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RADIATION SYS. v. AMPLICON

March 24, 1995

RADIATION SYSTEMS, INC., Plaintiff,
v.
AMPLICON, INC., Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court is the motion for summary judgment of defendant Amplicon, Inc. ("Amplicon") in an action brought by plaintiff Radiation Systems, Inc. ("RSI") alleging breach of contract due to failure to pay for goods sold and delivered.

 Summary judgment may be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). All evidence and inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Summary judgment is not available if material facts remain at issue or are susceptible to reasonable divergent inferences. Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994). Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its reasoning. See Fed. R. Civ. P. 52 (a).

 Background

 This dispute arises in a context commonly referred to as a tripartite commercial leasing transaction. Defendant Amplicon is a lease financing entity that assists third parties, in this case Financial News Network, Inc./United Press International ("UPI"), in the acquisition of certain materials from the supplier, RSI. Amplicon purchases equipment from the supplier and subsequently leases it to the third party. Amplicon does not purchase materials for its own use or inventory; rather, Amplicon conditions its purchase on a successful lease to the interested third party.

 On April 20, 1989, Amplicon issued a purchase order to RSI for 200 antenna installations ("purchase order"), which were to be delivered to UPI. The purchase order was a preprinted form prepared by Amplicon. Beginning September 28, 1989, RSI delivered partial shipments to UPI on a piecemeal basis. UPI accepted certain equipment delivered to it by RSI, and Amplicon paid RSI for some of the partial shipments. As of July 31, 1990, however, Amplicon had not paid RSI for 53 of its invoices. RSI filed this breach of contract action seeking $ 70,365.04 in damages.

 Discussion

 The controversy in this case arises from the terms of the purchase order. The purchase order states, in relevant part:

 
Please enter our [Amplicon's] order for the above-described property, herein called the "Equipment", subject to the following terms and conditions:
 
1. If the Lessee [UPI] does not accept the Equipment or any part thereof for any reason, by executing our [Amplicon's] Delivery and Acceptance Certificate within 90 days of the date hereof [April 20, 1989], or if the Lessee [UPI] does not execute any other required lease documents for any reason, we shall have no obligation hereunder . . .
 
. . . .
 
7. We [Amplicon] shall pay the total price of the Equipment within 30 days after receipt of your [RSI] invoice and written acceptance of the Equipment by the Lessee [UPI] by execution and delivery of our [Amplicon's] Delivery and Acceptance Certificate. No payments shall be made for partial shipments other than the last partial shipment, unless otherwise agreed by you [RSI] and us [Amplicon].

 Complaint, Exhibit 1. Because the purchase order is a contract for the sale of goods, the Uniform Commercial Code ("UCC"), as adopted by local statute, controls. D.C. Code Ann. §§ 28:1-101 through 28:2-725 (1981 & Supp. 1994); Marlowe v. Argentine Naval Comm'n, 257 U.S. App. D.C. 225, 808 F.2d 120, 122 (D.C. Cir. 1986).

 RSI argues that the express terms of the purchase order were modified by prior oral agreements and subsequent performance consistent therewith which established a modification of both the condition precedent and the 90-day time frame. RSI argues, in the alternative, that Amplicon's acceptance of ...


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