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Barkley, Inc. v. Gabriel Brothers, Inc.

United States District Court, W.D. Missouri, Western Division

November 20, 2014

BARKLEY, INC., Plaintiff and Counterclaim-Defendant,
v.
GABRIEL BROTHERS, INC. and RUGGED WEARHOUSE, INC., Defendants and Counterclaimants.

ORDER

JOHN T. MAUGHMER, Magistrate Judge.

On October 5, 2012, Gabriel Brothers, Inc. ("Gabriel Brothers") entered into a seven-page Master Services Agreement ("MSA") with Barkley, Inc. ("Barkley"). Pursuant to the MSA, Barkley agreed to provide certain marketing and advertising services to Gabriel Brothers (and its affiliated company, Rugged Wearhouse, Inc.) on a project-by-project basis. The MSA provided that all services to be covered by the agreement had to "be designated in a written Statement of Work"[1] that had to contain the following specific language:

This Statement of Work is incorporated into, and made a part of, that certain Master Services Agreement ("Agreement") between the parties dated Oct. 5, 2012, which Agreement governs the relationship of the parties. All terms and conditions provided in the Agreement shall apply to this Statement of Work.

The MSA further provided two situations whereby Gabriel Brothers would compensate Barkley:

(1) in consideration for services on a project, Gabriel Brothers would "pay Barkley those fees agreed to by the parties and designated in a project's Statement of Work, " and
(2) Gabriel Brothers would reimburse Barkley "for all reasonable outof-pocket expenses pursuant to [an agreed upon explanation of terms] so long as such expenses are pre-approved in advance by [Gabriel Brothers] in writing."

In addition, the MSA provided that either Barkley or Gabriel Brothers could terminate the MSA with 90 days written notice." Such a termination would not affect previously agreed upon projects "then in effect."

The business relationship between Barkley and Gabriel Brothers was short-lived and has led to the current needlessly contentious litigation before the Court. Specifically, the litigation was instituted by Barkley on September 4, 2013, when Barkley sued Gabriel Brothers (and Rugged Wearhouse, Inc.) in three counts: (1) an alleged breach of the MSA, (2) breach of an alleged agreement between the parties on April 5, 2013, and (3) unjust enrichment. In response, Gabriel Brothers (and Rugged Wearhouse, Inc.) counterclaimed asserting claims against Barkley for (1) breach of the MSA, and (2) unjust enrichment.

With discovery concluded and a trial date approaching, Gabriel has filed a motion with the Court seeking a summary judgment against Barkley on Barkley's claims for breach of the MSA and breach of the alleged agreement of April 5, 2013. In addition, Gabriel Brothers seeks a partial summary judgment in its favor on its counterclaim against Barkley for breach of the MSA. The Court grants in part and denies in part the pending motion.

With regard to Barkley's claim against Gabriel Brothers for breach of the MSA, the dispute centers on the parties' dealings in the first quarter of 2013.[2] Barkley contends that the parties agreed to a Statement of Work "from January 2013 forward"[3] and that Gabriel Brothers has not paid the monthly fee of $58, 333 per month due on this Statement of Work. Gabriel Brothers asserts that there was no such agreed upon Statement of Work under the MSA obligating it to make such payments to Barkley. The Court agrees.

Barkley argues that an agreed upon Statement of Work between the parties was finalized on February 21, 2013. Prior to that date, there were several exchanges between the parties regarding a potential Statement of Work. Ultimately, on February 13, 2013, Barkley wrote to Gabriel Brothers:

With proposal, the fee will drop to 58, 333.33 per month (Feb-Dec). [] We have tightened our fees to work with your budget, and feel we can accomplish this with a disciplined approach to the pre-scheduled events. We would like to set up a call to walk through the attachment together and get our agreement finalized.

Thereafter, on February 21, 2013, Barkley sent Gabriel Brothers an email with an "updated budget document" attached. The attachment was labeled as "Statement of Work." After further discussions between the parties, Barkley made further revisions to its proposed Statement of ...


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