SCAPA TAPES NORTH AMERICA

3:03cv1689(JBA).

384 F.Supp.2d 544 (2005) | Cited 1 time | D. Connecticut | August 10, 2005

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ## 28, 31]

This commercial dispute arises from a written contract betweenthe parties that was intended to result in joint development of acomponent of an automotive finishing product that defendant AveryDennison Corp. ("Avery") markets under the brand name Avloy.Plaintiff Scapa Tapes North America, Inc. ("Scapa") seeks adeclaratory judgment that material it supplied to Avery conformedto the contractual specifications, and related injunctive relief(Count One), and damages for common law breach of contract fornonpayment of goods (Count Two), improper rejection of goodsunder the U.C.C. (Count Three), breach of the covenant of goodfaith and fair dealing under Connecticut tort law (Count Four),promissory estoppel (Count Five), and negligent misrepresentation(Count Six). See Complaint [Doc. #1]. Avery has moved forsummary judgment on all six of Scapa's claims. Def. Mot. forSummary Judgment [Doc. # 28]. Avery also asserts counterclaimsagainst Scapa for a declaratory judgment that Scapa's product didnot conform to specifications (Counterclaim One), damages for common law breach of contract (CounterclaimTwo), and disgorgement of unjust enrichment (Counterclaim Three).Scapa has cross-moved for summary judgment on Counterclaims Oneand Two only. See Pl. Mot. for Summary Judgment [Doc. # 31].For the reasons that follow, Avery's motion will be granted as toScapa's claims of breach of good faith, negligentmisrepresentation, and promissory estoppel, as well as the issueof liability under the contract for 1-mil baseweb, and denied asto Scapa's remaining claims; Scapa's motion will be denied in itsentirety.

I. FACTUAL BACKGROUND

Defendant Avery sells Avloy to automotive parts manufacturers.Avloy is a type of film used to cover the outside of automobileparts as an alternative to wet spray paint. Def. L.R. 56(a)1Stmt. [Doc. # 35] at ¶ 2. It comes in thicknesses of "1-mil" and"2-mil," and is shipped to customers in rolls. Id. ¶¶ 2-3.Avloy consists of four layers: a baseweb, a color coat, a tiecoat, and a backing sheet to protect the product in transport.Id. ¶ 3. Avery has in the past, and continues today, topurchase baseweb, the first layer, from outside vendors whomanufacture it by "`solvent coating' the resin onto thesubstrate, which is a liquid process that uses a solvent, as thename implies." Id. ¶ 5.

In 1998, Avery began searching for a way to make baseweb through an extrusion technique, meaning squeezing melted resinonto the substrate. Id. ¶ 6. Bill Goldsmith, Vice President andGeneral Manager of the Performance Films Division of Avery,stated that "[e]xtrusion technology had never been used before inthe manufacture of Avloy®, but Avery believed that extrudedbaseweb would be cheaper and of better quality thansolvent-coated baseweb. Extrusion also has significantenvironmental benefits, since no solvents are used. Averyemployees secured several patents relating to the new process."Goldsmith Aff. at ¶ 6.

In 1999, Avery began working with Great Lakes Technologies,which was bought by Scapa the next year, on developing extrudedbaseweb. Id. ¶¶ 7-8. Between late 1999 and 2001, the companiesjointly conducted a series of test runs, and then proceeded tocodify their future business arrangement in a written contract.

The Purchase and Supply Agreement, signed in April 2002,recites that Scapa has specialized manufacturing experiencedesirable to Avery; that Avery would provide Scapa with certainintellectual property relating to Avloy as set forth on separateriders; that Scapa would "need to make significant capitalexpenditures and allocate significant resources which would notbe done absent the commitments of [Avery] set forth in thisAgreement; and . . . as a material inducement to [Scapa's]obligations . . . [Avery] is willing to undertake" the exclusive supply agreement set forth in the requirements contractprovisions. Def. L.R. 56(a)2 Stmt., Ex. J at 1. The contractrefers to the baseweb to be manufactured as "Avloy Product," andrequires Scapa to "manufacture such Avloy Product for [Avery] ina good and workmanlike manner in accordance with specifications,quality standards and formulas" attached to the contract as arider. Id. at 1-2. Exhibit A to the contract, entitled "AveryDennison Proprietary and Confidential Specifications — Avloy,"contains, among others, the following terms: Characteristic UOM [unit of measurement] MIN MAX Particles 0.4 mm² 17 (within two linear feet × width of web) Thickness Mil 1.7 2.1 Id. at 12.

The contract also reflects that the production of Avloy Productwas still experimental at that point:

Initial Production Delays. Customer [Avery] acknowledges and agrees that only samples of the Avloy product have heretofore been produced and that the manufacture of the Avloy product in the quantities contemplated will be subject to the installation and development of new equipment and process, the exact timetable for which cannot be determined at this time. Customer further acknowledges and agrees that there will be a period of time necessary for testing the new machinery and processes utilized in manufacturing the Avloy Product, that Supplier [Scapa] reserves the right to establish and extend testing procedures as Supplier deems reasonable under the circumstances prior to commencing full production, and that delays may result from this process. Accordingly, as a material inducement to Supplier's proceeding with this Agreement and making investment [sic] contemplated hereunder, Customer agrees that it waives the right to assert and will not assert any claim . . . for delays in delivery of Avloy Product . . . unless and until Supplier acknowledges in writing that all tests [sic] production runs have been successfully completed ("Seller's Capacity Notice"). Customer agrees to cooperate with Supplier to test Avloy Product and to timely respond to Supplier inquiries respecting samples. . . .Id. at 7-8 (emphasis added).

The requirements contract was to last for a period of threeyears from the date that Scapa delivered the "Seller's CapacityNotice," renewable annually thereafter. Id. at 2. Avery was toprovide Scapa with yearly forecasts of its requirements forbaseweb, updated each month, id. at 5, and the contractpermitted Avery to terminate the agreement for cause if, amongother reasons, Scapa "fails to manufacture and deliver to [Avery]the Avloy Product as required by this Agreement, in sufficientquantities (subject to and based upon Customer's annualforecast). . . ." Id. at 3. The initial price of the basewebwas set at 35 cents per square foot, subject to annual adjustmentby mutual consent. Id. at 4. Finally, the contract contains anintegration clause, id. at 9, and a choice of law provisionselecting Connecticut law. Id. at 10. It was signed by AveryGeneral Manager Bill Goldsmith and Scapa Executive VicePresident/General Manager Steve Lennon.

After the contract was executed, Scapa and Avery jointlyengaged in trial production runs of baseweb in June, August andSeptember 2002. A December 20, 2002 internal Scapa memorandum,also relied on by Avery, see Avery L.R. 56(a)2 Stmt., ¶ 13, states that the May run produced 6 rolls, of which 3 were sent toAvery, and "Feedback was good in fact only comment was `ribbing.'Defect counts all below 10 defects and no mention ofdisagreement." Def. L.R. 56(a)2 Stmt., Ex. O at 1. The August runproduced four rolls, of which "two rolls with defect counts of 12and 14" were sold to Avery. Id. The notation regarding theserolls states, "Ribbing defect very light. . . ." Id. TheSeptember 2002 run resulted in 11 rolls after the testers"[s]tarted up and scrapped the 1st two rolls because of chillroll scratches. . . . Defect counts are all under 17 and nomention at all of ribbing." Id. These runs appear to havegenerated no major quality control disputes between the parties.

The last production run took place on November 12, 2002. Thiswas the first run that Scapa conducted without assistance fromAvery personnel, and it ultimately gave rise to this lawsuit.Scapa produced 17 rolls of 2-mil baseweb, shipped them to Avery,and presented an invoice for approximately $107,600. Def. L.R.56(a)2 Stmt., Ex. Q. Avery rejected the shipment and refused topay, on the ground that the material failed to conform tocontractual specifications. Avery's defect counts for the rollsranged from 20 to 85 defects, including "ribbing/lines," andAvery therefore took the position that the rolls exceeded the17-particle maximum. Id. at Ex. S. Scapa's particle countsranged from 4 to 15, with no roll exceeding the 17-particle maximum. Id. at Ex. R.

The difference stemmed from varying measuring techniques. Scapameasured only the contaminant particles that were embedded in thebaseweb. Avery measured the particles plus the surrounding areaof deformation, which it called a "halo." Giles Dep. at 135.Melissa Giles, who was then Avery's Coating Manager for Coater 8,where baseweb is processed, stated that "any disruption in thematerial would be included as part of the defect. . . . That's aknown, that's a given for any product we run here, not specificto" the Avloy baseweb. Id. at 136.

Giles also testified that she was not involved in negotiatingthe terms of the contract between Scapa and Avery, and whenGoldsmith, who had negotiated on Avery's behalf, showed her theagreed specifications, she was "surprised at the particle count"of 17 because Avery's agreements with their existingsolvent-coated baseweb supplier called for a particle count of 3.Id. at 33-34. Goldsmith, however, stated that he consulted withHoward Enlow, Avery's Technical Director, who was familiar withtheir customers' technical requirements, and who approved a17-particle specification. Second Goldsmith Aff. at ¶ 9.

Goldsmith testified that he did not expect the particlespecification to remain at 17 because his customers would not beable to use material with that many defects and Avery would "geta lot of it back. . . ." Goldsmith Dep. at 57. Therefore Avery intended to have Scapa manufacture enough baseweb meeting thecontractual specifications "to get it tested" through Avery'squality control process, and "the full commercial product wouldneed to be at some level of defect . . . that was 3 or less."Id. Avery apparently did not share this understanding withScapa, and several Scapa employees testified that they believedthat Avery was "changing . . . the goal post," Dep. of ScottBarnes at 25, in terms of the particle specifications.

An additional factor in the disagreement seems to be that someof the particles, which were clear, did not show up until thebaseweb was laminated with colored coating. See Def. L.R.56(a)1 Stmt., Exs. W, X. Thus Scapa found it "shocking" toreceive Avery's report, a few weeks after the November productionrun, that the rolls did not meet specifications once laminated,because the particles had not been evident to Scapa during theirpre-lamination tests. Email from Ron Lilly, id. at Ex. X.

After Avery refused to pay for the November 2002 rolls, theparties engaged in a series of communications, culminating in aletter of January 28, 2003 from Scapa to Avery, memorializing aphone conversation between the parties. The letter sets forth anagreement that Avery was to pay half of the amounts of fourdisputed invoices from 2001-2002, and that Avery was tore-examine the November 2002 run to determine "how much isusable." Id. at Ex. DD.

Avery ultimately concluded that all of the rolls were above the"17 defect limit" and not usable. Id. at Ex. GG. Scapacontinued to disagree, but the parties attempted to continuetheir business relationship and conducted a trial run on March24, 2003. Another trial was scheduled for April but, for reasonsnot apparent in the record, never took place. On May 28, 2003,Scapa wrote to Avery that it had decided not to produce any moreextruded baseweb because the parties disagreed over thecontractual specifications and Avery's "account was past due."Id. at Ex. II. Scapa filed this lawsuit on October 2, 2003.

II. STANDARD

Summary judgment is appropriate where "there is no genuineissue as to any material fact and . . . the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). An issue of fact is "material" if it "might affect theoutcome of the suit under the governing law," and is "genuine" if"the evidence is such that a reasonable jury could return averdict for the nonmoving party." Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A party seeking summary judgment"bears the burden of establishing that no genuine issue ofmaterial fact exists and that the undisputed facts establish[its] right to judgment as a matter of law." Rodriguez v. Cityof N.Y., 72 F.3d 1051, 1060-61 (2d Cir. 1995) (citing Adickesv. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "The duty of thecourt is to determine whether there are issues to be tried; inmaking that determination, the court is to draw all factualinferences in favor of the party against whom summary judgment issought, viewing the factual assertions in materials such asaffidavits, exhibits, and depositions in the light most favorableto the party opposing the motion." Id. (citations omitted). "Ifreasonable minds could differ as to the import of the evidence . . .and if there is any evidence in the record from any sourcefrom which a reasonable inference in the nonmoving party's favormay be drawn, the moving party simply cannot obtain ? summaryjudgment." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2dCir. 1997) (internal citations, alterations and quotationsomitted).

On cross-motions for summary judgment "neither side is barredfrom asserting that there are issues of fact, sufficient toprevent the entry of judgment, as a matter of law, against it.When faced with cross-motions for summary judgment, a districtcourt is not required to grant judgment as a matter of law forone side or the other." Heublein, Inc. v. United States,966 F.2d 1455, 1461 (2d Cir. 1993) (citing Schwabenbauer v. Bd. ofEduc. of Olean, 667 F.2d 305, 313 (2d Cir. 1981)). "Rather, thecourt must evaluate each party's motion on its own merits, takingcare in each instance to draw all reasonable inferences against the party whose motion is under consideration." Schwabembauer,667 F.2d at 314.

III. PLAINTIFF SCAPA'S MOTION FOR SUMMARY JUDGMENT

A. Meaning of "Particle" In Supply Agreement

Scapa first moves for summary judgment on Count One of Avery'scounterclaim and Count One of its own complaint, both of whichseek a declaratory judgment on the proper definition of a"particle" under the contract specifications and a determinationof whether the baseweb produced by Scapa's November 2002production run conformed to the specification.

"Where the language of the contract is unambiguous, andreasonable persons could not differ as to its meaning, thequestion of interpretation is one of law to be answered by thecourt." Hunt Ltd. v. Lifschultz Fast Freight, Inc.,889 F.2d 1274, 1277 (2d Cir. 1989) (quoting Rothenberg v. Lincoln FarmCamp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985)). "Contractlanguage is not ambiguous if it has a definite and precisemeaning, unattended by danger of misconception in the purport ofthe [contract] itself, and concerning which there is noreasonable basis for a difference of opinion." Id. (internalcitation omitted). However, even where language of a commercialcontract is unambiguous, testimony concerning trade custom andusage may be offered to define terms that have a technicalmeaning within a particular business. Harry A. Finman & Son, Inc. v. Conn. Truck & Trailer Serv. Co., 169 Conn. 407, 411,363 A.2d 86, 89 (1975). "Evidence of custom or usage is properlyadmissible when the subject matter . . . is not a matter ofcommon knowledge." L.F. Pace & Sons, Inc., v. Travelers Indem.Co., 9 Conn. App. 30, 38, 514 A.2d 766, 771 (Conn.App. 1986).In such a situation, "[e]vidence of custom and usage in a tradeis admissible and the weight to be assigned it is for the jury."Burlington Constr. Co. v. R.C. Equip. & Constr., Inc.,13 Conn. App. 505, 508, 537 A.2d 534, 535 (Conn.App. 1988).

Additionally, the "course of performance the parties followed . . .is strong evidence" of the parties' intent regarding themeaning of their contract. Putnam Park Assocs. v. Fahestock &Co., 73 Conn. App. 1, 10, 807 A.2d 991, 997 (Conn.App. 2002)(citing Restatement (Second) of Contracts § 202(4) ("where anagreement involves repeated occasions for performance by eitherparty with knowledge of the nature of the performance andopportunity for objection to it by the other, any course ofperformance accepted or acquiesced in without objection is givengreat weight in the interpretation of an agreement.")).

In this case, the parties assert dramatically differentinterpretations of the meaning of the word "particle" in thecontract specifications. Scapa asserts that a particle is acontaminant embedded in the baseweb and nothing else. Avery,however, asserts that under the trade usage applicable to this contract and its contracts with other suppliers, it is understoodthat a particle includes the entire defect, meaning the particleand the so-called "halo" around it produced by the contaminant'spresence. Scapa replies that if Avery wanted to specify adescription of "particle" in the contract that included a "halo,"it could have done so in a manner similar to its contracts withits customers and other suppliers, which have more detailedspecifications. Avery's other contracts, however, do not containspecifications for "particles" but describe resulting defects,including "bumps," "craze lines," "dirt/lacquer gels,""fisheye/craters," "hairs," "lines," "micro-blisters," "pits""wrinkles," etc. Scapa L.R. 56(a)2 Stmt. [Doc. # 36], Ex. G atAPF 2210, 2228, 2240, 2214, 2216.

A reasonable jury could conclude from this evidence that"particle" was a technical shorthand for these various defects,as asserted by Avery's employees, see Giles Dep. at 136 ("anydisruption in the material would be included as part of thedefect. . . . That's a known, that's a given for any product werun here, not specific to" the Avloy baseweb). Alternatively, ajury could find, based on the more detailed specifications thatAvery included in its other contracts, that "particle" has nospecific trade meaning. This issue cannot be resolved at thesummary judgment stage, except to conclude that "[e]vidence ofcustom and usage in a trade is admissible and the weight to be assigned it is for the jury." Burlington Constr.,13 Conn. App. at 508, 537 A.2d at 535.

The weight that should be accorded the parties' past course ofperformance also must be decided at trial. Avery has presentedevidence from which a jury could conclude that the parties'course of dealing established an expectation that "particles"within the meaning of the contract were equivalent to "defects."Avery has proffered somewhat tentative testimony about trainingScapa personnel to measure defects according to Avery's standardsearly in the baseweb development process. See Hack Dep., Def.L.R. 56(a)2 Stmt., Ex. H, at 46-47.1 It also could beinferred from Scapa's own internal memorandum of December 2002that Scapa had an understanding that under the terms of thecontract it was supposed to count "defects," including "ribbing."Def. L.R. 56(a)2 Stmt. Ex. O at 1. ("Defect counts all below 10defects and no mention of disagreement" concerning March 2002 run; August run produced "two rolls withdefect counts of 12 and 14" with the "Ribbing defect very light;"September 2002 run said to have had "[d]efect counts . . . allunder 17 and no mention at all of ribbing."). In March 2003,after the dispute over the contractual specifications arose, RonLilly of Scapa referred in an internal email to "the 17 defectlimit." Def. L.R. 56(a)1 Stmt., Ex. GG.

While Scapa makes much of the testimony of various Averyemployees that the term "halo" was not used between the partiesuntil after the dispute arose concerning payment for the November2002 rolls, a jury could conclude that there had been no need forsuch a description during the parties' previous dealings becausethere was an understanding between them that the entire disruptedarea constituted a "defect." The summary judgment record does notcontain sufficient evidence to discern how the "particle" countson the earlier rolls were obtained, i.e., whether the partiesmeasured the contaminant or the surrounding area as well. Thisissue of fact must be presented to a jury to decide whether theparties' course of performance, or trade usage in the industry,precludes Scapa from arguing that "particles" are somethingdifferent from "defects." Accordingly, Scapa's motion for summaryjudgment on its first count and Avery's first counterclaim isdenied. B. Breach of Contract

Scapa also moves for summary judgment on Avery's SecondCounterclaim, which alleges breach of contract, on the basis thatAvery cannot prove any lost profits and therefore cannot prove ithas suffered damages due to the contract's termination. Averyconcedes that its "lost profits are too speculative to permitrecovery" because "[t]his is an entirely new business ventureusing entirely new technology that has never been attempted on aproduction scale." Avery Brief in Opp. [Doc. # 38] at 6. However,Avery claims reliance damages for the Avloy Product previouslypaid for under the agreement plus sums expended "to keep theproject going after Scapa initially threatened to terminate it."Id. at 7.

Where expectation damages are too speculative to calculate,reliance damages may be awarded for breach of contract. Int'lBrands USA, Inc. v. Old St. Andrews Ltd., 349 F. Supp. 2d 256(D. Conn. 2004) (citing ATACS Corp. v. Trans WorldCommunications, Inc., 155 F.3d 659, 669 (3d Cir. 1998) ("where acourt cannot measure lost profits with certainty, contract lawprotects an injured party's reliance interest by seeking toachieve the position that it would have obtained had the contractnever been made, usually through the recovery of expendituresactually made in performance or in anticipation ofperformance.")); Nashville Lodging Co. v. Resolution TrustCorp., 59 F.3d 236, 246 (D.C. Cir. 1995) ("where the prospective, `benefit of the bargain'damages prove too difficult or speculative to calculate, courtscommonly give the plaintiff damages measured retrospectively,protecting the plaintiff's `reliance interest' by undoing theharm which his reliance on the defendant's promise has caused himand putting him in as good a position as he was in before thepromise was made.").

Scapa points out that Avery did not specifically claim reliancedamages for breach of contract in its pleadings. Avery's secondcounterclaim specifically seeks lost profits and not reliancedamages.2 However, Avery also seeks "any and all otherand further relief that this Honorable Court deems just andproper." Am. Answer & Counterclaims [Doc. # 10], Prayer forRelief. Scapa does not assert that Avery is not in fact entitledto reliance damages. Furthermore, Scapa will not be prejudiced bydefendant's demand for reliance damages on the breach of contractcounterclaim because defendant also seeks reliance damages —presumably in the same amount — in its unjust enrichmentcounterclaim, on which Scapa has not moved for summaryjudgment.3 See id. at ¶¶ 40-42.

Therefore the Court will not grant summary judgment to Scapa onAvery's breach of contract counterclaim solely because Averyfailed to articulate a specific claim for reliance damages onthat claim. Scapa's motion for summary judgment thus is denied inits entirety.

IV. DEFENDANT AVERY'S MOTION FOR SUMMARY JUDGMENT

A. Counts Two and Three: Breach of Contract

Avery's motion for summary judgment essentially is a mirrorimage of Scapa's. Avery begins by seeking summary judgment onScapa's two breach of contract claims: Count Two of Scapa'scomplaint asserts a claim for "common law breach of contract fornonpayment of goods" based on Scapa's assertion that it suppliedAvery with baseweb that conformed to specifications and Averyfailed to pay for $107,608 of the goods, Compl. ¶ 29-30; andCount Three asserts a claim under the U.C.C. for improperrejection of the baseweb. Avery advances six theories for why itis entitled to summary judgment on Scapa's breach of contractclaims.

1. Accord and Satisfaction

Avery moves for summary judgment first on the basis that theparties reached an accord and satisfaction4 and thereforeScapa is precluded from suing on the contract. Avery asserts that theaccord was memorialized in the January 28, 2003 letter fromRonald C. Lilly, Vice President of Scapa Automotive, to BillGoldsmith, Vice President and General Manager of Avery'sPerformance Films Division. See Def. L.R. 56(a)1 Stmt., Ex. DD.The letter summarized a telephone conference between the partiesconcerning outstanding bills and future baseweb trials. Regardingthe bills, the letter stated that Scapa and Avery would "split"four disputed charges from the runs between January 2001 andFebruary 2002, and that Avery would pay in full the charge forthe "Mitsubishi film trial" (two rolls of 1-mil baseweb) fromNovember 2002. Id. Scapa was to issue a new invoice for all ofthese charges in the amount of $35,274, and there is no disputethat Avery paid that bill.

Regarding the disputed "November run" of 17 rolls of 2-milbaseweb, however, the letter stated "Under review . . . Averyevaluating to determine how much is usable." Id. Under theheading "Actions," the letter stated, "Bill Goldsmith to completereview of [November run] and Scapa/Avery resolve [sic] within 30days." Id.

The letter then set forth provisions for appointment of a"joint development team" that was to "have full authority to approve or reject all or part of a trial or production run at thetime of manufacture." Id. Avery was to "provide the necessaryquality training for key Scapa staff to recognize various issuesand defects" in the baseweb, with a goal of a series of smallproduction runs leading to larger runs when quality issues wereresolved. Avery was to pay either $7500 toward the cost of eachrun, or the full value of the accepted baseweb, whichever washigher. Finally, "[a]t such time that regular production runs areresumed, Avery will take full responsibility for all goods thatmeet the product specifications." Id. Avery asserts that thisletter was intended to replace the requirements contract andconstitutes an accord and satisfaction.

"When there is a good faith dispute about the existence of adebt or about the amount that is owed, the common law authorizesthe debtor and the creditor to negotiate a contract of accord tosettle the outstanding claim." Herbert S. Newman & Partners,P.C. v. CFC Construc. Ltd. P'ship., 236 Conn. 750, 764,674 A.2d 1313, 1321 (Conn. 1996) (quoting County Fire Door Corp. v. C.F.Wooding Co., 202 Conn. 277, 281, 520 A.2d 1028 (1987)). "Anaccord is a contract between creditor and debtor for thesettlement of a claim by some performance other than that whichis due." Id. (quoting W.H. McCune, Inc. v. Revzon,151 Conn. 107, 109, 193 A.2d 601, 602 (1963)). To be considered valid, anaccord, just as any other contract, requires "mutual assent" between the parties. Newman & Partners, 236 Conn. at 764,674 A.2d at 1321; see also Restatement(Second) of Contracts(1981) § 281, app. note (d) ("The enforceability of an accord isgoverned by the rules applicable to the enforceability ofcontracts in general.").

In Newman & Partners, the plaintiff architectural firmdemanded from the defendant surety company payments the plaintiffalleged were due for services in connection with the constructionof a new city hall building in New Haven. The parties agreed thatthe defendant would pay $200,000 to settle the dispute. Thedefendant tendered what it stated would be the first of threepayments, in the amount of $100,000, with a letter saying thatthe next $50,000 would be paid at the end of that month and thesecond $50,000 upon completion of the project. The plaintiffaccepted the first check but wrote back to the defendant thataccording to their understanding the last payment would be due inabout two months, not at the end of the project. The partiesnever came to an agreement on the timing, and the defendant neverpaid the last $50,000. Because "the parties had disputed theterms of the settlement agreement," the Connecticut Supreme Courtheld that there was no "mutual assent, or a `meeting of theminds,'" and therefore there was no valid accord. Newman &Partners, 236 Conn. at 764, 674 A.2d at 1321 (quoting CrucibleSteel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A.2d 52 (Conn. 1920)).

Likewise, in this case the parties never reached an agreementregarding the disposition of the baseweb rolls produced duringthe November 2002 run. The January 28, 2003 letter merely statesthat the issue is "Under review . . . Avery evaluating todetermine how much is usable," and that "Scapa/Avery resolve[sic] within 30 days." Def. L.R. 56(a)1 Stmt., Ex. DD. The lettersets forth no definitive arrangement concerning the outcome ofAvery's "review." It does not bind Scapa to agree with Avery'sfinal particle count and does not set forth any procedure in caseof ongoing disagreement. The language simply leaves open a futureresolution of this issue between Scapa and Avery within 30 days.As is evident from the present litigation, the parties neverresolved this issue between themselves.5 Without anymutual assent concerning payment — or nonpayment — for the 172-mil rolls from the November 2002 run, the parties'correspondence in January 2003 cannot form a valid accord on thisissue. Additionally, there is a dispute of fact regarding whether theletter's provisions concerning developmental trials of basewebwere intended to replace the 2002 requirements contract in itsentirety. Avery takes the position that the letter is asubstituted contract, while Scapa argues that it was not. Theletter itself concerns interim steps the parties contemplated toget the Avloy baseweb project back on track; it does not containany provisions concerning the parties' future businessrelationship once successful production runs had been completed.As such, the letter is not inconsistent with the continuedexistence of the original requirements contract. The existence ofa substituted contract depends on the intent of the parties,Latham & Assocs. v. William Raveis Real Estate, Inc.,218 Conn. 297, 305, 589 A.2d 337, 341 n. 6 (Conn. 1991) (citation omitted),which is not evident from the face of the two documents at issuehere. Thus the Court cannot conclude as a matter of law that theparties manifested an intent to substitute the January 28 letterfor the 2002 requirements contract, and Avery's motion forsummary judgment on this basis must be denied.

2. Termination of Requirements Contract

Avery argues, in the alternative, that it is entitled tosummary judgment on Scapa's breach of contract claim becauseScapa, not Avery, terminated the requirements contract. Scapacounters that Avery terminated the contract by its refusal to accept baseweb that Scapa believed conformed to the contractualspecifications.

After the January 28 letter, the parties conducted anothertrial run on March 24, 2003. Representatives of both companiesattended. Scapa produced four rolls, of which Avery acceptedthree. Def. L.R. 56(a)1 Stmt., Ex. HH.

The parties planned to conduct another trial in April, but thatnever occurred. On May 28, 2003, Scapa wrote to Avery that it haddecided not to make any subsequent shipment "to avoid furthercomplicating the issue." Id. at Ex. II. Scapa alleged thatAvery's "account was past due," and "Avery had not responded toScapa's repeated requests for confirmation that the productspecifications, as reformulated product (which was manufacturedin March 2003 at a trial under Avery supervision) was acceptable.Scapa did not want to again manufacture product only to be toldthat it was not workable by Avery." Id. Thus Scapa's argumentreturns to the issue of whether Avery's interpretation of theterm "particle" in the contract was accurate, which the Courtalready has found requires disposition by a jury.

Avery argues, however, that even if its rejection of theNovember 2002 was improper, Scapa was not entitled to terminatethe contract for this nonpayment. Avery reasons that therequirements contract was an installment contract, which can onlybe terminated if failure to pay for one installment substantially impairs the value of the entire contract. See Conn. Gen. Stat.§ 42a-2-612(3) ("Whenever nonconformity or default with respectto one or more installments substantially impairs the value ofthe whole contract there is a breach of the whole."). Assumingfor present purposes that the parties' agreement fits thedefinition of an installment contract, Scapa's refusal to produceadditional runs was based not only on Avery's failure to pay forthe November run, but also on Avery's interpretation of theparticle specification, which would apply to all future runs. Inother words, Scapa's position is that Avery engaged inanticipatory repudiation of the contract by stating that it wouldnot accept baseweb with particles that Scapa believed were toosmall to be counted under the original specification. See Conn.Gen. Stat. § 42a-2-610 (anticipatory repudiation occurs "[w]heneither party repudiates the contract with respect to aperformance not yet due the loss of which will substantiallyimpair the value of the contract to the other . . ."). WhetherAvery in fact repudiated the contract by changing the demandedspecifications, or correctly interpreted the specifications inthe existing contract, again is a question for a jury.

If a jury finds anticipatory repudiation, then Scapa had threeoptions under Connecticut's version of the Uniform CommercialCode: "(a) for a commercially reasonable time await performanceby the repudiating party; or (b) resort to any remedy for breach . . . and (c) in either case suspend [its] ownperformance . . ." Id. Thus Avery's argument that Scapanecessarily waived the right to enforce the contract by failingto terminate it for five months is unavailing. Avery cites noauthority for the proposition that five months, between Januaryand May 2003, is not a "commercially reasonable time" to "awaitperformance" after an anticipatory repudiation, especially where,as here, the parties attempted to continue their relationship,engaged in another production run, and eventually found theirdifferences of opinion to be irreconcilable.

Therefore the Court finds that there is a material dispute offact concerning whether Scapa terminated the contract by its May28 letter or whether Avery terminated it by anticipatoryrepudiation. As such, Avery is not entitled to summary judgmenton Scapa's breach of contract count on the asserted grounds thatScapa improperly terminated the contract.

3. Requirements Provisions

Avery also moves for summary judgment on Scapa's breach ofcontract count on the additional basis that Avery has compliedwith the contract because it has not purchased extruded basewebfrom any other supplier. Scapa argues in opposition that thecontract required Avery to purchase all of its requirements ofbaseweb, not just extruded baseweb, from Scapa. The applicablecontract language states: During the term of this Agreement, Customer [Avery] shall purchase from Supplier [Scapa], and Supplier shall supply to Customer, one hundred percent (100%) of Customer's requirements of Avloy Product needed by Customer for production of its Avloy® product (the "Minimum Purchase Requirement"). Notwithstanding the above, in the event Supplier is unable to supply Customer with one hundred percent (100%) of its requirements of Avloy Product for use in Customer's Avloy® product, whether for reasons of force majeure or otherwise, Customer shall be entitled to enter into an agreement with such third party for the production of Avloy Product until such time as Customer determines, in its sole discretion, that Supplier is able to fulfill its obligations under this Section. . . .

Agreement ¶ 5(c), Pl. L.R. 56(a)1 Stmt., Ex. G. Thus the plainlanguage of the requirements provision applies to baseweb "neededby Customer for production of its Avloy® product," id., withoutdistinguishing between extruded and solvent coated baseweb.

The undisputed facts show that both parties entered thecontract negotiations believing that extruded baseweb eventuallywould be less costly to produce than solvent coated baseweb, andtherefore they contemplated that Avery would phase out itssolvent coated supplies and buy all its requirements of basewebfrom Scapa, its exclusive supplier of extruded baseweb. To holdthat the agreement permits Avery to purchase its requirements ofbaseweb from its solvent-coated baseweb supplier, regardless ofScapa's ability to supply extruded baseweb, would read into thecontract a provision in direct conflict with the intent of bothparties when they began negotiations. The "Initial ProductionDelays" section of the contract, id. at ¶ 7(c), indicates thatthe parties contemplated that a startup period would be necessary before extruded baseweb would become a fully viable technology,during which time Avery was entitled to purchase baseweb fromother suppliers under the exception for Scapa's inability tosupply 100% of Avery's needs, id. at ¶ 5(c). Once Scapa issueda "Seller's Capacity Notice," however, the requirements provisionwould become effective and Avery would be obligated to purchaseits entire baseweb supply from Scapa (or if Scapa could not meetAvery's entire need, as much baseweb as Scapa could produce). Inother words, both parties bargained with the intent that Averywould have at least some requirements for extruded baseweb in thefuture. It is unreasonable to interpret the contract to allowAvery to unilaterally decide, after Scapa had the ability toproduce conforming baseweb, to purchase solvent-coated basewebfrom another supplier and no extruded baseweb from Scapa.

Avery argues, nonetheless, that the contract's definition of"Avloy Product," contained in the second recital clause,indicates the parties' intent that only extruded baseweb beincluded in the bargain:

WHEREAS, Customer has provided and/or will provide Supplier with intellectual property relating to the production of a PVDF acrylic film product that is a component of a paint film marketed by Customer under the name Avloy® (such intellectual property, including the specifications and formulas set forth on Exhibits A and C attached hereto, and the Patents and pending application set forth on Exhibit B attached hereto, being hereinafter referred to as the "Avloy Intellectual Property," and such component being hereinafter referred to as the "Avloy Product") . . . Avery reasons that the above definition of Avloy Product includesonly extruded baseweb because the attached exhibits pertain onlyto extrusion technology. Avery misreads this paragraph, however.Exhibits A-C to the contract comprise "Avloy IntellectualProperty," which is distinct from "Avloy Product." Theintellectual property is said to "relat[e] to the production of"baseweb, but it does not limit the baseweb that is the subject ofthe contract only to extruded baseweb covered by the appendedpatents and specifications.6 It is not reasonable tointerpret this paragraph as limiting the requirements provisiononly to extruded baseweb. Avery therefore is not entitled tosummary judgment on the basis that it has not purchased extrudedbaseweb from any supplier other than Scapa.

4. 1-Mil Baseweb

Avery additionally moves for summary judgment on Scapa's breachof contract claim to the extent that Scapa claims as damages lostprofits from manufacture of 1-mil baseweb. Avery asserts that thecontract specifications for Exhibit A call for a thickness of 1.7 to 2.1 mil, and therefore 1-mil baseweb neverwould have been acceptable under the specifications. Averyfurther argues that the price stated in the contract, 35 centsper square foot, is what Avery paid for 2-mil baseweb, while itpaid only 27 cents for 1-mil baseweb, and therefore the contractcould not apply to 1-mil baseweb. See Agreement at ¶ 4(a).

Avery did in fact order two rolls of 1-mil baseweb from Scapa,at a price of 27 cents, as part of the November 2002 productionrun. Avery accepted and paid for those rolls. See Invoice, Def.L.R. 56(a)1 Stmt., Ex. N.

Scapa argues that the contract permits the specifications inExhibit A to "be amended by mutual consent of Customer andSupplier from time to time," Agreement at ¶ 2, and that Avery'sorder of two rolls of 1-mil baseweb constitute such an amendment.However, a single order does not amount to a course of dealingthat could amend the contract for future purposes, absentevidence of both parties' intent to amend. Rather, Avery iscorrect that the contract specifications call for 2-mil basewebonly. Therefore Avery is entitled to judgment as a matter of lawon Scapa's claim for lost profits from 1-mil baseweb.

5. Lost Profits

As the fifth ground for summary judgment on Scapa's breach ofcontract claim, Avery asserts that Scapa's alleged lost profitsare "hopelessly speculative, if, indeed, they exist at all." Avery Brief [Doc. # 34] at 12. A new enterprise may recoverlost profit damages that it can prove "to a reasonablecertainty." Beverly Hills Concepts, Inc., v. Schatz & Schatz,Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724, 735 (Conn.1998). The plaintiff's burden is to "present sufficientlyaccurate and complete evidence for the trier of fact to be ableto estimate [lost] profits with reasonable certainty." Id. at70. The Connecticut Supreme Court has "note[d] that lack of priorprofitability does not necessarily prohibit a trial court fromawarding future lost profits, although it serves as a strongindicator that future profits are uncertain. The plaintiff mustcarry the burden of proving that prior losses will be turnedaround to provide future gains." Id. at 75-76.

Avery's arguments focus primarily on Scapa's use of allegedlyoutdated forecasts of Avery's baseweb requirements, theuncertainty of Scapa's costs of producing baseweb given the smallnumber of trial runs, and the uncertainty concerning the timeperiod for the contract given that Scapa had not yet issued itsSeller's Capacity Notice. Regardless of these quibbles, it isundisputed that Avery had some baseweb requirements for the threeyears following the date the contract was signed, because Averycontinued to purchase solvent-coated baseweb during that period.There is a dispute of material fact concerning whether Scapa wasable to produce baseweb meeting Avery's technical requirements, specifically the maximum particle count specified in thecontract. If a jury finds that Scapa's baseweb metspecifications, it could conclude that Scapa lost profits basedon Avery's acknowledged need for baseweb as a component of Avloy®material. Thus the Court cannot now conclude that Scapa's claimfor lost profits must fail as a matter of law, and Avery's motionfor summary judgment on this basis must be denied.

6. Roll Number 17

Finally, Avery moves for summary judgment with respect toScapa's claim for damages on roll number 17 from the November2002 run because it asserts that Scapa admitted that that rollexceeded the maximum particle count. Contrary to Avery'sassertions, Meg Gilmartin of Scapa did not testify unambiguouslythat roll 17 exceeded specifications.7 Scapa obtained aparticle count of 9 on this roll, Def. L.R. 56(a)1 Stmt., Ex. Uat 2, while Avery obtained a particle count of 85. Id., Ex. Vat 2. The particle count on this roll, as the others, remains adisputed issue of material fact, and therefore Avery is notentitled to summary judgment on this theory or any other theory pertaining to Scapa's breach of contract claims.

B. Count One: Declaratory and Injunctive Relief

The first count of Scapa's complaint seeks a declaration that"(1) the Avloy Product it has supplied to [Avery] conforms to therequirements of the Agreement; (2) [Avery] is obligated topurchase Avloy Product solely from [Scapa] for a minimum periodof three years following entry of the judicial decree; (3)[Scapa] is not contractually obligated to manufacture AvloyProduct with features other than those set forth in theAgreement; (4) [Avery] is not entitled to terminate the Agreementor to act in a manner tantamount to terminating the Agreement;and (5) [Avery] is obligated to manufacture Avloy® solely byusing Avloy Product supplied by [Scapa]," and Scapa also seekscorresponding injunctive relief. Compl. ¶¶ 26-27.

The parties agree that this count stands or falls with Scapa'ssubstantive breach of contract claims. Because the Court hasdenied summary judgment to Avery on those counts, the Court alsodenies Avery's motion for summary judgment on Count One ofScapa's complaint.

C. Count Four: Breach of Implied Covenant of Good Faith andFair Dealing

Scapa asserts that Avery has breached the covenant of goodfaith and fair dealing implied in the parties' 2002 Agreement.Specifically, Scapa alleges that Avery "has claimed that theAvloy Product manufactured by [Scapa] must satisfy specifications that are found nowhere within the Agreement. . . . Uponinformation and belief, [Avery] is seeking to use itsunreasonable interpretation of the Agreement's terms andrequirements to justify the termination of the Agreement, or tojustify [Avery] obtaining Avloy Product from a source other than[Scapa] and manufacturing Avloy® that does not incorporate[Scapa's] Avloy Product." Compl. ¶¶ 38-39.

The Connecticut Supreme Court has set out the standards for abreach of good faith claim: It is axiomatic that the duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term. To constitute a breach of the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Bad faith means more than mere negligence; it involves a dishonest purpose.De La Concha of Hartford, Inc. v. Aetna Life Ins. Co.,269 Conn. 424, 432-33, 849 A.2d 382, 387-88 (Conn. 2004) (internalcitations, quotation marks and alterations omitted). Scapa asserts that "Avery purposefully misinterpreted the`particle' specification (a disputed material issue of fact) toavoid the requirements provisions of the Supply Agreement," whichAvery belatedly realized would be unprofitable. Pl. Brief in Opp.at 28. Scapa argues that "Mr. Goldsmith [of Avery] signed acontract without consulting his technical staff."

The evidence, however, does not support Scapa's argument.Although one lower-level Avery quality control employee testifiedthat she was "surprised at the particle count" of 17 contained inthe contract, Giles Dep. at 33-34, Goldsmith stated that heconsulted with high-level technical staff and knew Avery'scustomers would prefer lower particle counts and that the17-particle specification might be unprofitable: . . . I relied heavily on the technical advice given to me by Howard Enlow, Avery's then-Technical Director. Mr. Enlow is more familiar with Avery's customers' technical requirements, including product specifications, than anyone else at Avery. Mr. Enlow agreed with my decision to accept the 17 particle defect count number, understanding that there would be some negative business ramifications, at least in the short term.Second Goldsmith Aff. ¶ 9. Mr. Enlow's affidavit is ambiguous asto whether he believed the specification to be 3 or 17.8 Nonetheless, Scapa does not present evidence contradictingGoldsmith's statement that he consulted Enlow regarding thespecifications.

Furthermore, Scapa presents no evidence that Avery belatedlyconcocted a new definition of "particle" to avoid paying forbaseweb already manufactured or to avoid the three-yearrequirements period. There is nothing in the record indicatingthat Avery intended to commit an "actual or constructive fraud"or acted with "a design to mislead or deceive. . . ." De LaConcha, 269 Conn. at 433, 849 A.2d at 388. Rather, the evidenceshows nothing but a good-faith dispute over the correctinterpretation of the term "particle" in the contract and whetherthe baseweb supplied by Scapa from the November 2002 run met thecontractual specifications. The evidence further shows that Averyand Scapa attempted to work out a compromise in the monthsfollowing the production run, and that Avery did several particlecounts on the disputed rolls in an effort to determine if itcould use any of them. Whether Avery's contractual interpretationis correct remains a disputed issue of material fact. However,there is no evidence that Avery interpreted the contract in badfaith. Therefore Avery is entitled to summary judgment on CountFour of Scapa's complaint.

D. Count Six: Negligent Misrepresentation

For the same reasons, Avery's motion for summary judgment will be granted on Scapa's negligent misrepresentation claim. InCount Six of its complaint, Scapa asserts that "[f]ollowing theexecution of the Agreement, and at a time when [Avery] knew that[Scapa] was expending resources to manufacture Avloy Product,[Avery] negligently failed to inform [Scapa] that it had nointention of fulfilling its obligations under the Agreement."Compl. ¶ 49. In support of this claim, Scapa's memorandum of lawsimply asserts that "Mr. Goldsmith could have saved [Scapa] muchharm, during the seven months prior to execution of the SupplyAgreement, [had] he used due diligence and had a frank discussionwith his technical staff regarding the specifications heeventually sought to impose on [Scapa]." Pl. Brief in Opp. at26-27.

Scapa proffers no evidence that Avery knew or should have knownfrom the beginning that it would likely abandon the contract.Hence there is no evidence that Avery misrepresented itsintentions to Scapa. There is also no evidence that amiscommunication between Avery's managers and technical staffprovided a motive to make misrepresentations, and Scapa's claimto the contrary is speculative. Therefore Avery's motion forsummary judgment will be granted on this count.

E. Count Five: Promissory Estoppel

Count Five of Scapa's complaint asserts promissory estoppel,and Avery moves for summary judgment on the ground that "Scapa's complaint does not further explain what promises, other thanthose set forth in the 2002 Agreement, Avery made." Avery Briefat 16.

"Promissory estoppel is asserted when there is an absence ofconsideration to support a contract." Glazer v. Dress Barn,Inc., 274 Conn. 33, 88, 873 A.2d 929, 963 (Conn. 2005). Thus acourt should "permit? a jury to consider in the alternativeclaims for breach of contract and for promissory estoppel whenthere is an issue of whether the agreement may be too indefiniteto allow for contract formation." Id. at 88-89.

Scapa asserts that where there is an issue of fact concerningthe coverage of the 2002 requirements contract — for example,whether the contract applies to 1-mil baseweb — Scapa should beable to present contractual and promissory estoppel theories to ajury in the alternative. However, "[p]romissory estoppel . . . isnot a separate cause of action available to plaintiffs, butrather serves to allow enforcement of an otherwise validly formedcontractual commitment that lacks traditional consideration."Pavliscak v. Bridgeport Hosp., 48 Conn. App. 580, 592,711 A.2d 747, 753 n. 5 (Conn.App. 1998). There is no assertion here thatthere was a failure of consideration when the parties signed therequirements contract in 2002. Promissory estoppel is not agap-filling measure for occasions when there is a dispute overthe meaning of a contract. A plaintiff "cannot use the theor[y] of promissory estoppel . . .to add terms to [a] contract that are . . . inconsistent withthose expressly stated in it." Wood v. Sempra Energy TradingCorp., No. 3:03CV986 (JCH), 2005 WL 465423 at * 11 (D. Conn.Feb. 22, 2005).

Thus defendant is correct that plaintiff's claim for promissoryestoppel cannot be maintained where a valid contract supported byconsideration is shown to exist. Avery's motion for summaryjudgment on Count Five of Scapa's compliant therefore is granted.

V. CONCLUSION

Accordingly, Avery's motion for summary judgment [Doc. # 28] isGRANTED IN PART as to Counts Four, Five and Six of Scapa'scomplaint as well as that portion of Counts Two and Three seekingdamages related to 1-mil baseweb, and DENIED IN PART as to CountOne and the remainder of Counts Two and Three. Scapa's motion forsummary judgment [Doc. # 31] is DENIED.

IT IS SO ORDERED.

1. Randal Hack, an Avery Quality Technician, testified,somewhat ambiguously, that he believes he trained Scapa personnelto measure particles using a "Tappi Chart," which has not beenfully described in the summary judgment record: Q: . . . Did you ever train anyone at Scapa or talk to them about how to measure particles using the Tappi Chart? A. I believe so, yes. Q. And who did you talk to? A. I would assume it would have been Bud Miner and [Duane] Gordon and maybe it was Meg [Gilmartin], I would assume that. It's hard to remember that far back. . . . Q. And what did you talk about with them, I mean with respect to using the Tappi Chart? A. You know, what I normally did is show them how to use it, you got to hold it and move it, and this is the size we're setting up on the defect.Hack Dep. at 46-47.

2. The counterclaim asserts: "As a direct and proximate resultof [Scapa's] breach, Avery has lost considerable profits that itwould have realized with the production of extruded Avloy Productand has been damaged in an amount to be determined at trial." Am.Answer & Counterclaims [Doc. # 10] at ¶ 38.

3. Additionally, plaintiff's argument that the provisionlimiting the parties' remedies to repair, replacement or refund,see Agreement at ¶ 7(b), prohibits Avery from seeking reliancedamages is without merit, as that provision clearly applies inthe case of defective goods, not breach of the entire contract.

4. Avery alternatively asserts that there was a "novation,"but this concept is inapplicable because the January 28 letterdid not incorporate a new or different party to the contract.See Restatement (Second) of Contracts, § 280 (1981) ("Anovation is a substituted contract that includes as a party onewho was neither the obligor nor the obligee of the originalduty.")

5. Fireman's Fund Ins. Co. v. Conn. Dept. of Public Works,No. CV 89354178S, 1996 WL 367795 (Conn.Super. June 4, 1996),relied on by Avery, is not to the contrary. In that case,plaintiff indemnified the State on a project to build grouphomes, which was plagued by delays. The State fired the generalcontractor, after which time plaintiff assumed responsibility foronly a part of the project — four homes out of eight — on amodified time schedule. The court held that the modifiedagreement was an accord and satisfaction, finding a "meeting ofthe minds" because "[a]ll of the concerns of the parties wereincluded in the March 3 Agreement and were resolved by them inthat contract." Id. at *14. In the present case, the letterfrom Scapa to Avery does not resolve all of the concerns of theparties and therefore does not manifest an "inten[t] that itshould release both [parties] from all obligations" under theoriginal contract. Id.

6. The patents listed on Exhibit B are identified by numberonly, with no explanation. Defendant cites the deposition of JohnMarkey, see Def. L.R. 56(a)1 Stmt., Ex. D., at 27, for theproposition that the patents listed on that exhibit pertain toextruded baseweb. Mr. Markey testified that he obtained twopatents related to extruded baseweb, but he did not state whetherhis patents were listed on Exhibit B. The chemical compoundslisted as the "Avloy Formula" on Exhibit C are likewiseunexplained in the record, although one combination is designatedan "extrusion coating blend." Therefore the record isinsufficient for the Court to determine at this stage whetherthese exhibits pertain to extrusion technology. Even if Avery iscorrect regarding the exhibits, however, the exhibits still onlydefine "Avloy Intellectual Property," not "Avloy Product."

7. Gilmartin testified as follows: Q. Now other than roll 17, did anybody at Scapa ever get a defect count of over 17 for any of the other rolls? A. No.Gilmartin Dep. at 86. This exchange, while murky, does notconstitute an admission that the particle count of roll 17exceeded specifications, especially given the documentaryevidence that Scapa obtained a particle count of 9 for thisroll.

8. Enlow's affidavit states: 4. Bill Goldsmith . . . consulted with me extensively with regard to the specifications contained in the April 30, 2002 Purchase and Supply Agreement between Avery and Scapa, including the specification that allowed for 3 `particles' 0.4 mm² or larger to be within a two linear foot sample of baseweb. 5. We understood at the time we agreed to the 17 particle count specification that it would likely result in increased product returns from our customers. . . .

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ## 28, 31]

This commercial dispute arises from a written contract betweenthe parties that was intended to result in joint development of acomponent of an automotive finishing product that defendant AveryDennison Corp. ("Avery") markets under the brand name Avloy.Plaintiff Scapa Tapes North America, Inc. ("Scapa") seeks adeclaratory judgment that material it supplied to Avery conformedto the contractual specifications, and related injunctive relief(Count One), and damages for common law breach of contract fornonpayment of goods (Count Two), improper rejection of goodsunder the U.C.C. (Count Three), breach of the covenant of goodfaith and fair dealing under Connecticut tort law (Count Four),promissory estoppel (Count Five), and negligent misrepresentation(Count Six). See Complaint [Doc. #1]. Avery has moved forsummary judgment on all six of Scapa's claims. Def. Mot. forSummary Judgment [Doc. # 28]. Avery also asserts counterclaimsagainst Scapa for a declaratory judgment that Scapa's product didnot conform to specifications (Counterclaim One), damages for common law breach of contract (CounterclaimTwo), and disgorgement of unjust enrichment (Counterclaim Three).Scapa has cross-moved for summary judgment on Counterclaims Oneand Two only. See Pl. Mot. for Summary Judgment [Doc. # 31].For the reasons that follow, Avery's motion will be granted as toScapa's claims of breach of good faith, negligentmisrepresentation, and promissory estoppel, as well as the issueof liability under the contract for 1-mil baseweb, and denied asto Scapa's remaining claims; Scapa's motion will be denied in itsentirety.

I. FACTUAL BACKGROUND

Defendant Avery sells Avloy to automotive parts manufacturers.Avloy is a type of film used to cover the outside of automobileparts as an alternative to wet spray paint. Def. L.R. 56(a)1Stmt. [Doc. # 35] at ¶ 2. It comes in thicknesses of "1-mil" and"2-mil," and is shipped to customers in rolls. Id. ¶¶ 2-3.Avloy consists of four layers: a baseweb, a color coat, a tiecoat, and a backing sheet to protect the product in transport.Id. ¶ 3. Avery has in the past, and continues today, topurchase baseweb, the first layer, from outside vendors whomanufacture it by "`solvent coating' the resin onto thesubstrate, which is a liquid process that uses a solvent, as thename implies." Id. ¶ 5.

In 1998, Avery began searching for a way to make baseweb through an extrusion technique, meaning squeezing melted resinonto the substrate. Id. ¶ 6. Bill Goldsmith, Vice President andGeneral Manager of the Performance Films Division of Avery,stated that "[e]xtrusion technology had never been used before inthe manufacture of Avloy®, but Avery believed that extrudedbaseweb would be cheaper and of better quality thansolvent-coated baseweb. Extrusion also has significantenvironmental benefits, since no solvents are used. Averyemployees secured several patents relating to the new process."Goldsmith Aff. at ¶ 6.

In 1999, Avery began working with Great Lakes Technologies,which was bought by Scapa the next year, on developing extrudedbaseweb. Id. ¶¶ 7-8. Between late 1999 and 2001, the companiesjointly conducted a series of test runs, and then proceeded tocodify their future business arrangement in a written contract.

The Purchase and Supply Agreement, signed in April 2002,recites that Scapa has specialized manufacturing experiencedesirable to Avery; that Avery would provide Scapa with certainintellectual property relating to Avloy as set forth on separateriders; that Scapa would "need to make significant capitalexpenditures and allocate significant resources which would notbe done absent the commitments of [Avery] set forth in thisAgreement; and . . . as a material inducement to [Scapa's]obligations . . . [Avery] is willing to undertake" the exclusive supply agreement set forth in the requirements contractprovisions. Def. L.R. 56(a)2 Stmt., Ex. J at 1. The contractrefers to the baseweb to be manufactured as "Avloy Product," andrequires Scapa to "manufacture such Avloy Product for [Avery] ina good and workmanlike manner in accordance with specifications,quality standards and formulas" attached to the contract as arider. Id. at 1-2. Exhibit A to the contract, entitled "AveryDennison Proprietary and Confidential Specifications — Avloy,"contains, among others, the following terms: Characteristic UOM [unit of measurement] MIN MAX Particles 0.4 mm² 17 (within two linear feet × width of web) Thickness Mil 1.7 2.1 Id. at 12.

The contract also reflects that the production of Avloy Productwas still experimental at that point:

Initial Production Delays. Customer [Avery] acknowledges and agrees that only samples of the Avloy product have heretofore been produced and that the manufacture of the Avloy product in the quantities contemplated will be subject to the installation and development of new equipment and process, the exact timetable for which cannot be determined at this time. Customer further acknowledges and agrees that there will be a period of time necessary for testing the new machinery and processes utilized in manufacturing the Avloy Product, that Supplier [Scapa] reserves the right to establish and extend testing procedures as Supplier deems reasonable under the circumstances prior to commencing full production, and that delays may result from this process. Accordingly, as a material inducement to Supplier's proceeding with this Agreement and making investment [sic] contemplated hereunder, Customer agrees that it waives the right to assert and will not assert any claim . . . for delays in delivery of Avloy Product . . . unless and until Supplier acknowledges in writing that all tests [sic] production runs have been successfully completed ("Seller's Capacity Notice"). Customer agrees to cooperate with Supplier to test Avloy Product and to timely respond to Supplier inquiries respecting samples. . . .Id. at 7-8 (emphasis added).

The requirements contract was to last for a period of threeyears from the date that Scapa delivered the "Seller's CapacityNotice," renewable annually thereafter. Id. at 2. Avery was toprovide Scapa with yearly forecasts of its requirements forbaseweb, updated each month, id. at 5, and the contractpermitted Avery to terminate the agreement for cause if, amongother reasons, Scapa "fails to manufacture and deliver to [Avery]the Avloy Product as required by this Agreement, in sufficientquantities (subject to and based upon Customer's annualforecast). . . ." Id. at 3. The initial price of the basewebwas set at 35 cents per square foot, subject to annual adjustmentby mutual consent. Id. at 4. Finally, the contract contains anintegration clause, id. at 9, and a choice of law provisionselecting Connecticut law. Id. at 10. It was signed by AveryGeneral Manager Bill Goldsmith and Scapa Executive VicePresident/General Manager Steve Lennon.

After the contract was executed, Scapa and Avery jointlyengaged in trial production runs of baseweb in June, August andSeptember 2002. A December 20, 2002 internal Scapa memorandum,also relied on by Avery, see Avery L.R. 56(a)2 Stmt., ¶ 13, states that the May run produced 6 rolls, of which 3 were sent toAvery, and "Feedback was good in fact only comment was `ribbing.'Defect counts all below 10 defects and no mention ofdisagreement." Def. L.R. 56(a)2 Stmt., Ex. O at 1. The August runproduced four rolls, of which "two rolls with defect counts of 12and 14" were sold to Avery. Id. The notation regarding theserolls states, "Ribbing defect very light. . . ." Id. TheSeptember 2002 run resulted in 11 rolls after the testers"[s]tarted up and scrapped the 1st two rolls because of chillroll scratches. . . . Defect counts are all under 17 and nomention at all of ribbing." Id. These runs appear to havegenerated no major quality control disputes between the parties.

The last production run took place on November 12, 2002. Thiswas the first run that Scapa conducted without assistance fromAvery personnel, and it ultimately gave rise to this lawsuit.Scapa produced 17 rolls of 2-mil baseweb, shipped them to Avery,and presented an invoice for approximately $107,600. Def. L.R.56(a)2 Stmt., Ex. Q. Avery rejected the shipment and refused topay, on the ground that the material failed to conform tocontractual specifications. Avery's defect counts for the rollsranged from 20 to 85 defects, including "ribbing/lines," andAvery therefore took the position that the rolls exceeded the17-particle maximum. Id. at Ex. S. Scapa's particle countsranged from 4 to 15, with no roll exceeding the 17-particle maximum. Id. at Ex. R.

The difference stemmed from varying measuring techniques. Scapameasured only the contaminant particles that were embedded in thebaseweb. Avery measured the particles plus the surrounding areaof deformation, which it called a "halo." Giles Dep. at 135.Melissa Giles, who was then Avery's Coating Manager for Coater 8,where baseweb is processed, stated that "any disruption in thematerial would be included as part of the defect. . . . That's aknown, that's a given for any product we run here, not specificto" the Avloy baseweb. Id. at 136.

Giles also testified that she was not involved in negotiatingthe terms of the contract between Scapa and Avery, and whenGoldsmith, who had negotiated on Avery's behalf, showed her theagreed specifications, she was "surprised at the particle count"of 17 because Avery's agreements with their existingsolvent-coated baseweb supplier called for a particle count of 3.Id. at 33-34. Goldsmith, however, stated that he consulted withHoward Enlow, Avery's Technical Director, who was familiar withtheir customers' technical requirements, and who approved a17-particle specification. Second Goldsmith Aff. at ¶ 9.

Goldsmith testified that he did not expect the particlespecification to remain at 17 because his customers would not beable to use material with that many defects and Avery would "geta lot of it back. . . ." Goldsmith Dep. at 57. Therefore Avery intended to have Scapa manufacture enough baseweb meeting thecontractual specifications "to get it tested" through Avery'squality control process, and "the full commercial product wouldneed to be at some level of defect . . . that was 3 or less."Id. Avery apparently did not share this understanding withScapa, and several Scapa employees testified that they believedthat Avery was "changing . . . the goal post," Dep. of ScottBarnes at 25, in terms of the particle specifications.

An additional factor in the disagreement seems to be that someof the particles, which were clear, did not show up until thebaseweb was laminated with colored coating. See Def. L.R.56(a)1 Stmt., Exs. W, X. Thus Scapa found it "shocking" toreceive Avery's report, a few weeks after the November productionrun, that the rolls did not meet specifications once laminated,because the particles had not been evident to Scapa during theirpre-lamination tests. Email from Ron Lilly, id. at Ex. X.

After Avery refused to pay for the November 2002 rolls, theparties engaged in a series of communications, culminating in aletter of January 28, 2003 from Scapa to Avery, memorializing aphone conversation between the parties. The letter sets forth anagreement that Avery was to pay half of the amounts of fourdisputed invoices from 2001-2002, and that Avery was tore-examine the November 2002 run to determine "how much isusable." Id. at Ex. DD.

Avery ultimately concluded that all of the rolls were above the"17 defect limit" and not usable. Id. at Ex. GG. Scapacontinued to disagree, but the parties attempted to continuetheir business relationship and conducted a trial run on March24, 2003. Another trial was scheduled for April but, for reasonsnot apparent in the record, never took place. On May 28, 2003,Scapa wrote to Avery that it had decided not to produce any moreextruded baseweb because the parties disagreed over thecontractual specifications and Avery's "account was past due."Id. at Ex. II. Scapa filed this lawsuit on October 2, 2003.

II. STANDARD

Summary judgment is appropriate where "there is no genuineissue as to any material fact and . . . the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). An issue of fact is "material" if it "might affect theoutcome of the suit under the governing law," and is "genuine" if"the evidence is such that a reasonable jury could return averdict for the nonmoving party." Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A party seeking summary judgment"bears the burden of establishing that no genuine issue ofmaterial fact exists and that the undisputed facts establish[its] right to judgment as a matter of law." Rodriguez v. Cityof N.Y., 72 F.3d 1051, 1060-61 (2d Cir. 1995) (citing Adickesv. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "The duty of thecourt is to determine whether there are issues to be tried; inmaking that determination, the court is to draw all factualinferences in favor of the party against whom summary judgment issought, viewing the factual assertions in materials such asaffidavits, exhibits, and depositions in the light most favorableto the party opposing the motion." Id. (citations omitted). "Ifreasonable minds could differ as to the import of the evidence . . .and if there is any evidence in the record from any sourcefrom which a reasonable inference in the nonmoving party's favormay be drawn, the moving party simply cannot obtain ? summaryjudgment." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2dCir. 1997) (internal citations, alterations and quotationsomitted).

On cross-motions for summary judgment "neither side is barredfrom asserting that there are issues of fact, sufficient toprevent the entry of judgment, as a matter of law, against it.When faced with cross-motions for summary judgment, a districtcourt is not required to grant judgment as a matter of law forone side or the other." Heublein, Inc. v. United States,966 F.2d 1455, 1461 (2d Cir. 1993) (citing Schwabenbauer v. Bd. ofEduc. of Olean, 667 F.2d 305, 313 (2d Cir. 1981)). "Rather, thecourt must evaluate each party's motion on its own merits, takingcare in each instance to draw all reasonable inferences against the party whose motion is under consideration." Schwabembauer,667 F.2d at 314.

III. PLAINTIFF SCAPA'S MOTION FOR SUMMARY JUDGMENT

A. Meaning of "Particle" In Supply Agreement

Scapa first moves for summary judgment on Count One of Avery'scounterclaim and Count One of its own complaint, both of whichseek a declaratory judgment on the proper definition of a"particle" under the contract specifications and a determinationof whether the baseweb produced by Scapa's November 2002production run conformed to the specification.

"Where the language of the contract is unambiguous, andreasonable persons could not differ as to its meaning, thequestion of interpretation is one of law to be answered by thecourt." Hunt Ltd. v. Lifschultz Fast Freight, Inc.,889 F.2d 1274, 1277 (2d Cir. 1989) (quoting Rothenberg v. Lincoln FarmCamp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985)). "Contractlanguage is not ambiguous if it has a definite and precisemeaning, unattended by danger of misconception in the purport ofthe [contract] itself, and concerning which there is noreasonable basis for a difference of opinion." Id. (internalcitation omitted). However, even where language of a commercialcontract is unambiguous, testimony concerning trade custom andusage may be offered to define terms that have a technicalmeaning within a particular business. Harry A. Finman & Son, Inc. v. Conn. Truck & Trailer Serv. Co., 169 Conn. 407, 411,363 A.2d 86, 89 (1975). "Evidence of custom or usage is properlyadmissible when the subject matter . . . is not a matter ofcommon knowledge." L.F. Pace & Sons, Inc., v. Travelers Indem.Co., 9 Conn. App. 30, 38, 514 A.2d 766, 771 (Conn.App. 1986).In such a situation, "[e]vidence of custom and usage in a tradeis admissible and the weight to be assigned it is for the jury."Burlington Constr. Co. v. R.C. Equip. & Constr., Inc.,13 Conn. App. 505, 508, 537 A.2d 534, 535 (Conn.App. 1988).

Additionally, the "course of performance the parties followed . . .is strong evidence" of the parties' intent regarding themeaning of their contract. Putnam Park Assocs. v. Fahestock &Co., 73 Conn. App. 1, 10, 807 A.2d 991, 997 (Conn.App. 2002)(citing Restatement (Second) of Contracts § 202(4) ("where anagreement involves repeated occasions for performance by eitherparty with knowledge of the nature of the performance andopportunity for objection to it by the other, any course ofperformance accepted or acquiesced in without objection is givengreat weight in the interpretation of an agreement.")).

In this case, the parties assert dramatically differentinterpretations of the meaning of the word "particle" in thecontract specifications. Scapa asserts that a particle is acontaminant embedded in the baseweb and nothing else. Avery,however, asserts that under the trade usage applicable to this contract and its contracts with other suppliers, it is understoodthat a particle includes the entire defect, meaning the particleand the so-called "halo" around it produced by the contaminant'spresence. Scapa replies that if Avery wanted to specify adescription of "particle" in the contract that included a "halo,"it could have done so in a manner similar to its contracts withits customers and other suppliers, which have more detailedspecifications. Avery's other contracts, however, do not containspecifications for "particles" but describe resulting defects,including "bumps," "craze lines," "dirt/lacquer gels,""fisheye/craters," "hairs," "lines," "micro-blisters," "pits""wrinkles," etc. Scapa L.R. 56(a)2 Stmt. [Doc. # 36], Ex. G atAPF 2210, 2228, 2240, 2214, 2216.

A reasonable jury could conclude from this evidence that"particle" was a technical shorthand for these various defects,as asserted by Avery's employees, see Giles Dep. at 136 ("anydisruption in the material would be included as part of thedefect. . . . That's a known, that's a given for any product werun here, not specific to" the Avloy baseweb). Alternatively, ajury could find, based on the more detailed specifications thatAvery included in its other contracts, that "particle" has nospecific trade meaning. This issue cannot be resolved at thesummary judgment stage, except to conclude that "[e]vidence ofcustom and usage in a trade is admissible and the weight to be assigned it is for the jury." Burlington Constr.,13 Conn. App. at 508, 537 A.2d at 535.

The weight that should be accorded the parties' past course ofperformance also must be decided at trial. Avery has presentedevidence from which a jury could conclude that the parties'course of dealing established an expectation that "particles"within the meaning of the contract were equivalent to "defects."Avery has proffered somewhat tentative testimony about trainingScapa personnel to measure defects according to Avery's standardsearly in the baseweb development process. See Hack Dep., Def.L.R. 56(a)2 Stmt., Ex. H, at 46-47.1 It also could beinferred from Scapa's own internal memorandum of December 2002that Scapa had an understanding that under the terms of thecontract it was supposed to count "defects," including "ribbing."Def. L.R. 56(a)2 Stmt. Ex. O at 1. ("Defect counts all below 10defects and no mention of disagreement" concerning March 2002 run; August run produced "two rolls withdefect counts of 12 and 14" with the "Ribbing defect very light;"September 2002 run said to have had "[d]efect counts . . . allunder 17 and no mention at all of ribbing."). In March 2003,after the dispute over the contractual specifications arose, RonLilly of Scapa referred in an internal email to "the 17 defectlimit." Def. L.R. 56(a)1 Stmt., Ex. GG.

While Scapa makes much of the testimony of various Averyemployees that the term "halo" was not used between the partiesuntil after the dispute arose concerning payment for the November2002 rolls, a jury could conclude that there had been no need forsuch a description during the parties' previous dealings becausethere was an understanding between them that the entire disruptedarea constituted a "defect." The summary judgment record does notcontain sufficient evidence to discern how the "particle" countson the earlier rolls were obtained, i.e., whether the partiesmeasured the contaminant or the surrounding area as well. Thisissue of fact must be presented to a jury to decide whether theparties' course of performance, or trade usage in the industry,precludes Scapa from arguing that "particles" are somethingdifferent from "defects." Accordingly, Scapa's motion for summaryjudgment on its first count and Avery's first counterclaim isdenied. B. Breach of Contract

Scapa also moves for summary judgment on Avery's SecondCounterclaim, which alleges breach of contract, on the basis thatAvery cannot prove any lost profits and therefore cannot prove ithas suffered damages due to the contract's termination. Averyconcedes that its "lost profits are too speculative to permitrecovery" because "[t]his is an entirely new business ventureusing entirely new technology that has never been attempted on aproduction scale." Avery Brief in Opp. [Doc. # 38] at 6. However,Avery claims reliance damages for the Avloy Product previouslypaid for under the agreement plus sums expended "to keep theproject going after Scapa initially threatened to terminate it."Id. at 7.

Where expectation damages are too speculative to calculate,reliance damages may be awarded for breach of contract. Int'lBrands USA, Inc. v. Old St. Andrews Ltd., 349 F. Supp. 2d 256(D. Conn. 2004) (citing ATACS Corp. v. Trans WorldCommunications, Inc., 155 F.3d 659, 669 (3d Cir. 1998) ("where acourt cannot measure lost profits with certainty, contract lawprotects an injured party's reliance interest by seeking toachieve the position that it would have obtained had the contractnever been made, usually through the recovery of expendituresactually made in performance or in anticipation ofperformance.")); Nashville Lodging Co. v. Resolution TrustCorp., 59 F.3d 236, 246 (D.C. Cir. 1995) ("where the prospective, `benefit of the bargain'damages prove too difficult or speculative to calculate, courtscommonly give the plaintiff damages measured retrospectively,protecting the plaintiff's `reliance interest' by undoing theharm which his reliance on the defendant's promise has caused himand putting him in as good a position as he was in before thepromise was made.").

Scapa points out that Avery did not specifically claim reliancedamages for breach of contract in its pleadings. Avery's secondcounterclaim specifically seeks lost profits and not reliancedamages.2 However, Avery also seeks "any and all otherand further relief that this Honorable Court deems just andproper." Am. Answer & Counterclaims [Doc. # 10], Prayer forRelief. Scapa does not assert that Avery is not in fact entitledto reliance damages. Furthermore, Scapa will not be prejudiced bydefendant's demand for reliance damages on the breach of contractcounterclaim because defendant also seeks reliance damages —presumably in the same amount — in its unjust enrichmentcounterclaim, on which Scapa has not moved for summaryjudgment.3 See id. at ¶¶ 40-42.

Therefore the Court will not grant summary judgment to Scapa onAvery's breach of contract counterclaim solely because Averyfailed to articulate a specific claim for reliance damages onthat claim. Scapa's motion for summary judgment thus is denied inits entirety.

IV. DEFENDANT AVERY'S MOTION FOR SUMMARY JUDGMENT

A. Counts Two and Three: Breach of Contract

Avery's motion for summary judgment essentially is a mirrorimage of Scapa's. Avery begins by seeking summary judgment onScapa's two breach of contract claims: Count Two of Scapa'scomplaint asserts a claim for "common law breach of contract fornonpayment of goods" based on Scapa's assertion that it suppliedAvery with baseweb that conformed to specifications and Averyfailed to pay for $107,608 of the goods, Compl. ¶ 29-30; andCount Three asserts a claim under the U.C.C. for improperrejection of the baseweb. Avery advances six theories for why itis entitled to summary judgment on Scapa's breach of contractclaims.

1. Accord and Satisfaction

Avery moves for summary judgment first on the basis that theparties reached an accord and satisfaction4 and thereforeScapa is precluded from suing on the contract. Avery asserts that theaccord was memorialized in the January 28, 2003 letter fromRonald C. Lilly, Vice President of Scapa Automotive, to BillGoldsmith, Vice President and General Manager of Avery'sPerformance Films Division. See Def. L.R. 56(a)1 Stmt., Ex. DD.The letter summarized a telephone conference between the partiesconcerning outstanding bills and future baseweb trials. Regardingthe bills, the letter stated that Scapa and Avery would "split"four disputed charges from the runs between January 2001 andFebruary 2002, and that Avery would pay in full the charge forthe "Mitsubishi film trial" (two rolls of 1-mil baseweb) fromNovember 2002. Id. Scapa was to issue a new invoice for all ofthese charges in the amount of $35,274, and there is no disputethat Avery paid that bill.

Regarding the disputed "November run" of 17 rolls of 2-milbaseweb, however, the letter stated "Under review . . . Averyevaluating to determine how much is usable." Id. Under theheading "Actions," the letter stated, "Bill Goldsmith to completereview of [November run] and Scapa/Avery resolve [sic] within 30days." Id.

The letter then set forth provisions for appointment of a"joint development team" that was to "have full authority to approve or reject all or part of a trial or production run at thetime of manufacture." Id. Avery was to "provide the necessaryquality training for key Scapa staff to recognize various issuesand defects" in the baseweb, with a goal of a series of smallproduction runs leading to larger runs when quality issues wereresolved. Avery was to pay either $7500 toward the cost of eachrun, or the full value of the accepted baseweb, whichever washigher. Finally, "[a]t such time that regular production runs areresumed, Avery will take full responsibility for all goods thatmeet the product specifications." Id. Avery asserts that thisletter was intended to replace the requirements contract andconstitutes an accord and satisfaction.

"When there is a good faith dispute about the existence of adebt or about the amount that is owed, the common law authorizesthe debtor and the creditor to negotiate a contract of accord tosettle the outstanding claim." Herbert S. Newman & Partners,P.C. v. CFC Construc. Ltd. P'ship., 236 Conn. 750, 764,674 A.2d 1313, 1321 (Conn. 1996) (quoting County Fire Door Corp. v. C.F.Wooding Co., 202 Conn. 277, 281, 520 A.2d 1028 (1987)). "Anaccord is a contract between creditor and debtor for thesettlement of a claim by some performance other than that whichis due." Id. (quoting W.H. McCune, Inc. v. Revzon,151 Conn. 107, 109, 193 A.2d 601, 602 (1963)). To be considered valid, anaccord, just as any other contract, requires "mutual assent" between the parties. Newman & Partners, 236 Conn. at 764,674 A.2d at 1321; see also Restatement(Second) of Contracts(1981) § 281, app. note (d) ("The enforceability of an accord isgoverned by the rules applicable to the enforceability ofcontracts in general.").

In Newman & Partners, the plaintiff architectural firmdemanded from the defendant surety company payments the plaintiffalleged were due for services in connection with the constructionof a new city hall building in New Haven. The parties agreed thatthe defendant would pay $200,000 to settle the dispute. Thedefendant tendered what it stated would be the first of threepayments, in the amount of $100,000, with a letter saying thatthe next $50,000 would be paid at the end of that month and thesecond $50,000 upon completion of the project. The plaintiffaccepted the first check but wrote back to the defendant thataccording to their understanding the last payment would be due inabout two months, not at the end of the project. The partiesnever came to an agreement on the timing, and the defendant neverpaid the last $50,000. Because "the parties had disputed theterms of the settlement agreement," the Connecticut Supreme Courtheld that there was no "mutual assent, or a `meeting of theminds,'" and therefore there was no valid accord. Newman &Partners, 236 Conn. at 764, 674 A.2d at 1321 (quoting CrucibleSteel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A.2d 52 (Conn. 1920)).

Likewise, in this case the parties never reached an agreementregarding the disposition of the baseweb rolls produced duringthe November 2002 run. The January 28, 2003 letter merely statesthat the issue is "Under review . . . Avery evaluating todetermine how much is usable," and that "Scapa/Avery resolve[sic] within 30 days." Def. L.R. 56(a)1 Stmt., Ex. DD. The lettersets forth no definitive arrangement concerning the outcome ofAvery's "review." It does not bind Scapa to agree with Avery'sfinal particle count and does not set forth any procedure in caseof ongoing disagreement. The language simply leaves open a futureresolution of this issue between Scapa and Avery within 30 days.As is evident from the present litigation, the parties neverresolved this issue between themselves.5 Without anymutual assent concerning payment — or nonpayment — for the 172-mil rolls from the November 2002 run, the parties'correspondence in January 2003 cannot form a valid accord on thisissue. Additionally, there is a dispute of fact regarding whether theletter's provisions concerning developmental trials of basewebwere intended to replace the 2002 requirements contract in itsentirety. Avery takes the position that the letter is asubstituted contract, while Scapa argues that it was not. Theletter itself concerns interim steps the parties contemplated toget the Avloy baseweb project back on track; it does not containany provisions concerning the parties' future businessrelationship once successful production runs had been completed.As such, the letter is not inconsistent with the continuedexistence of the original requirements contract. The existence ofa substituted contract depends on the intent of the parties,Latham & Assocs. v. William Raveis Real Estate, Inc.,218 Conn. 297, 305, 589 A.2d 337, 341 n. 6 (Conn. 1991) (citation omitted),which is not evident from the face of the two documents at issuehere. Thus the Court cannot conclude as a matter of law that theparties manifested an intent to substitute the January 28 letterfor the 2002 requirements contract, and Avery's motion forsummary judgment on this basis must be denied.

2. Termination of Requirements Contract

Avery argues, in the alternative, that it is entitled tosummary judgment on Scapa's breach of contract claim becauseScapa, not Avery, terminated the requirements contract. Scapacounters that Avery terminated the contract by its refusal to accept baseweb that Scapa believed conformed to the contractualspecifications.

After the January 28 letter, the parties conducted anothertrial run on March 24, 2003. Representatives of both companiesattended. Scapa produced four rolls, of which Avery acceptedthree. Def. L.R. 56(a)1 Stmt., Ex. HH.

The parties planned to conduct another trial in April, but thatnever occurred. On May 28, 2003, Scapa wrote to Avery that it haddecided not to make any subsequent shipment "to avoid furthercomplicating the issue." Id. at Ex. II. Scapa alleged thatAvery's "account was past due," and "Avery had not responded toScapa's repeated requests for confirmation that the productspecifications, as reformulated product (which was manufacturedin March 2003 at a trial under Avery supervision) was acceptable.Scapa did not want to again manufacture product only to be toldthat it was not workable by Avery." Id. Thus Scapa's argumentreturns to the issue of whether Avery's interpretation of theterm "particle" in the contract was accurate, which the Courtalready has found requires disposition by a jury.

Avery argues, however, that even if its rejection of theNovember 2002 was improper, Scapa was not entitled to terminatethe contract for this nonpayment. Avery reasons that therequirements contract was an installment contract, which can onlybe terminated if failure to pay for one installment substantially impairs the value of the entire contract. See Conn. Gen. Stat.§ 42a-2-612(3) ("Whenever nonconformity or default with respectto one or more installments substantially impairs the value ofthe whole contract there is a breach of the whole."). Assumingfor present purposes that the parties' agreement fits thedefinition of an installment contract, Scapa's refusal to produceadditional runs was based not only on Avery's failure to pay forthe November run, but also on Avery's interpretation of theparticle specification, which would apply to all future runs. Inother words, Scapa's position is that Avery engaged inanticipatory repudiation of the contract by stating that it wouldnot accept baseweb with particles that Scapa believed were toosmall to be counted under the original specification. See Conn.Gen. Stat. § 42a-2-610 (anticipatory repudiation occurs "[w]heneither party repudiates the contract with respect to aperformance not yet due the loss of which will substantiallyimpair the value of the contract to the other . . ."). WhetherAvery in fact repudiated the contract by changing the demandedspecifications, or correctly interpreted the specifications inthe existing contract, again is a question for a jury.

If a jury finds anticipatory repudiation, then Scapa had threeoptions under Connecticut's version of the Uniform CommercialCode: "(a) for a commercially reasonable time await performanceby the repudiating party; or (b) resort to any remedy for breach . . . and (c) in either case suspend [its] ownperformance . . ." Id. Thus Avery's argument that Scapanecessarily waived the right to enforce the contract by failingto terminate it for five months is unavailing. Avery cites noauthority for the proposition that five months, between Januaryand May 2003, is not a "commercially reasonable time" to "awaitperformance" after an anticipatory repudiation, especially where,as here, the parties attempted to continue their relationship,engaged in another production run, and eventually found theirdifferences of opinion to be irreconcilable.

Therefore the Court finds that there is a material dispute offact concerning whether Scapa terminated the contract by its May28 letter or whether Avery terminated it by anticipatoryrepudiation. As such, Avery is not entitled to summary judgmenton Scapa's breach of contract count on the asserted grounds thatScapa improperly terminated the contract.

3. Requirements Provisions

Avery also moves for summary judgment on Scapa's breach ofcontract count on the additional basis that Avery has compliedwith the contract because it has not purchased extruded basewebfrom any other supplier. Scapa argues in opposition that thecontract required Avery to purchase all of its requirements ofbaseweb, not just extruded baseweb, from Scapa. The applicablecontract language states: During the term of this Agreement, Customer [Avery] shall purchase from Supplier [Scapa], and Supplier shall supply to Customer, one hundred percent (100%) of Customer's requirements of Avloy Product needed by Customer for production of its Avloy® product (the "Minimum Purchase Requirement"). Notwithstanding the above, in the event Supplier is unable to supply Customer with one hundred percent (100%) of its requirements of Avloy Product for use in Customer's Avloy® product, whether for reasons of force majeure or otherwise, Customer shall be entitled to enter into an agreement with such third party for the production of Avloy Product until such time as Customer determines, in its sole discretion, that Supplier is able to fulfill its obligations under this Section. . . .

Agreement ¶ 5(c), Pl. L.R. 56(a)1 Stmt., Ex. G. Thus the plainlanguage of the requirements provision applies to baseweb "neededby Customer for production of its Avloy® product," id., withoutdistinguishing between extruded and solvent coated baseweb.

The undisputed facts show that both parties entered thecontract negotiations believing that extruded baseweb eventuallywould be less costly to produce than solvent coated baseweb, andtherefore they contemplated that Avery would phase out itssolvent coated supplies and buy all its requirements of basewebfrom Scapa, its exclusive supplier of extruded baseweb. To holdthat the agreement permits Avery to purchase its requirements ofbaseweb from its solvent-coated baseweb supplier, regardless ofScapa's ability to supply extruded baseweb, would read into thecontract a provision in direct conflict with the intent of bothparties when they began negotiations. The "Initial ProductionDelays" section of the contract, id. at ¶ 7(c), indicates thatthe parties contemplated that a startup period would be necessary before extruded baseweb would become a fully viable technology,during which time Avery was entitled to purchase baseweb fromother suppliers under the exception for Scapa's inability tosupply 100% of Avery's needs, id. at ¶ 5(c). Once Scapa issueda "Seller's Capacity Notice," however, the requirements provisionwould become effective and Avery would be obligated to purchaseits entire baseweb supply from Scapa (or if Scapa could not meetAvery's entire need, as much baseweb as Scapa could produce). Inother words, both parties bargained with the intent that Averywould have at least some requirements for extruded baseweb in thefuture. It is unreasonable to interpret the contract to allowAvery to unilaterally decide, after Scapa had the ability toproduce conforming baseweb, to purchase solvent-coated basewebfrom another supplier and no extruded baseweb from Scapa.

Avery argues, nonetheless, that the contract's definition of"Avloy Product," contained in the second recital clause,indicates the parties' intent that only extruded baseweb beincluded in the bargain:

WHEREAS, Customer has provided and/or will provide Supplier with intellectual property relating to the production of a PVDF acrylic film product that is a component of a paint film marketed by Customer under the name Avloy® (such intellectual property, including the specifications and formulas set forth on Exhibits A and C attached hereto, and the Patents and pending application set forth on Exhibit B attached hereto, being hereinafter referred to as the "Avloy Intellectual Property," and such component being hereinafter referred to as the "Avloy Product") . . . Avery reasons that the above definition of Avloy Product includesonly extruded baseweb because the attached exhibits pertain onlyto extrusion technology. Avery misreads this paragraph, however.Exhibits A-C to the contract comprise "Avloy IntellectualProperty," which is distinct from "Avloy Product." Theintellectual property is said to "relat[e] to the production of"baseweb, but it does not limit the baseweb that is the subject ofthe contract only to extruded baseweb covered by the appendedpatents and specifications.6 It is not reasonable tointerpret this paragraph as limiting the requirements provisiononly to extruded baseweb. Avery therefore is not entitled tosummary judgment on the basis that it has not purchased extrudedbaseweb from any supplier other than Scapa.

4. 1-Mil Baseweb

Avery additionally moves for summary judgment on Scapa's breachof contract claim to the extent that Scapa claims as damages lostprofits from manufacture of 1-mil baseweb. Avery asserts that thecontract specifications for Exhibit A call for a thickness of 1.7 to 2.1 mil, and therefore 1-mil baseweb neverwould have been acceptable under the specifications. Averyfurther argues that the price stated in the contract, 35 centsper square foot, is what Avery paid for 2-mil baseweb, while itpaid only 27 cents for 1-mil baseweb, and therefore the contractcould not apply to 1-mil baseweb. See Agreement at ¶ 4(a).

Avery did in fact order two rolls of 1-mil baseweb from Scapa,at a price of 27 cents, as part of the November 2002 productionrun. Avery accepted and paid for those rolls. See Invoice, Def.L.R. 56(a)1 Stmt., Ex. N.

Scapa argues that the contract permits the specifications inExhibit A to "be amended by mutual consent of Customer andSupplier from time to time," Agreement at ¶ 2, and that Avery'sorder of two rolls of 1-mil baseweb constitute such an amendment.However, a single order does not amount to a course of dealingthat could amend the contract for future purposes, absentevidence of both parties' intent to amend. Rather, Avery iscorrect that the contract specifications call for 2-mil basewebonly. Therefore Avery is entitled to judgment as a matter of lawon Scapa's claim for lost profits from 1-mil baseweb.

5. Lost Profits

As the fifth ground for summary judgment on Scapa's breach ofcontract claim, Avery asserts that Scapa's alleged lost profitsare "hopelessly speculative, if, indeed, they exist at all." Avery Brief [Doc. # 34] at 12. A new enterprise may recoverlost profit damages that it can prove "to a reasonablecertainty." Beverly Hills Concepts, Inc., v. Schatz & Schatz,Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724, 735 (Conn.1998). The plaintiff's burden is to "present sufficientlyaccurate and complete evidence for the trier of fact to be ableto estimate [lost] profits with reasonable certainty." Id. at70. The Connecticut Supreme Court has "note[d] that lack of priorprofitability does not necessarily prohibit a trial court fromawarding future lost profits, although it serves as a strongindicator that future profits are uncertain. The plaintiff mustcarry the burden of proving that prior losses will be turnedaround to provide future gains." Id. at 75-76.

Avery's arguments focus primarily on Scapa's use of allegedlyoutdated forecasts of Avery's baseweb requirements, theuncertainty of Scapa's costs of producing baseweb given the smallnumber of trial runs, and the uncertainty concerning the timeperiod for the contract given that Scapa had not yet issued itsSeller's Capacity Notice. Regardless of these quibbles, it isundisputed that Avery had some baseweb requirements for the threeyears following the date the contract was signed, because Averycontinued to purchase solvent-coated baseweb during that period.There is a dispute of material fact concerning whether Scapa wasable to produce baseweb meeting Avery's technical requirements, specifically the maximum particle count specified in thecontract. If a jury finds that Scapa's baseweb metspecifications, it could conclude that Scapa lost profits basedon Avery's acknowledged need for baseweb as a component of Avloy®material. Thus the Court cannot now conclude that Scapa's claimfor lost profits must fail as a matter of law, and Avery's motionfor summary judgment on this basis must be denied.

6. Roll Number 17

Finally, Avery moves for summary judgment with respect toScapa's claim for damages on roll number 17 from the November2002 run because it asserts that Scapa admitted that that rollexceeded the maximum particle count. Contrary to Avery'sassertions, Meg Gilmartin of Scapa did not testify unambiguouslythat roll 17 exceeded specifications.7 Scapa obtained aparticle count of 9 on this roll, Def. L.R. 56(a)1 Stmt., Ex. Uat 2, while Avery obtained a particle count of 85. Id., Ex. Vat 2. The particle count on this roll, as the others, remains adisputed issue of material fact, and therefore Avery is notentitled to summary judgment on this theory or any other theory pertaining to Scapa's breach of contract claims.

B. Count One: Declaratory and Injunctive Relief

The first count of Scapa's complaint seeks a declaration that"(1) the Avloy Product it has supplied to [Avery] conforms to therequirements of the Agreement; (2) [Avery] is obligated topurchase Avloy Product solely from [Scapa] for a minimum periodof three years following entry of the judicial decree; (3)[Scapa] is not contractually obligated to manufacture AvloyProduct with features other than those set forth in theAgreement; (4) [Avery] is not entitled to terminate the Agreementor to act in a manner tantamount to terminating the Agreement;and (5) [Avery] is obligated to manufacture Avloy® solely byusing Avloy Product supplied by [Scapa]," and Scapa also seekscorresponding injunctive relief. Compl. ¶¶ 26-27.

The parties agree that this count stands or falls with Scapa'ssubstantive breach of contract claims. Because the Court hasdenied summary judgment to Avery on those counts, the Court alsodenies Avery's motion for summary judgment on Count One ofScapa's complaint.

C. Count Four: Breach of Implied Covenant of Good Faith andFair Dealing

Scapa asserts that Avery has breached the covenant of goodfaith and fair dealing implied in the parties' 2002 Agreement.Specifically, Scapa alleges that Avery "has claimed that theAvloy Product manufactured by [Scapa] must satisfy specifications that are found nowhere within the Agreement. . . . Uponinformation and belief, [Avery] is seeking to use itsunreasonable interpretation of the Agreement's terms andrequirements to justify the termination of the Agreement, or tojustify [Avery] obtaining Avloy Product from a source other than[Scapa] and manufacturing Avloy® that does not incorporate[Scapa's] Avloy Product." Compl. ¶¶ 38-39.

The Connecticut Supreme Court has set out the standards for abreach of good faith claim: It is axiomatic that the duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term. To constitute a breach of the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Bad faith means more than mere negligence; it involves a dishonest purpose.De La Concha of Hartford, Inc. v. Aetna Life Ins. Co.,269 Conn. 424, 432-33, 849 A.2d 382, 387-88 (Conn. 2004) (internalcitations, quotation marks and alterations omitted). Scapa asserts that "Avery purposefully misinterpreted the`particle' specification (a disputed material issue of fact) toavoid the requirements provisions of the Supply Agreement," whichAvery belatedly realized would be unprofitable. Pl. Brief in Opp.at 28. Scapa argues that "Mr. Goldsmith [of Avery] signed acontract without consulting his technical staff."

The evidence, however, does not support Scapa's argument.Although one lower-level Avery quality control employee testifiedthat she was "surprised at the particle count" of 17 contained inthe contract, Giles Dep. at 33-34, Goldsmith stated that heconsulted with high-level technical staff and knew Avery'scustomers would prefer lower particle counts and that the17-particle specification might be unprofitable: . . . I relied heavily on the technical advice given to me by Howard Enlow, Avery's then-Technical Director. Mr. Enlow is more familiar with Avery's customers' technical requirements, including product specifications, than anyone else at Avery. Mr. Enlow agreed with my decision to accept the 17 particle defect count number, understanding that there would be some negative business ramifications, at least in the short term.Second Goldsmith Aff. ¶ 9. Mr. Enlow's affidavit is ambiguous asto whether he believed the specification to be 3 or 17.8 Nonetheless, Scapa does not present evidence contradictingGoldsmith's statement that he consulted Enlow regarding thespecifications.

Furthermore, Scapa presents no evidence that Avery belatedlyconcocted a new definition of "particle" to avoid paying forbaseweb already manufactured or to avoid the three-yearrequirements period. There is nothing in the record indicatingthat Avery intended to commit an "actual or constructive fraud"or acted with "a design to mislead or deceive. . . ." De LaConcha, 269 Conn. at 433, 849 A.2d at 388. Rather, the evidenceshows nothing but a good-faith dispute over the correctinterpretation of the term "particle" in the contract and whetherthe baseweb supplied by Scapa from the November 2002 run met thecontractual specifications. The evidence further shows that Averyand Scapa attempted to work out a compromise in the monthsfollowing the production run, and that Avery did several particlecounts on the disputed rolls in an effort to determine if itcould use any of them. Whether Avery's contractual interpretationis correct remains a disputed issue of material fact. However,there is no evidence that Avery interpreted the contract in badfaith. Therefore Avery is entitled to summary judgment on CountFour of Scapa's complaint.

D. Count Six: Negligent Misrepresentation

For the same reasons, Avery's motion for summary judgment will be granted on Scapa's negligent misrepresentation claim. InCount Six of its complaint, Scapa asserts that "[f]ollowing theexecution of the Agreement, and at a time when [Avery] knew that[Scapa] was expending resources to manufacture Avloy Product,[Avery] negligently failed to inform [Scapa] that it had nointention of fulfilling its obligations under the Agreement."Compl. ¶ 49. In support of this claim, Scapa's memorandum of lawsimply asserts that "Mr. Goldsmith could have saved [Scapa] muchharm, during the seven months prior to execution of the SupplyAgreement, [had] he used due diligence and had a frank discussionwith his technical staff regarding the specifications heeventually sought to impose on [Scapa]." Pl. Brief in Opp. at26-27.

Scapa proffers no evidence that Avery knew or should have knownfrom the beginning that it would likely abandon the contract.Hence there is no evidence that Avery misrepresented itsintentions to Scapa. There is also no evidence that amiscommunication between Avery's managers and technical staffprovided a motive to make misrepresentations, and Scapa's claimto the contrary is speculative. Therefore Avery's motion forsummary judgment will be granted on this count.

E. Count Five: Promissory Estoppel

Count Five of Scapa's complaint asserts promissory estoppel,and Avery moves for summary judgment on the ground that "Scapa's complaint does not further explain what promises, other thanthose set forth in the 2002 Agreement, Avery made." Avery Briefat 16.

"Promissory estoppel is asserted when there is an absence ofconsideration to support a contract." Glazer v. Dress Barn,Inc., 274 Conn. 33, 88, 873 A.2d 929, 963 (Conn. 2005). Thus acourt should "permit? a jury to consider in the alternativeclaims for breach of contract and for promissory estoppel whenthere is an issue of whether the agreement may be too indefiniteto allow for contract formation." Id. at 88-89.

Scapa asserts that where there is an issue of fact concerningthe coverage of the 2002 requirements contract — for example,whether the contract applies to 1-mil baseweb — Scapa should beable to present contractual and promissory estoppel theories to ajury in the alternative. However, "[p]romissory estoppel . . . isnot a separate cause of action available to plaintiffs, butrather serves to allow enforcement of an otherwise validly formedcontractual commitment that lacks traditional consideration."Pavliscak v. Bridgeport Hosp., 48 Conn. App. 580, 592,711 A.2d 747, 753 n. 5 (Conn.App. 1998). There is no assertion here thatthere was a failure of consideration when the parties signed therequirements contract in 2002. Promissory estoppel is not agap-filling measure for occasions when there is a dispute overthe meaning of a contract. A plaintiff "cannot use the theor[y] of promissory estoppel . . .to add terms to [a] contract that are . . . inconsistent withthose expressly stated in it." Wood v. Sempra Energy TradingCorp., No. 3:03CV986 (JCH), 2005 WL 465423 at * 11 (D. Conn.Feb. 22, 2005).

Thus defendant is correct that plaintiff's claim for promissoryestoppel cannot be maintained where a valid contract supported byconsideration is shown to exist. Avery's motion for summaryjudgment on Count Five of Scapa's compliant therefore is granted.

V. CONCLUSION

Accordingly, Avery's motion for summary judgment [Doc. # 28] isGRANTED IN PART as to Counts Four, Five and Six of Scapa'scomplaint as well as that portion of Counts Two and Three seekingdamages related to 1-mil baseweb, and DENIED IN PART as to CountOne and the remainder of Counts Two and Three. Scapa's motion forsummary judgment [Doc. # 31] is DENIED.

IT IS SO ORDERED.

1. Randal Hack, an Avery Quality Technician, testified,somewhat ambiguously, that he believes he trained Scapa personnelto measure particles using a "Tappi Chart," which has not beenfully described in the summary judgment record: Q: . . . Did you ever train anyone at Scapa or talk to them about how to measure particles using the Tappi Chart? A. I believe so, yes. Q. And who did you talk to? A. I would assume it would have been Bud Miner and [Duane] Gordon and maybe it was Meg [Gilmartin], I would assume that. It's hard to remember that far back. . . . Q. And what did you talk about with them, I mean with respect to using the Tappi Chart? A. You know, what I normally did is show them how to use it, you got to hold it and move it, and this is the size we're setting up on the defect.Hack Dep. at 46-47.

2. The counterclaim asserts: "As a direct and proximate resultof [Scapa's] breach, Avery has lost considerable profits that itwould have realized with the production of extruded Avloy Productand has been damaged in an amount to be determined at trial." Am.Answer & Counterclaims [Doc. # 10] at ¶ 38.

3. Additionally, plaintiff's argument that the provisionlimiting the parties' remedies to repair, replacement or refund,see Agreement at ¶ 7(b), prohibits Avery from seeking reliancedamages is without merit, as that provision clearly applies inthe case of defective goods, not breach of the entire contract.

4. Avery alternatively asserts that there was a "novation,"but this concept is inapplicable because the January 28 letterdid not incorporate a new or different party to the contract.See Restatement (Second) of Contracts, § 280 (1981) ("Anovation is a substituted contract that includes as a party onewho was neither the obligor nor the obligee of the originalduty.")

5. Fireman's Fund Ins. Co. v. Conn. Dept. of Public Works,No. CV 89354178S, 1996 WL 367795 (Conn.Super. June 4, 1996),relied on by Avery, is not to the contrary. In that case,plaintiff indemnified the State on a project to build grouphomes, which was plagued by delays. The State fired the generalcontractor, after which time plaintiff assumed responsibility foronly a part of the project — four homes out of eight — on amodified time schedule. The court held that the modifiedagreement was an accord and satisfaction, finding a "meeting ofthe minds" because "[a]ll of the concerns of the parties wereincluded in the March 3 Agreement and were resolved by them inthat contract." Id. at *14. In the present case, the letterfrom Scapa to Avery does not resolve all of the concerns of theparties and therefore does not manifest an "inten[t] that itshould release both [parties] from all obligations" under theoriginal contract. Id.

6. The patents listed on Exhibit B are identified by numberonly, with no explanation. Defendant cites the deposition of JohnMarkey, see Def. L.R. 56(a)1 Stmt., Ex. D., at 27, for theproposition that the patents listed on that exhibit pertain toextruded baseweb. Mr. Markey testified that he obtained twopatents related to extruded baseweb, but he did not state whetherhis patents were listed on Exhibit B. The chemical compoundslisted as the "Avloy Formula" on Exhibit C are likewiseunexplained in the record, although one combination is designatedan "extrusion coating blend." Therefore the record isinsufficient for the Court to determine at this stage whetherthese exhibits pertain to extrusion technology. Even if Avery iscorrect regarding the exhibits, however, the exhibits still onlydefine "Avloy Intellectual Property," not "Avloy Product."

7. Gilmartin testified as follows: Q. Now other than roll 17, did anybody at Scapa ever get a defect count of over 17 for any of the other rolls? A. No.Gilmartin Dep. at 86. This exchange, while murky, does notconstitute an admission that the particle count of roll 17exceeded specifications, especially given the documentaryevidence that Scapa obtained a particle count of 9 for thisroll.

8. Enlow's affidavit states: 4. Bill Goldsmith . . . consulted with me extensively with regard to the specifications contained in the April 30, 2002 Purchase and Supply Agreement between Avery and Scapa, including the specification that allowed for 3 `particles' 0.4 mm² or larger to be within a two linear foot sample of baseweb. 5. We understood at the time we agreed to the 17 particle count specification that it would likely result in increased product returns from our customers. . . .

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