CREST RIDGE CONSTRUCTION GROUP, INC., Plaintiff-Appellee, v. NEWCOURT INC., Defendant-Appellant.
No. 94-41228.
United States Court of Appeals, Fifth Circuit.
Feb. 26, 1996.
78 F.3d 146
I respectfully dissent.
The majority provides a thorough analysis of Congress‘s purpose in enacting EMTALA, and although correct about the statute‘s goals, the opinion wrongly faults Vickers for congressional imprecision. The majority‘s real problem is not with what Vickers alleged, but with the statutory language, which allows an EMTALA violation to be proven even when the failure to screen or stabilize is not shown to have been based on an economic motive. Although EMTALA was designed to end patient dumping, Congress did not specify that EMTALA claims must include proof of an economic motive. Regardless of what we divine the congressional intent to have been, the statute is perfectly clear about what a plaintiff must allege in order to state a claim.
The Federal Rules of Civil Procedure establish a notice-pleading system. Complaints should be dismissed for failure to state a claim on which relief can be granted only when, construing all allegations in the light most favorable to the plaintiff, it is clear that no set of facts could be proven under which the plaintiff would be entitled to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). Vickers alleges that Nash Hospital “did not provide Plaintiff Martin with an appropriate medical screening examination” as required by EMTALA. Specifically, the complaint alleges that Martin “received less screening, both in quantity and quality, than required under the Act, and less than those other patients presenting in this same medical condition received.” The complaint also alleges that the Hospital discharged Martin “in violation of
The majority—after recognizing that disparate treatment is the “cornerstone” of an EMTALA claim—simply states that “mechanical invocation of the phrase” cannot “convert appellant‘s allegations of misdiagnosis into a valid claim under EMTALA.” Supra n. 3. But many, if not most, of the allegations made in complaints written in the notice-pleading fashion could be read as mechanical invocations of the phrases and elements used to establish particular claims.
Comparing the present case to Baber is unavailing. As the majority recognizes, that case was decided on summary judgment, and the decision was premised on the plaintiff‘s failure to provide evidence of disparate treatment. This is a very different standard than that used to evaluate a motion to dismiss for failure to state a claim. The factual similarity of the two cases thus means very little in the present posture of this case.
Vickers has alleged enough to allow him to undertake discovery. This particular plaintiff ought not to be penalized for Congress‘s failure to statutorily define how EMTALA differs from a medical malpractice claim under state law.
For these reasons, I would reverse the district court‘s dismissal under
Gregory A. Hoover, Paul D. Hoover, Kusin & Hoover, Texarkana, TX, for Appellee.
Before HIGGINBOTHAM, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This diversity case concerns a dispute between a subcontractor and a supplier. The supplier appeals, on the grounds of sufficiency of the evidence, a jury verdict awarding the subcontractor damages for breach of contract. We have jurisdiction under
I
In 1989, two brothers, John and Joseph Brower, formed a company called Crest Ridge Construction Group, Inc. and sought to enter the construction business. Previously, the Browers had brokered construction deals through a company called J.B. & Associates.
In early 1990, Taylor Woodrow Construction Co., a general contractor, awarded a subcontract to Crest Ridge for certain portions of the construction of the Liberty Science Center in Jersey City, New Jersey. One portion of the subcontract required Crest Ridge to supply architectural wall paneling for the Center. The Browers began discussions with Newcourt, Inc., a former client of J.B & Associates that supplied relatively low-cost foam paneling. The Browers succeeded in gaining Taylor Woodrow‘s approval for the use of Newcourt‘s foam paneling in the construction of the Center, and the parties began to exchange information detailing the requirements for the paneling job.
In late October, 1990, Newcourt issued a price quotation to J.B. & Associates of $758,000 to supply the necessary paneling. The price quotation was made “subject to credit department approval.” Four days later, John Brower wrote to Newcourt requesting that Newcourt issue a quotation to the name of Crest Ridge and that Newcourt make further clarifications regarding the details of the job. The record contains no subsequent price quotation in the name of Crest Ridge. It does, however, contain two “add-ons,” modifications to the price quotation reflecting changes in Newcourt‘s understanding of the job specifications, issued from Newcourt to Crest Ridge. These add-ons increased Newcourt‘s price quote to $760,000.
On November 7, 1990, Crest Ridge sent Newcourt a completed credit application form reciting that Crest Ridge had been established in 1985 and listing one banking and four trade references. That same day, Newcourt contacted Crest Ridge‘s banking reference and discovered that Crest Ridge had opened an account early in 1990 bearing an average balance of $5000. Newcourt also contacted Crest Ridge‘s trade references. One wrote back on November 20, stating, “No knowledge of this account—perhaps we dealt with them under a different name.” On December 3, a second responded, “No a/c. Please supply a/c #.” Newcourt did not hear from the other references.
Newcourt began investigating other methods of guaranteeing payment. The record includes contradictory information regarding the results of this investigation. In January, 1991, Newcourt contacted an attorney in New Jersey about the possibility of placing a lien on the Liberty Science Center. Calvin Court, president of Newcourt, testified that in January or February of 1991, he knew that Newcourt could place a lien on the prop
Meanwhile, the parties continued to exchange information. On January 4, 1991, Crest Ridge issued a purchase order to Newcourt quoting a price of $760,000 and referencing Newcourt‘s original price quotation and its two add-ons. The record includes a flurry of letters from October, 1990 to March, 1991 between Crest Ridge and Newcourt concerning the details of the project. Newcourt supplied samples of its wall paneling material, job specifications and calculations, three revisions of shop drawings, and final drawings showing where each panel would be placed at the Center. Crest Ridge and Newcourt had extended discussions over coils and over the strength of wall paneling fasteners. Newcourt was to make the first shipment of wall paneling later in 1991.
Testimony at the trial established certain customs and practices in the construction industry. First, the industry considered a purchase order issued in response to a price quotation as a binding event. Second, construction companies presumed that a supply contract without payment terms would proceed pursuant to a standard schedule. According to this schedule, the supplier billed the subcontractor by the 25th of the month and could expect payment by the tenth of the second month thereafter. This 45-day interval allowed a bill to travel from the subcontractor to the general contractor to the owner, and for payment to return from the owner to the general contractor to the subcontractor to the supplier.
On March 25, 1991, Newcourt wrote to Crest Ridge suspending all further work on the wall paneling project and demanding payment in full by April 5. The letter did not mention credit problems; it gave as Newcourt‘s reasons for demanding full payment “the encumbering and confusing progress and lack of receiving pertinent data necessary to satisfy the requirements on the above-referenced project.”1 In response to the March 25 demand letter, Crest Ridge attempted several times to contact Newcourt, but Newcourt did not respond. Crest Ridge then cancelled its order with Newcourt and covered by obtaining paneling from Alply, Inc. at a higher price. Newcourt never shipped any paneling to Crest Ridge.
Crest Ridge sued Newcourt for breach of contract in New Jersey state court. Newcourt removed the action to federal court, alleging diversity of citizenship. The New Jersey federal court transferred the case to the Eastern District of Texas, where it was tried to a jury. At the close of the plaintiff‘s case, Newcourt moved for judgment as a matter of law, citing the “subject to credit department approval” phrase in its price quotation and arguing that no contract could have existed because Crest Ridge never obtained the approval of Newcourt‘s credit department. The district court denied the motion, which Newcourt did not renew either at the close of all the evidence or after the jury‘s verdict.
The district court instructed the jury regarding the definition of a contract and the nature of contract formation. Neither party objected to the charge. In response to the
II
The sole issue on this appeal is whether the evidence was sufficient to support the jury‘s verdict that a contract existed between Newcourt and Crest Ridge and that Newcourt breached the contract. Newcourt argues that its price quotation was issued subject to credit department approval. It argues that no contract existed because Crest Ridge‘s uncertain financial status prevented Newcourt‘s credit department from approving the deal. Alternatively, Newcourt argues that the phrase “subject to credit department approval” illustrated that it never agreed to extend credit to Crest Ridge and thus that its demand of payment up front constituted no breach of contract.
Under Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir.1969) (en banc), we must uphold the jury‘s verdict against Newcourt unless the evidence, viewed in the light most favorable to Crest Ridge, required a reasonable jury to find either that no contract existed or that Newcourt committed no breach of contract. See Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, 308-09 (5th Cir.), modified by 884 F.2d 166 (5th Cir.1989), cert. denied, 494 U.S. 1046, 110 S.Ct. 1511, 108 L.Ed.2d 646 (1990).2
The Uniform Commercial Code governs the substantive legal issues in this case. Wall panels are “things ... which are movable at the time of identification to the contract for sale” and are thus considered “goods.”
The jury heard evidence sufficient to allow it to conclude that Newcourt and Crest Ridge formed a contract. The UCC provides that “[a] contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.”
Newcourt did state that its price quotation was subject to credit department approval, but in light of the extensive dealings and preparations between these two parties, the jury could conclude this clause at most created a condition precedent on Newcourt‘s obligation to perform and did not prevent the formation of a contract. Under Texas law, there are two types of conditions precedent. A condition precedent to the formation of a contract prevents the formation of a contract except upon realization of the condition. Hohenberg Brothers Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). A condition precedent to an obligation to perform, on the other hand, does not prevent contract formation, but does prevent a duty to perform from arising except upon realization of the condition. Id. As such, a condition precedent to an obligation to perform may be one of several terms of an already formed con-
Similarly, the fact that the parties specified no payment terms does not require us to reverse the jury‘s verdict. See
For two reasons, we find unpersuasive Newcourt‘s alternative argument that insufficient evidence supported the jury‘s finding that Newcourt breached its contract with Crest Ridge. First, the phrase “subject to credit department approval” does not constitute a refusal to grant credit. Indeed, the requirement of credit department approval would be unnecessary unless the parties contemplated some form of credit. Second, because Newcourt and Crest Ridge left the terms of payment blank in their exchange of price quotation and purchase order, payment was due either upon delivery, see
We find the evidence sufficient to support the jury‘s verdict that a contract existed and that Newcourt breached it. Newcourt has appealed no other issues, and therefore we affirm the judgment of the district court.
AFFIRMED.
BENAVIDES, Circuit Judge, specially concurring:
Because I agree that the evidence is sufficient to support the jury‘s verdict that a contract existed and that Newcourt breached it, I concur in the judgment. I write separately because I reach the same conclusion as the majority, but by a different path—one I believe is consistent with the general principles of contract law and the Uniform Commercial Code.
The majority accurately recaps the factual background of this dispute. Newcourt initially issued a price quote to J.B. & Associates. This was followed by an “add-on” price quote to Crest Ridge. Both of these price quotes explicitly stated the terms were “subject to credit department approval.” On January 4, 1991, Crest Ridge issued a purchase order for the wall paneling; this purchase order left the terms of payment blank. A flurry of correspondence ensued concerning the details of the project including job specifications, revisions of shop drawings, final drawings, samples, and strength of coils and fasteners. On March 25, 1991, Newcourt issued a demand letter suspending all work on the project unless there was payment in full by April 5. The subcontractor Crest Ridge, unable to make full advance payment, was forced to cover with more expensive paneling purchased under the conventional industry terms of a 45-day billing cycle. Viewing Newcourt‘s payment-in-full demand as a breach of contract, Crest Ridge sued. Following trial, the jury returned a verdict that both a contract existed between the parties and that Newcourt breached it. Newcourt appeals arguing that a price quote
As the majority correctly notes, this transaction for the sale of paneling between merchants is governed by the Uniform Commercial Code. See
The majority intimates that because “Newcourt and Crest Ridge exchanged a price quotation and a purchase order, documents the construction industry considered to have binding effect” a contract was formed. Maj. op. at 150. I believe the issue is more complex. It is hornbook law that contract formation requires offer and acceptance. Industry custom can fill in missing terms of a contract or determine the meaning of an agreement. See
Newcourt premises its argument on the belief that its price quote was the offer subsequently accepted by Crest Ridge‘s purchase order. However, in this case, there are two documents that could operate as an offer: Newcourt‘s initial price quote (subject to credit department approval) or Crest Ridge‘s purchase order (silent as to terms).
In deciding whether a contract was formed and its subsequent terms, it is critical to determine which is the “offer” capable of being accepted.
In general, whoever sends the first form is usually considered the offeror. 1 James J. White & Robert S. Summers, Uniform Commercial Code § 1-3, at 10 n. 8 (4th ed. 1995). A price quotation, if detailed enough, can constitute an offer capable of acceptance. See Axelson, Inc. v. McEvoy-Willis, 7 F.3d 1230, 1232-33 (5th Cir.1993); Gulf States Utils. Co. v. NEI Peebles Elec. Prods., Inc., 819 F.Supp. 538, 549 (M.D.La.1993); Quaker State Mushroom v. Dominick‘s Finer Foods, 635 F.Supp. 1281, 1284 (N.D.Ill.1986). However, to do so, it must reasonably appear from the price quote that assent to the quote is all that is needed to ripen the offer into a contract. Gulf States, 819 F.Supp. at 549; Quaker State, 635 F.Supp. at 1281. A price quote that is subject to the seller‘s confirmation is not an offer because the buyer‘s assent will not consummate the contract. See Axelson, 7 F.3d at 1233 (under Texas law, price quotation requiring seller to accept order could not be an offer, but only invitation for an offer); see also Gulf States, 819 F.Supp. at 549; Quaker State, 635 F.Supp. at 1284. In essence, such qualifying language converts what could have been an offer into a proposal or preliminary negotiation. Technographics, Inc. v. Mercer Corp., 777 F.Supp. 1214, 1216 (M.D.Pa.1991), aff‘d, 26 F.3d 123 (3d Cir.1994).
Newcourt‘s price quote1 was made “subject to credit department approval.” The inclusion of this condition precludes the price quote from operating as an offer because Crest Ridge‘s assent could not consummate the deal.2 See Gulf States, 819 F.Supp. at 549-50 (price quote reserving seller‘s right to back away from deal not an offer); Techno-
The fact that Newcourt‘s price quote could not operate as an offer does not, however, preclude contract formation. Since the Newcourt price quotation was not an offer, Crest Ridge‘s subsequent purchase order constituted the first offer, acceptance of which constitutes a valid contract. Axelson is instructive. In Axelson, we noted that a price quote containing all material terms could be construed as an offer capable of acceptance by the buyer. 7 F.3d at 1233. However, we immediately stated that “[t]here is one problem with this analysis.” Id. That problem was language in the Axelson price quote implying that the supplier had to accept orders before a contract was concluded. If this type of provision was present, “the quotation could not be an offer; it would only be an invitation for an offer.” Id. This is precisely what we have present in this case. Consequently, Crest Ridge‘s purchase order becomes the first offer capable of acceptance by Newcourt. See Technographics, 777 F.Supp. at 1216; Master Palletizer Sys., Inc. v. T.S. Ragsdale Co., 725 F.Supp. 1525, 1531 (D.Colo.1989), aff‘d, 937 F.2d 616 (10th Cir.1991). Newcourt did not send an explicit confirming memorandum accepting this purchase order offer. However, the UCC makes clear that a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by the parties. See
The question of whether an agreement was reached is generally a fact question where, as here, the existence of the agreement is disputed. Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex.1981). In this case, the jury was instructed that agreement could be manifested by conduct. As the majority recounts, there is evidence from which a jury could conclude that Newcourt‘s conduct reflected an assent to the purchase order offer.3 The extended exchange between the parties following the receipt of the purchase order documents Newcourt‘s acceptance. Newcourt was intricately involved in the details of the project providing samples, revisions of shop drawings, fastening details, color stipulations, and final drawing showing where each panel will go. In short, I agree with the majority that a jury could find that Newcourt‘s conduct illustrated that it thought they had a deal.
Furthermore, the open payment term of Crest Ridge‘s purchase order offer does not prevent contract formation as a matter of law. The open term would simply be filled in according to UCC provisions. See
In this proceeding involving the sale of goods between merchants, the UCC, complemented by common law contract principles, dictates the result reached today. Newcourt
Had Newcourt‘s initial price quote not suffered from the infirmity previously discussed, in my view a different result would indeed be required. This is because the “subject to credit approval” language, if treated as a condition precedent to contract formation, precludes the formation of a contract except upon realization of that condition, which indisputably never occurred. On the other hand, if the “subject to” language is treated as a condition precedent to an obligation to perform, a contract could be formed, but there could be no finding of breach because the condition to performance was never met.
UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray COLEMAN, Defendant-Appellant.
No. 95-40071.
United States Court of Appeals, Fifth Circuit.
March 5, 1996.