion.
II. ANALYSIS
IFC Credit challenges both the district court’s grant of
summary judgment to Burton and the court’s denial of its
motion for summary judgment. Specifically, IFC Credit
6 No. 07-2768
contends that the district court granted summary judg-
ment to Burton only after violating Illinois’s parol evi-
dence rule by considering the Equipment Rental Agree-
ment and Hardware Application together. IFC Credit also
asserts that it was due summary judgment because the
Equipment Rental Agreement’s “hell-or-high-water
clause” compelled Burton to make its lease payments. IFC
Credit further argues that the district court failed to
consider that the Equipment Rental Agreement’s assign-
ment clause precluded Burton from defending against
its failure to make its lease payments.
We review the district court’s grant of summary judg-
ment de novo. See Cherry v. Auburn Gear, Inc., 441 F.3d 476,
481 (7th Cir. 2006). In examining the court’s decision
regarding Burton’s and IFC Credit’s cross-motions for
summary judgment, we construe the facts and draw
inferences “in favor of the party against whom the
motion under consideration is made.” In re United Air
Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (citation omit-
ted). And in so reviewing the record, we examine
whether there is a genuine issue of material fact that
precludes judgment as a matter of law. See Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir. 2006).
We turn first to IFC Credit’s contention that the dis-
trict court violated the parol evidence rule by con-
sidering the Equipment Rental Agreement and Hardware
Application together. Under Illinois law—which, the
parties agree, governs our review—the parol evidence
rule generally excludes evidence of prior agreements or
contemporaneous oral agreements if the evidence is
introduced to vary or contradict the terms of a written
contract. See 810 Ill. Comp. Stat. 5/2-202; Hessler v. Crystal
No. 07-2768 7
Lake Chrysler-Plymouth, Inc., 788 N.E.2d 405, 412 (Ill. App.
Ct. 2003); McDonald’s Corp. v. Butler Co., 511 N.E.2d 912,
917 (Ill. App. Ct. 1987). As IFC Credit correctly states, the
rule is implicated whenever the contract in question is
integrated, see Hessler, 788 N.E.2d at 412-13, meaning that
the parties intended the contract “to be a final and com-
plete expression of the entire agreement,” J&B Steel Con-
tractors, Inc. v. C. Iber & Sons, Inc., 617 N.E.2d 405, 409 (Ill.
App. Ct. 1993); see also Pecora v. Szabo, 418 N.E.2d 431,
435 (Ill. App. Ct. 1981).
IFC Credit argues that the parol evidence rule is trig-
gered here because the Equipment Rental Agreement
was fully integrated by virtue of its merger clause. Thus,
IFC Credit continues, the district court was wrong to look
at the Hardware Application when concluding that no
equipment lease existed.
But IFC Credit’s argument is based on a fundamental
misunderstanding of Illinois’s parol evidence rule: even if
the contract in question is integrated, the rule “does not
bar contemporaneous written documents from being
admitted.” See McDonald’s Corp., 511 N.E.2d at 917;
Pecora, 418 N.E.2d at 436. In fact, Illinois law mandates
that when “different instruments are executed together
as part of one transaction or agreement, they are to be
read together and construed as constituting but a
single instrument.” McDonald’s Corp., 511 N.E.2d at 917;
see also Home Ins. Co. v. Chi. & Nw. Transp. Co., 56 F.3d
763, 766 (7th Cir. 1995). The instruments do not even need
to be executed simultanelously; “ ‘if executed at different
times as parts of the same transaction they will be con-
strued together.’ ” Labor World, Inc. v. Just Parts, Inc., 735
N.E.2d 149, 152 (Ill. App. Ct. 2000) (quoting Bornstein v.
First United, 597 N.E.2d 870, 874 (Ill. App. Ct. 1992)).
8 No. 07-2768
When viewed in this light, IFC Credit’s parol-evidence
argument is meritless. IFC Credit does not dispute that
the Equipment Rental Agreement and the Hardware
Application were executed together as part of Burton’s
lease of the MATRIX equipment. In fact, IFC Credit
admits as much by recounting that Jeff and Clark Johnson
entered Burton into the lease by signing the Hardware
Application and the Equipment Rental Agreement, re-
spectively. See id. Thus, the parol evidence rule did not
prohibit the district court from considering the Equip-
ment Rental Agreement and the Hardware Application
together.
And viewing the Equipment Rental Agreement and the
Hardware Application together, it is clear that no equip-
ment lease ever existed. By executing the Hardware
Application, both Burton and NorVergence clearly
agreed to a condition precedent to the formation of the
Equipment Rental Agreement: until the MATRIX system
was “mounted in [Burton’s] phone closet,” neither party
was bound by the Equipment Rental Agreement’s terms.
And because that condition never occurred, it was as if
the Equipment Rental Agreement—along with its “hell-or-
high-water” and assignment clauses—never existed in
the first place. See Quake Constr. Inc. v. Am. Airlines, Inc.,
565 N.E.2d 990, 993-94 (Ill. 1990) (stating no contract
existed when conditions precedent to contract formation
were not met); Ceres Ill., Inc. v. Ill. Scrap Processing, Inc., 500
N.E.2d 1, 5 (Ill. 1986) (“[E]ven where the essential terms
have been agreed upon, ‘if the clear intent of the parties
is that neither will be legally bound until the execution
and delivery of a formal agreement, then no contract
comes into existence until such execution and delivery.’ ”
(quoting Chi. Title & Trust Co. v. Ceco Corp., 415 N.E.2d 668,
No. 07-2768 9
677 (Ill. App. Ct. 1980))); Ebert v. Dr. Scholl’s Foot Comfort
Shops, Inc., 484 N.E.2d 1178, 1185 (Ill. App. Ct. 1985) (same).
To put it another way, NorVergence sold IFC Credit an
equipment lease that never existed. Thus, contrary to
IFC Credit’s assertions, Burton was never obligated to
make its lease payments, and it never agreed not to assert
“any claims, defenses, or set-offs” against any company
who purchased from NorVergence the (non-existent) lease.
See 810 Ill. Comp. Stat. 5/9-403(b) (stating that account
assignee can enforce assignment agreement against
account debtor when debtor and account assignor enter into
such agreement). IFC Credit’s challenge to the district
court’s judgment therefore fails.
III. CONCLUSION
We AFFIRM both the district court’s grant of summary
judgment to Burton and its denial of IFC Credit’s motion
for summary judgment.
USCA-02-C-0072—7-30-08