Summary
The United States District Court for the District of Kansas considers cross-motions for summary judgment in a dispute concerning the delivery of electrical equipment for a Wisconsin construction project. The court holds that the parties formed a binding agreement incorporating Crescent Power’s Terms and Conditions and that the Texas choice-of-law provision governs. The court denies both motions, concluding that the contractual limitation on consequential damages applies only to force majeure events and does not resolve P&E’s breach-of-contract claim.
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Practice areas
Questions Presented
- Whether P&E's representative's email objectively manifested unconditional and unequivocal assent to Crescent Power's terms and conditions.
- Whether the Texas choice-of-law provision in the terms and conditions was enforceable under Kansas choice-of-law rules and the Due Process Clause.
- Whether the force-majeure provision's limitation on special or consequential damages applied outside a force-majeure event.
- Whether Crescent Power's March 6, 2026 email satisfied Texas's statutory presentment requirement for attorneys' fees despite being sent after litigation began.
- Whether P&E was entitled to summary judgment on Crescent Power's counterclaim for breach of the implied covenant of good faith and fair dealing.
Holdings
- P&E's representative's email stating that the terms and conditions were "good with us with the LD/Bonus taken out" objectively manifested unconditional and unequivocal assent, forming a binding agreement to the terms and conditions.
- The Texas choice-of-law provision is enforceable, and Texas substantive law governs the terms and conditions.
- The limitation stating that Crescent Power would not be liable for special or consequential damages was part of the force-majeure provision and applied only when a force-majeure event occurred; it did not bar P&E's consequential-damages claim in the absence of such an event.
- P&E was not entitled to summary judgment on Crescent Power's attorneys'-fees counterclaim because Texas law does not expressly impose a pre-litigation timing requirement for presentment, and Crescent Power's March 6, 2026 email gave P&E a 30-day opportunity to pay and avoid attorneys' fees.
- P&E was not entitled to summary judgment on Crescent Power's implied-covenant counterclaim because P&E's motion relied on Kansas law even though Texas law governed the terms and conditions, and the parties had not adequately briefed the claim under Texas law.
Key quotations
“Accordingly, Mr. Meares’s outward expression of assent—“these are good with us”—in his email was sufficient to form a binding agreement between the parties to the Terms and Conditions.” (-7)
“Accordingly, the Court will adhere to the general rule and enforce the parties’ Texas choice-of-law provision.” (-11)
“Accordingly, Section 14 only applies in force majeure events.” (-15)
“Accordingly, the Court will not read a pre-litigation timing requirement into Section 38.002 and denies P&E summary judgment on the attorneys’ fees counterclaim.” (-18)
Factual background
Crescent Power sent P&E a proposal to supply electrical-power equipment for P&E's Wisconsin renewable-gas-facility project, and P&E accepted the proposal. Crescent Power later emailed P&E terms and conditions adapted from an earlier Texas project, and P&E's representative responded, "These are good with us with the LD/Bonus taken out." The parties proceeded with performance, but P&E later alleged that Crescent Power delivered motor control centers and other equipment late, delaying the project and causing damages. Crescent Power asserted counterclaims based on unpaid invoices and P&E's alleged failure to cancel the contract under the terms and conditions.
Procedural history
P&E sued Crescent Power in Kansas state court on October 17, 2024, alleging that Crescent Power's late delivery of electrical equipment delayed a Wisconsin construction project and caused damages. The action was removed to the District of Kansas on November 11, 2024, and Crescent Power filed counterclaims alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and entitlement to attorneys' fees. The court declined to strike an affidavit, addressed the parties' threshold contract-formation and choice-of-law issues, and denied both summary judgment motions as written.