Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT BENNETT, Chief Judge. This lawsuit, which is set for trial to begin on July 15, 2002, involves claims by plaintiff Helm Financial Corporation (Helm) that defendant Iowa Northern Railway Company (IANR) failed to pay for rent and repairs on four locomotives leased from Helm and used by IANR in its short-line railroad business in north central Iowa. IANR has also brought various counterclaims, including claims for breach of lease, tortious interference with business, and punitive damages. This matter comes before the court pursuant to various cross-motions for summary judgment or partial summary judgment, as well as motions by the parties to strike portions of each other’s responses to the dispositive motions. These motions have now been fully briefed and the court heard oral arguments on them on May 17, 2002. Therefore, these motions are now ripe for disposition by the court. I. INTRODUCTION A. Factual Background Although this matter is before the court on cross-motions for summary judgment or partial summary judgment, the court will not attempt here an exhaustive dissertation of the undisputed and disputed facts in the record. Rather, the court will present sufficient of the facts, both disputed and undisputed, to put in context the parties’ arguments for and against summary judgment on the various claims, counterclaims, and defenses in this litigation. This task is not an easy one in this case, however, because the parties hotly contest not only individual facts, but the completeness or context of those facts and the inferences or legal conclusions to be drawn from them. Despite the intensity of the parties’ disputes, what is clear is that, at the center of this litigation is Helm’s allegation that IANR has failed to pay for use of and repairs to four locomotives, which IANR used in its shortline railroad business in north central Iowa. IANR leased two of the' locomotives at issue, designated IANR 3607 and IANR 3609, respectively, directly from Helm in 1995 and returned them to Helm in January 2001 pursuant to an agreed court order issued by this court in prior litigation. See Helm’s Appendix to First Motion for Summary Judgment at 50 (Exhibit 14, Order of December 20, 2000, in Case No. C 00-3095-MWB). The other two locomotives at issue, designated MKCX 4302 and MKCX 4303, respectively, on which Helm also held the lease, were provided to IANR in May 2000 by another railroad, the Canada American Railroad Company (CDAC). IANR returned those two locomotives to Helm in December 2000. Although there is some temporal overlap in IANR’s use of the four locomotives, the court believes that a more coherent picture of the facts in this case can be developed by discussing separately the facts pertaining to each pair of locomotives, at least up until the point at which their stories become inextricably intertwined. 1. The IANR locomotives IANR and Helm entered into a Lease of Railroad Equipment (the IANR Lease) dated March 28,1995, for four locomotives. See Helm’s Appendix to First Motion for Summary Judgment (Exhibit 1, Lease of Railroad Equipment) at 2. IANR’s President executed the lease on March 30,1995, and Helm’s President executed the lease on September 29, 1995. Id. at 19. However, IANR contends that the story begins well before March 28, 1995, with IANR’s determination that 2,000 horsepower, GP-38 locomotives, would meet its requirements followed by “detailed” discussions between IANR and Helm regarding IANR’s power needs. It is undisputed that Helm represented that it had several GP-38 locomotives that were then or would soon be available to lease to IANR and that IANR’s then Chief Mechanical Officer, Richard Adreon, inspected several locomotives at Helm’s facility in Oregon in February 1995 before hand-picking four locomotives that he considered best suited to IANR’s needs. The four locomotives selected by IANR became the subject of the IANR Lease, and were described in Annex A of that Lease as “Four (4), two-thousand (2,000) horsepower, GP38 locomotives,” with the following “New Unit Numbers”: IANR 3606 (“Old Unit Number” HLCX 2034); IANR 3607 (“Old Unit Number” HLCX 3607); IANR 3609 (“Old Unit Number” HLCX 3609); and IANR 3611 (“Old Unit Number” HLCX 3611). See id. at 22. IANR now contends that the “essence” of the lease, as far as IANR was concerned— and that Helm knew it — -was that the locomotives would provide 2,000 horsepower of traction. However, apart from the reference to the horsepower of the locomotives in the “Equipment Description” in Annex A of the IANR Lease noted above, and two other Annexes repeating that description for purposes of a Certificate of Acceptance (Annex B) and a Memorandum of Lease (Annex E, Exhibit A), the IANR Lease makes no reference to the horsepower or traction capacity of the locomotives as a specific term of the parties’ agreement, nor does it contain any express representation by Helm as to the traction capacity or other performance specifications of the locomotives. Instead, the body of the IANR Lease simply refers to the items subject to the lease as “Units.” The parties dispute whether the IANR Lease was exclusively “drawn” by Helm, as IANR contends, or was extensively negotiated between the parties, involving some fifteen exchanges before the final terms were agreed upon, as Helm contends. Whatever the negotiation process, or lack thereof, the IANR Lease for the four locomotives was for a fixed term of sixty months, but that fixed term did not commence until the first day of the month following the delivery of the last unit under the lease. Id. at 2 (§ 3, tA). The Lease provided for a rental of $145 per unit per day, id. at 3 (§ 4, ¶ A), and was, by its terms, a “net lease” providing, inter alia, that “Lessee shall not be entitled to any abatement of Rent, reduction thereof or set-off against Rent....” Id. (§ 4, ¶ C). The Lease also placed on IANR, among other things, the risk of any loss, damage, or destruction, see id. at 5(§ 7), the responsibility, “at its own cost and expense,” of maintaining, servicing, and repairing the locomotives, id. at 7 (§ 9, ¶ C(i)), and the costs of insurance. Id. at 8 (§ 9, ¶ D). The IANR Lease also states that the locomotives were leased “AS-IS,” and purports to disclaim any warranties or representations of any kind by Helm regarding the locomotives, although it does assign to IANR all warranties and indemnities of the manufacturer, reconditioner, repairer, or maintainer of the locomotives. Id. at 7 (§ 9, ¶ A), and does grant IANR “the right to inspect and reject the Units subject to this Lease at the Delivery Point.” Id. at 2 (§ 2, ¶ A). If IANR accepted the units, as evidenced by a “Certificate of Acceptance” that was “in the form set forth in Annex B attached [to the Lease],” the Lease provided that “the execution of [the ‘Certifícate of Acceptance’] shall constitute conclusive evidence of acceptance of the Units herein identified.” Id. IANR contends that it anticipated delivery of the locomotives soon after the lease was executed, but Helm contends that it proposed, and the parties agreed, that delivery of the locomotives would begin in May 1995. In any event, Helm began delivering the locomotives to the agreed “Delivery Point” in Cedar Rapids, Iowa, in June of 1995. However, after inspecting the units, as permitted by the IANR Lease, IANR requested that various repairs be made at Helm’s expense. Indeed, IANR now maintains that the locomotives had suffered so badly from lack of maintenance or misuse between February 1995 and delivery in the summer of 1995 that they were “not the same” locomotives that IANR’s Chief Mechanical Officer had inspected and selected in February. It is undisputed that Helm made the repairs that IANR requested after inspection at the time of delivery. IANR eventually executed a “Certificate of Acceptance,” which indicates that IANR 3606 was accepted on July 1, 1995; IANR 3607 was accepted on August 7, 1995; IANR 3609 was also accepted on August 7, 1995; and IANR 3611 was accepted on July 6, 1995. See Helm’s Appendix to First Motion for Summary Judgment (Exhibit 4, Certificate of Acceptance) at 36. IANR contends that it is significant that the “Certificate of Acceptance” eventually presented by Helm in September 1995 did not include in the “Equipment Description” the reference to “Four (4), two-thousand (2,000) horsepower, GP38 locomotives,” which had appeared in the form “Certificate of Acceptance” in Annex B to the IANR Lease, although it otherwise contained essentially the same language of acceptance and essentially the same identification of the locomotives by unit number (albeit, identifying the locomotives only by their IANR numbers instead of by both their HLCX and IANR numbers). See Helm’s Appendix to First Motion for Summary Judgment (Exhibit 2, IANR Lease, Annex B) at 26. IANR also contends that it is significant that the “Certificate of Acceptance” was not presented by Helm at the time of delivery or even immediately after repairs were completed and IANR took delivery of the locomotives, but was instead presented only in September 1995 and executed by IANR only on February 27, 1996. IANR also asserts that IANR’s President, Daniel Sabin, had refused to sign the “Certificate of Acceptance,” although IANR’s Vice President, -B.F. “Pete” Collins eventually signed it, upon Helm’s insistence that Helm needed the document in- order to make its “filings.” It is undisputed, or cannot reasonably be disputed, that IANR experienced mechanical problems, of varying frequency and severity, with each of the four locomotives that was subject to the IANR Lease, and incurred repair expenses and downtime for each of the locomotives as a result. However, Helm disputes the frequency and severity of these problems, pointing to the lack of any documentary evidence of significant or frequent complaints by IANR to Helm about the performance of the locomotives. Eventually, in an Amendment No. 1 to the IANR Lease, dated December 11, 1997, and executed as of that date, the parties agreed to terminate the IANR Lease early as to two of the locomotives, the one intended to have the “New Unit Number” IANR 3606, but never actually renumbered, and the one numbered IANR 3611. IANR contends that Helm waited until IANR had made significant repairs to those two locomotives before demanding their return and selling or leasing them to another railroad at a profit for Helm, at the same time causing serious detriments to IANR’s business. Helm contends that termination of the lease as to those two locomotives was mutually negotiated and agreed upon, as evidenced by the Amendment to the IANR Lease. The Amendment No. 1 left two locomotives, IANR 3607 and IANR 3609, subject to the IANR Lease. It also is undisputed, or cannot reasonably be disputed, that IANR fell behind on the rent due under the IANR lease on the locomotives. However, IANR contends that this was so, in large part, because of the defective condition of the locomotives, the unexpectedly high costs that IANR was.forced to bear to repair and maintain them, and IANR’s lost earnings because the locomotives were not performing as well as expected or were out of service for repairs. Helm contends that the reasons IANR fell behind on rent payments are irrelevant under the terms of the “net lease” for the locomotives, but even if somehow relevant, the record establishes that the reasons IANR gave at the time for falling behind on rent payments was a general downturn in business owing to. the poor corn market in 1996'and 1997, leaving little for IANR to haul, not anything to do with the performance of the locomotives. Before exploring further the payment dispute involving the IANR locomotives, the court turns to.the facts necessary to put in context the parties’ dispute concerning the MKCX locomotives, as the story of the MKCX locomotives began with very different circumstances, but soon became intertwined with that of the IANR locomotives. 2. The MKCX locomotives The parties agree that their dispute also involves two other locomotives, designated MKCX 4302 and MKCX 4303, respectively, on which Helm held a lease with the Canada American Railroad Company (CDAC). CDAC had leased those two locomotives from MK Rail Corporation pursuant to a Locomotive Lease Agreement dated. January 26, 1995. See id. at 53-80 (Exhibit 15, the CDAC Lease). By its terms, the CDAC Lease, like the IANR Lease, was a “net lease,” id. at 54(§ 4), and was actually for five locomotives, only two of which are at issue in this litigation. See id. at 67 (CDAC Lease Exhibit A). Unlike the IANR locomotives also at issue here, the MKCX locomotives subject to the CDAC Lease were all 3,000 horsepower, GP40 locomotives. Id. The original lease term was 183 days beyond the date of acceptance at a rate of $285 per locomotive per day. Id. However, pursuant to Locomotive Lease Agreement Amendment No. 1, entered into as of October 12, 1995, the lease was extended for a term of five years commencing August 23, 1995, at a daily rental rate of $145 per unit. Id. at 71 (Locomotive Lease Agreement Amendment No. 1, §§ 1 & 4). MK Rail Corporation assigned the lease to Helm on May 9, 1996, during Helm’s purchase of MK Rail Corporation, several years before CDAC provided the locomotives to IANR. See id. (Exhibit 16, the CDAC Lease Assignment and Assumption). IANR points out that there is no privity of contract between IANR and Helm with regard to CDAC’s lease of the MKCX locomotives at issue here or the assignment of that lease to Helm by MK Rail Corporation, and Helm agrees that IANR was never a party to the CDAC Lease. Instead, the two MKCX locomotives at issue here were provided to IANR by CDAC in May 2000, pursuant to a “power sharing agreement” between the two railroads. IANR contends that it is significant that the IANR Lease — the lease regarding the two IANR locomotives also at issue here — specifically notes that “Lessee has entered into a locomotive power sharing and reimbursement plan with CDAC (hereinafter called the “Power Sharing Plan”),” that, “as an inducement for Lessor to enter into this Lease, Lessee agrees to assign its payment receipts from the Power Sharing Plan to Lessor,” id. at 2 (fourth and fifth “Whereas” clauses of the IANR Lease), and elsewhere acknowledges the existence of this power sharing agreement. See, e.g., id. at 4 (§ 4, ¶ D, which reiterates that the power sharing agreement is further security for Helm, and ¶ E, which requires IANR to provide a copy of the power sharing agreement to Helm and not to amend that agreement without permission from Helm). IANR contends, on the basis of affidavits from its officers, that the power sharing agreement allowed the parties to lend each other locomotives that they had leased from third parties. However, the power sharing agreement itself has not been submitted as part of the'summary judgment record in this case. Helm contends that the references to the power sharing agreement in the IANR Lease do not specifically identify the MKCX locomotives at issue here, and that those references were intended as further inducement and security for Helm, such that the power sharing agreement cannot be raised as a defense to Helm’s claims against IANR pertaining to the MKCX locomotives. IANR contends that CDAC transferred the MKCX 4302 and MKCX 4303 locomotives to IANR pursuant to the power sharing agreement near the end of the extended term of the CDAC Lease, which expired in August 2000, in anticipation that CDAC would be required to return the locomotives to Helm’s yard in St. Louis anyway at the end of the lease. IANR also contends that Helm was aware of the transfer of the locomotives from CDAC to IANR either at the time it occurred or very soon afterwards, and acquiesced in the transfer by entering into negotiations with IANR concerning IANR’s interest in leasing one of the MKCX locomotives. IANR contends further that, during the few months it used the two MKCX locomotives, the locomotives incurred no more than normal wear and tear and that any excess wear and tear or need for repairs is properly attributable only to CDAC’s use of the locomotives for several years and, in any event, is attributable only to CDAC as the lessee of the locomotives. Helm disputes these contentions. The parties agree that, during the time that IANR was in possession of the two MKCX locomotives, Helm invoiced CDAC for rental of those locomotives. IANR contends that it had no long-term need for the MKCX 4303 locomotive, which was a “slug” or “B unit,” ie., not equipped to carry a crew, but only to be used in conjunction with a “leader” locomotive, such as the MKCX 4302 locomotive, to provide additional traction power. However, IANR contends that it found MKCX 4302 to be a useful and reliable locomotive, and so entered into negotiations with Helm to lease that and other locomotives. At this point, the stories of the IANR and MKCX locomotives at issue here begin to intertwine. 3. The payment dispute Helm contends that it began attempts to collect the past due rent on the IANR locomotives in the summer of 2000, but has been unable to resolve the matter without judicial intervention. IANR contends that the parties not only attempted to negotiate, but consummated an Amended Lease concerning both of the IANR locomotives still in its possession. IANR contends that the Amended Lease also did the following: (1) resolved any dispute concerning past due rent and repair costs on those locomotives; and (2) permitted IANR to lease the MKCX 4302 locomotive, which had previously been provided to IANR by CDAC, and three other locomotives. IANR contends, further, that Helm unilaterally breached that Amended Lease and reanimated the settled payment dispute. Helm agrees that negotiations concerning past due rent on the IANR locomotives and the possibility of IANR leasing the MKCX 4302 locomotive and other locomotives occurred over several months in the late summer and fall of 2000, but disputes that any agreement on those matters was ever reached. Thus, the documents memorializing the payment dispute and the negotiation process require some scrutiny. By letter dated August 17, 2000, sent by overnight courier from Helm’s General Counsel, Matthew Ogburn, to IANR’s President, Daniel Sabin, Helm notified IANR that, pursuant to Section 12 of the IANR Lease, IANR owed Helm $96,140.00 as past due rent through and including July 31, 2000. Id. at 37 (Exhibit 5, Letter of August 17, 2000). The letter stated further that, “[i]f such past due rent is not paid to Helm during the next ten (10) days, a formal Event of Default under the Lease will exist, and Helm may exercise any and all remedies available to it to collect past due rent and to repossess its property.” Id. On September 14, 2000, Helm’s Executive Vice President, William Peterson, sent IANR’s President, Daniel Sabin, a hand-delivered letter notifying IANR that the default identified in the August 17, 2000, letter remained uncured, and invoking the remedy of terminating the lease for IANR 3607 through and including October 31, 2000, and for IANR 3609 through and including September 29, 2000. Id. at 38 (Exhibit 6, Letter of September 14, 2000). The specified dates were identified as “Return Dates,” after which rent would cease to accrue if the locomotives were returned “in appropriate return condition pursuant to the terms and conditions of the Lease”; however, if the locomotives were not “in appropriate return condition,” rent would continue to accrue until appropriate repairs were completed and/or the locomotives were delivered to the designated “Return Point” in Cedar Rapids, Iowa. Id. Helm demanded that the locomotives not be used in active service after the specified Return Dates, “except for movement to and from a repair facility and to the Return Point.” Id. The September 14, 2000, letter also demanded delivery of the MKCX 4302 and MKCX 4303 locomotives in IANR’s custody and control to the Return Point on or prior to September 29, 2000. Id. Finally, the letter invoked Section 4.B of the IANR Leáse, notifying IANR that as of the date of the letter, “all past due rent shall accrue interest at the prime rate plus 3%.” Id. at 39. On September 15, 2000, Pete Collins of IANR sent William Peterson of Helm a response to a verbal proposal from Helm for IANR to resolve the payment dispute and also to allow IANR to lease 4 locomotives from Helm. See id. at 41 (September 15, 2000, letter). In that response, IANR “propose[d] and agree[d] to the following arrangement,” which included a 20-month lease for MKCX 4302 and three GP-38 locomotives to be selected from Helm’s fleet at a rate of $19,000 per month. Id. IANR’s proposal also included the following provisions for resolution of disputes regarding outstanding rent and repairs: • Return of units — The units will be repaired as agreed. Unit 4302 to remain and be included in the new lease. However, we request that the return schedule be delayed on units 4303 and 3609 until the new replacement units arrive on the Iowa Northern. Additionally, unit 3607 which needs the RTO that Helm agreed to supply for a price of $55,000 (payment included in monthly lease payment), we propose that for this price Iowa Northern will make all noted and agreed to repairs and Helm will install the RTO at their shop facility. • Arrearages (amount to be determined) will be rolled into a note (12% interest). Any amount outstanding after the lease has expired will be dealt with at that time. Id. On September 29, 2000, Helm responded with a letter from Phil Warner, its Vice President, to Pete Collins, which IANR contends is the consummated and enforceable amendment to the IANR lease and an agreement to resolve all matters pertaining to the disputes concerning the IANR and MKCX locomotives. That letter stated the following: This letter will summarize Helm’s current offer to supply locomotives to the Iowa Northern (“IANR”): 1) Total number of units will be four (4), including the MKCX 4302 which is currently on-hand and three (3) GP38 units from Metro East Industries (“MEI”) now marked TM 857, 859, 860. 2) Term of the lease will be 20 months. 3) Lease rate will be $19,000 per month in aggregate. Included in this aggregate lease rate is the amortization of the $55,000 cost of the running take out engine (“RTO”) Helm will supply for unit 3607. Lease document must be executed prior to units leaving MEI. 4) All four locomotives will carry a warranty on the catastrophic failure of the main engine for the term of the lease and catastrophic failure of the main generator for the first sixty days of the lease only. 5) IANR is responsible for all transportation charges on the return of units 3607, 3609, and 4303 to MEI in East St. Louis, IL, and for delivery of the three replacement units from MEI to IANR lines. 6) IANR [is] responsible for all repairs to units 3607, 3609, 4302 and 4303 as agreed to in the letter agreement signed by you and faxed to me September 1, 2000 [N.B.: This document is not in the summary judgment record]. It is understood that IANR will perform these repairs prior to returning the units with the exception of the RTO for unit 3607. 7) All arrearages IANR owes Helm, including the $18,000 cost of installation of prime mover in 3607 will be rolled into a promissory note carrying an annual interest rate of 12%. Promissory note must be executed prior to units leaving MB I. 8) Should IANR be sold, IANR may terminate lease of locomotives early, only after all arrearages have been paid in full. 9) Prompt payment of both the $19,000 monthly lease rate and the promissory note payment are required. IANR will be put in default upon the first late payment of either of these obligations. Pete, this proposal remains valid through the close of business on Friday, October 6, 2000. Please signify your acceptance of this proposal by signing in the space provided below and returning one copy to my attention. Id. at 42 (September 29, 2000, letter). Pete Collins signed the September 29, 2000, proposal indicating that it was “Agreed and Accepted,” on October 6, 2000. However, he also made and initialed the following handwritten addition above item 1): “Subject to inspection and approval by Iowa Northern.” Id. Helm asserts that Collins admitted in deposition that he did not consult with or obtain the agreement of anyone from Helm before making this addition, and that, as such, the addition constituted a counteroffer, which Helm never accepted. IANR contends that the parties had an agreement resolving all past disputes as of October 6, 2000, but that Helm then unilaterally breached the agreement after a change in ownership, because the new owners baulked at the deal. In any event, the next correspondence in the summary judgment record is a letter from Pete Collins of IANR to Phil Warner of Helm concerning results of IANR’s inspection of “three locomotives Helm has offered for lease to the Iowa Northern.” Helm’s Supplemental Appendix at 34 (Exhibit 7, Letter of October 10, 2000). The letter details various deficiencies with each of the locomotives “that need to be addressed before the units are accepted and forwarded to the IANR.” Id. On October 31, 2000, Phil Warner, Vice President of Helm, sent the following letter to Pete Collins of IANR in response: This letter serves as follow up to our phone conversation of Tuesday, October 25, 2000. As I explained, Helm has been purchased by a group of Helm employees and the new executives are those people I shared with you during our conversation. Being as straightforward as possible, Helm would like Iowa Northern (“IANR”) to find alternative locomotives to replace the two units under the Lease of Railroad Equipment dated March 28, 1995, as amended (“the Lease”) and the two units which are currently on lease to the Canada American but in your possession. My letter to you of September 29, 2000, and executed by you on October 6, 2000, was subject to inspection and approval of the alternate locomotives by IANR. Helm is not agreeable to performing any of the repairs to the alternate units as stated in your letter to me of October 10, 2000. I assume that you are not interested in accepting those units under these conditions. Your written confirmation of this would be appreciated. As you know by letter dated August 17, 2000, to Daniel R. Sabin, IANR was notified of its default under the Lease for failure to pay rent. Since the past due rental amounts under the Lease remain unpaid, a formal Event of Default under the Lease exits. Nevertheless, Helm is agreeable to continuing the lease of the four units we have there now through November 30, 2000 in order to give you ample time to replace them; however, we expect that you will promptly pay us for their use. There is a chance that MKCX 4202[sic] and 4303 will need to be recalled earlier should they be sold. IANR will be responsible for the end-of-lease repairs on all four units as agreed to in the letter signed by you on September 1, 2000 [N.B.: Again, this document is not in the summary judgment record]. In addition, Helm will agree that payment of past due lease amounts currently in the amount of $84,460, as well as the cost of $68,500 (includes $50,000 for engine and $18,500 labor) for the running take out engine for 3607, may be paid over the period of one year with interest at the rate of 12%. A schedule of payments is attached. Pete, please review this letter at your earliest convenience and contact me with any questions or comments. Upon your review, please indicate your receipt and acceptance of this letter by signing in the space provided below. Helm’s Appendix to First Motion for Summary Judgment at 43 (Exhibit 9, Letter of October 31, 2000). The letter was not signed as “Agreed and Accepted” by any representative of IANR. Consequently, on November 13, 2000, Helm’s Senior Vice President and Chief Financial Officer, Barbara W. Wilson, sent IANR’s President, Daniel Sabin, the following letter by overnight courier: On October 31, 2000 Helm Financial Corporation sent Mr. B.F. “Pete” Collins of the Iowa Northern Railway Company a proposal letter signed by Phil Warner. Due to the lack of response to that letter, this letter shall serve as the official withdrawal and termination of that proposal letter dated October 31, 2000. By letter dated August 17, 2000, you were formally notified that the Iowa Northern Railway Company is in default under the Lease for failure to pay rent. Such default remains uncured. Please be advised that your Lease with Helm Financial Corporation is hereby terminated due to your failure to pay rent as required by said Lease. Id. at 46 (Exhibit 10, Letter of November 13, 2000) (emphasis in the original). However, Helm was apparently unable to obtain delivery of this letter as addressed, and instead sent a copy of it by overnight courier and by facsimile with another cover letter on November 14, 2000, to Daniel Sabin c/o the Bangor and Aroostoek Railroad Company in Bangor, Maine. See id. at 47 (Exhibit 11). IANR apparently does not dispute eventually receiving a copy of the November 13, 2000, letter. At some point during the fall of 2000, Helm agreed to sell the MKCX 4302 and MKCX 4303 locomotives to the Paducah & Louisville Railway (“PAL”). The President of PAL stated in deposition that he believed he agreed to buy those two locomotives in September or October 2000. Helm’s Appendix in Support of Resistance to Iowa Northern’s First and Second Motions for Partial Summary Judgment (Helm’s Resistance .Appendix) at 68-69 (Deposition of William Albritton). Therefore, on November 21, 2000, Phil Warner of Helm e-mailed Pete Collins of IANR instructions concerning shipment of those two locomotives to an interchange point in Waterloo, Iowa. See Helm’s Appendix to First Motion for Summary Judgment at 48 (Exhibit 12, November 21, 2000, e-mail). The e-mail directed IANR to ship the locomotives “Dead and Drained as soon as possible.” Id. (emphasis in the original). On December 8, 2000, Pete Collins sent Phil Warner a letter concerning Helm’s inspection of all four locomotives at issue here between November 28 and December 1, 2000. See id. at 49 (Exhibit 13, Letter of December 8, 2000). The letter confirms that the two MKCX locomotives were interchanged at Waterloo, Iowa, as instructed by Helm, on the morning of November 30, 2000, but that “[t]he two IANR units are still on the Iowa Northern, dead and drained, being made ready to interchange, as instructed by Helm, to the UP at Cedar Rapids for movement to Paducah, KY.” Id. Although, as explained above, it was the MKCX locomotives, not the IANR locomotives, that had been sold to PAL, the parties apparently agree that the IANR locomotives at issue were also to be sent to Paducah. The remainder of the December 8, 2000, letter stated the following: In view of past issues, we will require written conformation [sic] of our understanding of work left to be performed on these units. We did not receive any inspection reports from your inspector for the November 29th — December 1st inspection. We therefore must assume that there are no new or additional findings that was [sic] noted and agreed to from your August 17, 2000 inspection. We will not assume any responsibility for future work on these units, other than the level of work and not to exceed the cost of our previous understanding. Please advise. We expect to have the two [IANR] units ready for interchange to the UP no later than Wednesday, December 13, 2000, but will not do so until we have your written concurrence on the work to be done following our release of the units. Additionally, if the Iowa Northern is going to be responsible for the freight cost of moving these units to Paducah, KY I want to know what the rate is going to be. Please provide me both rates, via UP/BN to PAL and the rate via IC/CN to PAL. If IANR is not nor [sic] will not be responsible for the freight rate then you may disregard this request. Id. It is undisputed that the two MKCX locomotives were returned to Helm in December 2000. However, the IANR locomotives were not returned until January 2001. Helm estimated that some $19,000 in repairs would be required to return the two MKCX locomotives to appropriate condition. However, it appears to be undisputed that PAL intended to retrofit the two MKCX locomotives, so that Helm did not actually perform those repairs, and instead sold the MKCX locomotives to PAL “AS-IS.” Whether or not the price at which Helm sold the locomotives to the PAL reflected some “discount” because of their state of repair appears to be disputed. In its motion for summary judgment, Helm originally claimed that it was entitled to unpaid rent from IANR for its use of the two MKCX locomotives, at a daily rate of $145 per locomotives, at an interest rate of 18% on unpaid rent. Thus, Helm sought a total of $62,640 in unpaid rent and $12,959.33 in interest on past due rent as of October 31, 2001, plus $19,709 in estimated repairs on the two MKCX locomotives. IANR denies that it is responsible for rent or repair costs or that it is responsible for any excess wear and tear on the MKCX locomotives. Rather, IANR contends that Helm’s claims concerning these locomotives are properly addressed to the CDAC, and that Helm is, indeed, pursuing such claims against the CDAC in litigation in state court in Maine. IANR now contends that Helm has settled its case with CDAC, which should extinguish its claim against IANR regarding the MKCX locomotives. As mentioned above, IANR eventually returned the IANR 3607 and IANR 3609 locomotives to Helm in January 2001 pursuant to an agreed court order issued by this court in prior litigation. See Helm’s Appendix to First Motion for Summary Judgment at 50 (Exhibit 14, Order of December 20, 2000, in Case No. C 00-3095-MWB). In its summary judgment motion, Helm originally claimed $103,020 in past due rent on these two locomotives, plus $35,030.56 in interest on past due rent accrued as of October 31, 2001, and continuing to accrue, plus estimated repair costs of $145,427, and inspection and transportation costs of $3,636 and $2,856.61, respectively. Helm also sought, pursuant to the IANR Lease, $49,678.34 in attorney fees incurred as of October 31, 2001, and continuing to accrue, for attempting to recover past due rent and repair costs. IANR denies that it is responsible for any of the amounts claimed by Helm. B. Procedural Background 1.Helm’s Complaint and IANR’s original Answer Helm filed its complaint against IANR in this matter on January 18, 2001. Although “Count I” of the complaint identifies the parties, alleges the bases for jurisdiction and venue, and makes general factual allegations, the causes of action that Helm asserts against IANR are set forth in Counts II through IV. Thus, Count II, identified as “Breach of Written Contract,” alleges that IANR breached its lease with Helm for the IANR 3607 and IANR 3609 locomotives by, among other things, failing to pay rent and other obligations due Helm under the terms of the lease. Count III, identified as “Quantum Meruit,” alleges that IANR has been unjustly, unfairly, and inequitably enriched by its use and possession of all four locomotives, causing losses to Helm in the form of lost rent, lost repair, transportation, and inspection costs, unpaid interest, and lost business opportunities and profits. Count IV, identified as “Conversion, Trover, and Trespass,” alleges that IANR’s possession and use of the MKCX 4302 and MKCX 4303 locomotives were in derogation of Helm’s superior right, title, and interest in those locomotives. IANR originally answered Helm’s complaint on February 28, 2001, denying Helm’s claims, and also asserted a counterclaim in three counts alleging claims for breach of lease, tortious interference with business, and punitive damages, respectively. Helm filed a reply to IANR’s original counterclaims on March 8, 2001. 2. Helm’s first summarg judgment motion On November 19, 2001, Helm filed the first of the dispositive motions now before the court, seeking summary judgment on its own claims and IANR’s counterclaims. IANR originally resisted Helm’s motion for summary judgment on November 30, 2001, then filed an amended brief and amended appendix in support of its resistance on December 18, 2001. By order dated December 11, 2001, the court set the first dispositive motion for oral arguments on February 22, 2002. Helm filed its reply in further support of its motion for summary judgment on January 4, 2002. 3. IANR’s First Amended Answer, Affirmative Defenses, and Counterclaim However, IANR was subsequently allowed to file an amended answer and amended counterclaim on February 1, 2002. In its amended answer, IANR asserted, as the first of eight affirmative defenses, a defense of unconscionability of certain provisions of the March 28, 1995, lease involving the IANR 3607 and IANR 3609 locomotives. IANR also asserted eight counterclaims, including its original three counterclaims of breach by Helm of the lease for the locomotives (Count I); tortious interference with business (Count II); and a claim for punitive damages (Count III). The additional counterclaims are the following: breach of express warranties (Count IV); breach of implied warranties of fitness for a particular purpose (Count V); breach of implied warranty of merchantability (Count VI); breach of implied warranty of the capacity of the equipment (Count VII); breaches of covenants of good faith and fair dealing (Count VIII); and quantum meruit (Count IX). 4. IANR’s motions for summary judgment and motions to strike IANR then filed its own motions for partial summary judgment on February 19, 2002, which was the original deadline for dispositive motions, and just days before the date the court had originally set for oral arguments on Helm’s first motion for summary judgment. IANR’s first motion for partial summary judgment seeks judgment in IANR’s favor on its affirmative defense asserting the unconscionability of certain provisions of the lease for the two IANR locomotives at issue in this case. IANR’s second motion for partial summary judgment seeks summary judgment in its favor on issues pertaining to the MKCX locomotives at issue in this case. The court concluded that it made little sense to hear oral arguments on the dis-positive motions piecemeal. Therefore, by order dated February 21, 2002, the court rescheduled the oral arguments on Helm’s first motion for summary judgment to April 16, 2002, and consolidated those arguments with oral arguments on IANR’s cross-motions for partial summary judgment. Helm filed its reply to IANR’s amended counterclaim on March 14, 2002, and its resistance to IANR’s motions for partial summary judgment on March 15, 2002. On March 28, 2002, IANR moved to strike affidavits of Francois Bernard and Philip J. Warner submitted by Helm in support of its resistance to IANR’s motions for partial summary judgment. Helm resisted those motions on April 8, 2002. In addition, on April 1, 2002, Helm filed a supplemental brief in support of its own motion for summary judgment, to which IANR filed a response on April 5, 2002. With that, the briefing of the motions then pending appeared to be closed. 5. Helm’s second motion for summary judgment and motions to strike However, on April 15, 2002, the day before the scheduled oral arguments on the pending cross-motions for summary judgment, Helm filed yet another disposi-tive motion, its motion for summary judgment on IANR’s first amended affirmative defenses and counterclaims. Helm’s second motion for summary judgment was timely filed pursuant to a deadline for such a motion set in the order granting IANR leave to amend its answer and counterclaims. Helm’s second dispositive motion meant that liability — at least — on all of the parties’ claims and counterclaims in this litigation was before the court on one or more motions for summary judgment. In light of Helm’s second motion for summary judgment, the court concluded, once again, that it made little sense to address in piecemeal fashion the summary judgment motions filed by both parties. Therefore, by order dated April 16, 2002, the court rescheduled the oral arguments on the earlier summary judgment motions and consolidated them with oral arguments on the latest motion for summary judgment on May 17, 2002. The court also set a briefing schedule on the latest motion for summary judgment, which the court cautioned the parties must be adhered to, in order to prevent jeopardizing the trial date of July 15, 2002, if any claims, defenses, or counterclaims remained for trial after disposition of the various summary judgment motions. The parties adhered to that briefing schedule: IANR filed its resistance to Helm’s April 15, 2002, motion for summary judgment on May 6, 2002, with a response to Helm’s statement of facts in support of that motion, and an amended response to Helm’s statement of facts in support of Helm’s first motion for summary judgment, as well as a second supplemental appendix pertinent to its own motions for partial summary judgment and Helm’s second motion for. summary judgment Helm filed a reply on May 13, 2002, along with motions to strike IANR’s response to Helm’s second motion for summary judgment and IANR’s amended response to Helm’s statement of facts in support of Helm’s first motion for summary judgment. Also on May 13, 2002, IANR resisted Helm’s motions to strike and, in further response to those motions, filed its own motions for leave to file a statement of additional facts in resistance to Helm’s second motion for summary judgment and to file its amended response to Helm’s original statement of facts. 6. Oral arguments At the oral arguments on May 17, 2002, plaintiff Helm was represented by Mark J. Herzberger of Moyer & Bergman, P.L.C., in Cedar Rapids, Iowa. Defendant IANR was represented by James C. Larew of the Larew Law Office in Iowa City, Iowa. Although the court imposed strict time limits on the parties’ oral arguments, the parties’ presentations were every bit as animated and comprehensive as their written arguments. II. WHAT RECORD CAN BE CONSIDERED? Before the court can consider the merits of the various summary judgment motions, the court must first consider the preliminary matter of the parties’ motions to strike portions of each other’s responses to the various summary judgment motions. This is so, because the motions to strike go to what record the court can consider in its resolution of the parties’ cross-motions for summary judgment. A. IANR’s Motions To Strike On March 29, 2002, IANR filed separate motions to strike, in whole or in part, the affidavits of Francois Bernard, who is Helm’s current Chief Mechanical Officer, and Philip J. Warner, Helm’s Vice President, which Helm had offered in its appendix in support of its resistances to IANR’s motions for partial summary judgment. As detailed more fully below, with reference to each of the challenged affidavits, IANR identifies two distinct grounds for striking all or portions of the affidavits: (1) lack of personal knowledge; and (2) contradiction of prior testimony. The court will consider the standards applicable to these challenges in turn. 1. Applicable standards a. Lack of personal knowledge As to the first challenge, Rule 56(e) of the Federal Rules of Civil Procedure provides, in part, that, on summary judgment, “[sjupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R. Crv. P. 56(e); see also Erickson v. Farmland Indus., Inc., 271 F.3d 718, 728 (8th Cir.2001) (citing the rule). “In evaluating evidence related to possible summary judgment, a court may not consider affidavits that do not satisfy the requirements of Fed.R.Civ.P. 56(e).” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir.1996). In short, inadmissible material is not “properly available to defeat or support the [summary judgment] motion.” Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir.1993); accord Duluth News-Tribune v. Mesabi Publ’g Co., 84 F.3d 1093, 1098 (8th Cir.1996) (“[I]n evaluating the evidence at the summary judgment stage, we consider only those responses that are supported by admissible evidence.”). Moreover, “[ajffidavits asserting personal knowledge must include enough factual support to show that the affiant possesses that knowledge.” El Deeb v. University of Minn., 60 F.3d 423, 428 (8th Cir.1996). An affirmation on “information and belief is insufficient.” Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir.1983). Where a statement in a summary judgment affidavit is hearsay, and fails to meet a hearsay objection — for example, the exception for a statement made about a matter within the scope of the declarant’s employment, Fed. R. Evid. 801(d)(2)(D)' — the affidavit can be given no effect, because it fails to meet the “admissibility” and “personal knowledge” requirements. Erickson, 271 F.3d at 728. Although the court must review the record on summary judgment in the light most favorable to the non-moving party, courts “do not stretch this favorable presumption so far as to consider as evidence statements found only in inadmissible hearsay.” Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir.2001); accord Cronquist v. City of Minneapolis, 237 F.3d 920, 927 (8th Cir. 2001) (holding that affidavits that are based on hearsay cannot defeat a summary judgment motion). On the other hand, the Eighth Circuit Court of Appeals has recognized the difference between the affiant’s lack of personal knowledge of matters recounted in an affidavit as the basis for a decision, and the affiant’s personal knowledge of the reasons for that decision. In Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311 (8th Cir.1996), an age-discrimination case, the court was confronted with the plaintiffs contention that an affidavit lacked “personal knowledge” as required by Rule 56(e) and that the district court, therefore, should not have credited the reasons given in the affidavit for the plaintiffs termination. Aucutt, 85 F.3d at 1317. More specifically, the affidavit at issue in Aucutt recounted an incident in which the plaintiff had disciplined young visitors to an amusement park for some rule infraction by making them do push-ups in the parking lot, but the affiant lacked personal knowledge of the push-up incident described. Id. However, the incident was identified in the affidavit as one of several examples of the plaintiffs failure to improve his hostile demeanor towards park patrons, which was the primary reason the employer gave for laying off the plaintiff in a reduction in force. Id. The employer asserted that the affidavit comported with the requirements of Rule 56(e), because it was based on the affiant’s personal knowledge of the reasons for the decision to lay off the plaintiff, and the court agreed. Id. The court noted that the affiant was responsible for choosing three park security officers to be laid off as part of the reduction in force; that he evaluated the personnel file of each employee under his supervision before he decided to lay off the plaintiff; and that he had repeatedly admonished the plaintiff to improve his demeanor towards park guests while performing his security duties, but that the plaintiff had failed to do so. Id. The court concluded as follows: Thus, [the affiant] had firsthand knowledge of the reasons why [the plaintiff] was selected for discharge. Fed. R.Civ.P. 56(e) does not require [the affi-ant] to have witnessed every incident supporting the termination decision, so long as he had personal knowledge that the decision was for reasons unrelated to age-based discrimination. Cf. Gill v. Reorganized School Dist., 32 F.3d 376, 379 (8th Cir.1994) (school superintendent who discharged plaintiff teacher after receiving report that student had accused plaintiff of making racially derogatory remarks satisfactorily rebutted plaintiffs prima facie case with a legitimate reason for plaintiffs discharge; superintendent did not have to have observed incident in question, because crucial issue was “whether [the reported incident] was the real reason for [Gill’s] termination and not a pretext for [race] discrimination”). In light of the foregoing, we hold that the district court did not err in considering [the affiant’s] affidavit in support of [the defendant’s] motion for summary judgment. Aucutt, 85 F.3d at 1318. b. Contradiction of prior testimony As to contradiction of prior testimony, the Eighth Circuit Court of Appeals recently reiterated the following principles: It is well-settled that “[p]arties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment.” American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997). Consequently, a party should not be allowed to create issues of credibility by contradicting his own earlier testimony. Ambiguities and even conflicts in a deponent’s testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party’s sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir.1988) (internal citations and quotation marks omitted). Bass v. City of Sioux Falls, 232 F.3d 615, 619 (8th Cir.1999); accord Dotson v. Delta Consolidated Indus., Inc., 251 F.3d 780, 781 (8th Cir.2001) (“We have held many times that a party may not create a question of material fact, and thus forestall summary judgment, by submitting an affidavit contradicting his own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997), and Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983).”); Plymouth Foam Prods., Inc. v. City of Becker, 120 F.3d 153, 155 n. 3 (8th Cir.1997) (to the extent that the affi-ant’s affidavit conflicts with his earlier deposition testimony, his affidavit testimony should be disregarded); RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir.1995) (same). The Eighth Circuit Court of Appeals has explained that the rule that a party cannot create a “sham” issue of fact in an effort to defeat summary judgment by filing an affidavit directly contradicting prior deposition testimony “is a sound one,” because “if testimony under oath could be ‘abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.2000) (quoting Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983)). However, the Eighth Circuit Court of Appeals has also explained that, where the affidavit testimony seems consistent with the affiant’s prior deposition testimony, or simply adds more detailed information, the court may properly consider the affidavit on summary judgment. Bass, 232 F.3d at 619. Similarly, the court has recognized “that there are ‘narrow circumstances’ in which a subsequent affidavit is appropriate, such as to explain certain aspects of the deposition testimony or where the pri- or testimony reflects confusion on the part of the witness.” Herring, 207 F.3d at 1030-31 (citing Camfield Tires, Inc., 719 F.2d at 1364-65). In such circumstances, “it would be for the jury to resolve the discrepancy in the deposition testimony and the affidavit.” Id. at 1031. 2. Application of the standards a. Mr. Bernard’s affidavit IANR specifically challenges the following averments in paragraph 6 of Mr. Bernard’s affidavit: [I]t is my understanding and belief that the company that originally leased the [MKCX 4302 and MKCX 4303] locomotives to the Canadian American Railway Company (a.k.a. CDAC), MK Rail Corporation, considered both units to be leaders (i.e., intended to be occupied by a crew), and not slugs, or B units. See IANR’s First Motion to Strike Affidavit of Francois Bernard at 2 (quoting Affidavit of Francois Bernard of March 5, 2002, ¶ 6). IANR contends that one of the issues on the parties’ motions for summary judgment is whether Helm is attempting to recover repair costs that would make the MKCX 4303 locomotive a “leader,” not merely a “slug” or “B unit,” and thus, that the costs claimed are for “improvements” that would put that locomotive in a condition beyond any use or intended use by IANR. As to the affidavit of Mr. Bernard, IANR contends that the statement quoted above is an attempt by the affiant to establish personal knowledge of the condition of the MKCX locomotives at the start of the lease to CDAC so as to provide a basis for his estimate of the repairs referred to elsewhere in the affidavit and for which Helm seeks to recover here. However, IANR contends that the paragraph is based on hearsay of what an unidentified third party told Mr. Bernard, and fails to set forth any facts that indicate Mr. Bernard’s personal knowledge of the condition of the locomotives at the time that IANR took possession of them. Moreover, IANR contends that the challenged portion of Mr. Bernard’s affidavit is inherently inconsistent with his prior deposition statement that “ ‘I believe Mr. Dunham said when he received them they were not lead capable, and I have no knowledge as to whether they were or were not.’ ” IANR’s Brief in Support of Motion to Strike Affidavit of Francois Bernard at 3 (quoting Mr. Bernard’s deposition, with transcription error corrected here) & Exhibit 4 (transcript of deposition). IANR contends that the conflict between Mr. Bernard’s affidavit and his prior deposition testimony creates only a sham issue of fact that should not preclude summary judgment. Helm states that Mr. Bernard’s affidavit was submitted in support of Helm’s contention that the end-of-lease repairs for MKCX 4302 and MKCX 4303 were necessary for damage to the units beyond ordinary wear and tear. Helm contends, further, that the affidavit meets all requirements for consideration by the court. Helm points out that Mr. Bernard had been employed by Helm since 1996, and had been Helm’s Chief Mechanical Officer of locomotives since 1999; that he was familiar with the condition of the MKCX 4303 locomotive when IANR surrendered it to Helm; that he prepared an end-of-lease repair estimate; that based on certain amenities in the cabin of that locomotive, he determined that the locomotive was a “leader,” not a “B unit.” Thus, far, Helm specifically contends that Mr. Bernard’s affidavit was plainly based on personal knowledge. Helm contends further that, with regard to what repairs were necessary to correct damage beyond ordinary wear and tear, Mr. Bernard was familiar with the condition of the locomotive at the time it was surrendered by IANR, and was clearly qualified by his position with Helm to determine what constitutes ordinary wear and tear to a locomotive and what constitutes damage beyond such ordinary wear and tear, and that he made a determination regarding MKCX 4303 based on that knowledge and inspection. The court finds that there does appear to be some inherent conflict between Mr. Bernard’s averment that he “understood” that both of the MKCX locomotives at issue here had been considered “leaders” by MK Rail Corporation and his prior deposition testimony that he had been told by a CDAC official that the locomotives were not lead capable when CDAC received them, and, more importantly, that Mr. Bernard had “no knowledge as to whether they were or were not [lead capable].” It might be possible to twist and turn the two apparently conflicting statements in such a way as to make them appear consistent — for example, by explaining a distinction between MK Rail Corporation “considering” the locomotives to be “leaders” and a CDAC official’s statement that the locomotives were not in fact “lead capable” when CDAC received them, and by distinguishing between what Mr. Bernard had been told, either by MK Rail Corporation or CDAC, and what he knew, or in this case, didn’t know personally about the lead capability of the locomotives. Thus, it might be possible to conclude that the affidavit testimony seems consistent with the affiant’s prior deposition testimony, or simply adds more detailed information, such that it may properly be considered on summary judgment. Bass, 232 F.3d at 619. However, Helm has not attempted to explain the apparent contradiction between Mr. Bernard’s deposition testimony that he knew nothing about the lead capability of the engines and his later affidavit averring that he had been told something quite different by MK Rail Corporation. Thus, Helm has not attempted to establish that the affidavit here fits the “ ‘narrow circumstances’ in which a subsequent affidavit is appropriate,” for example, “to explain certain aspects of the deposition testimony or where the prior testimony reflects confusion on the part of the witness.” Herring, 207 F.3d at 1030-31 (citing Camfield Tires, Inc., 719 F.2d at 1364-65). Even so, if this were IANR’s only challenge to Mr. Bernard’s affidavit, the court would be inclined to leave “for the jury to resolve the discrepancy in the deposition testimony and the affidavit.” Id. at 1031. However, IANR has also challenged the identified portion of Mr. Bernard’s affidavit for lack of personal knowledge. The court concludes that Helm may have established “enough factual support to show that [Mr. Bernard] possesses [personal] knowledge,” as required by Rule 56(e) — as well as professional qualifications — to make admissible statements about a number of matters, see El Deeb, 60 F.3d at 428, including the following: the condition of the MKCX 4303 locomotive when IANR surrendered it to Helm; that certain amenities in the cabin of that locomotive suggested that it was a “leader,” not a “B unit”; what constituted ordinary wear and tear in a locomotive; and what repairs were necessary to correct damage beyond ordinary wear and tear. However, Helm nowhere confronts IANR’s central challenge, which is that Mr. Bernard had no personal knowledge of the condition of the MKCX 4303 locomotive (or, for that matter, the MKCX 4302 locomotive) prior to or at the time it was leased to CDAC, or just prior to or at the time its was lent to IANR by CDAC. Fed. R. Crv. P. 56(e) (an affidavit “shall show affirmatively that the affiant is competent to testify to the matters stated therein”); see also Erickson, 271 F.3d at 728 (citing the rule). Information pertinent to those issues would include whether or not the MKCX 4303 locomotive was leased to CDAC in a condition to be a “leader,” or only a “slug,” and whether it was still (or ever) in the condition to be a “leader” when it was provided to IANR, information that, if personally known to Mr. Bernard, might show that he knew what damage in excess of ordinary wear and tear occurred during the time that either CDAC or IANR had possession of the locomotive. The affidavit contains no such averment of personal knowledge of these matters. An affirmation on “information and belief,” which is all that Mr. Bernard’s affidavit indicates about Mr. Bernard’s supposed knowledge of the condition of the MKCX locomotives at the start of the lease with CDAC, “is insufficient.” Camfield Tires, Inc., 719 F.2d at 1367. The challenged statement is co