good morning ladies and gentlemen we're pleased to have judge pepper sitting with us this morning from wisconsin and the first case this morning is toll processing court level a grant of summary judgment in favor of defendant cast aligned and denying summary judgment in favor of plaintiff helen told processing your honour's this is a very simple case with simple undisputed facts a straightforward summary judgment argument that ultimately was convoluted with legal errors and also improper determinations of reasonableness and other questions of fact at the summary judgment stage of the proceedings by way of brief background in december of two thousand and six told processing purchased a steel pickle line i pick a line includes a number of polyurethane coated steel rolls which are the property that is the subject of this dispute in this case pickling is a surface is a surface treatment for steel and the steel making process a band of steel runs through the pickle line it goes through acid baths which remove any surface  urities and contaminants on the steel once it goes through the line it's then recoiled and sold to the customer from the description of the steel pickling process it's easy to understand that the steel pickle wind roles are an integral component of the pickle line it cannot operate without these rolls now when told processing purchased the pickle line it did not have a facility to reinstall and start operating the pickle line immediately so it dismantled the pickle line and put the line into separate storage locations at this point asked alon who had previously been a service provider to ryerson steel who owned the pickle line prior to told processing had agreed with toll processing that it would take the rolls and store the rolls at its facilities and till such time that toll processing could reinstall the pickle line and and issue a purchase order and the refurbishment work on the  castile want there is no dispute that castle and i agreed to take the rolls into it's the syllabi that ultimately transported the rolls to its facility ending and in march two thousand and eight they were all transported that castle and stored the rolls at its facility for approximately two years without incident or complaint after two years of storage inside the facility castle and ultimately decided that it was going to move the rolls out outdoors it first greased the metal components of the rolls to prevent wrap the rolls and thence also tarp the rolls when they were stored outside to prevent them from exposure to the elements shortly after storage outdoors in december two thousand and ten cast on alternately decided unilaterally without any notice or contact with toll processing that it was going to dispose of all of these rolls to a scrap metal dealer node three times a district judge refused the word groomed and this is seems to determination based on its cited three cases that were oil and gas lease cases it cited those cases to determine that abandonment could be decided by a court at the summary judgment stage that it could be decided based on a matter of law however that the three cases that the court relied on are factually and legally distinguishable because the holding was narrow it was limited only t the holding did not say that property generally is abandoned if it's left for an unreasonable period of time the case is specifically held in an oil and gas lease can be abandoned if there is a cessation of least that those cases actually found that abandonment even in a gas context is a question of fact i think you're right on point there your honor i would argue that it that it's both that the oil and gas leases are they are their own sort of legal animal there's jurisprudence that specific to the application interpretation of oil and gas leases so they don't relate to this case but also your honor you're very correct that the court in all three of the cases cited by the district court ultimately determined the abandonment issue after a trial on the merits and in fact did hold that it's generally a question of fact so this is good personal property i mean actually going to go in look and it i'm not exactly i'm not exactly sure how i mean these were their large roles they're they're probably gosh i think they're i want to say they're like six feet long so they're stuck they're certainly very large and there was  believe fifty seven rolls that were ultimately transported to castle so that they think they did take they certainly took up space and castle and representatives testified that that's why they ultimately move them outside was to create space inside their facility  but yes with those those oil and gas lease cases it's very different there's no comparison when you're talking about abandoning and a lease for property for the production of oil and gas that that cannot be compared to personal property and so that the district court made made her determination based on these these cases that are in applicable to the instant case where the court in those cases ultimately found it was a question of fa and that's that's what certainly told processing argued that at the district court level that there abandonment is not presumed under the law obviously there has to be an intent to abandon and as abandonment is castle on its defense it would be cast one's burden to prove that there was intent to abandon and what toll processing had argued before the district court excuse me was that there were several facts that negated an intent to  some of those facts were actually brought into the record by cast a lot on those facts would include i apologize excuse me those facts would include that from the time that the rolls were transported to castle on for storage up through september of two thousand and thirteen when the parties were engaging in depositions in this case told processing was engaged in ongoing negotiations for a joint venture to reinstall and operate the pickle line howard passed a lot of non that i'm sorry power cast alone have known well that they wouldn't your honor but the the intent to abandon has to come from toll processing and it has to be clear and these facts show that there was no intent to abandon the toll processing certainly didn't convey any sort of intent to abandon and didn't have the intent to relinquish prop possession and property ownership of these rolls if they had they certainly would have continued to negotiate to sell or re operate pickle but that the record indicates that there were acts with two toll processing former employees and those employees president of castle and testified that he called holiday and carlos munson and you're correct that they were former employees of toll processing the records actually disputed as to whether or not he he called them at all  certainly testified that she doesn't recall speaking with him prior to the disposal of the rolls but only after the disposal the rolls however the testimony of mr demand shows that he didn't he didn't ask about the rolls he didn't ask who he should contact at told processing about the rolls he didn't indicate to anybody that he intended on scrapping the rolls so there was no question regarding the rolls and the fact of the matter is that these two employees didn't work for top processing anymore and they indicated that on the phone he already had contact with gus shan who was a toll processing employee who managed the pickle life project he had spoken to him on the phone in october two thousand eight they had exchanged emails he had his contact information he knew that he was a toll processing employee but not no phone call no email to gosh him to ask what's going on with these rolls or to indicate that they thank you i apologize  that the district court also with respect to both conversion and the negligence claim also ruled that alternatively that the mormon doctrine would bar those claims now the case law again that the district court relied on does not support the application of the mormon doctrine to an intentional tort such as conversion the district court's opinion actually recognizes that there is a  mormon doctrine to conversion and the district court only cited two federal cases now the mormon doctrine is a creature of state law and until processing was unable to locate any illinois state cases where the court applied the mormon doctrine to the intentional tort of conversion and in fact there are cases that are cited and told process things briefs where courts in the seventh circuit the northern district of illinois as well as state court held that the mormon doctrine does not apply to intentional torts therefore the district court's ruling that the mormon doctrine barred the conversion claim is it's just not  and also it's not supported by the type of claim we have here and the damages that told process is this whole processing is seeking so the mormon doctrine arose in the product liability construction defect context and it really applies whenever a party is trying to recover for a claim and damages that arise solely out of a duty because of a contract now here we're talking about an extra contractual duty there is a duty a common law duty  not to wrongfully convert property personal property belonging to another and that's the whole point of the tort of conversion and if the mormon doctrine were apply to bar the conversion claim in this case it's essential orating conversion outside of a civil theft context almost and so the mormon doctrine really has no application to the facts of this case because we're talking about this separate independent act conversion which is a classic tort situation with respect to the negligence claim the district court again and also made an improper reasonable in this determination th essentially said in its opinion that the negligence claim was barred for the same reasons that the conversion claim was barred and the district court went on to conclude that castle and acted reasonably concluding that these roles were abandoned and ultimately selling them to a third party now reason illness or unreasonable ness is a question of fact it is a classic jury question and a negligence case only in the clearest of circumstances can a reasonable miss question be answered by a judge at the summary judgment stage only when reasonable minds could not differ and in this case that we don't have here we have somebody who took personal property belonging to another agreed to hold it agreed to store it and save keep it these facts are undisputed and then all to mentally sold that property to a third party without a simple phone call or an e mail winds could absolutely differ on whether or not castle and conduct in this case was reasonable and therefore it's a question of fact that the judge should not have answered the judge essentially weighed the evidence and made a determination that should have been made by the jury is there anything in the record that would indicate that they scrutinize these things before so in the script because i understand they were in various stages of det did somebody just want to get rid of no your honor there's actually that that testimony was elicited during depositions in this case and representatives from castle line testified that they did not assess the value of the rol they deny inspect the rolls actually when they came into the facility and they did not inspect the rolls when they left the facility so there was no there was no determination of the value of the rolls or any sort of inspection the only testimony was that while they were in storage at castle on facility they did not deteriorate or their condition didn't change based on the storage indoors and then when they were moved out outdoors there was that the greasing of the metal on the wrapping in the tarping to protect them don't know if there was any specific testimony or evidence for guarding the exact amount i know that there was there was testimony that it did that it did take time and effort and costs were cast a lot to do that certainly to processing was not aware that they automatically move the rolls out doors and certainly didn't ask them to do that so i would argue that those costs are incurred voluntarily by counsel i will leave this is where the youths in sort of the questions  wondering when they meticulously rip them and put them outside the norm for speech and said that probably makes sense that somebody most of determine that they were were saved right your honor and that would be another point where we would argue that there it's sort of cuts against the abandonment argument because these the roles removed and greased and wrapped and protected towards the tail end of when they were being stored by cast a line and so certainly if  cast line had obtained any sort of acknowledgement or intent from toll processing that they didn't want the roles anymore they were relinquishing possession why would cast the lot and why would they protect these roles i mean at that point they would have just sold them to a scrap metal dealer like they did ultimately in december two thousand and ten all of these facts cut against intent to abandon and again it's castle on suburban to prove intent to abandon it cannot be went back down to the to the district court level we would ultimately seek damages and the replacement cost value there is it's certainly not be it's not the general damages that somebody would recover in a conversion claim however there's case law to support the recovery of replacement cost as an alternative measure of damages whenever the fair market value is hard to assess or the goods are unique and in this case there there is testimony in the record that pickle i roll certainly are unique and there really is no used market for pickle line rolls because they are essentially fabricated excuse me fabricated for a pitch particular pickle and facility so these rolls were created in fashion for this best particular pickle line and it would just be virtually impossible to get the number of rolls that you need for a pickle line on some sort of used market and you'd alternately have to retrofit them to work with this particular pickle line so the only alternative to put talk processing back in the position that it was in prior to the conversion prior to the negligent conduct of ca the recovery of replacement costs counsel can you reach the contract question for just a moment in your brief you are going to the district court erred also in finding that there was no contract  and i'm just wondering if this whole discussion doesn't demonstrate that there was no contract because the certainly the event that would terminate the storage provision was tol but there's no explanation as far as i understand the contract didn't envision a situation in which there would be no purchase order and so if there's an event that may or may not occur and the contract doesn't contemplate what happens if that event doesn't occur or when that event is supposed to occur how is that then a contract well you're on or whenever whenever a thought at the time of contract ing there is no dispute that the parties agreed to the duration of the contract being tied to this future at that so so i would argue that that term the duration term is not indefinite and there was a meeting of the mind on that because both sides agreed to that arguably yes it certainly took longer than anticipated or ultimately expected and i know that there is testimony from castle and representative that their subjective understanding or meaning was that it was going to be for a short period of time but again that that and that sort of what that the district court honed in on was was mr demands testimony that he thought it was going to be a short period of time and again i would argue that that gets really into a question of fact regarding the subject of meaning of a term that doesn't necessarily negate the formation of a contract because there was a meeting in the minds of the term and as far as if if the event never occur storing these anymore we have no obligation to take them out of our facility and stead of doing that instead of following the agreement they automatically just disposed of the rolls unilaterally without making a phone call or sending an e mail good morning honors it please the court my name is richard noble and i appear on behalf of the defendant appellee castro and think alike to begin by highlighting certain facts they had to show beyond dispute that these roles were abandoned and that there a decade now told processing he has no employer or revenues it is a single purpose entity that was formed by as a science parent soley for the purpose of acquiring this pickle line and finding a partner to operate this pickle and because it requires a massive warehouse type of facility yes it is involved yes it washes so it requires quite a facility to run this massive twenty seven year old machine so told processing does not have any employees and he revenues and as a matter of fact fired all this employees a month after castro and took possession of these roles in april  council spoke of is not an employee of toll processing he is a consultant retained by society so there was no person in two thousand and ten or the only person was discussed shemp who with whom mr domenici had conversations and in one conversation in two thousand and eight and didn't retain his e mail thought that told processing the gone out of business the persons with whom mr de ment dealt with carlos mans on impala dent there were ryerson employees they had a business relationship with cast line for seventeen years to refurbish these roles so so cast one reason we thought that told processing was going to continue this ryerson model gratuitously took these roles for a very short period of time all the parties agree that the original contemplation was to store these roles for just a matter of weeks or months everybody agreed was only for a or i think that was the under that was the discussion between pollock dance and bruce demand back in the winter of two thousand and eight there was a time over the next two years today communicate and know so the last communication with so based on the x factor based on the fact that to cast on had no communications with toll processing from october of two thousand and eight until shown paul's cast line in june of eleven  deemed that top processing was out of business and that the roles were abandoned now how do you deem that a corporation is out of business because it was formed for the purpose of operating this pickle why are they still in business we don't know as of today we don't know it all process and it may be a it's a paper entity around or it could be a corporation but it's if he has no business if he has no it's just like the cases we talked about it never operated this pickle and it was form for operating this pickle line and the expectation was it was going to do so immediately in two thousand and eight i mean to be strange we're here in court with an energy that doesn't exist other than a phone call the paula dent there was was no such effort i don't believe there were any such employees of processing and that of that question though in the end it isn't this whole discussion the fact that we've been talking last five minutes or so about all of these details facts doesn't that indicate to you that this is a question of fact as to whether or not the rules were banned i think that the role of the abandonment is the passage of time there's no dispute they asked there was no contact between processing from october of two thousand and eight until june of two thousand and eleven so that the district court in the case law itself indicates that it's the passage of time they had to shows the bandon and communal tend to be end so for two and a half years there was no contact and the last communication that mr de meant he had with toll processing in october of two thousand it was to demand initiated he call discussion  email saying keep us posted let us know what's going on with us pickler and for processing totally ignores that request doesn't keep us quiet informed for the next two and a half years what it change your argument to cast a line had been calling once a month to talk processing and saying how are things going how much longer you want to keep the stock would that change your argument i believe toll processing had a duty to keep just on a price that's not the question would it change your argument if ca been reaching out to tell processing over time over this passage of time and saying what's going on you know do you do you want to keep all the known you're out of the answer was the same the answer was the same with on hold because the project was on hold in july of two thousand u s contractors ledge agreement was that somehow the purchase order was contingent upon toll processing finding a partner to spend eight to thirteen million dollars of cost eight to thirteen million dollars to get this machine operational that somehow cast one's obligations were working or be triggered until fall processing found this partner in this operation to get the the book lined up and running so from understanding that answer correctly your argument is to us that if there had been fairly consistent contact between the two companies over that two and a half or three year period of time it still would problem and that is that you talk about there's this two thousand and eight there's no context in this kind of thing but that's that's an i look at that as a major move and it was one that they incurred some expense in doing in moving them outside and wrapping certainly an assumption that there's going to be a future either to rehab them or do whatever the original thought was is a good to decide to get the rolls out of the factory he said gratuitously yes and  there would be some type of business relationship in the future yeah well or fifteen minutes or ten minutes about how this is not ambiguous don't you think i mean these questions with that we believe that the passage of time and the lack of communication is unambiguous and undisputed and that's what supports the abandonment well you indicate you don't know whether that actually exists as a corporation and there's no indication that you actually made a very detail search to try to find anybody that represents them just manufacture it out to t you moved to the materials outside and but try to keep in good condition that's certainly makes it somewhat ambiguous whether or not you intended to keep storing the caselo that the thirty two month period of time without any contact would would constitute a being would in the slaughter with actual personal property rather than lease there were no personal property cases that we could locate on the beyond a minute left and why do you suppose that is are you asking that the debt their current adopt a bright line rules that after a certain amount of time passes if there's been no communication even though one party could have institute communication it's therefore abandon them no you are there's no bright line it's the totality of circumstances reasonable of us and i think each case is unique based on the factors of the case and here we have a pickle and it's never become operational now talk processing has never refer to these roles so they're claiming replacement damages and that they these roles are essential but they have never read fabricated these roles they have estimates from two thousand and eleven of the cost here is where i get back to the movie that was in two thousand and ten yet we're talking about one year when you're between this very meticulous move you could be two of us or you can call it i think it's pretty careful w years we're talking about one year in space and time when they decided they were being in there was really no effort whatever at least to notify somebody before they scrapped them well i respectfully disagree sometime in mid i believe two thousand and ten and the hall to paula dent occurred approximately november of two thousand and ten and then there was no contact between told processing pickle line which has nat and maybe will never occur so the abrogation issue a purchase order was contingent on this reinstallation picket line and and that has never never happened so therefore their promise and processing is part was illusory there's no consideration no meeting of the minds even a consideration then to make the contract the consideration at the time was that they were going to perform the rehab that may not be balanced on the teeter totter but at least it's certainly consideration but there's been there's no consideration thought process since part ever tissue purchase order to processing and miss it never head an obligation to issue a purchase order unless the pickle i was reinstalled well of course that problem is that they didn't really have them because they didn't have a place to put them when they rehabbed them that but the when they made the contract at least for consideration that was the only reason they were going to store them is because they knew when to put that way were they were going to have what i would sit or probably a fairly extensive rehabilitation kind crema contractor in two thousand and sixteen there was in and purchase orders have have never been issued the process in this position is that just on how to store these roles indefinitely there was further no agreement on the purchase orders as far as price this court to affirm the ruling of the district court thank you thank you  dent articulated to it to michael dement comcast line that she was no longer employed by toll processing the burden was on castle lined to then speak to gas sham who cast lance council admits that mike dement spoke in two thousand and eight they exchanged emails clearly there was knowledge that there was another contact i told processing and as your honour's pointed out the fact of the matter is that there was no effort to locate anybody at top processing to toll processing which is still a company it has not been dissolved it is still an active entity to this day and to have an officer of corporate office officers it does it does it's man it it's the managing member of the company's international seal services inc which is the obviously parent of a corporation and so your honour's the basically the the claims that issue are straightforward elements have been established and this case was granted summary judgment in favor of cas a lot of them based on these affirmative defenses involving reasonableness determinations and questions of fact that should not have been made by the trial judge at the summary judgment stage and so tall processing would respectfully request that the court over roll the district court's decision and granting summary judgment taber castle on and remand this case back to the trial court for further proceedings thank you you the should be taken under advisement