The Honor able C. Rog er Vinson, United States District J udg e for the Northe rn District of * Florida , sitti ng by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 09a0342n.06 Filed: May

15, 2009 No. 08-1010 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

RI CHARD GREENWOOD, P laintif f-App ellant,

v. KENNET H RAZNI CK, Defendan t-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E E AST ERN DI STRI CT OF MI CHI GAN O P I N I O N

Before: M OORE an d WHIT E, Circuit Judges; and VINS ON, District Judge. * C . R OGER

V I N SO N , D is t r ic t

J ud g e. Ric ha

rd Gr e e nw oo d f

ile d th is d ive rs ity

a c tio n a g a ins t Kenne th Razni ck, alleg ing br eac h of an e mploy ment contra ct. Upon cross motions, the district court denied summary

judgme nt for Gr eenw ood and g rante d summary judgme nt for Raznick. Gre enwood now appe als. Be cause there are g enuine issues of m ater ial fac t, we REVERSE the g rant of summar y judgme nt in favor of

Raznick and REMAND for proce eding s consistent with this opi nion. I. BACKG ROUND A. F actsNo. 08- 1010

G r eenw oo d v. R azni ck

Ra znic k d e nie s th a t he e nte re d into a c on tr a c t w ithGr e e nw oo d. He c la ims tha t he on ly 1 sig ne d th e do c ume nt be c a us e Gr e e nw oo d sai d he ne e de d to show his wi fe so me thi ngin wri tin g so that she would ac cept his dec ision to leave his job and pursue the web phone venture . Raznick thus claims that he ne ver intende d to be bound by the terms of the “purpor ted contra ct,” a

nd he maintains that G re e nw oo d k

ne w h e did

no t in te nd

to b e bo un d. According to R a znic k, that is why he wr ote “Initial Agr eed subje ct t o fi nal re visions” above the sig nature lines. Neve rtheless, for purposes of Ra znic k’ s mot ion , th e dis tr ic t c ourt wa s r e qu ir e d o n s umm ary jud g me nt ( and

we are re qu ir e d in

thi s appea l) to acc ept that the par ties intended to, and did, ente r into a binding employ ment contra ct. 2 The fa cts of this case are hotly disputed. Be cause this appeal involves the g rant of summar y judgme nt in favor of

Raznick, we must de tail the fac ts in the light most fa vorable to Gree nwood and draw all rea sonable infe renc es in his favor. I n or about Oc tober 2001, Raznick, an e ntrepre neur, be g an discussions with Gree nwood, a bank chief executive office r (“CEO” ), about a business venture specia liz ing in internet-ba sed we b phones, a te chnolog y in which Raznick w as investing mone y . Raznick assured Gr eenw ood that he (Raznick) had the m eans and willingne ss to fund the new ve nture. Conseque ntly , Gre enwood a g ree d to e nter into Raznick’s employ

. The parties orig inally had a ve rbal a g ree ment, but, at Gre enwood’ s insistence, Raznick ag ree d to put the contrac t in writing. The two men sig ned the a g ree ment below a st atement that rea d: “Initial Ag ree d subject t o final revisions.” The wr itten ag ree ment provided that Gre enwood would r ece ive an a nnual compensation of $420,000, which wa s the level of his pre vious salary as a ba nk CEO. 1 Over the next three y ear s, Gree nwood was pa id only a small por

tion of the salar y that was called f or under the contract. S pecif ically , he was paid $190,000 over those sever al y ear s, leaving a bala nce due of ove r $1,000,000. Gre enwood c laims that he continued to work f or Raznick (eve nNo. 08- 1010

G r eenw oo d v. R azni ck

3 tho ug h he wa s b e ingun de rp a id) be c a us e Ra znic k to ld h im that hi s a sse ts w e re te mpo ra ri ly ill iqu id

an d t h a th e w o u l d

p ay w h a tw a s o w e d

w h e nh e h a d

l i qu i d i t y. I n a dd iti on

to R a znic k’ s f

a ilure to p ay

Gr e e nwo od hi s full sa lary , Ra znic k a lso fa ile d to p ro p er l y fu n d t h e w eb p h o n e v en tu re . R az n i ckan d Gr ee n wo o d

i n i t i al l y p u rs u edt h e ve n tu re t h ro u gh

an e nti ty kn ow n a s c on neX cen te r, bu t th a t e nti ty fa ile d in 20 03 be c a

us e of fi na nc ia l pr ob le ms. Ra znic k a n d G r e e nw o o d

l a t e r f o r m e d c X c S e r v i c e s, I nc . T he c or

po ratio n’ s o rg anizatio na l do c ume nts

wer e filed a

nd that company name was used as a “d/b/a” beg inning in the springof 2003, but share s

wer e not issued in the cor

poration at that time. Gre enwood wa s president a nd CEO of cX c. In 2004, fa c e d w ithfi na

nc ia l pr ob le ms due to Ra znic k’ s fa ilure to fund the bu sin e ss, c Xc de c ide d to “ re ve rs e merg e” w ith a publicly -trade d corpor ation, BI CO, I nc. The idea wa s that the cXc board of direc tors (“the Boa rd”) , which included G ree nwood, would i ssue s hare s in cXc to various people associate d wi th t he c omp any , a

nd the sh are ho lde rs wo uld

the n imme diate ly

e xch ang e the ir

c Xc s h a r e s f or B I CO share s at the end of

the re verse merg er. J ohn Hanne sson was cX c’s attorney and corpor ate secr etar

y when the Boa

rd dec ided to issue the share s and re verse merg e with B I CO. He testified dur ing his de positio n t h at cX c could issue share s only

on terms that had be en appr oved by the B oard; that is, bef

ore the share s could be issued “[t] here neede d to be an appropr iate corporate action authoriz ing it.” Howeve r, he further e x plained that it was not nece ssary that the corporate action be reduc ed to writing and recorde d in order to be eff ective. A lthough he could not specifica lly rec all, he “be lieve[d] ” that at some point the B oard ha d authorized cXc to issue the s tock pursuant to a “subscription ag ree ment,” which is a document thatNo. 08- 1010

G r eenw oo d v. R azni ck

4 define d the terms under

which the share s would be issued. Diff ere nt subscription ag ree ments were

us e d to iss ue sh are s to thr e e c la sse s o f s ha re ho lde rs wh o we re a c qu ir ingthe sto c k o n d if fe re nt t e rm s. As pertinent he re, the ag ree ment desig nated f or mana g ement conta ined a broadly worde d rele ase of

any and a ll c la ims a g a ins t Ra znic k. I t st a te d in re le va nt p art that th e su

bs c ri be r: hereby knowingly and volu ntarily, fully release s, waives a

n d f o r e ver discharges the Company , including the Company ’s af filiated, subsi d i ar y , pare nt or related companie s and all of their respe ctive office rs, direc tors, mem b ers, mana g ers, sha reholde rs, ag ents and employ ees, inc luding, but not lim ited to Kenneth Razni ck, (collec tively

ref err ed to solely

as t h e “Relea sed Parties” ) from any and all claim s, actions, causes of action, dem ands, dam ages (p unit iv e , c o n s e q u en t

i a l o r o t h e rw i s e ) , j u d g men t s , e xe c utio ns, c os ts, expenses, attorney fe es and liabi l i t i es of every

kind an d natu re, whe the r a t la w or

in e qui ty , o c c urring

be fo re the da te of this Agre e ment with re s p ect to any aspec t of the Subscription or the Subscriber’ s ownership of stoc k in the Company , or its affiliated succe ssor, subsidiary , pare nt or related companie s, or with re sp e c t to som e other m atter wheth er k n own or u nknow n, and/ or wheth er direct o r c o nt in ge nt , wh ic h t he Su b s c r ib e r

no w h a s o r

may eve r hav eag ain st t he Re le as e d P

artie s. Gre enwood testified that he was not c omfortable w ith the relea se bec ause of the sig nificant money that he wa s owed in bac k sal ar y , so he re fused to sig n the subscription ag ree ment, and he repe atedly

told Raz nick --- befor e and a fter the merg er - -- that he would not ag ree to the terms of the rele ase. H oweve r, at some point he signe d the ag ree ment “in anticipation” that Razni ck would either (i ) p ay him the mon e y

that he wa s ow e d, or (i i) g ive wr itt e n a ssu ra nc e that he wo uld be pa id at so me point in the future. Gr eenw ood said that he gave the s igne d ag ree ment to Hanne sson under the se two conditions. W hen it subsequently beca me appa rent that Raznick was not g oing to pay the bac k salaryNo. 08- 1010

G r eenw oo d v. R azni ck

5 or commit to doing so in writi ng , Gre enwood asked for and rece ived t he sig ned docume nt back f rom Hanne sson, who never

delivere d it to R aznick. Even thoug h Gre enwood did not forma lly execute and a g ree to the terms of the subscription

a g re e me nt, he ne ve rt

he le ss r e c e ive d h is c Xc sh are s, wh ic h w e re imm e diate ly e xch ang e d f

or B I CO share s. As discussed inf

ra , the par

ties dispute how Gre enwood was able to g et his share s without first signingthe subscription ag ree ment. Raznick maintains that the subsc ription ag ree ment was the only means by

which Gr eenw ood could have obtained his share s, and that by obtaining the share s in t he a bs e nc e of a sig natur e , h e mus t ha

ve do ne on e of

tw o th ing s: h e iss ue d the sto c k to him se lf (which he denies), or

he allowed Hanne sson to issue the s hare s to him while Hannesson wa s under the mis take n im

pr e ssi on that G re e nw oo d h a d s ig ne d o r wo ul d be sig nin g . G re e nw oo d c on te nd s, howeve r, that the subscr iption ag ree ment was not the only means by which he (and others) obta ined the stock. Rather , he maintains that the shar es we re issued to him as par t of his compensati on for servingas the CEO of B I CO and that “[m] any people” rec eived their share s without paying f or them

un de r t he su bs c ri pti on a g re e me nt. As the re c or d now e xists in t his c a se , it

is i mpo ssi ble to a sc e rt a in how Gre enwood obtaine d his cXc/B I CO stock. Shortly afte r the mer g er, it bec ame a ppare nt that BI CO would not b e t h e s olution that

e ve ryon e ha d h op e d f

or . In 2 00 5, a

dis pute aro se be tw e e n Razn ic k a nd va ri ou s B I CO sh are ho lde rs . These sha reholde rs ac cused Raznick of, among other thi ng s, failing to adequately fund B I CO as he had promised. Raznick exited the company , and this liti g ation followed. B. Pr ocedural HistoryNo. 08- 1010

G r eenw oo d v. R azni ck

6 Gr e e nw oo d f

ile d a thr e e -c ount c omp la int

a g a ins t Ra znic k, a lle g ing(1 ) b re a c h o f c on tr a c t; (2) f raud/fr audulent induce ment/silent fraud; and ( 3) quantum me r uit/unjus t enrichme nt. The par ties eventua lly

filed cr oss motions for summ ary judgme nt. Raznick essentially based his motion on the following sy llogism: beca use t he is suance and dis tribution of cXc st ock was authorized only under the subscription ag ree ment (which contained the re lease ), and be cause Gre enwood r ece ived the cX c stock, it nece ssarily

follows there from that he is bound by the re lease . Raznick refe rre d to this as the

“ c omm and ingpr inc ipl e ” that no pe rs on may a c c e pt t he be ne fi ts o f a

n a g re e me nt, bu t th e n d isc la im its burd e ns . Gr e e nw oo d fi le d an a ff ida vit in op po sit ion to R a znic k’ s mo tio n a nd ave rr e d th a t he did not rec eive the c Xc sha

res pur suant to the s ubscription ag ree ment. I nstead, as previously noted, he claimed that he rec eived the stoc k as par tial compensation to serve as CE O o f BI C O. He f urther stated that the B oard ne ver held a for mal meetingto decide how and to whom the stock would be issued, and he claimed that other individuals re ceive d their shar es without signingthe subscription

a g re e me nt. The district j udg e held a hearing on the motions for summary judgme nt, after

which he r

uled from the be nch:

. . . Idon’t think I ’ve e ver se en a r elea se any broade r t han this relea se. So the n th e qu e sti on

c ome s d ow n to , g ive n the fa c t tha t it re qu ir e s a signature, doe s that mean in any and all cir cumstance s i t ca n n o t be eff ective a s a re lease

. * * * Mr . G re e nw oo d h a d a choic e . H e a pp are ntl y re c og nize d th e re le a se was ve ry broad a nd he didn’t wa

nt to sign it, but he ca

n’t th en turn around a n d ta k e th e b e n e f

it s , a c t -

- - h is c o n d

u c t b e li e s h is n otNo. 08- 1010

G r eenw oo d v. R azni ck

7

ac c e p ti n g th e r e le a s e . H is a c c e p ti n g th e - - - w it h o u t a c c e p ti n g p aper sh are s, but a c c e pti ngsh are s in the c or po ratio n w hic h e nti tle d h im t o share s in the new c orporation, are c onsistent with agr eeingwith the re le a se or a t le a st a c on c lus ion

that he c ann ot h a ve it b oth wa y s. The fac t that he may or may not ha ve told the Def

endant that he wa s no t g oin g to be bo un d by the re le a se is s up e rs e de d b y the fa c t th a t hi s conduct a ctually

was such that he took the bene fit of the initial o ff er i n g o r t h e s t o cko ff

er i n g. There fore , the Plaintiff’s Motion for S ummary J udg ment to Strike the Def ense of Release is denied, and the Def endant’ s Motion for Summary J udg ment based on the rele ase is g rante d. The district cour

t, theref ore, b as ed i t s ruling on one ver y narr ow (a

nd very disputed) issue: that Gre enwood r ece ived his st o ck o n l y pursuant to the subscr iption agr eeme nt. I n the cour t’s view, beca use Gre enwood a cce pted the bene fits of the subs cription ag ree ment (the stock), he also ac cepte d the burde ns (the release of Raznick). The c ourt did not make any mention of the numerous disputed

mate ri a l f a c ts, inc lud ingGr e e nw oo d’ s c la im i n h is s wo rn a ff ida vit that no mee ti ng wa s h e ld t o deter mine the share distribution, and his claim that the stock was issued a s partial compe nsation for his se rv inga s CE O o f B I CO and no t a s p art

of a su bs c ri pti on

a g re e me nt. Shortly there afte r, but befor e the district c ourt reduc ed its ora l ruling to a written orde r and judgme n t , Greenwood filed thr ee supple mental brief s containing additional arguments. Severa l months later the district cour t entere d a short orde r fo rm al i zing its summary judgme nt ruling a

nd denying Gree nwood’s mot ion to consider the supplemental briefs. Wit h respe ct t o the former, the district court stated that it was gra nting Raznick’s motion for summary judgme nt “[f] or the re asons stated on the re cord a

t the motion hearing .” As fo r t h e latter, the court tre ated the a dditionalNo. 08- 1010

G r eenw oo d v. R azni ck

8 arguments as a motion for rec onsideration and stated: “[A]l l questions of fac t asserte d by Plaintiff

re su lt f ro m Plai nti ff

’s ow n af fi davit . ‘A ft e r a moti on fo r sum mary jud g me nt h a s b e e n ma de , a pa rt y may not cre ate a

fac tual issue by

filing a n aff idavit that contradic ts her ea rlier de position t estimony .’” (C itatio ns omi tted). How ever, the dis tr ic t c ourt did no t e la bo rate or e xpla in what st a te me nts in Gr e e nw oo d’ s a ff

ida vit the c ourt fe lt c on tr a dic te d h is e arl ie r d e po sit ion te sti mo ny . I t is fr om t

his

or de r t hat G re e nw oo d n owa

pp e a ls. II. STA ND AR

D O F RE VI EW This court will “re view de novo a district court’s order g rantingsummary judgme nt,” and, in d o in g s o , w il l “ v ie w a ll e v id e n c e in th e li g h t mo s t f a v o r a b le to th e n o n mo v in g party .” Z o mba Enterprises, Inc. v . Panorama Rec ords, Inc., 491 F.3d 574, 581 ( 6 Cir. 2007). The ultimate que stion th is whether “ the pleading s, the discovery and disclosure mate rials on file, a nd any aff idavits show that t h e r e i s n o g e nu i n e i s s u e a s t o an y m a t e r i a l f

a c tan d t h a t t h e m o v an ti s e n t i t l e d

t o j u d g m e nt as a matter of la

w.” F ed. R. Civ. P. 56(c). III . D ISC USS ION Th e dis tr ic t c ourt

he ld t hat G re e nw oo d w a s b ound by the re le a se langua g e in t

he a pp lic a ble subscription ag ree ment, even thoug h he neve r provided the company with an executed a g ree ment beca use of the relea se provisi on. As a gene ral matter, we do not nece ssarily disag ree with the court’s

c on c lus ion

tha t if Gre enwood, as a sophi sticated businessman, acc epted stock to whic h he knew he

was e ntitled only p u rs u ant to the subscription ag ree ment, then he c an be bound by what the

a g re e me nt s e ts o ut. Ho we ve r, a ft e r v ie wi ngthe re c or d evid ence in the lig ht m os t f a vo ra ble toNo. 08- 1010

G r eenw oo d v. R azni ck

Counsel f or Raznick conce ded duringoral a rgument that “I

don’t believe there was a

board 2 meeting .” 9 Gre enwood, a

nd draw ing a ll reasona

ble infer ence s in his favor, we believe that there are g aps in the

re c or d a nd g e nu ine dis pute d is su e s o f m a te ri a l f a c t. F or e xamp le , th e re is n o c le ar c or po rate documentation that est ab l i s h es h ow and in what way Gre enwood be came a shar eholder of B I CO. There is a document that purports to me morialize the “minutes” of the board meetingduring which it was alleg edly

decide d that the cXc s hare s would be dis tributed via t he subscr iption agr eeme nt, but this document --- w ith the s ignature li nes l eft blank --- wa s appar ently never considere d or executed by the Board. There is a real doubt as t o whether the m eeting even oc curr ed. Gr eenw ood, as noted, contends by aff

idavit that “ [t ]he c ompany never had a f ormal mee ting to dec ide to whom the share s would be distributed,” a

nd Hanne sson testified that board minutes were sometimes prepa red a fter

a mee ting or

wer e sometimes pre pare d in anticipation of a meeting, but he was unable to rec all if the meeting was a ctually

held. 2 Ev e n if we we re to a ssume tha

t th e me e tin g wa s hel d, and that the su bs c ri pti on

a g re e me nts

we re pr op e rl y

a uth or ize d at th a t me e tin g , it do e s n ot n e c e ssa

ri ly fo llo w that G re e nw oo d o bta ine d h is share s only afte r acc epting the subscription ag ree ment and the rele ase. Indeed, H annesson testified that stock could be issued in a number of way s as l ong as t here was “ appropr iate cor porate action” and, fur ther, that the action did not have to be reduc ed to writing in order to be eff ective. Ra znick sug g ests in his brief, howe ver, that “in a critica l portion of his testimony , Hanne sson confirmed that the cXc Service s Bo ar d authoriz ed the c ompany to issue shares pur suant to [t he] subscriptionNo. 08- 1010

G r eenw oo d v. R azni ck

10 ag ree ment and throug h no other mea ns.” See B ri e f o f A

pp e lle e a t 7; id. at 7 n.1 (asse rting that during his de po sit ion

Ha nn e sso n “ c le arl y

e xpla ine d th a t c Xc Se rv ic e s on ly issued share s pursuant to the board- approve d subscription ag ree ment”) (empha sis in the orig inal). Howe ver, a fter r eviewingthe

re c or d, Ha

nn e sso n’ s te sti mony on thi s poin t is no t as c le ar a nd un a mbi g uo us a s Ra znic k s ug g e sts

. I ndeed, the re w as much that he could not rec all. Whil e it is true that Hanne sson testified that it was “expected” that the cXc share s would be distributed pursuant to the subscr iption agr eeme nt, and that share holders we re g ener ally “supposed to complete the subscription ag ree ment,” he did not say that the ag ree ment was the on ly way to obtain the share s. See, e .g., J oint Appendix at 87-88 (stating that he could not “r eca ll” if the Board had authorized the issuance of shar es to individuals who did not

e xec ute the su

bs c ri pti on

a g re e me nts ); cf. id. at 100 (a nswering “I don’t know . . . I think there a re,” wh e n a sk e d if

the re we re pe op le oth e r tha n Gr e e nw oo d wh o r e c e ive d B I CO sh are s y e t di d n ot r e le a se Raznick from liability ). In fac t, he testified elsewhe re that subscription ag ree ments are not the on ly way that stock share s could be issued:

Q. And is a subscr iption agr eeme nt the only way that share s can be issued to a share holder or to a prospec tive share holder? A. No. Q. What are some of the other mecha nisms by wh i ch shares ca

n be tr ans fe rr e d to an in div idu a l? A. They can be earned and issued as compe nsation . T he y c an s imp ly be traded for other thi ng s of value without documentation. The y can be a cq u i red through stoc k options. Those are the way s that imm e diate ly

c ome to m ind . I ’m

sure the re are oth e rs .No. 08- 1010

G r eenw oo d v. R azni ck

Raznick argues t hat t he affidavit m ust be re jected a s it alleg edly

contra dicts Gree nwood’s 3 ear lier deposition testimony , and the district c ourt appar ently ag ree d. Howeve r, Gre enwood did not testify that he had r ece ived his share s via the subscription ag ree ment and not as c ompensation for servingas CEO of B I CO. I nstead, a s his attorney explained during oral a

rgument in this appeal, the i s s u e o f p r e c i s e l y h o w G r e e n w o o d r e c e i v e d t h e s t o c k w a s n o tf u l l y e x p l o r e d

b y R a z n i c k ’ s a t t o r

n e y. Be cause his deposition is mostly silent about how he obtaine d his shares, his af fidavit does not seem to b e in c on fl ic t on

thi s p oint. Although G ree nwood foc uses t he vast majority of hi s attention and ar g ument on whether 4 the district court e rre d in gr anting summary judgme nt for Raz nick, he has t echnic ally appea led the denial of his own motion for summary judgme nt on the release a rgument. For

all the re asons stated, ho we ve r, g ive n th e ho tly

dis pute d is su e s o f ma te ri a l fa c t, sum mary jud g me nt i s a lso un a va ila ble to him on this rec ord. 11 Id. a t 99 (e mph a sis a dd e d)

. As no te d se ve ra l tim e s no w, Gr e e nw oo d ha s fi le d a sw or n a ff ida vit in which he aff

irms that he was issued the stock as pa rtial compensation for servingas CEO of B I CO. Hanne sson te stified that he has no “r ecollec tion” of whe ther that is true. See id. a t 10 1; accord id.

a t 99 (f ur the r statin g that “ Ido n’ t ha ve muc h r e c oll e c tio n o f o the r c ir c ums tanc e s” tha t mi g ht e xpla in ho w Gr e e nw oo d wa s a

ble to ob ta in his sh are s wi tho ut sig nin g the su bs c ri pti on a g re e me nt) . B e c a us e

we a re r eviewinga g rant of summar y judgme nt, w e must re solve this dispute in Gree nwood’s fa vor. 3 Gi ve n th e g e ne ra l un c e rt a int y c on c e rn ingho w t

he c Xc sh are s w e re i s s u e d

a n d e xc h ang e d into B I CO sh are s, and , mor e sp e c if ic a lly , ho w and un de r wh a t c ir c ums tanc e s the sh are s w e re iss ue d to Gr e e nw oo d, we c ann ot s ay a s a matt e r of law that G re e nw oo d is bo un d b y the re le a se c on ta ine d in the subscription ag ree ment. I nsofar as there is a g enuine disputed issue of materia l f act as to whethe r he re ceive d the s tock under the terms of the subscription ag ree ment (instead of throug h some other means), summar

y judgme nt was not appropr iate on this rec ord. 4No. 08- 1010

G r eenw oo d v. R azni ck

Although Ra znick relies on the languag e of the ag ree ment, the ag ree ment was not sig ned, 5 and ther efor e his eff

ort to enfor ce the terms of the a g ree ment relie s o n t h e equitable doctrine of estoppel, rather than the contra ctual agree ment itself. 12 We further

observe that Gre enwood a rgues that Raznick is barre d from a s s er t i n g the

e qu ita ble de fe ns e of

e sto pp e l be c a

us e Ra znic k h a s unc le an hand s. Th e dis tr ic t court re je c te d th is 5 argument when it dismissed the arg uments made in the s upplemental briefs filed by Gre enwood a fter the district court g rante d Raznick’s motion for summary judgme nt. The district court did not sp e c if ic a lly c on sid e r t

he un c le an- ha

nd s arg um ent in thi s o rd e r a nd sim ply state d th a t “ a ll [Greenwood’ s] l eg al ar gu ments were addre ssed duringoral a rgument, or could have bee n.” Gree nwood v. Raznick, 2007 WL 3227586, at *1 (E.D. Mich. 2007). Gr eenw ood raised his unc leanha nd s a rgume nt b e fo re the district c ourt g ra nte d s umm ary

jud g me nt, so it i s n ot t

he c a se tha

t th is is s u e w a s r a is e d o n ly in a mo ti o n to r e c o n s id e r . See Br. in Su pp or t of Gr e e nw oo d’ s O pp . to Raznick’s Mot. for Sum. J ., Nov. 11, 2006, at 16-17. Al t h o u gh u n cl ea nh an d s i s a d ef en s e u s u al l y

as s er t edb y

d ef en d an t s aga i n s tp l ai n t i ff

s , J u d ge Posner of the Seventh Circuit ha s explained that “ unclea n hands can be asser

ted in opposition to an equitable defense as we ll as being asser tible as a de fense to a claim for equitable r elief.” Scheibe r v. Dolby Labs., Inc

. , 2 93 F .3 d 1 01 4, 10 22 (7 th C ir . 2 00 2) ; see also Conan P r o p s . , In c. v. Conans Pizza, Inc. , 752 F .2 d 145 , 1 50 -5 1 ( 5 Cir . 1 98 5) ; United Cities Gas Co. v. Brock Ex ploration Co. , th 995 F.Supp. 1284, 1296 n.1 (D. K an. 1998). Be cause the di strict court did not explain it s rejec tion of Gr e e n w o o d ’ s ar g u m e n tt h a tt h e u n c l e an - h an d s d o c t r i n e b ar r e d R a z n i c k f r o m r a i s i n g e qu i t a

ble de fe ns e s to Gr e e nw oo d’ s su it, we dir e c t th e c ourt to c on sid e r t

his iss ue on

re mand a s w e ll.No. 08- 1010

G r eenw oo d v. R azni ck

13 IV . C ON CL USI ON F or the a bo ve -s tate d re a so ns , the de c isi on by the dis tr ic t cou rt is REV ERS ED and

the c a se is REMANDED for

further proce eding s consistent with this opi nion.