Citations
- 887 F. Supp. 2d 1240
Full opinion text
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Cardinal Health 5, LLC’s (“Defendant” or “Cardinal”) Motion for Relief Under Rule 56(h) of the Federal Rules of Civil Procedure [192]; Cardinal’s Motion for Partial Summary Judgment [143]; nVision Global Technology Solutions, Inc.’s (“Plaintiff’ or “nVision”) Motion for Partial Summary Judgment [148]; and nVision’s Renewed Motion for Summary Judgment on Cardinal’s Counterclaims of Fraud and Estoppel [206].
1. BACKGROUND
A. Cardinal’s 2007 Request for Proposal for Freight Payment and Audit Services
nVision was founded in 2003 as a software company to develop, sell, and lease logistics software used for freight bill payment and audit services. (Def.’s Resp. and Objections to Pl.’s Statement of Material Facts (“PSOF”) [61.3] ¶ 1). Cardinal is a leading provider of medical, surgical, and pharmaceutical products and services, including wholesale distribution to retail customers such as drug stores, supermarket pharmacies, hospitals, and alternative care providers. (Pl.’s Resp. to Def.’s Statement of Material Facts (“DSOF”) [67] at 6).
In August 2007, Cardinal issued a “Request for Proposal” (“RFP”) and solicited bids from companies to provide freight payment and audit (“FPA”) services to some of Cardinal’s business units. (Def.’s Resp. and Objections to PL’s Statement of Material Facts in Support of its Mot. for Partial Summ. J. (“PSMF I”) [157.1] at 2; PL’s Resp. to Def.’s Statement of Material Facts as to Which There is No Genuine Issue to be Tried (“DSMF I”) [171] at 2). The successful bidder in the RFP process would provide FPA services to Cardinal that included auditing and paying invoices for carriers who delivered Cardinal’s pharmaceutical and other products. (DSMF I at 3). Cardinal estimated that it cost approximately $1.2 million to perform FPA services “in-house” using its own resources and believed cost savings could be achieved by using an external FPA service provider. (PSMF I at 4; DSMF I at 29-30).
The RFP specified the process for the company with which it would contract, including self-invoicing courier services to be provided by the successful bidder. (DSMF I at 4-5). This service was required to be designed to collect orders from customers and “group those orders under one shipment master record [for each delivery] so they rate as one charge [to Cardinal from a carrier] vs. getting assessed individual charges for each order [by carriers].” (Id.). This required the successful bidder to be able to accept Cardinal’s customer information at an “order level,” apply “grouping logic” to create a single shipment at the “stop level,” and generate a single “self-invoice” shipment master record, or freight bill, to facilitate payment to the carrier who delivered Cardinal shipments at the “stop level.” (Id. at 9-10,15-16). Thus, the end product of the self-invoicing courier service, according to the RFP, was a carrier freight bill or invoice created from data processed at the order level, which was then transmitted to Cardinal’s carriers. (Id. at 17-18, 45-46). The carrier picked up and delivered the shipment of aggregated invoices and was paid for the shipment service. Cardinal ultimately paid for all shipments.
The RFP stated that the successful bidder could expect to process 568,000 transactions under this courier, stop-specific, self-invoicing model each month. (Id. at 13-15). The RFP included a “pricing matrix” to be used by bidders for FPA services. (Id. at 18). Cardinal requested that all bidders insert into the pricing matrix the prices they would charge on a “per transaction” basis for each service. (Id. at 18-19). The RFP specified that “pricing was to be inclusive of audit, allocation, and reporting processes.” (Id. at 19 (emphasis in original RFP)). The RFP also specified that if any other costs would be “require[d] to perform the services outlined in the RFP,” bidders were to identify them in a table titled “Other Fees (please describe in detail).” (Id. at 21).
The RFP also asked bidders to distinguish between “float pricing” and “non-float pricing.” (Id.). Float pricing referred to the prices a FPA provider would charge when it received advance funding from Cardinal to pay carriers. (Id. at 21-23). A FPA provider was able to earn interest (“float”) on advanced funds until they were used to pay carriers for delivery of Cardinal’s goods. (Id.). Because an FPA provider can earn interest on advanced funds, float pricing was understood to be generally lower than pricing based on the FPA provider using its own funds to pay carriers (“non-float pricing”). (Id.).
The RFP also permitted bidders to object to any of the conditions in the RFP, stating that a failure to object “shall mean that bidder agrees with, and will comply with the conditions set forth” in the RFP. (Id. at 23-24).
B. nVision’s RFP submission
In August 2007, nVision submitted a response to the RFP and did not object to any of the terms or conditions stated in it, to include those regarding the self-invoicing courier service and pricing methodology. (Id. at 25-26). nVision did not identify any other fees that it intended to charge to perform the FPA services required by the RFP and specifically did not list “flat file data feed” fees or “multiple line item data field” fees as fees nVision expected to charge to perform services to Cardinal. (Id. at 27-28, 50-51). nVision stated in an email to Cardinal that nVision’s proposal included pricing for self-invoice courier transactions and that self-invoicing services were considered equivalent to “EDI Small Package Invoices.” (Id. at 34).
Based on the nVision response to the RFP and its proposed pricing for services detailed in the RFP, Cardinal estimated that nVision’s annual billing would be $180,000 less than the next-lowest bidder and $160,000 less than its $1.2 million internal cost to perform the same FPA services. (Id. at 28-30; Pl.’s Resps. and Objections to Def.’s Additional Statement of Facts (“DSAMF II”) [223.1] at 54-55; PSMF I at 3-4). nVision’s initial internal estimates for its projected revenue for providing FPA services to Cardinal were comparable and indicated that nVision would earn $800,000 to $1.2 million annually in transaction fees. (DSAMF II at 54; DSMF I at 31).
In October 2007, after responses to the RFP were submitted and evaluated, Cardinal selected nVision to provide FPA services. (Defi’s Resp. and Objections to PL’s Statement of Material Facts in Supp. of its Mot. for Summ. J. (“PSMF II”) [214.1] at 1-2; PSMF I at 5; DSMF I at 33).
C. Contract negotiations between nVision and Cardinal
During late 2007 and early 2008, nVision and Cardinal engaged in negotiations regarding the Logistics Services Agreement (“LSA”). (DSMF I at 33-34). The lead negotiators for each side were Bill Pimpo (“Pimpo”) for Cardinal, and Luther Brown (“Brown”), nVision’s CEO. (Id. at 39-40). The parties exchanged multiple drafts of the LSA, and its associated pricing schedule. (Id. at 33-34; PSMF II at 2-7; PSMF I at 5-6). A merger clause in the LSA generally provided that the LSA and its attached schedules represented the entire agreement between the parties, superseded prior negotiations, agreements, contracts, communications, or understandings and that the LSA could only be modified by a writing signed by the parties. (DSMF I at 33-34; LSA § 11.7).
During contract negotiations in October 2007, Brown confirmed that the rate for EDI Small Package Invoices — -which had been claimed by nVision to be equivalent to self-invoicing courier transactions— should be priced at $.025 for no-float, or non-funded, transactions and $.015 for float, or Cardinal advance-funded, transactions. (DSMF I at 34-36).
During negotiations in December 2007 and January 2008, the rate for non-funded self-invoice courier transactions was consistently listed as $.025 on drafts of the LSA. (PSMF II at 4; DSMF I at 36). With the exception of rates for self-invoice courier and self-invoice private fleet transactions, the funded rates for transaction fees in the pricing schedule were consistently listed at a rate lower than the non-funded rates for each different category of FPA services to be provided by nVision. (PSMF II at 2-7; PSMF I at 5-7; DSMF I at 36, 44-45).
On February 7, 2008, the draft of the LSA was revised by nVision and the proposed pricing schedule was transferred from a Microsoft Word document into a Microsoft Excel spreadsheet. (PSMF II at 4; DSMF I at 37). The new pricing schedule, which was prepared by nVision, failed to include pricing for self-invoice courier or self-invoice private fleet transactions. (PSMF II at 4; DSMF I at 37).
On February 8, 2008, Cardinal advised nVision of the omission of pricing for self-invoice courier and self-invoice private fleet transactions. (PSMF II at 4; DSMF I at 37). Brown notified Cardinal by email that the information would be added to the proposed pricing schedule. (PSMF II at 4; Def.’s Resp. to Pl.’s Statement of Additional Material Facts (“PSAMF I”) [193.1] at 2; DSMF I at 37). Brown copied his assistant, Jennifer Shaeffer (“Shaeffer”) on the email. (Id.).
On February 11, 2008, Shaeffer updated the pricing schedule with pricing information for self-invoice courier and self-invoice private fleet transactions and forwarded the updated document to Brown. (PSMF II at 4; DSMF I at 38). nVision’s updated pricing schedule listed the rate for non-funded self-invoice courier transactions as $.025, but listed the price for funded self-invoice courier transactions, where nVision would have the benefit of earning daily interest on funds advanced by Cardinal, as $.20. (PSMF II at 4; DSMF I at 38). Shaeffer is unable to explain and cannot recall why the prices were entered on the pricing schedule on February 11th as $.025 for non-funded transactions and $.20 for funded transactions. (PSMF II at 4; PSAMF I at 2-3; DSMF I at 38-39).
Cardinal claims that the parties did not discuss during the LSA negotiations between Brown and Pimpo a $.20 fee for self-invoice courier transactions. (PSMF II at 4; DSMF I at 40). nVision asserts, based on testimony offered by Brown, that $.20 was the correct figure reached during negotiations, that $.20 is a fee within the range of those submitted by other bidders, but that Brown cannot recall any specific conversation where this figure was discussed. (PSMF I at 3-4; PSAMF I at 7-8; DSMF I at 40-All). Brown acknowledges that if there had been conversations with Pimpo about a price of $.20 during the course of negotiations, “there would have been documents of some sort.” (DSMF I at 41-42). Documents evidencing this price were not produced by either party during discovery.
D. The Logistics Services Agreement
On March 3, 2008, the parties entered into the LSA, which had a retroactive effective date of February 20, 2008. (PSMF II at 8-9; PSOF ¶ 9; DSOF at 7). The LSA states that “[a]ll pricing and rates for nVision’s services to [Cardinal] are identified in Appendix A [ (the “Pricing Schedule”) ].” (LSA § 5.1). The Pricing Schedule reflected a fee of $.025 for non-funded' self-invoice courier transactions, but listed the price for funded self-invoice courier transactions as $.20. (DSMF I at 38, 43-44; App. A to LSA).
The LSA stated that the annual baseline transaction volume for self-invoice courier transactions, which were transactions that produced a carrier freight bill, was 6,816,-000. (DSMF I at 17-18, 45-46). The LSA does not provide for nVision to charge Cardinal for services associated with “flat file data feeds” or “multiple line item data fields.” {Id. at 50).
Under the LSA, nVision processed payments to carriers who transported goods for Cardinal. (DSOF at 7-8). After nVision provided Cardinal with information regarding amounts owed to carriers for freight shipping services based on prior unpaid and new invoices, Cardinal forwarded funds to nVision for nVision to use to pay outstanding invoiced carrier amounts. (PSOF ¶ 167; DSOF at 15-16; LSA § 1.5).
The LSA made nVision’s operating account (the “nVision Operating Account”) the sole account into which funds provided by Cardinal would be deposited so they would be available to nVision to make payments to carriers Cardinal owed for shipping services. (PSMF II at 10; PSOF ¶ 92; DSOF at 44-45; Def.’s Resp. and Objection to PL’s Statement of Material Facts in Opp’n to Def.’s Early Mot. for Summ. J. (“PSOFIO”) [74] ¶28; LSA §§ 1.1, 1.5). Section 1.5 of the LSA required nVision to “submit a daily ‘approve to pay’ file to [Cardinal] identifying transactions due for payment” to carriers. (DSMF II at 12-13; LSA § 1.5). Cardinal was required to provide nVision with funds sufficient to pay to carriers listed in the “approve to pay” file. {Id.).
The LSA required nVision to issue payments on carrier invoices the same day nVision’s bank received funding from Cardinal, provided that funding was received by 10:00 a.m. (DSOF at 25; LSA § 1.5). If funding confirmation was received later than 10:00 a.m., nVision was obligated to make payments on carrier invoices within 24 hours. {Id.).
E. nVision’s payments to carriers for self-invoice courier transactions and freight bills
In May 2009, nVision began administering Cardinal’s PD Courier self-invoicing courier system. (PSMF II at 22). As described in the RFP and the LSA, nVision generated freight bills and invoices for deliveries made by Cardinal’s carriers, using the PD Courier system. {Id. at 23-24). Based on these freight bills and invoices, each Monday, nVision notified Cardinal, using a “PD Weekly Report,” how much Cardinal owed to carriers based on carrier invoices and freight bills. (Id. at 24). To request payment funds for freight bills that were not generated using the PD Courier system, nVision sent Cardinal a “Freight Payment Request.” (DSAMF II at 4). The PD Weekly Report and Freight Payment Requests were created by nVision and sent to Cardinal to advise it of the funding amount needed to be deposited into the nVision Operating Account to enable nVision to pay freight bills and invoices for shipments by Cardinal’s carriers. (Id. at 4-8; PSMF II at 23-25).
The PD Weekly Report was sent by nVision to Cardinal by email with “PD Payment Due Report” in the subject field. (PSMF II at 25-26). The PD Weekly Reports generally were sent each Monday and included a spreadsheet listing all carrier invoices that had yet to be paid and new invoices created by the PD Courier system in the past week. (DSAMF II at 5, 8-9).
Freight Payment Requests sent by nVision to Cardinal contained headings that stated “Total Amount of U.S. Freight Charges to Pay” owed to Cardinal’s carriers and “Total Amount of Requested Deposit” from Cardinal to be paid into the nVision Operating Account to pay those freight charges. (PSAMF II at 7-8). nVision’s Freight Payment Requests listed the Cardinal business representative to whom that request was addressed, listed the Cardinal business unit that received the carrier services, and identified the bank and account number of the nVision Operating Account into which deposits were to be made. (DSAMF II at 6).
Cardinal responded to the PD Weekly Report and Freight Payment Requests by forwarding, by electronic transfer, funds to be deposited into the nVision Operating Account at least twice per week. (Id. at 4-8, 14-15; PSMF II at 27, 29). When Cardinal advanced funds for deposit into the nVision Operating Account to make payments on the freight bills and invoices reflected on the PD Weekly Report and Freight Payment Requests, a “Funding Request Email” was sent to nVision by Cardinal to specify how to apply funds to carrier invoices and Freight Payment Requests. (DSAMF II at 11-13; PSMF II at 27-28). Cardinal’s Funding Request Emails specified how much was requested by nVision in the PD Weekly Report, indicated adjustments made by Cardinal based on its internal calculations and evaluation of errors, and stated the total adjusted amount that was forwarded to the nVision Operating Account for nVision to use to make payments to Cardinal’s carriers pursuant to the PD Weekly Reports. (PSMF II at 27). Cardinal also attached a Freight Payment Request spreadsheet to the Funding Request Emails that specified which carriers should be paid and in what amount pursuant to freight bills. (Id. at 26-29; DSAMF II at 11-13).
F. Cardinal’s identification of an issue with the Pricing Schedule
After the LSA was executed, but before nVision began providing FPA services, Cardinal’s lead negotiator, Pimpo, noticed the price for funded self-invoice courier and funded self-invoice private fleet transactions was $.20 and $.18, respectively. (PSMF II at 5; DSMF I at 42, 46-47). Before the LSA was signed, no one at Cardinal noticed the prices for funded self-invoicing courier transactions was set at $.20. (DSMF I at 43).
On March 12, 2008, Pimpo sent Brown an email (the “March 12th Email”) noting this pricing discrepancy in the LSA Pricing Schedule. {Id. at 42; PSMF II at 5; PSMF I at 8-9). Pimpo’s March 12th Email stated: “I was looking at the rate schedule and I noticed self-invoicing is $.025 on the final no-float column but it looks like we dropped a leading zero because the 1 day float shows $.20. Sorry we missed that on the last rate copy.” (PSMF II at 5; Pl.’s Resps. and Objections to Def.’s Additional Statement of Material Facts (“DSAMF I”) [191.1]' at 8-10; PSMF I at 8-9).
On March 13, 2008, Brown forwarded Pimpo’s March 12th Email to his assistant, Shaeffer, stating: “We need to discuss this and provide a corrected document to them and an amendment to address funding.” (PSMF II at 6; DSAMF I at 10-11; PSMF I at 9).
On March 14, 2008, after receiving Brown’s email, Shaeffer amended the Microsoft Excel spreadsheet to reflect a price for funded self-invoice courier and funded self-invoice private fleet transactions of $.020 and $.018, respectively. (DSAMF I at 11-12; PSMF I at 9). Shaeffer saved this document as “Appendix A — Cardinal Health pricing matrix FINAL 03.14.08.-xls.” (DSAMF I at 11-12; PSMF I at 9).
Cardinal claims Pimpo discussed this matter with Brown on the telephone after sending the March 12th Email. (PSMF II at 5; PSMF I at 8-9; DSMF I at 42). Cardinal claims that during this telephone conversation, Brown acknowledged that the $.20 and $.18 prices were mistakes, and the result of typographical errors, and the prices should be $.02 and $.018, respectively, for funded self-invoice courier and funded self-invoice private fleet transactions. (PSMF II at 5; DSMF I at 47). Cardinal further claims that it took Brown at his word that the prices were corrected and did not seek a written acknowledgement of the mistake. (DSMF I at 47). nVision asserts that Brown did not have a conversation with Pimpo in which Brown acknowledged that the $.20 and $.18 figures were typographical errors. {Id.). It is undisputed that after March 12, 2008, and nVision began providing services, nVision charged Cardinal for funded self-invoice courier transactions at the rate of $.02 and did not claim this transaction rate was $.20 until November 2010. {Id. at 47-48).
In December 2008, nVision’s Senior Vice President of Finance, Charlotte Sanders (“Sanders”), sent an email to Brown with a spreadsheet that identified “the Cardinal contract pricing” for self-invoice courier transactions as $.02. (DSAMF I at 13-14). In August 2009, Sanders forwarded to a prospective client a Pricing Schedule that she claimed was part of the “final Cardinal Health Agreement” that listed the rate for self-invoice courier transactions as $.02. {Id. at 16-17). In August 2009, another nVision employee, Keith Snavely, sent a pricing schedule to the same prospective client that listed the rate nVision would charge for self-invoice courier transactions as $.02, claiming this rate was identical to what nVision charged to Cardinal. {Id. at 17-18). In July 2010, Sanders also presented a spreadsheet to Brown that identified the “current rate” for self-invoice courier transactions being charged to Cardinal as $.02. (DSMF I at 49).
G. The dispute over nVision’s charging of fees under the LSA
In October 2008, nVision started charging Cardinal for services associated with “flat file data feeds” and “multiple line item data fields.” {Id. at 52-54; DSAMF I at 19-20; PSAMF I at 11-14). nVision claimed that “flat file data feed” services did not relate to carrier invoices or the production of freight bills, but to the transmission of data between nVision and Cardinal in the course of its providing FPA services. (DSMF I at 52-53). nVision claims it was entitled to charge for this service irrespective of the LSA terms. (Id.). nVision asserted that “multiple line item data field” services related to a requirement to enter data into multiple data fields in processing transactions. (Id. at 52-54; PSAMF I at 12-13). These asserted fees were not provided for under the LSA, and they were unilaterally added to billing sheets sent to Cardinal by nVision. (PSAMF I at 13-14; DSMF I at 54).
In 2009, nVision also began charging Cardinal for the generation of data reports, computer services, and the implementation of software features that Cardinal requested from nVision employees. (PSMF I at 15-20, 37-41; PSAMF I at 8-11).
In September 2009, Cardinal disputed nVision’s billing for fees for “flat file data feeds,” “multiple line item data fields,” and the generation of data reports. (PSAMF I at 10-11, 13-15, 17; DSMF I at 54-55). Pimpo sent Brown an email stating that these charges were not separate costs and were not allowed to be billed pursuant to the LSA. (PSAMF I at 18-19). Cardinal refused to pay billing sheets issued by nVision which included a charge for these services. (Id. at 10-11, 15-19; PSMF II at 30-32, 43; PSMF I at 15-17, 30-33, 35-45, 59, 66; DSMF I at 54-55). nVision refused to remove these disputed charges from its bills because it asserted it was entitled to charge, and Cardinal owed, for these additional services even though they were not included in the LSA as services for which Cardinal agreed to pay. (DSAMF II at 47-48; PSMF II at 31-32, 45; PSMF I at 15-20, 30-33, 35-45, 59, 66; PSAMF I at 15-17).
After September 2009, when Cardinal ceased paying nVision’s billing statements that included the disputed services, nVision and Cardinal negotiated for more than a year to resolve this billing dispute and to possibly extend the LSA. (PSMF II at 45-47; PSMF I at 66; DSMF I at 55). During negotiations, nVision continued to bill Cardinal at the rate of $.02 per funded self-invoice courier transaction, which totaled 7.78 million transactions in an amount of $155,596. (DSMF I at 47-48).
H. nVision’s issuance of corrected bills On August 2, 2010, Brown stated in an email to Sanders that he felt that nVision had “reached a point of possibly not accepting what [Cardinal] want[s] to offer which means we simply tell them we are going to stop processing and we are going to turn it over to our attorneys to collect our money[.]” (PSAMF II at 23). Brown stated that nVision took the position in the billing dispute that Cardinal owes nVision for development costs and that the bills for the PD Courier self-invoice courier system “is about 6 times what [nVision] has billed [Cardinal].” (Id. at 23-24).
One month later, in September 2010, nVision claims that it realized that it had been billing Cardinal at the wrong rate when Sanders compared billing sheets that nVision had previously issued to Cardinal to the Pricing Schedule from the LSA. (DSAMF I at 6-7). Upon learning of this alleged billing error, Sanders claims she informed Brown, in person. (Id. at 7). Beyond Sanders’ testimony at her deposition, there is no documentary or other evidence that confirms that Sanders discovered this error in September 2010, or that she notified Brown. (Id. at 6-7). Although nVision claims that it noticed this significant billing error in September 2010, it did not notify Cardinal then or during October 2010.(M).
On October 27, 2010, Brown sent a list of items to Cardinal that he wanted Cardinal to address to settle the issue of past due invoices owed to nVision, and the bills that were disputed. (PSAMF I at 25-26). Cardinal did not address Brown’s extensive list of items, forwarding instead an agenda for discussion and requesting to schedule a meeting between the parties. (Id. at 26).
On November 3, 2010, after negotiations to resolve the billing dispute failed, nVision sent Cardinal “corrected bills” for the pri- or sixteen (16) months. (Id. at 19-23, 32-33; PSMF II at 32; DSMF I at 56). In these “corrected bills,” nVision asserted that: (1) a billable transaction under the self-invoice courier process included every order from Cardinal’s customers processed by nVision, instead of each stop by a carrier based on an issued freight bill; and, (2) the fee for every transaction was $.20, not the $.02 that nVision had been charging. (PSMF II at 32; DSAMF I at 18-19; PSMF I at 18-19, 35-37; DSMF I at 56-57). This “recalculation” by nVision resulted in an increase in nVision’s billing for self-invoice courier transactions over the prior sixteen (16) months from $155,596 to more than $11.5 million dollars — a seventy-three fold increase. (DSMF I at 56). These new bills asserted, for the first time, nVision’s claim that transactions were based on orders and not stops. Previously, nVision had always billed per stop.
I. The parties’ negotiations to resolve the billing dispute
On November 12, 2010, representatives from nVision and Cardinal met again to try to resolve the billing dispute. (PSMF I at 49-50; PSAMF I at 27). In these discussions, nVision sought a new, six-year service agreement. (PSAMF I at 19-23; DSMF I at 57-58; PSOF ¶¶ 134-135, 138; PSOFIO ¶ 84). At the November 12, 2010, meeting, Cardinal acknowledged that nVision was entitled to compensation for its services, but informed nVision that it should consider all bills disputed as to the amounts nVision invoiced because Cardinal disputed items on every invoice that nVision submitted. (PSMF II at 48; PSMF I at 49-50, 67; PSAMF I at 27-28). The parties agreed to conduct additional settlement discussions in January 2011. (PSMF I at 53; PSAMF I at 28).
From January 24, to January 26, 2011, the parties held additional meetings (the “January Meetings”) to resolve the service fee dispute. (DSAMF I at 29-31; PSAMF I at 28-29; PSOF ¶¶ 136, 140-144, 149; DSOF at 42-43; Pl.’s Resps. and Objections to Def.’s Additional Statement of Material Facts (“DASOF”) [78.1] at 2-3; PSOFIO ¶ 147). At the January Meetings, Cardinal informed nVision that it would not agree to a contract with a term longer than two (2) years. (PSMF II at 50, 53-54; PSMF I at 53-54, 57-58; PSAMF I at 28-29). nVision’s representatives told Cardinal that after consulting with Brown on the results of the January Meetings, it would advise Cardinal on January 31, or February 1, 2011, whether nVision would enter into a two-year contract. (PSMF II at 52-55).
On January 26, 2011, Brown decided to suspend all FPA services, to seize all advance funds in the nVision Operating Account that had been deposited by Cardinal, and to initiate this litigation against Cardinal. (Id. at 57-58).
J. nVision’s accmal of excess funds in the nVision Operating Account in anticipation of the January Meetings
After PD Courier began operating in May 2009, nVision initially paid a number of Cardinal’s carriers’ invoices from the nVision Operating Account before Cardinal advanced funds pursuant to nVision’s requests for funding in the PD Weekly Reports and Freight Payment Requests. (Id. at 29). In September 2009, Cardinal began advancing excess funds into the nVision Operating Account in anticipation of the upcoming PD Weekly Report to ensure that nVision always had sufficient funds on hand to pay Cardinal’s carriers without delay when carrier delivery invoices and freight bills were received. (Id. at 21-22). Cardinal advanced funds only for nVision to use to pay Cardinal’s freight carriers. (Id.). Cardinal would not have advanced funds to nVision if it knew that “nVision did not intend to make carrier payments as represented in the funding requests.” (DSAMF II at 9).
In August 2010, as the billing dispute escalated, nVision considered terminating services to Cardinal and seizing any excess Cardinal funds in the nVision Operating Account to satisfy what it asserted were fees owed to it by Cardinal. (PSMF II at 34). On August 2, 2010, Brown sent an email to nVision’s Senior Vice President of Finance, Sanders, which stated:
I feel we have reached a point of possibly not accepting what [Cardinal] want[s] to offer which means we simply tell them we are going to stop processing and we are going to turn it over to our attorneys to collect our money? ... When we do this they will no longer fund us and we need to know the impact of that? Yes we know we will file suit and immediately hold all funds up to what they owe us?
(Id.; DSAMF II at 23-24).
In November 2010, Cardinal realized that it had advanced excess funds into the nVision Operating Account in an amount that totaled approximately $14 million, which was sufficient to pay carriers for four to five weeks of services. (DSAMF II at 17-18; PSMF II at 34).
In December 2010, Cardinal notified nVision that it possessed “significantly more cash on account than ... required to fund the carriers” and requested that nVision apply the excess funds to invoices before requesting additional funding for the nVision Operating Account, stating further that nVision should have funds sufficient only for “2-4 days of float for all business with the exception of PD [Courier] which should be approximately a week.” (DSAMF II at 19-20; PSMF II at 34, 39).
By the end of December 2010, the excess funds in the nVision Operating Account had been reduced to an amount that was sufficient to pay carriers for one to two weeks of services. (PSMF II at 34).
On January 3, 2011, Cardinal’s representative, Michael Berg, emailed nVision executives Brown, Sanders, Moe Galante (“Galante”), and Robert Lloyd (“Lloyd”) and stated: “As we look at cash management practices it doesn’t make sense to have more than a week of funding by business unit especially given the [LSA].” (DSAMF II at 20-21).
During January 2011, mindful that Brown’s plan to cease services envisioned in his August 2010 email to Sanders also involved seizing the excess advance funds from Cardinal in order to apply them to the disputed bills, nVision employees, particularly Sanders, sought to increase the amount in the nVision Operating Account. (PSMF II at 36-39). This was contrary to Cardinal’s direction that nVision maintain only a minimum amount of excess advance funds in the nVision Operating Account for the purpose of paying Cardinal’s carriers. (DSAMF II at 17-21; PSMF II at 34, 39).
In early January 2011, Sanders, the person at nVision in charge of making payments to Cardinal’s carriers, began updating Brown regarding how much excess advance funding was in the nVision Operating Account. (DSAMF II at 32-33; PSMF II at 35). To protect the excess funds in the nVision Operating Account, Sanders proposed making payments to Cardinal’s carriers during January 2011 that were less than the amounts requested in the PD Weekly Reports. (DSAMF II at 32-33; PSMF II at 35-36). Brown approved Sanders’ proposal, allowing nVision to enlarge the excess funds in the nVision Operating Account. (DSAMF II at 32-33; PSMF II at 35-36). nVision also began delaying payments to Cardinal’s carriers, which also resulted in excess funds accumulating in the nVision Operating Account. (PSMF II at 37).
On January 6, 2011, while nVision had more than $12.5 million of Cardinal funds on hand in the nVision Operating Account, Sanders proposed to Brown that nVision pay only $1.9 million in Cardinal carrier payments that week. (DSAMF II at 33-34). On January 10, 2011, while nVision had more than $9.3 million on hand in the nVision Operating Account, Sanders proposed that no payments be made to carriers. (Id. at 34-35). On January 12, 2011, while nVision had more than $11 million on hand in the nVision Operating Account, Sanders proposed making payments to carriers of only $772,000 to ensure there was an end of week balance in the nVision Operating Account of $15.9 million. (Id. at 35-36).
These accounting actions by nVision resulted in a significant increase in the amount of excess advanced funds in the nVision Operating Account prior to the January Meetings. (PSMF II at 35-36).
K. nVision’s conduct and statements to Cardinal leading wp to the January Meetings and nVision’s termination of services
On January 8, 2011, Galante, nVision’s Vice President of Global Facilities, proposed that nVision cease providing any services to Cardinal and to apply the excess advanced funds in the nVision Operating Account to what nVision asserted were the “corrected” unpaid bills. (Id. at 36; DSAMF II at 25-26). On January 9, 2011, Galante also proposed to Sanders that nVision use inclement weather as an excuse for delaying payments to Cardinal’s carriers. (DSAMF II at 28-29).
On January 10, 2011, Cardinal contacted an nVision employee, Jackie Moulder (“Moulder”), and asked nVision to explain why payments to its carriers were nearly forty (40) days late. (Id. at 27). Moulder set up a conference call to discuss why payments to Cardinal’s carriers were delayed. (Id. at 27-28). When Brown learned that Moulder had set up the conference call, Brown removed her from any participation in responding to the Cardinal delayed payment inquiry, and Brown, with Sanders, developed nVision’s response to Cardinal. (Id.; PSMF II at 37). Brown and Sanders together considered whether nVision could “come up with a good reason for payments being late[.]” (DSAMF II at 27-28; PSMF II at 37). They agreed to use inclement weather as the excuse for delayed payments to carriers, and this excuse was communicated to Cardinal. (DSAMF II at 27-28; PSMF II at 37).
On January 13, 2011, Brown realized that in light of increasing tension with Cardinal, nVision’s “decision to stop everything [would] have to be made.” (DSAMF II at 26-27; PSMF II at 36). That same day, Brown and Sanders decided to stop sending payments to Cardinal’s carriers— even though there were excess funds in the nVision Operating Account — until additional funding from Cardinal was deposited in response to Freight Payment Requests. (DSAMF II at 29-30; PSMF II at 37). They decided to blame these delays in payments to carriers on inclement weather. (Id.). Sanders emailed Brown and let him know that she told Cardinal that inclement weather was the reason for late payments. (DSAMF II at 29-30; PSMF II at 37-38).
On January 13, 2011, Galante told Brown that nVision should avoid doing anything in the course of negotiations with Cardinal over the billing dispute that might result in Cardinal electing to cease depositing additional funds into the nVision Operating Account to pay carriers. (DSAMF II at 36-37; PSMF II at 36-37).
Also on January 13, 2011, Sanders informed Brown of her plan to induce Cardinal to transmit additional excess advance funds into the nVision Operating Account by under-representing the amount of funds nVision had on hand to pay Cardinal’s carriers and to misrepresent when funds to pay carriers would run out. (DSAMF II at 30-31; PSMF II at 38, 71). Pursuant to the plan, Sanders misrepresented to Cardinal that nVision was in danger of running out of money to pay Cardinal’s carriers. (DSAMF II at 30-31; PSMF II at 38). Sanders reported to Brown that she had made this representation to Cardinal. (M).
L. Cardinal’s advancement of funds under the LSA during the January Meetings and nVision’s termination of services
nVision continued to pay Cardinal’s carriers during the January Meetings with funds that Cardinal deposited into the nVision Operating Account, but also undertook to increase the excess in the account. (PSMF I at 66; PSOF ¶¶ 22, 27, 107, 117; PSOFIO ¶ 51).
On January 19, 2011, nVision requested Cardinal to deposit $273,511.73 into the nVision Operating Account to pay Cardinal’s carriers. (DSAMF II at 41-42; PSMF II at 72).
On January 20, 2011, it requested Cardinal to deposit an additional $234,761.73 and on January 21, 2011, it requested an additional $2,146,288.26 be deposited. (Id.).
On January 24, 2011, Cardinal, in response to nVision’s funding requests, advanced $727,798.81 into the nVision Operating Account for nVision to make payments to its carriers. (PSMF II at 72-73).
Also on January 24, 2011, nVision forwarded a payment due report to Cardinal indicating the amounts owed to Cardinal’s carriers and requesting Cardinal deposit $2,831,295.00 in the nVision Operating Account to pay the outstanding invoices. (DSAMF II at 41-42; PSOF ¶ 167). The next day, on January 25, 2011, nVision made a further deposit request in the amount of $773,041.36 (“January 25th Payment Due Report”). (DSAMF II at 41-42; PSMF II at 73-74; PSOF ¶¶ 159-160, 167; DASOF at 5-6).
On January 25, 2011, Cardinal, in response to nVision’s funding requests of January 19th through 24th, advanced $5,248,181.74 into the nVision Operating Account for nVision to make payments to its carriers. (PSMF II at 73).
Although nVision received $5,975,980.55 in its Operating Account for the purposes of paying Cardinal’s carriers between January 24th and January 25th, nVision only paid out $3,444,568 during the same time period. (Id. at 72-75).
On January 26, 2011, in response to the January 25th Payment Due Report, Cardinal deposited an additional $772,869.23 into the nVision Operating Account to pay Cardinal’s carriers for transportation services. (Id.; PSOF ¶¶ 161, 167; DASOF at 3-6; Aff. of Charlotte A. Sanders ¶¶ 21-22).
Late in the day on January 26, 2011, after the $772,869.23 was deposited into the nVision Operating Account, and after business hours, nVision suspended its services to Cardinal pursuant to Section 5.1 of the LSA, including by denying Cardinal access to nVision’s software and by terminating Cardinal’s access to its own transactional data, based on Cardinal’s alleged non-payment of service fees for a period in excess of sixty (60) days. (DSAMF II at 38-39; DSAMF I at 29-31; DSMF I at 58-59; PSOF ¶¶ 152, 172; DSOF at 42-43; DASOF at 10-11; PSOFIO ¶ 52). When nVision suspended its services on January 26, 2011, nVision held $18,531,290.95 in undisbursed carrier funds in its Operating Account. (DSAMF II at 39-41; DSAMF I at 31-32; DSMF I at 59; DSOF at 43-44). These funds had been advanced by Cardinal to pay carriers to satisfy Cardinal’s obligations on outstanding invoices. (Id.).
On January 27, 2011, the day after nVision ceased providing services to Cardinal, nVision filed this action in the Fulton County Superior Court. (PSMF II at 62; PSMF I at 67; PSAMF I at 30; DSOF at 43).
M. Cardinal’s post-termination actions
On January 28, 2011, the day after it was sued, Cardinal sent to nVision, pursuant to Section 8.2 of the LSA, its notice of a material breach of the LSA. (DSAMF I at 38-39; PSOF ¶ 179; DSOF at 54). Cardinal demanded access to its transactional data and confidential information held by nVision, which was necessary to determine how much it owed each of its carriers. (PSMF II at 65-66; DSAMF I at 36-39; PSOF ¶¶ 182-183; DSOF at 55-56; DASOF at ll). Cardinal also demanded that nVision return all funds that had been advanced to it for payment to Cardinal’s carriers. (DSAMF I at 39-40). nVision refused to return the advanced payment amounts.
Cardinal thereafter determined, based on its records, what it owed its carriers and paid those amounts from its own funds, even though nVision possessed funds that Cardinal previously had provided for these same payments. (Id. at 32-35; DSAMF II at 89-41; PSMF II at 65-66; PSOF ¶¶ 177,183).
After nVision ceased providing services to Cardinal, Cardinal performed its own FPA services using its own software and a FPA software program it acquired by merger with another company in July 2010. (PSMF II at 66-67; DSMF I at 61-64).
N. Procedural background
On January 10, 2012, the Court issued its Order (the “January 10th Order”) on the parties’ first set of substantive motions, which included nVision’s Motion for Judgment on the Pleadings [18], Cardinal’s Motion for Partial Summary Judgment [42], nVision’s Motion for Partial Summary Judgment [49], Cardinal’s Rule 56(d) Motion to Deny or Defer Ruling on Plaintiffs Motion for Partial Summary Judgment Pending Further Discovery [65], and Cardinal’s Motion for Leave to File Declaration of Michael Berg Adding the Omitted Exhibits [81]. (Order of Jan. 10, 2012, at 1, 7).
In its January 10th Order, the Court: (1) denied nVision’s Motion for Judgment on the Pleadings [18] on Cardinal’s claims for breach of contract, conversion, fraud, constructive trust, bailment, unjust enrichment, equitable reformation, punitive damages, and litigation expenses; (2) granted, in part, Cardinal’s Motion for Partial Summary Judgment [42]; (3) deferred awarding damages for Cardinal based on the breach of contract by nVision pending a factual determination of damages at trial; (4) denied nVision’s Motion for Partial Summary Judgment [49] on Cardinal’s claims for fraud, constructive trust, conversion, and equitable estoppel; (5) permitted nVision to renew its motion for summary judgment on the fraud and estoppel claims by filing a motion for summary judgment on or before February 6, 2012; (6) granted Cardinal’s Rule 56(d) Motion to Deny or Defer Ruling on Plaintiffs Motion for Partial Summary Judgment [65] on its fraud and estoppel claims; and, (7) granted Cardinal’s Motion for Leave to File Declaration of Michael Berg Adding the Omitted Exhibits [81].
The January 10th Order did not decide the parties’ Motions for Partial Summary Judgment [143,148] and Cardinal’s Motion for Relief under Rule 56(h) [192] that are presently before the Court. On February 6, 2012, nVision filed its Renewed Motion for Summary Judgment on Cardinal’s Counterclaims of Fraud and Estoppel [206]. The Court now turns to the parties’ second set of substantive and procedural motions.
II. DISCUSSION
A. Cardinal’s Motion for Relief under Rule 56(h) [192]
On December 6, 2011, in documents provided to Cardinal by nVision, Cardinal discovered emails sent from Brown to Pimpo and from Brown to Brown’s assistant, Shaeffer, after Pimpo raised questions in March 2008 about the pricing for funded self-invoice courier transactions and whether the Pricing Schedule could be amended to reflect a three-day float rate. In these emails, Brown told Pimpo that he would consider amending the Pricing Schedule, and Brown then forwarded Pimpo’s email about the pricing for funded self-invoice courier transactions to Shaeffer, stating: “We need to discuss this and provide a corrected document to them and an amendment to address the funding.”
Around December 6, 2011, Cardinal also learned from documents provided by nVision that Shaeffer modified the spreadsheet containing the Pricing Schedule after receiving Brown’s email and saved it with the title “Appendix A — Cardinal Health pricing matrix FINAL 03.14.08.xls.” Cardinal also discovered documents that confirmed nVision priced its funded self-courier transaction fees for Cardinal at the rate of $.02 through September 2010 and that nVision represented to potential clients that it charged Cardinal a rate of $.02 for funded self-invoice courier transactions.
On December 7, 2011, Cardinal’s counsel provided these emails and documents to nVision’s counsel, and requested that nVision reassess its position with regard to Cardinal’s mutual mistake and equitable reformation claims.
On December 8, 2011, nVision filed a second affidavit from Brown (the “Second Brown Affidavit”) in support of nVision’s Second Motion for Partial Summary Judgment [148] that: (i) attempts to explain the context of the emails provided by Cardinal’s counsel to nVision’s counsel; (ii) denies Pimpo’s statement that he had a conversation with Brown in which Brown admitted the price for funded self-invoice courier transactions should have been $.02; and, (iii) asserts that there was no error in the $.20 fee for funded self-invoice courier transactions on the Pricing Schedule.
On December 27, 2011, after the parties had filed and fully briefed their two motions for partial summary judgment [143, 148], Cardinal filed its Motion for Relief Under Rule 56(h) of the Federal Rules of Civil Procedure [192] seeking an order: (1) striking the affidavits of Luther Brown [165, 184] that were filed in support of nVision’s Second Motion for Partial Summary Judgment; and, (2) requiring nVision to pay Cardinal’s reasonable costs and attorney’s fees incurred in litigating its claim for equitable reformation and defense of mutual mistake.
Rule 56 of the Federal Rules of Civil Procedure, which governs motions for summary judgment, states that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Affidavits must also contain supporting facts demonstrating a basis for the affiant’s claim that his statements are the product of his personal knowledge.” Williams v. Great-West Healthcare, Civil Action No. 1:05-CV-2675-RWS-GGB, 2007 WL 4564176, at *5 (N.D.Ga. Jun. 8, 2007).
In Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., the Eleventh Circuit discussed the sham affidavit rule and held that a district court on a motion for summary judgment may properly disregard an affidavit which is a sham. 736 F.2d 656, 657 (11th Cir.1984). “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. The Eleventh Circuit found that the plaintiffs affidavit in Junkins was a sham because it conflicted directly with the answers plaintiff gave in a prior deposition. Id. at 659. The Junkins court held that the sham affidavit submitted by the plaintiff did not create a genuine issue of material fact which required resolution by a jury. Id.
To strike an affidavit as a sham, a court must find “some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987). “Thus, a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by filing an affidavit contradicting earlier deposition testimony.” Johnson v. Louisville Ladder, Civil Action No. 07-764-KD-M, 2008 WL 5122261, at *5 (S.D.Ala. Nov. 14, 2008) (citing Tippens v. Celotex Corp., 805 F.2d 949, 954-55 (11th Cir.1986)). “Such affidavits may be considered when the affidavit contains a satisfactory explanation of the contradictions between the affidavit and the affiant’s earlier deposition testimony, or when newly discovered evidence furnishes a good faith basis for any inconsistency between the two.” Id. (citing Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir.1985)).
Furthermore, “an affidavit may only be disregarded as a sham ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact.’ ” Bryant v. U.S. Steel Corp., 428 Fed.Appx. 895, 896-97 (11th Cir.2011); see also Rodriguez v. Jones Boat Yard,, Inc., 435 Fed.Appx. 885, 887 (11th Cir.2011) (quoting Tippens, 805 F.2d at 954) (“[A]n affidavit may be stricken as a sham when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”) (internal quotation omitted). “[A] court must be careful to distinguish ‘between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.’ ” Faulk v. Volunteers of Am., 444 Fed.Appx. 316, 318 (11th Cir.2011).
[E]very discrepancy contained in an affidavit does, not justify a district court’s refusal to give credence to such evidence. In light of the jury’s role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an early deposition.
Tippens, 805 F.2d at 954.
Rule 56(h) of the Federal Rules of Civil Procedure also states that:
If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
Fed.R.Civ.P. 56(h). Rule 56(h) generally permits a party to seek sanctions against an offending party or attorney and reimbursement for its reasonable expenses, to include attorney’s fees, when an affidavit has been submitted in bad faith or solely for delay, as well as when moving to strike a sham affidavit. See Fed.R.Civ.P. 56(h); United States v. Nguyen, 655 F.Supp.2d 1203, 1208-09 (S.D.Ala.2009); see also Modica v. United States, 518 F.2d 374, 377 n. 2 (5th Cir.1975); Barber v. Hallmark Cards, Inc., No. 93-4087-SAC, 1994 WL 568872, at *5-*6 (D.Kan. Sept. 14, 1994); Acrotube, Inc. v. J.K Fin. Grp., Inc., 653 F.Supp. 470, 478 (N.D.Ga.1987). Where a court finds a party acted in bad faith or solely for the purposes of delay in submitting an affidavit on summary judgment, it may exercise its discretion to award attorney’s fees or a sanction that includes striking an affidavit or holding a party in contempt. See Fed.R.Civ.P. 11, 56(h); Cobell v. Norton, 214 F.R.D. 13, 21-22 (D.D.C. 2003).
Here, the Court finds that Brown’s Second and Third Affidavits are not required to be stricken pursuant to Rule 56(h) or the sham affidavit rule. Brown’s testimony at his deposition and in his Second and Third Brown Affidavits, while it may not be found credible, and while seemingly in conflict with the record evidence, are facially consistent with each other and seek to explain newly-discovered evidence. See, e.g., Tippens, 805 F.2d at 954; Johnson, 2008 WL 5122261, at *5.
There is also no clear evidence of bad faith or that the most recent affidavits have been submitted solely for delay by nVision. Fed.R.Civ.P. 56(h). The affidavits reflect the opinions of Brown and provide context to the newly-discovered nVision emails that Cardinal believes support its mutual mistake theory. These affidavits are not “flatly at odds with facts indisputably within [Brown’s] knowledge” and nVision has not failed “to satisfy the standard of candor applicable to parties appearing before this Court” such that sanctions are appropriate. See Acrotube, Inc., 653 F.Supp. at 478; see also Warshay v. Guinness PLC, 750 F.Supp. 628, 639-40 (S.D.N.Y.1990).
As nVision’s CEO and lead negotiator of the LSA, what Brown perceived as the correct price for funded self-courier transactions and his perceptions regarding how he later communicated with persons on that topic are relevant to the claims at issue in this litigation. His affidavits were filed in support of these issues, support nVision’s contention that there was no mutual mistake in the formation of the LSA, and rebut the manner in which Cardinal construes the email communications involving Brown by providing context to that correspondence. While the Court finds that the timing and content of these affidavits raises serious issues regarding the credibility and veracity of Brown’s recollections and testimony, particularly in light of the record evidence when taken as a whole, the Court does not find there is currently enough information available to conclude that the affidavits were filed in bad faith, solely for the purposes of delay, or that the affidavits are contradictory to Brown’s prior deposition testimony such that they are a sham, even if they are troubling. Cardinal’s Motion for Relief Under Rule 56(h) of the Federal Rules of Civil Procedure is required to be denied.
B. Motions for Partial Summary Judgment
1. Summary judgment standard
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Parties “asserting that a fact cannot be or is genuinely disputed must support that assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Non-moving parties “need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). “[Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury....” Graham, 193 F.3d at 1282. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
2. Cardinal’s (Second) Motion for Partial Summary Judgment [113]
In its second partial summary judgment motion, Cardinal seeks summary judgment: (1) on nVision’s claim for fee amounts based on “transactions” for Cardinal’s PD Courier unit at the LSA’s “order level” rather than the “stop level” or freight bill level; (2) on nVision’s claim for fee amounts based on “flat file data feeds” and “multiple line item data fields” because they are not provided for in the LSA and Cardinal did not expressly or impliedly agree to pay them; (3) on Cardinal’s claim for equitable reformation of the LSA’s Pricing Schedule to reform the schedule to reflect the parties’ “true intent” to fund self-invoice courier transactions at $.02 rather than $.20 or, alternatively, summary judgment that Cardinal’s mutual mistake defense precludes nVision from recovering on its claims for fees calculated at the $.20 per funded self-invoice courier transaction rate; and, (4) on nVision’s claim that Cardinal improperly used nVision’s trade secrets,
a. Summary judgment that the number of self-invoice courier transactions must be calculated at the stop level, not the order level
The parties do not dispute that under the PD Cornier system, individual orders from Cardinal’s customers were grouped and assigned for shipment together for a specific delivery stop, thus minimizing the number of deliveries carriers charged to Cardinal. That is, if a customer had multiple orders to be delivered, those orders would be aggregated and picked up by a carrier for delivery to a Cardinal customer. nVision was responsible for this consolidation or order process for minimizing deliveries and thus reducing charges by carriers. After a shipper picked up and delivered these consolidated orders, the carriers generated freight bills and invoices for the deliveries made by the carriers. nVision notified Cardinal how much was owed to its carriers for the deliveries made as reflected on the delivery freight bills and invoices carriers presented. In doing so, nVision requested Cardinal to deliver to nVision a payment equal to carrier freight bill and invoice amounts, which nVision deposited into the nVision Operating Account. These Cardinal funds were used by nVision to pay the carrier freight bills and invoices presented.
The central issue of contract interpretation before the Court is whether self-invoice transactions must be calculated at the “stop level,” as Cardinal claims, or the “order level,” as nVision claims.
“The construction of a contract is a question of law for the court.” O.C.G.A. § 13-2-1; see also Brookside Cmtys., LLC v. Lake Dow North Corp., 268 Ga.App. 785, 603 S.E.2d 31, 32 (2004) (“Contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.”). “The hallmark of contract construction is to ascertain the intention of the parties.... [WJhen the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.” Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 707 S.E.2d 885, 888 (2011).
Section 1 of the LSA provides:
Services. Subject to the terms and conditions of this Agreement and according to the prices as set forth in Appendix A, nVision shall perform the services described in this Section 1 (collectively, the “Services”) for [Cardinal].
(LSA § 1).
Section 1 contains five subsections, the first four of which (Sections 1.1-.4) state the services nVision was required to perform and the last of which (Section 1.5) describes the process for Cardinal to provide to nVision funds to pay carrier freight bills and invoices. Sections 1.1 through 1.4 set out what services nVision must perform with respect to self-invoice courier transactions and for which nVision is entitled to compensation. These sections of the LSA, especially Section 1.1, show that the services required are based on nVision’s requirement to aggregate orders at a stop for single shipment by carriers and for which aggregated shipment a freight bill or invoice is produced that is advance funded by Cardinal for later payment by nVision with these Cardinal advanced funds. The language of Section 1.1 shows that the entirety of the commercial relationship between nVision and Cardinal was based on transactions based on shipments consolidated at stops and was not based on per order processing.
Section 1.1 provides:
nVision will perform a post-audit of all documents for expenses such as Freight Bills, Invoices, Excel Files or other Data Files, Request for Payment, Demand for Payment, etc. associated with services provided or claimed to have been provided relating to transportation, warehousing, logistics, supply chain, etc. for all sales orders, purchase orders, bills of laidings, transactions for inter-company and/or customer or vendor orders or transfers, etc. for all modes and for both international and domestic services. Such documents may include but are not limited to freight bills, invoices, Excel files or other data files, request for payment, demand for payment, etc. containing information covering transportation, warehousing, logistics and / or supply chain expenses----
(LSA § 1.1) (emphasis added).
The