The Honorable Nanette K. Laughrey, United States District Judge for the 1 Western District of Missouri, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3941

___________ White Consolidated Industries, Inc., * doing business as WCI Freezer * Division, also known as Frigidaire * Company, * * Appellant, * Appeal from the United States * District Court for the v. * District of Minnesota * McGill Manufacturing Company, Inc., * Emerson Electric Company, * * Appellees. *

___________ Submitted: May 13, 1998 Filed: January 14, 1999

___________ Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LAUGHREY, District Judge.

1

___________ McMILLIAN, Circuit Judge.The Honorable John R. Tunheim, United States District Judge for the 2 District of Minnesota. Frigidaire is a Delaware corporation with its principal place of business in 3 Ohio; McGill is an Indiana corporation with its principal place of business in Indiana; and the amount in controversy exceeded $50,000. Emerson is a Missouri corporation with its principal place of business in Missouri. Although Emerson is an appellee in this case, Frigidaire has not challenged the district court's entry of summary judgment on the claim of Emerson's vicarious liability. Therefore, we address only the issues involving McGill.

-2- Whit e Consolidated Industries, Inc. (Frigidaire), a subsidiary of Frigidair e Company, appeals from a final judgment entered in the United States District Court 2 for the District of Minnesota upon a jury verdict in favor of McGill Manufacturing Co., Inc. (McGill), a subsidiary of Emerson Electric Co . (Emerson), on its action for breach of cont ract. For reversal, Frigidaire argues the district court erred in (1) denying it s moti on for partial summary judgment and motions in limine, (2) giving certain jury instruc tions and submitting the special verdict form, and (3) denying its motion fo r new trial. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

This case was originally filed in Minnesota state court. McGill and Emerso n
remo vedthe case to federal court pursuant to 28 U.S.C. § 1441 on the basis o f diversity jurisdiction

under 28 U.S.C. § 1332. Jurisdiction on appeal is proper based 3 upon 28 U.S.C. § 1291. The notice of appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure. In this diversity case, Minnesota law controls the substantive issues. See Erie R.R. v. Tompkins , 304 U.S. 64 (1938).-3- Background

Fr igidaire manufactures freezers in St. Cloud, Minnesota. In 1989 Frigidair e began designing a new line of commercial freezers. Frigidaire contacted McGill about obtaining an electrical switch, which McGill had advertised as "water resistant," fo r placement in

the freezers. On January 9, 1991, McGill sent Frigidaire samples of the switches and a price quotation setting forth the conditions of sale on its reverse side. Those terms limited

McGill's warranty obligations to repayment of the purchase price or replacement of the returned products. The price quo tation also indicated that McGill offered to sell the switches at the quoted price and the offer was made for immediate
ac ceptance by Frigidaire. After Frigidaire received the samples and price quotation , its tests i ndicated that the switches were not completely resistant to water. Frigidaire cont acted McGill about a solution and McGill's engineers recommended the addition of a p eripheral gasket to the original switch to prevent moisture penetration. Th e parties agreed that the addition of the gasket would increase the price of the switch.

On Ja nuary 14, 1991, Frigidaire sent McGill a blanket purchase order for 3 0 switches fitted with the additional gaskets. The blanket purchase order set forth Frigidair e's terms and conditions of purchase which included express warranties o f merchantability and fitness for a particular pur pose. The blanket purchase order stated, in part:

1. ACCEPTANCE. This Purchase Order is to be accepted i n wri ting by Seller by signing and returning promptly to Buyer th e Ack nowledgment

Copy, but if for any reason Seller should fail to sig n and return to Buyer the Acknowledgment Copy, the commencement o f any work or performance of any services hereunder by Seller shal l con stitute acceptance by Seller of this Purchase Order and all its term s and cond itions. Acceptance of this Purchase Order is hereby expressl y limited to the terms hereof. Any terms proposed by Seller which add to, vary from, or conflict with the terms herein shall be void and the term s hereof-4-

shall govern if this Purc hase Order has been issued by Buyer in response to an off er the terms of which are additional to or different from any o f the provisions hereof, then the issuance of this Purchase Order by Buyer shall constitute an acceptance of such offer subject to the expres s conditi on that the Seller assent that this Purchase Order constitutes th e entire ag reement between Buyer and Seller with respect to the subjec t matter hereof and the subject matter of such offer.

. . . . 7. WARRANTY. Seller warrants that all goods or service s ordered or provided hereunder will conform in all respects to th e spe cifications, drawings, samples, or quality control or other procedur e or description whether furnished by Sell er or provided by Buyer, and will be mercha ntable and free from any defects in material, design, an d workmanship; and Seller further warrants that all material purchase d hereunder that is manufactured in accordance with the Seller' s specifications shall be fit and sufficient for the purposes for which it was intend ed. Seller agrees that the foregoing warranty shall surviv e acceptance of and payment for the material, and that Seller shall sav e Buyer harmless from any loss, damage or expense, whatsoever, including attorneys' fees, that the Buyer m ay incur as a result of any breach of such warranties. These warranties shall survive delivery and inspection of all or a part of the goods or services.

The blank et purchase order, however, set the price of the switches at the original , gasket-less price. It did not correctly st ate the price of the switches Frigidaire intended to purchase, that is, the switches with the additional gaskets.
On January 15, 1991, McGill se nt a computer-generated acknowledgment form in response to Frigidaire's blanket purchase order. The acknowledgment form set forth term s similar to the terms on the original price quotation, but included additiona l limitations and exclusions of warranties. On January 25, 1991, McGill's sales-5-

represe ntative changed the price on the purchase order form to reflect the additiona l cost of the gasket, signed the form and returned it to Frigidaire.
Thereafter, McGill se nt the modified switches to Frigidaire, which incorporated them into the freezers. Frigidaire produced 1,717 freezers from March to May 199 1 wit h the gasket-enhanced switches (referred to as "Version I" switches at trial)

. Sometime in March or April 1991, some of the Version I switches began to fail

. Frigidaire contacted McGill abou t the failing Version I switches, at which time McGill recommended additional modifications, resulting in the so-called "Version II" switches. Frigidaire purchased these switches at an even higher price than the Version I switches and incorporated them into 4,694 freezers. In July 1991 some of th e Version II switches also began to fail. Frigidaire again contacted McGill and McGill recommended further modifications, creat

ing the "Version III" switches. Each of these transactions included an exchange of acknowledgment forms and purc hase order forms, but, unlike the initial purchase order form, no forms were signed or returned by the recipient.
Frigi daire sued McGill in state court for breach of contract, breach of implie d and express warranties, tort liability, and negligent misrepresentation. Frigidaire also sued Emerson on a theory of vicarious liability. Frigidaire sought damages in exces s of $ 1.5 million based on the cost of repairing or replacing the failed Version I an d Version II s witches with Version III switches and compensating customers for loss of food occurring wh en the switches failed. Alter McGill and Emerson removed the case to fe deral district court on the basis of diversity jurisdiction, the parties filed cross

motions for partial summary judgment. The district court denied Frigidaire's motion for partial summary judgment and granted in part and denied in part McGill's an d Emerson's motions for partial summary judgment. White Consolidated Industries, Inc. v. McGill Manufacturing Co. , Civil No. 4 -95-752 (D. Minn. Mar. 31, 1997) (mem. op. and order on cross-motions for partial summary judgment). The district court dismissed Emerson and also dismissed Fr igidaire's tort and negligent misrepresentation claims.Because Minnesota has adopted the Uniform Commercial Code (UCC), 4 Minn. Stat. §§ 336.1-101 to 336.10-108, which is the applicable substantive law in this case, we will refer directly to those provisions of the UCC. UCC § 2–207 provides: 5 Additional Terms in Acceptance or Confirmation (1) A definite and seasonable expression of acceptance or a written -6- Slip op. at 5-9. The district court denied summary judgment on the breach of warranty clai ms because there were genuine issues of material fact in dispute. Id . at 6-7. Th e district court also rejected Fr igidaire's argument that the purchase order constituted the parties' contract. Id. at 7-8.
At a pretrial hearing, Fr

igidaire and McGill filed several motions in limine. The distr ict court denied most of these motions, but took under advisement Frigidaire' s motion to exclude evidence of McGill's contract terms as set forth in th e acknowledg ment

form. Id. , slip op. at 1 (June 27, 1997) (order denying motions i n limine). The district court then concluded that the writings of the parties wer e ins ufficient

to establish a contract and that, pursuant to Minn. Stat. § 336.2-207, th e 4 contract between the parties included only those terms upon which Frigidaire's blanket purchase order and McGill's acknowledgment form agreed. Id . at 3. The district court also ruled that evidence of McGill's proposed contract w as relevant and admissible. Id

.
The case was tried before a jury. Frigidaire objected to several of the distric t court's proposed jury instructions. Ins truction No. 8 informed the jury that the contract between Frigidaire and McGill consisted of those terms upon which Frigidaire's blanket purchase order and McGill's acknowledgment form agreed. The jury was furthe r instr ucted that, where the two documents did not agree, specifically in regards to th e warra nties, the contract included implied warranties made part of the contract b y operation of law. The district c ourt, relying on § 2-207(3) of the UCC, instructed the 5confirmation which is sent within a reasonable time operates as an

acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. (2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act. -7- jury in the application of express warranties, such as price and quantity, and implie d warrantie s, such as merchantability and fitness for a particular purpose. Instructio n No. 14 set forth the elements of breach of an implied w arranty of fitness for a particular purpose. The jury ret

urned a special verdict finding that (1) McGill had made express warranties to Frigidaire and had breache d those warranties, but that the breach was not the d irect cause of any damages to Frigidaire; (2) McGill had breached the implie d warranty of merchantability, but that the breach was not the direct cause of an y damages to Frigidaire; and (3) McGill had not breach ed any implied warranty of fitness fora particu lar purpose and, therefore, was not the direct cause of any damages t o Frigidaire. Based on these findings, the jury did not award any damages. Frigidair e then fil ed a motion for a new trial, arguing that the jury's verdict was inadequate , perverse, and

against the greater weight of the evidence and that the instructions were-8-

er roneous. The district court concluded that the evidence supported the jury's verdict, found no i nstruction errors and denied Frigidaire's motion. Id. , slip op. at 2 (Sept. 10, 1997) (order denying motion for a new trial). This appeal followed.

Discussion

I. Denial of Motion for Partial Summary Judgment

Fri gidaire first argues the district court erred in denying its motion for partia l summary judgment. Frigidaire also argues the distri ct court erred in denying its motions in limine to exclude evid ence of McGill's contract terms and in instructing the jury. As noted b y the district court, the motions in limine and the instructions, as well as th e motionfor new trial in part, essentially asked the district court to reconsider its order denying Frigidaire's motion for partial summary judgment.

A denial o f summary judgment is interlocutory in nature and is ordinarily no t appealable after trial

and judgment. See Cowan v. Strafford R-VI School District , 140 F.3d 1153, 1157 (8 th Cir. 1998); Metropolitan Life Insurance Co. v. Golden Triangle , 121 F.3d 351, 354 (8th Cir. 1997); Johnson International Co. v. Jackson National Life Insurance Co. , 19 F.3d 431, 434 (8th Cir. 1994); see generallyl5B Charles Alan Wright et al., Fede ral Practice and Procedure § 3914.28, at 210-11 & n.18 (2d ed. 1992)

. "[E]ven if summary judgment was erroneo usly denied, the proper redress would not be through appeal of tha

t denial but through subsequent motions for judgment as a matter of law . . . and appellate review of t hose motions if they were denied." Whalen v. Unit Rig, Inc. , 974 F.2d 1248, 1251 (10th Cir. 1992), cert. denied , 507 U.S. 973 (1993)

. "Fail ure to renew a summary judgment argument--when denial was based on factua l disputes-- in a motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)(1 ) at the close of all the evidence is considered a waiver of th e issue on appeal." Wolfgang v. Mid-America Motor sports, Inc. , 111 F.3d 1515, 1521 (10th Cir. 1997) (noting that, given difficulty of determining whether an issue is purely a question of law-9-

or fact, prudent counsel sho uld renew summary judgment grounds in a Rule 50 motion for judgment as a matter of law at the cl ose of all the evidence, and again, if necessary, after the jur y has returned a verdict and trial has concluded). However, "when th e material fact s are not in dispute and the denial of summary judgment is based on th e int erpretation of a purely legal question, such a decision is appealable after fina l judgment. " Id. (citations omitted); cf. Rekhi v. Wildwood Industries, Inc. , 61 F.3 d 1313, 1318 (7th Cir. 1995) (noting that "the principle that an order denying summary judgment is rendered moot by trial and subsequent judgment on the merits is intended for cases in which the basis for the denial was that the party opposing the motion had presented enough evidence to go to trial").
With respect to the issue of contract interpretation, Frigidaire's motion for partial summary judgment was not phrased as, nor understood by the district court to be, a cha llenge to the sufficiency of the evidence. Instead, the motion raised a purely lega l question, that is, which document set forth the terms of the parties' contract, and thus is properly reviewable on appeal. The interpretation of a contract is a question of law for th e court to decide. See, e.g., Lamb Engineering & Construction Co. v. Nebraska Pu blic Power District , 103 F.3d 1422, 1430 (8th Cir. 1997); United States v. Brekke , 97 F. 3d 1043, 1049 (8th Cir. 1996), cert. denied , 117 S. Ct. 1281 (1997); Mauric e Sunderland Architecture, Inc. v. Simon , 5 F.3d 334, 337 (8th Cir. 1993).
For reversal, Frigidaire argues that the district court er red in holding that this was a "battle of the forms" case within the meaning of UCC § 2-207. Frigidaire argues that its purcha se order, which contained certain warranties, including a warranty of fitness fora particular purpose, exclusively set forth the terms of the parties' contract

. Frigidaire argues that, by signing the purchase order, McGill expressly accepted all the terms contained in the purchase order. Frigidaire argu es that McGill's acknowledgment form, whi ch excluded warranties (including a warranty of fitness for a particular purpose) and limited remedies, was merely a counter-offer which it did not accept. We disagree.-10-

On January 9, 1991, McGill made an i nitial offer of sale to Frigidaire by mailing a price quot ation. Typically, a price quotation is considered an invitation for an offer, rather than an offer to form a binding contract. See Litton Microwave Cookin g Products v. Leviton Manufacturing Co. , 15 F.3d 790, 794 (8th Cir. 1994) ( Litton ). In Litt on , the court determined that a price quotation clearly, definitely, and explicitl y manifested a willingness to become bound as required by Minnesota l aw, see Lefkowitz
v. Great Minneapolis Surplus Store, Inc. , 251 Minn. 188, 86 N.W.2d 689, 691(1957) ( Le fkowitz) , but left too many terms open for negotiation to be considered an offer

. Litton , 15 F.3d at 794-95. The price quotation could not be considered a legally valid offerrequ ired to commence a "battle of the forms." Id . at 794. In the present case , McGill's price quotation provided that its offer wa s subject to immediate acceptance by Frigidaire. It was sufficiently detailed and indicated that acceptance was all that was needed to ripen the offer into a contract. The open terms that prevented the pric e quotation from being a valid offer in Litton , 1 5 F.3d at 795, are not present in this case. Becaus e McGill manifested a "clear, definite and explicit" offer of sale, the pric e quotation qua

lifies as a valid offer. See id. (citing A. Belanger & Sons, Inc. v. United States ex rel. National United States Radiator Corp. , 275 F.2d 372 (1st Cir. 1960)) ; Lefkowitz , 86 N.W.2d at 691; cf. Brown Machine, Division of John Brown, Inc. v Hercules, In c. , 770 S.W.2d 416, 419 (Mo. Ct. App. 1989) (holding that a pric e quotation "can amount to an offer creati ng the power of acceptance . . . [if it] appear[s] from the pric e quote that assent to the quote is all that is needed to ripen the offer into a contract").
Frigidaire accepted McGill's offer of sale and proposed its own terms for the sale in its initial blanket purchase order dated January 14, 1991, and received by McGill on Janu ary 21, 1991. If a party to a contract expresses acceptance of an offer, whil e simultaneously proposing additional or different terms not in the offer, that acceptance is a valid acceptance. SeeUCC § 2-207(1). In such a case, UCC § 2-207(2) providesWe do not decide in this case the much debated question of whether UCC 6 § 2-207(2) provides for the treatment of additional anddifferent terms or only additional terms. -11- for the treatment of any additional terms. Frigidaire, howe ver, accepted McGill's offer 6 only on the condit

ion that McGill assent to each and every term in the purchase order. If an "acceptance is expressly made condit ional on assent to . . . additional or different te rms" and assent is not forthcoming, then an expression of acceptance, includin g acceptance by performance, is not a valid acceptance. UCC § 2-207(1); see also Falcon Tankers, I nc. v. Litton Systems, Inc. , 355 A.2d 898, 906 (Del. Super. Ct. 1976 ) ( Falcon)

. Frig idaire's purchase order conditioned acceptance on McGill's assent to a merge r clause providing that the terms of the purchase order, alone, expressed th e agreement of the parties. The purchase order was "an acceptance of [the Seller's] offer subj ectto the express condition that the Seller assent that this [p]urchase [o]rde r
co nstitutes the entire agreement between Buyer and Seller." Purchase order, ¶ 1. I n other words, the purchase order was a conditional a cceptance. See Ralph Shrader, Inc. v. Diamond International Corp. , 833 F.2d 1210, 1215 (6th Cir. 1987) ( Ralph Shrader)

. In Ralph Shrader , the Sixth Circuit held that, when a party limited acceptance to "[t]he te rms set forth on the reverse side," it was a conditional acceptance. Id . The Sixth Ci rcuit rejected the argument that language in a contract had to mimic the "expressl y made conditional" language of UCC § 2-207(1) in order to be a conditional acceptance. Id. n.4; see also Step-Saver Data Systems, Inc. v. WYSE Technology , 9 39 F.2d 91, 101 (3d Cir. 1991) (holding that a conditional acceptance can be manifested merely in a party's conduct). To require the exact language of the UCC would be too formalistic and inconsistent with the UCC's requirement that its provisions be liberally construed. UCC § 1-102(1); see also Ralph Shrader , 833 F.2d at 1215 n.4. Because Frigidair e
co nditionedits acceptance on McGill's assent to the proposed terms in its purchas e order, a contract on Frigidaire's terms resulted only if McGill assented.-12-

Mc Gill did not assent to Frigidaire's conditions. McGill's sales representativ e changed one of the terms of the sale when she corrected the price on the purchase order to ref lect the price of the Version I switch (modified to include a peripheral gasket ) rather tha n the price of the original, gasket-less switch set forth in the price quotation. In doing so, McGill rejected the express condition Frigidaire placed on acceptance : assent to each and every term in the purchase order . If an acceptance is conditioned on assent to new terms, and assent is not forthcoming, the transaction aborts. See Dorton v. Collins & Aikman Corp. , 453 F.2d 1161, 1166 (6th Cir. 1972) ( Dorton ); Uniroyal, Inc. v. Cham bers Gasket & Manufacturing Co. , 380 N.E.2d 571, 575 (Ind. Ct. App

. 1978) ( Uniroyal)

. Frigidair e argues that the signature of McGill's sales representative acted as a
co mplete assent to the terms proposed in the purchase order. For support, Frigidair e relies on Falcon , 355 A.2d at 906 (holding that the offeror's signature on the offeree's condi tional acceptance bound the offeror to all the terms therein). Frigidaire' s argument, however, ignores a crucial difference between Falcon and the present case: McG illchanged one of the terms (the price) on Frigidaire's purchase order form. B y chang ing the terms, McGill did not assent to the conditions Frigidaire placed on it s acceptan ce. Because McGill never assented to the additional terms, Frigidaire , according to its own purchase order, did not accept McGill's offer. Because there was
no acceptance of the offer of sale, there was no contract at that time. Slip op. at 3 (June 27, 1997) (order denying motions in limine).

The district c ourt recognized that the parties' performance of the sale, however, established a contract. Where the writings of the parties do not establish a contract , performance by both parties may be sufficient to establish a contract under UC C § 2-207(3). See Dorton , 453 F.2d at 1166; Uniroyal , 380 N.E.2d at 575.-13-

In many cases, as where goods are shipped, accepted and paid for before any dispute arises, t

here is no question whether a contract has been made. In such cases, where the writings of the parties do not establish a contract, it is not necessary to determine which act or docume nt constituted the offer and wh ich the acceptance. . . . The only question is what terms ar e included in the contract, and subsection (3) furnishes the governing rule.

UCC § 2-207 cmt. 7 (citation omitted). The writings of Frigidaire and McGill did no t estab lisha contract because McGill never assented to Frigidaire's conditiona l acceptance. Pu rsuant to UCC § 2-207(3), the district court correctly found as a matter of law that no written contract existed between the parties, but that a contract existed on the basis of the parties' performance, the terms of which contract included those terms
on which the writings of the parties agreed, with the remaining terms, in particular the terms for the warranties, determined by other provisions of the UCC. Therefore, th e district court prop erly rejected Frigidaire's argument that its purchase order exclusively setforth the terms of the parties' contract. We hold that the district court did not err in denyin g Frigidaire's motion for partial summary judgment because Frigidaire was no t entitled to judgment as a matter of law on the contract interpretation issue.
Frigidaire also argues the district court erred in denying its motions in limine to exclude McGill's acknowledgment form . We review the denial of the motions in limine, which is essentially based upon an ev identiary ruling, for abuse of discretion. See, e.g., UnitedStates v. Roenigk , 810 F.2d 809, 815 (8th Cir. 1987). Frigidaire argues th e acknowledgment form should not have been admitted into evidenc e because its purchase order alone contained the terms of the parties contract. As discuss ed above, the purchase order did not exclus ively set forth the terms of the parties' contract. Rather, pursuant to UCC § 2-207( 3), the terms of the parties' contract included the terms on which th e writings of the parties agreed, with the remaining terms, including the warranties , determined by other provisions o f the UCC. The acknowledgment form was one of the-14-

writings of the parties and was thus admissible. The district court did not abuse it s discretion in denying the motions in limine.

II. Jury Instructions
Frigidaire next argues the district co urt erred in failing to instruct the jury that the purchase order alone contained th e terms of the parties' contract. Frigidaire also argues the district court erred in submitting the special verdict form for the same reason. We disagree. As discussed above, the purchase order did not exclusively set forth the terms of the parties' contract. The instructions given correctly instr ucted the jury that the terms of the parties' contract included the terms on which the writing s of the parties agreed and warrant ies made part of the contract by operation of law and correctly set forth th e element s of breach of the warranty of fitness for a particular purpose. The specia l verdict form correctly did not refer to the purchase order as exclusively setting forth the terms of the parties' contract.

III. Motion for New Trial
Frigidaire next argues the district court erred in denying its motion for new trial because the case was tried under an erroneous interpretation of the contract. W e disagree. This argument is based on the same assumption that the purchase orde r exclusively set forth the terms of the parties' contract.

Conclusion
For the above-stated reasons, we hold that the district court did not err in denying Frigid aire's motion for summary judgment, motions in limine, and motion for a ne w trial. In addition, the district court did not err in its instructions to the jury. Accordingly, we affirm the judgment of the district court.-15-

A true copy.
Attest: U.S. COURT OF APPEALS, EIGHTH CIRCUIT.