The opinion
IN THE UNITED STATES DISTRICT COURT June 09, 2026
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
§
Wilmar Oleo North America LLC, §
§
Plaintiff, §
§ Civil Action No. 4:24-cv-03171
v. §
§
Eastman Chemical Company, §
§
Defendant. §
§
MEMORANDUM, RECOMMENDATION, AND ORDER
This is a breach of contract dispute. Defendant Eastman Chemical
Company moved for summary judgment on all of Plaintiff Wilmar Oleo North
America LLC’s claims. Dkt. 51. Eastman also moved to exclude Wilmar’s
damages expert Karl L. Killian. Dkt. 53. After carefully reviewing the
motions, Wilmar’s responses, Dkts. 54, 55, Eastman’s replies, Dkts. 57, 58, the
record, and the applicable law, it is (a) recommended that the motion for
summary judgment be granted in part and denied in part, and (b) ordered that
the motion to exclude be granted.
Background
Wilmar sells glycerin, and Eastman buys it. Eastman uses glycerin to
produce triacetin, a product it sells to third parties to make cigarette filters.
Dkt. 54-2 at 25-26.1 The parties have a “longstanding business relationship
….” Dkt. 45 at 3; see Dkt. 48 at 2.
The parties’ dispute first arose in 2022. On March 10, 2022, Wilmar’s
business manager, Tom Ozzella, Dkt. 51-2 at 8, sent an email to Eastman’s
representative, Andrea Martinez Torres, offering to sell 1,500 metric tons of
glycerin at $1.10/lb for the second quarter of 2022, or “Q2.” Dkt. 51-3 at 5.
Martinez Torres responded that she was “ok with our normal volume of 1500
+-5% for Q2.” Id. at 4. Ozzella emailed the “Accepted/Confirmed” terms,
including “Incoterms: FCA Hudson,” to Wilmar and Eastman employees. Id.
at 3-4. Martinez Torres thanked Ozzella before the parties confirmed that the
delivery period would be March-June 2022. See id. at 2-4.
On June 14, 2022 Ozzella sent a quote to Eastman for the July-
September 2022 delivery period (“third quarter” or “Q3”) with several terms,
including price (“$1.07/lb” and “$1.06/lb”) and quantity (“1,500 MT +/- 5%
tolerance”). Dkt. 51-5 at 5-6. After some back-and-forth over the price, see id.
at 3-5, Ozzella sent a “confirmation” email to Eastman with the final price
($1.06/lb), quantity (1,500 MT +/- 5% tolerance), “price firm” period (July to
September 2022), Incoterms “FCA Hudson” and “FCA Houston,” and payment
terms. Id. at 2.
1 Most filings in this opinion are cited by the page number in the CM/ECF header.
But citations to depositions refer to the page number on the deposition transcripts.
Ultimately, Eastman did not take or pay Wilmar for the full 1,500 metric
tons during either the second or third quarter, resulting in a backlog by the
end of 2022. See, e.g., Dkt. 51-2 at 191 (“[B]y June of 2022, Eastman had not
received or picked up the 1,500 metric tons of glycerin within that quarter ....”);
Dkt. 51-9 (Wilmar’s interrogatory response); Dkt. 51-4 at 4 (delivery records).
The parties dispute, however, whether the backlog resulted from Wilmar’s
inability to deliver glycerin, Eastman’s unwillingness to take the full volume
due to its own low product demand, or some combination of both.
According to Wilmar’s Ozzella, Eastman would send railcars to a specific
terminal where they would be loaded with glycerin from a tank owned or leased
by Wilmar. See Dkt. 51-2 at 39-40. Ozzella testified, and the parties’
correspondence reflects, that Wilmar’s logistics team would coordinate loading
with the terminal and update Eastman on their progress. See, e.g., Dkt. 51-7
at 3 (Ozzella emails indicating that Wilmar was working with the Hudson
terminal on loading and looking for alternative loading locations); Dkt. 51-2 at
92 (Ozzella agreeing that “when Eastman would raise a concern about railcars
not being loaded and released quickly enough, Wilmar’s response to that was
to try to reach out to the terminal to address that issue”).
There were delays loading Eastman’s railcars in 2022. For example, on
May 13, 2022, Eastman’s Gabriela Lopez Leon informed Wilmar’s team that
“railcars load hasn’t been as expected” for the March-May 2022 volume.
Dkt. 51-7 at 4. Eastman had a railcar waiting at Hudson terminal to be loaded
for almost a week, resulting in a “backlog.” Id. In August 2022, Eastman’s
Martinez Torres complained to Wilmar’s Ozzella that Eastman “had to wait a
month for a railcar to be loaded,” and that these delays caused a “critical
situation with supply ….” Dkt. 51-6 at 2, 10.
Eastman also suffered a product demand drop in the third and fourth
quarters of 2022. See Dkt. 54-2 at 90-91. Martinez Torres anticipated that
Eastman would consume only “half of the backlog volume from Q3 and Q4 2022
….” Id. By mid-December, Eastman halted its operations due to market
conditions and low demand. See Dkt. 51-11 at 3-4 (emails). At the time, its
“tanks [were] full” of leftover glycerin. Id. Martinez Torres told Wilmar that
Eastman could not start taking more glycerin until “late Q1” 2023 because its
“tank and yard [were] full.” Dkt. 54-4 at 2 (December 20, 2022 email).
By the end of 2022, the parties were negotiating how to move forward for
2023, given this remaining backlog. See Dkt. 51-11 at 2-3. Eastman’s
Henrique Britto testified that he and Wilmar’s Ranganath Gopalan agreed in
December 2022 to “formaliz[e] a writing and sign a document … so [they] will
not have any further disputes or discussions.” Dkt. 51-13 at 20-21. On
January 6, 2023, Britto informed Gopalan that he “got the green lights to move
forward with the compromising proposal to buy 3,200 MT at a weighted avg
price of 75cpp.” Dkt. 51-14 at 5. That same email included several
“reminders,” including that the parties “need to properly document this revised
deal” and that they “need to agree to cancel undelivered volume, in case it is
caused exclusively by Wilmar failure to deliver.” Id. Gopalan responded by
sending Wilmar’s General Terms and Conditions (“GTC”) to Eastman and
stating that he “look[ed] forward to getting this done, so that we can move on.”
See id. at 4-5; Dkt. 51-15 (GTC). On January 18, 2023 Britto affirmed that
Eastman is “good with the agreed commercial terms” but that he will “come
back with any proposed changes” to the GTC. Dkt. 51-14 at 2.
Two days later, Wilmar sent an email requesting that Eastman “confirm
the following contract” for 3,211.41 metric tons of glycerin at $.75/lb, as well as
other terms including the shipment period of February 2023 to December 2023.
Dkt. 51-16 at 3 (January 20, 2023 email to, inter alia, Eastman’s Britto).
Eastman responded on January 24, 2023: “We are good with the commercial
terms and your calculations reflects [sic] our agreement for 3,211 MT at 75cpp
throughout FY2023.” Dkt. 51-16 at 2 (Britto’s response). The email closed by
stating that Eastman would follow up with its “legal department on the GTC
review.” See id.
A few days later, Eastman sent Wilmar a redline of the GTC, which
included a proposed term allowing Eastman to cancel a sales order if a
shipment arrived two days late. See Dkt. 51-19 at 2 (January 27, 2023 email
to Wilmar’s Gopalan attaching redlines); Dkt. 51-18 at 3 (attachment). In
Gopalan’s view, those redlines were “non-material edits.” Dkt. 51-1 at 141; see
also id. at 166 (remaining “noncommercial terms” were “not critical for us to
continue with the business”). Although the parties exchanged several versions
of the 2023 GTCs, no version of the GTC was ever signed. See Dkt. 51-1 at 168.
On February 20, 2023, Eastman’s Martinez Torres emailed Wilmar’s
Gopalan that Eastman would like to “to finalize and sign these [GTCs] so we
can start loading.” Dkt. 51-20 at 4. From Gopalan’s understanding, Eastman
had not loaded railcars yet in 2023 “[b]ecause the terms and conditions weren’t
signed[.]” Dkt. 51-1 at 169. Gopalan responded to the email that Eastman
“can commence loading anytime. We will not hold the loading up for the T&C
finalization.” Dkt. 51-20 at 4; see also Dkt. 51-1 at 173-74 (Gopalan
Deposition).
Nor did Eastman wait for a complete written agreement. Dkt. 51-1 at
174. Instead, it began sending purchase orders, which Wilmar fulfilled at the
$.75/lb unit price until September of 2023, when Eastman told Wilmar that it
would not take any more glycerin for the rest of the year. See Dkt. 51-22 at 7
(September 1, 2023 email); Dkt. 51-1 at 207 ($.75/lb price for 2023 purchases).
Wilmar filed this suit in state court, asserting breach-of-contract and
unjust-enrichment claims. Dkt. 1-3 (original petition). Eastman removed the
case to this Court. Dkt. 1 (notice of removal). Wilmar amended its pleading,
alleging that Eastman agreed to purchase a certain volume of glycerin at a
certain price throughout 2022 and 2023 but then failed to take or pay for the
full volume. Dkt. 45.
After discovery closed, Dkt. 49, Eastman filed a motion to exclude the
opinions of Wilmar’s retained damages expert, Karl L. Killian, Dkt. 50, which
motion was stricken as non-compliant, Dkt. 52. It then re-filed a motion to
exclude Killian’s opinions, Dkt. 53. Wilmar responded, Dkt. 55, and Eastman
replied, Dkt. 58.
Eastman also filed a motion for summary judgment. Dkt. 51. Wilmar
responded, Dkt. 54, and Eastman replied, Dkt. 57. This Court also directed
Wilmar to provide supplemental information, Dkt. 60, which Wilmar then
submitted, Dkt. 61. Eastman’s motions are ripe for resolution.
Legal Standard
Summary judgment is warranted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine ‘if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material if the issue it
addresses “could affect the outcome of the action.” Dyer v. Houston, 964 F.3d
374, 379-80 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy
Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010)).
When resolving a motion for summary judgment, courts must view the
facts and any reasonable inferences “in the light most favorable to the
nonmoving party.” Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304
(5th Cir. 2010) (quotation omitted). “[T]he court must disregard all evidence
favorable to the moving party that the jury is not required to believe, and
should give credence to the evidence favoring the nonmoving party ….” Union
Pac. Res. Grp., Inc. v. Rhone-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001).
In addition, courts must credit all reasonable inferences from the evidence,
without “weigh[ing] evidence or mak[ing] credibility findings.” Seigler v. Wal-
Mart Stores Tex., LLC, 30 F.4th 472, 476 (5th Cir. 2022). But
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.” Luna
v. Davis, 59 F.4th 713, 715 (5th Cir. 2023) (quoting Brown v. City of Houston,
337 F.3d 539, 541 (5th Cir. 2003)).
Analysis
I. Fact issues preclude summary judgment on most of Wilmar’s
claims.
Eastman moved for summary judgment on all three of Wilmar’s claims
for (a) breach of the 2023 contract (Count I); (b) breach of the 2022 contract
(Count II); and (c) unjust enrichment (Count III). As concluded below, the
record raises genuine issues of material fact on the breach-of-contract claims,
which precludes summary judgment on Counts I and II. But Eastman is
entitled to summary judgment on Count III because the existence of express
contracts bars recovery for unjust enrichment.
A. There are disputes of fact as to whether the parties
intended to be bound by an agreement in 2023.
For the 2023 breach-of-contract claim, the central dispute is whether the
parties intended to be bound by the terms communicated in their January 2023
emails—namely that Eastman would purchase 3,211 metric tons of glycerin
from Wilmar at $.75 per pound in 2023. Both sides refer to the price and
quantity as “commercial terms,” see Dkt. 51 at 7 (Eastman’s motion), Dkt. 54
at 13 (Wilmar’s response), although Wilmar includes other terms within that
phrase as well, see Dkt. 54 at 13 (including “product specifications, packing
type, transportation mode, shipment period, shipping point, Incoterms, and
payment terms,” citing Dkt. 51-16 at 3).
According to Eastman, the parties intended to be bound only upon
signing a written contract that included all terms—commercial and
noncommercial alike—which never happened. See Dkt. 51 at 17-24. Wilmar
responds that there is at least a genuine dispute of material fact over whether
Eastman’s January 24, 2023 email confirming its assent to price and quantity
constituted a binding contract, at least for those terms. Dkt. 54 at 13.
1. UCC contract formation principles
The parties agree that the Texas Uniform Commercial Code (the “UCC”)
governs this dispute over the sale of glycerin, i.e., a “good” covered by the UCC.
See Dkt. 51 at 16; Dkt. 54 at 6; Tex. Bus. & Com. Code § 2.105(a) (defining
“goods” to include moveable “specially manufactured goods”). Under the UCC,
“[a] contract for the sale of goods may be made in any manner sufficient to
show agreement, including conduct by both parties which recognizes the
existence of such a contract.” J.D. Fields & Co. v. U.S. Steel Int’l Inc., 426 F.
App’x 271, 276 (5th Cir. 2011). “Even though one or more terms of the contract
are left open, the contract will not fail for indefiniteness so long as the parties
intended to make a contract and “there is a reasonably certain basis for giving
an appropriate remedy.” ETC Intrastate Procurement Co., LLC v. JSW Steel
(USA), Inc., 620 S.W.3d 168, 174 (Tex. App.—Houston [14th Dist.] 2021, no
pet.) (quoting Tex. Bus. & Com. Code § 2.204(c)).
Indeed, “[t]he UCC tolerates a great deal of incompleteness and even
contradiction in offer and acceptance” as its provisions will provide for “gap-
filling.” See U.S. Steel Int’l Inc., 426 F. App’x at 278 n.6. Put another way,
“[t]he fact that one or more terms are left to be agreed upon [is not] enough ...
to defeat an otherwise adequate agreement.” Tex. Bus. & Com. Code
§ 2.204(3), cmt.; see also, e.g., Enpro Sys., Ltd. v. Namasco Corp., 382 F. Supp.
2d 874, 880-81 (S.D. Tex. 2005) (acceptance of price, grade, quality, and
delivery date formed a contract even without agreement on other terms).
The UCC also has its own rules regarding offer and acceptance. Under
the UCC, “[a]n offer is an act that leads the offeree reasonably to believe that
assent (i.e., acceptance) will conclude the deal.” Axelson, Inc. v. McEvoy-Willis,
7 F.3d 1230, 1232-33 (5th Cir. 1993). Regarding acceptance, “unlike the ‘mirror
image’ rule at common law, the mere fact that a merchant’s acceptance form
contains materially different terms than the offer does not mean that it will be
considered a rejection or counter-offer.” Stelluti Kerr, LLC v. Mapei Corp., 703
F. App’x 214, 225 (5th Cir. 2017) (per curiam) (citing Tex. Bus. & Com. Code
Ann. § 2.207(a)). Rather, “[a] definite and seasonable expression of acceptance
or a written confirmation which is sent within a reasonable time operates as
an acceptance even though it states terms additional to or different from those
offered or agreed upon, unless acceptance is expressly made conditional on
assent to the additional or different terms.” Tex. Bus. & Com. Code Ann.
§ 2.207(a) (emphasis added). The exception in Section 2.207(a) applies “only to
an acceptance which clearly reveals that the offeree is unwilling to proceed
with the transaction unless he is assured of the offeror’s assent to the
additional or different terms therein.” Cosden Oil & Chem. Co. v. Karl O. Helm
Aktiengesellschaft, 736 F.2d 1064, 1075 (5th Cir. 1984) (quotation omitted).
2. A trier of fact could conclude that the parties formed a
binding contract in 2023.
Eastman relies heavily on certain communications indicating that it
wanted a formalized, written, and signed agreement covering the 2023
transaction. See Dkt. 51 at 17-19. That, coupled with Wilmar’s subjective
awareness that Eastman wanted a formal contract that included all terms,
purportedly negates the existence of a binding agreement. See id. at 18 (citing
Gopalan’s deposition testimony, Dkt. 51-1 at 120, 132).
But Wilmar maintains that the contract was formed by Eastman’s
January 24, 2023 email accepting the proposed price, quantity, and delivery
period. Dkt. 54 at 13 (citing Dkt. 51-16 at 2-3). After several weeks of
negotiations, Wilmar sent an email on January 20, 2023 asking Eastman to
“[p]lease confirm the following contract” with a specified quantity (3,211.41
metric tons) and price ($.75/lb), and other terms like the mode of transportation
and shipment period (February to December 2023). Dkt. 51-16 at 3. On
January 24, 2023 Eastman responded, “We are good with the commercial
terms,” confirming that Wilmar’s “calculation reflects [the parties’] agreement
for 3,211 MT at 75cpp throughout FY2023.” Id. at 2. The email then states
that Eastman would follow up on the GTC. See id. The parties then exchanged
several versions of the GTC but did not finalize it. See Dkt. 51-1 at 168.
Contrary to Eastman’s position, that the January 2023 emails are
missing certain terms—including what would happen in the case of
undelivered volumes—does not itself negate the existence of a binding
contract. See U.S. Steel Int’l, Inc., 426 F. App’x at 278 n.6. Rather, the question
is whether Eastman’s email accepting the commercial terms was expressly
conditioned on the parties’ agreement to additional terms or the execution of a
written contract—namely, the GTC. See Tex. Bus. & Com. Code § 2.207(a).
Viewing the record, a reasonable juror could reach either conclusion.
On the one hand, Eastman’s Britto expressed his desire for a formal
contract to Wilmar’s Gopalan in December 2022 and again on January 6, 2023.
See Dkt. 51-13 at 20-21 (Britto testifying that he and Gopalan agreed in
December 2022 to “formaliz[e] a writing and sign a document … so [they] will
not have any further disputes or discussions”). Eastman touts Britto’s email
reminding Gopalan that the parties “need to properly document this revised
deal so both parties are under mutual agreement of all the terms, to avoid any
misunderstand[ing] later on.” Dkt. 51 at 18 (quoting Dkt. 51-14 at 4-5). As
Eastman observes, Gopalan also testified he “understood that [Eastman]
wanted a formal contract that included all the terms.” Dkt. 51-1 at 120. He
also conceded that Britto’s January 6, 2023 email was “connected with
[Britto’s] previous request to [] provide a formal contract[.]” Id. at 102.
Nevertheless, other evidence indicates that, over the next few weeks, the
parties agreed to the core material terms—volume, price, and delivery period—
without conditioning their assent on a signed writing or other requirements.
As noted, Eastman declared on January 24, 2023, without qualification, that
it was “good with the commercial terms ….” Dkt. 51-16 at 2. That email was
“devoid of any language which would condition the formation of a contract on
some further step ....” See U.S. Steel Int’l, Inc., 426 F. App’x at 279 (fact dispute
on whether price quote was conditioned on assent to additional terms); see also
Cosden Oil, 736 F.2d at 1074-75 (rejecting argument that purchase
confirmations were not acceptances, although seller had told the buyer “all
sales were conditioned upon acceptance of terms,” because the parties spoke
“only in generalities” without addressing specific terms on which acceptance
was conditioned). Contrast with J.D. Fields & Co., Inc. v. Shoring Eng’rs, 391
F. Supp. 3d 698, 703-04 (S.D. Tex. 2019) (party “could not have reasonably
believed that assent to the price quote would form a contract” when “[t]he quote
itself stated that it is ‘non-binding,’” and other party made “repeated
statements that a purchase order was necessary to conclude the deal”).
According to Wilmar’s Gopalan, as of that email, “we had an agreement on the
commercial terms and conditions,” and only the “nonmaterial” issues remained
outstanding. Dkt. 51-1 at 116.
Moreover, as Wilmar argues, the parties’ subsequent performance
supplies further evidence that a contract existed. See Dkt. 54 at 14. “Conduct
by both parties which recognizes the existence of a contract is sufficient to
establish a contract for sale although the writings of the parties do not
otherwise establish a contract.” Tex. Bus. & Com. Code Ann. § 2.207(c). Here,
consistent with its January 24, 2023 email, Eastman purchased glycerin from
Wilmar at the specified price of $.75/lb from February 2023 until September
2023. See Dkt. 51-1 at 207; Dkt. 51-22 at 7. And as Eastman’s representative
testified, the price per unit was linked to volume. See Dkt. 54-2 at 77. The
parties’ negotiations also highlight the inextricable tie between the price and
volume. Indeed, the proposed price per unit was always paired with a
corresponding volume. See, e.g., Dkt. 51-17 at 13-14 (offering $1.06/lb for the
remaining Q3 orders already placed, $.80/lb for the remaining Q3 volume, and
any new volume at $.46/lb).
Communications relating to performance also suggest that Eastman
chose to push ahead even without an agreed GTC. On February 20, 2023,
Eastman’s Martinez Torres emailed Gopalan that Eastman would like “to
finalize and sign these [GTC]s so we can start loading.” Dkt. 51-20 at 4.
Gopalan understood that Eastman had not loaded railcars yet in 2023
“[b]ecause the terms and conditions weren’t signed[.]” Dkt. 51-1 at 169.
Gopalan responded that Eastman “can commence loading anytime. We will
not hold the loading up for the [GTC] finalization.” Dkt. 51-20 at 4; see also
Dkt. 51-1 at 173-74 (Gopalan Deposition). Martinez Torres then began sending
orders even though the parties had not agreed to a GTC. Dkt. 51-1 at 174. She
later told fellow Eastman employees that “~3kMT for 2023 … is the volume
that we have committed to Wilmar.” Dkt. 54-6 at 2 (April 5, 2023 email).
As a final point, Eastman argues that the proposed GTCs provide
evidence of the party’s intention to only be bound by a formal contract because
“every version of the draft GTCs … expressly contemplated a signed
agreement.” See Dkt. 51 at 19-20; see also Dkt. 51-15 § 15.10 (GTC provision
stating that exchange of copies and signature page “shall constitute effective
execution”). But language contemplating a fully executed agreement does not
foreclose the possibility that a contract could still exist without one. Indeed,
whether the parties required a formal signature before being contractually
bound depends on “the full context of the parties’ negotiations ….” Tricon
Energy Ltd. v. Vinmar Int’l, Ltd., 718 F.3d 448, 455 (5th Cir. 2013) (quotation
omitted) (unsigned signature lines were not conclusive). And the course of
negotiations between Wilmar and Eastman raises fact questions about
whether and when they intended to be bound. Summary judgment should be
denied on Wilmar’s claim for breach of a 2023 contract.
B. Disputes of fact also preclude summary judgment on the
claim for breach of the 2022 contract.
For Count II, Wilmar pleaded that the parties had enforceable quarterly
contracts in 2022 under which Eastman failed to fully perform. Dkt. 45 at 6-
7. Specifically, Wilmar maintains that Eastman had agreed to purchase 1,500
metric tons of glycerin at $1.10/lb from March to June 2022 (“second quarter
agreement”) and 1500 metric tons at $1.06/lb from July to September 2022
(“third quarter agreement”). Id. at 3.
The record shows that Eastman did not purchase the full volume for
either quarter. See Dkt. 51-11 at 8-9 (Gopalan’s and Martinez Torres’s emails
about “backlog” of 1,611 metric tons—477 metric tons under second quarter
agreement and 1,134 metric tons under third quarter agreement). Regardless,
Eastman maintains that there were no quarterly contracts and, even if there
were, Wilmar cannot show it tendered performance. Dkt. 51 at 26. Both issues
raise genuine disputes of material fact that preclude summary judgment.
1. Whether the parties had quarterly contracts in 2022 raises
fact questions.
Like with Count I, Eastman maintains that the parties’ emails
comprising the alleged “second and third quarter agreements” were merely
negotiations. In Eastman’s view, only the individual purchase orders were
enforceable contracts. Dkt. 51 at 28. Wilmar responds that the parties’
correspondence about the two quarters “easily satisf[ies]” the UCC’s standard
for an enforceable contract. Dkt. 54 at 17. Plenty of record evidence supports
Wilmar’s position.
In support of its argument, Eastman relies largely on a purported
“admission” from Wilmar. See Dkt. 51 at 27-28. For its first interrogatory,
Eastman asked Wilmar to “identify the terms of any alleged agreement” for
2022. See Dkt. 51-9 at 4. Wilmar responded that “the agreements for the sale
of glycerin by Wilmar to Eastman were handled through email correspondence
and Wilmar’s acceptance of individual, shipment specific, purchase orders from
Eastman.” Id. The response also referred to the underlying documents. Id.
Wilmar also noted that “[a]dditional details” could be found in its response to
Interrogatory No. 2. Id. That next interrogatory asked Wilmar to identify
“(1) the purchase order number, (2) the purchase order date, (3) price,
(4) quantity, (5) shipment and/or delivery date, (6) invoice date, and (7) invoice
number” for each purchase order between 2021-2023. Id. Wilmar provided
that information in a chart. See id. at 4-16.
Eastman says this answer “confirm[s]” that only the purchase orders are
enforceable contracts. Dkt. 51 at 27-28. This reading is strained at best.
Wilmar’s response explicitly refers to both the emails and the purchase orders,
which is consistent with its position that the 2022 “agreements were
memorialized in email correspondence and implemented through purchase
orders and shipments.” Dkt. 54 at 17. And Wilmar invokes its response to
Interrogatory No. 2 regarding purchase orders only for “additional details”—
not the basis for the contract.
Further, “interrogatory responses are not binding judicial
admissions ….” Bradley v. Allstate Ins. Co., 620 F.3d 509, 527 n.21 (5th Cir.
2010). And an evidentiary admission, as opposed to judicial admissions, “may
be controverted or explained by the party who made it.” Martinez v. Bally’s
La., Inc., 244 F.3d 474, 476-77 (5th Cir. 2001) (citation omitted).
Wilmar presented ample controverting evidence that the parties’ emails
formed quarterly contracts. First, the 2022 emails signal that the parties
agreed unconditionally to certain terms. For the second quarter, Ozzella
(Wilmar) offered 1,500 metric tons of glycerin at $1.10/lb. Dkt. 51-3 at 5.
Martinez Torres (Eastman) responded “I am ok with our normal volume of
1500 +-5% for Q2.” Id. at 4-5. Ozzella then sent the “Accepted/Confirmed”
terms, including volume, price, and delivery period. Id. at 3-4. Martinez
Torres responded by thanking Ozzella and confirming that the delivery period
was March-June 2022. See id. at 2-4.
For the third quarter, Ozzella sent Eastman a quote with several terms,
including the price and quantity for the July-September 2022 delivery period.
Dkt. 51-5 at 5-6. The parties confirmed the price. See id. at 3-5. Ozzella then
sent Eastman a “confirmation” with the terms, including the quantity of 1,500
MT +-5% tolerance at $1.06/lb. Id. at 2. Martinez Torres testified that the
third quarter quote “was accepted by Eastman” and that they “issued a
purchase order associated with this” quote. Dkt. 54-2 at 73.
The parties then began performing according to the foregoing terms.
Eastman purchased glycerin from Wilmar at the agreed price for each quarter.
See, e.g., Dkt. 51-8 at 6 (May 5, 2022 purchase order reflecting $1.10/lb unit
price paid); Dkt. 54-1 at 149 (shipment records). When Eastman took less than
the 1,500 metric tons per quarter, the parties mutually considered the
unpurchased volume a “backlog.” See, e.g., Dkt. 54-2 at 88-91 (Martinez Torres
deposition). In fact, the parties’ use of the term “backlog” suggests that
Eastman had, in fact, committed to buying an overarching quantity.
Eastman’s remaining argument relies on Gopalan’s testimony that, for
the second and third quarters, “there is an email communication followed by
an actual sales contract” that would have been sent as a PDF. See Dkt. 51 at
28; Dkt. 51-1 at 83. But that testimony conflicts with Gopalan’s own emails
from the time of events. On December 15, 2022, Gopalan informed Eastman
that Wilmar “do[es] not send out a formal contract unless requested.” Dkt. 51-
11 at 2. All these contradictions render it inappropriate to resolve, on
summary judgment, whether the parties formed binding contracts for the two
disputed quarters in 2022.
2. Eastman has not shown that Wilmar was unable to tender.
The parties also dispute tender. Under Texas law, one element of a
breach-of-contract claim requires proof of “performance or tendered
performance by the plaintiff ….” Wesdem, LLC v. Ill. Tool Works, Inc., 70 F.4th
285, 294 (5th Cir. 2023). “Tender of delivery requires that the seller put and
hold conforming goods at the buyer’s disposition and give the buyer any
notification reasonably necessary to enable him to take delivery.” Tex. Bus. &
Com. Code § 2.503(a).
Eastman argues that, for the quantities that Eastman declined to take
in 2022, Wilmar did not provide evidence of tender—and cannot show that it
did—because it lacked the ability to deliver the full volume. See Dkt. 51 at 29.
Wilmar counters that it had the inventory, ability, and readiness to supply the
full 1,500 metric tons per quarter. See Dkt. 54 at 21.
On this issue, too, the evidence points different ways. There is a triable
issue as to whether Wilmar was able to—and did—tender the full 2022 volume.
a. There is a genuine dispute over the point at which
Wilmar fulfilled its delivery obligations.
Eastman argues primarily that Wilmar was unable to tender the full
volume for each quarter. See Dkt. 51 at 29. It relies largely on certain
deposition testimony of Wilmar’s business manager, Ozzella, who stated that
he did not think “Wilmar had the actual ability to deliver” 1,500 metric tons of
glycerin to Eastman in New Jersey or Houston during the second and third
quarters of 2022. See Dkt. 51-2 at 194-95, 199.
Wilmar responds that the UCC “does not require physical delivery into
the buyer’s possession, nor does it impose responsibility for downstream
logistics on the seller.” Dkt. 54 at 20. Rather, “the obligation of the seller is to
transfer and deliver and that of the buyer is to accept and pay in accordance
with the contract.” Tex. Bus. & Com. Code § 2.301. Wilmar’s cited authority,
Valero Marketing & Supply Company v. Kalama International, 51 S.W.3d 345,
352 (Tex. App.—Houston [1st Dist.] 2001, no pet.), affirms that principle.
But Wilmar also notes that the parties’ quarterly contracts specify the
delivery terms. See Dkt. 54 at 21. Assuming the parties’ 2022 emails
constituted the binding agreement—which is itself a fact question—those
communications invoked “Incoterm: FCA Houston” or “Incoterm: FCA Hudson”
as the terms of delivery. Dkt. 51-3 at 3 (second quarter agreement “Incoterm:
FCA Hudson”); Dkt. 51-5 at 2 (third quarter agreement “Incoterm: FCA
Hudson” and “FCA Houston”).
The “Incoterms” are the International Commercial Terms, which
“provide a set of international rules for the interpretation of the most
commonly used trade terms in foreign trade.” BP Oil Int’l, Ltd. v. Empresa
Estatal Petroleos de Ecuador, 332 F.3d 333, 335 (5th Cir. 2003) (quoting
International Chamber of Commerce, Incoterms 1990 (1990)). Under the latest
version of the Incoterms, “FCA” or “Free Carrier” “means that the seller
delivers the goods to the buyer” at a “named place”—“either at the seller’s
premises or elsewhere ….” Dkt. 61-1 at 5-6 (International Chamber of
Commerce, Incoterms 2020 (2020)). If delivery is to occur somewhere other
than the seller’s premises, then delivery is complete when the goods “reach the
named other place and are ready for unloading from the seller’s means of
transport and at the disposal of the carrier or of another person nominated by
the buyer.” Id. at 5, 8. Once delivery has occurred, the risk of loss and costs
pass from the seller to the buyer. See id. at 6, 10-11.
Here, the parties’ emails reflect that they designated the Hudson and
Houston terminals as the “named places” where delivery—and thus, tender—
was to occur. See Dkt. 51-3 at 3; Dkt. 51-5 at 2, 4. And in practice, Wilmar
would deliver the glycerin to the Hudson and Houston terminals, where
Eastman would provide railcars for loading. See, e.g., Dkt. 51-2 at 39-40
(Ozzella’s testimony); see also, e.g., Dkt. 51-6 at 2 (Eastman waited at the
terminal “for a railcar to be loaded”). Because delivery occurred at the
terminals, the Incoterms FCA invoked in the parties’ emails suggests that
Wilmar satisfied its delivery obligations—thereby fulfilling its tender
obligation—once the glycerin reached and was ready for unloading from
Wilmar’s tanks at the terminals. If so, then Eastman bore the responsibility
of loading the glycerin from Wilmar’s tanks onto Eastman’s railcars.
On the other hand, the parties’ conduct suggests that Wilmar may have
assumed responsibility for delivery beyond merely making the glycerin
available at the terminal tanks. For example, Eastman’s Martinez Torres
testified that Eastman “sent the railcars” but that Wilmar “need[ed] to load
the railcars in order for [Eastman] to get the” glycerin. Dkt. 54-2 at 89. And
Wilmar’s Ozzella agreed “that throughout the second quarter of 2022, Eastman
was consistently providing railcars to the Hudson Tank Terminal to be loaded”
and “was consistently pushing Wilmar to try to work with the terminal to get
their railcars loaded faster.” Dkt. 51-2 at 90-91.
Those competing facts confirm that whether Wilmar’s tender obligation
was fulfilled upon making its glycerin available at the terminals, or instead
only upon loading the glycerin on Eastman’s railcars, cannot be resolved at this
juncture. Those disputes of fact are reserved for the jury.
b. Fact issues remain about the adequacy of Wilmar’s
inventory at the terminals.
Assuming that Wilmar satisfied its obligation to tender the glycerin by
making it available at the terminal for Eastman to load, there is also a fact
dispute about Wilmar’s inventory levels at the terminals. Wilmar maintains
that it had adequate glycerin available. See Dkt. 54 at 22. Eastman does not
challenge the inventory levels per se, pivoting instead to Ozzella’s testimony
on Wilmar’s ability to deliver the glycerin—i.e., the fact issue addressed above.
See Dkt. 57 at 14.
Wilmar argues that Eastman “isolated” and “misconstrued” Ozzella’s
testimony, largely because he lacked personal knowledge of Wilmar’s inventory
at the terminals. See Dkt. 54 at 21-22; see Dkt. 51-2 at 189 (“I don’t know what
our tank levels were.”). Indeed, Ozzella’s testimony indicates that the delivery
issues he had described were largely caused not by low glycerin supply, but by
congestion at the terminal that delayed the loading process. See Dkt. 51-2 at
189 (“[A] lot of delays weren’t due to product availability. They were due to
congestion. We did have product in other tanks available to them.”); see also
id. at 190 (“the challenge” was “the practical reality of Eastman actually taking
possession of the glycerin” and that was attributed “mostly” to “congestion and
getting railcars loaded”); id. at 190 (Wilmar “did have product” at the Hudson
and Houston terminals in 2022).
Moreover, Wilmar submitted declarations from Ozzella and Gopalan
indicating that Wilmar had an adequate supply of glycerin at both terminals
to tender the full volumes. After reviewing Wilmar’s inventory records “for the
relevant time,” Ozzella declared “that Wilmar maintained glycerin in its tanks
at both the Hudson and Houston locations during that period at an amount
sufficient to supply Eastman.” Dkt. 54-1 at 3. And Gopalan declared, based
on records, “that Wilmar maintained glycerin in its tanks at both the Hudson
and Houston locations during the second and third quarters of 2022 in
quantities sufficient to supply Eastman.” Dkt. 54-3 at 3; see also id. (asserting
“Wilmar had ample glycerin available for Eastman at its Hudson and Houston
tanks throughout” those quarters). There is enough evidence to show that
Wilmar could satisfy its obligation to deliver and tender the promised amounts.
c. The Court can reasonably infer that Wilmar did
tender.
The foregoing conclusions largely foreclose Eastman’s alternative
contention that Wilmar presented no evidence that it did, in fact, tender the
remaining volume by putting it and holding it for Eastman’s loading and
providing notice that reasonably enabled Eastman to take delivery. Dkt. 57 at
15 (quoting Tex. Bus. & Com. Code § 2.503(a)). As already observed, Wilmar
proffered evidence that the glycerin was available at the terminals for
Eastman to pick up. See, e.g., Dkt. 54-3 at 3 (“Wilmar had ample glycerin
available for Eastman at its Hudson and Houston tanks ….”).
And on the notice requirement, the record is replete with emails wherein
Wilmar attempted to coordinate with Eastman how and when it would
purchase the full volume under the 2022 contracts. See, e.g., Dkt. 51-7 at 2
(informing Eastman on May 18, 2022 that Wilmar has glycerin at Houston and
Hudson terminals); Dkt. 51-11 at 10 (Ozzella’s December 7, 2022 email asking
if Eastman will be taking backlog from the 2022 contract in the first quarter of
2023); id. at 9 (Wilmar’s Gopalan asking if Eastman expects to consume the
2022 backlog in the second quarter of 2023). Viewing the facts in the light most
favorable to Wilmar, see Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank,
N.A., 754 F.3d 272, 276 (5th Cir. 2014), that is enough to raise a genuine issue
of material fact. This Court should deny summary judgment on the 2022
breach-of-contract claim.
C. The unjust enrichment claim fails.
As an alternative to its claim that Eastman breached a 2023 contract,
Wilmar contends (in Count III) “that Eastman was unjustly enriched by
submitting purchase orders and paying invoices based on a price of $0.75 per
pound for Wilmar’s glycerin.” Dkt. 45 at 7. Wilmar alleges that this lower unit
price “was based on negotiations requiring the purchase of 3,211 metric tons.”
Id. Eastman argues that this claim fails because (1) “the 2023 purchase orders
were” express contracts that foreclose an unjust enrichment claim, and
(2) Wilmar cannot show “undue advantage.” Dkt. 51 at 24. Because Eastman’s
first point is correct, there is no need to address the second.
“Generally speaking, when a valid, express contract covers the subject
matter of the parties’ dispute, there can be no recovery under a quasi-contract
theory ... because parties should be bound by their express agreements.”
Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); see also
Baxter v. PNC Bank Nat’l Ass’n, 541 F. App’x. 395, 397 (5th Cir. 2013) (no
recovery for unjust enrichment “when the same subject matter is covered by
an express contract”). Eastman argues, and the undersigned agrees, that the
parties’ dispute concerns which contract controls Eastman’s glycerin purchases
in 2023—not if a contract exists. See Dkt. 51 at 25. That is, if no overarching
agreement for 2023 exists, then the parties’ transactions were governed
instead by the individual purchase orders. See, e.g., Dkt. 51-21 (purchase order
for 187,393.076 lbs of glycerin at $.75/lb). Those purchase orders cover the
subject matter of the parties’ dispute (the price of glycerin paid per unit).
Because the purchase orders are contracts, an alternative unjust enrichment
claim is not available. See, e.g., TIB--The Indep. BankersBank v. Canyon Cmty.
Bank, 13 F. Supp. 3d 661, 672 (N.D. Tex. 2014) (rejecting unjust enrichment
claim because the dispute concerned which of two contracts controls).
Wilmar’s cited case law is distinguishable. See Dkt. 54 at 25. This case
does not concern unusual circumstances that the parties neglected to
contemplate before contracting. Cf. Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d
95, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (unjust enrichment was
an appropriate equitable remedy in a landlord-tenant dispute because “the
parties never contemplated” that certain equipment used during the tenancy
would “revert back to the landlord upon the expiration of the lease”). Nor does
the dispute concern goods that the agreement fails to address. Cf. McLeod v.
McLeod, 644 S.W.3d 792, 810-811 (Tex. App.—Eastland 2022, no pet.) (jury’s
finding of unjust enrichment was sound because the express agreement did not
address the items of property at issue). Rather, there are only two possible
scenarios: either the parties had an enforceable contract for the whole of 2023
or just the individual purchase order agreements. Either way, an express
contract would foreclose recovery for unjust enrichment. Eastman is entitled
to summary judgment on Count III.
II. Wilmar’s damages expert is excluded.
Eastman also moved to exclude Wilmar’s damages expert, Karl L.
Killian, who proffered opinions about Wilmar’s damages for its breach-of-
contract and unjust enrichment theories. As concluded supra Part I.C, the
unjust enrichment claim is barred as a matter of law. So the motion to exclude
Killian’s opinion concerning unjust enrichment damages is denied as moot.
See, e.g., Shanklin v. Columbia Mgmt. Advisors, LLC, 2008 WL 4899631, at
*18 (S.D. Tex. Nov. 12, 2008) (denying motion to exclude expert testimony on
damages as moot for claim that was dismissed on summary judgment).
As for Killian’s assessment of Wilmar’s damages for breach of contract,
the Court concludes that his opinions are both irrelevant and unreliable. His
expert testimony is therefore excluded.
A. Standard governing admissibility of expert testimony
Under Federal Rule of Evidence 702,
[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if ... (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the
testimony is based upon sufficient facts or data; (c) the testimony
is the product of reliable principles and methods; and (d) the
expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case.
Fed. R. Evid. 702. To justify admitting an expert’s testimony, the proponent of
that testimony must show, by a preponderance of the evidence, “that (1) the
expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence
is reliable.” Stage Completions, Inc. v. Dissolvalloy, LLC, 2021 WL 4888935,
at *1 (S.D. Tex. June 21, 2021); see also Moore v. Ashland Chem. Inc., 151 F.3d
269, 276 (5th Cir. 1998).
If an expert witness possesses the requisite qualifications to testify as an
expert, the court must then assess the reliability and relevance of the expert’s
testimony. The reliability inquiry examines “whether the reasoning or
methodology underlying the testimony is scientifically valid.” Knight v. Kirby
Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). For this
determination, courts consider numerous non-exclusive factors: (1) “whether a
theory or technique ... can be (and has been) tested”; (2) whether it “has been
subjected to peer review and publication”; (3) “the known or potential rate of
error”; and (4) whether the approach is generally accepted within the relevant
scientific community. See Daubert, 509 U.S. at 593-94. The inquiry, however,
is “a flexible one” that focuses “solely on principles and methodology, not on
the conclusions they generate.” Id. at 594-95. The ultimate decision whether
to admit an expert’s opinions lies in the district court’s discretion. See
Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 330 (5th Cir. 2010).
B. Overview of Killian’s damages opinion
Killian’s report opined on Wilmar’s economic damages. See Dkt. 58-1 at
6. Regarding the parties’ contract in 2023, Killian calculated the income that
Eastman’s “purchase of the outstanding volume would have resulted in” by
multiplying the agreed unit price of $.75/lb by the 2,134 metric tons that
Eastman allegedly promised, but failed, to purchase. Id. at 8. From that sum,
Killian subtracted the $1.5 million that Wilmar earned selling the
unpurchased glycerin to other customers. Id. at 8-9. Killian concluded that
Wilmar suffered approximately $2 million in damages due to Eastman’s failure
to purchase 2,134 metric tons of glycerin in 2023. See id. at 6, 9.
Killian later supplemented his report to calculate damages for Wilmar’s
2022 breach-of-contract claim. See Dkt. 58-2. For the second quarter
agreement, Killian multiplied the unpurchased volume of 477.04 metric tons
by the agreed price of $1.10/lb. See id. at 3. For the third quarter agreement,
he multiplied the 1,134.37 metric tons of unpurchased volume by the unit price
of $1.06/lb. See id. He then subtracted the profit made through mitigation
from the combined sum for both quarters. See id. This yielded a “net lost sales
value” of $ 2,717,139. Id.
C. Killian’s opinion on the breach-of-contract damages is
irrelevant and unreliable.
Eastman contends that Killian’s breach of contract damages calculation
was “irrelevant, unreliable, and unhelpful” because the calculation was not
based on market price, as required by Section 2.708 of the UCC. Dkt. 53 at 4-
5. The parties agree that damages should be calculated under Section 2.708.
See id. at 1; Dkt. 58 at 5. And Killian’s report claims that his calculation “is
predicated on Texas Business and Commerce Code 2.708.” See Dkt. 58-1 at 7.
Killian simply did not perform that calculation.
1. UCC damages under Section 2.708
Under the UCC, “if the buyer accepts the disputed goods, the seller is
entitled to the contract price of those goods.” Trident Steel Corp. v. Vecta Oil
& Gas, Ltd., 2017 WL 3671299, at *1 (S.D. Tex. July 17, 2017) (emphasis
added) (citing Tex. Bus. & Com. Code § 2.709). But if the buyer does not accept
the goods—which is what happened here—“the seller may only be entitled to
the market price for those goods” under Section 2.708(a). Id. (citing Tex. Bus.
& Com. Code § 2.708); see also Leeman Labs, Inc. v. Enreco, Inc., 7 F.3d 229
(5th Cir. 1993) (Section 2.708 “permits recovery by a seller of the difference
between the contract price and the market value of the goods”). The market
value is determined “at the time and place for tender ….” Tex. Bus. & Com.
Code § 2.708(a).
Section 2.708(b) does provide an alternative measure of damages
consisting of “the profit (including reasonable overhead) which the seller would
have made from full performance by the buyer ....” Id. § 2.708(b). But that
alternative is available only if subsection (a)’s market-price measure “is
inadequate to put the seller in as good a position as performance would have
done ….” Id.; see also Tri-State Petroleum Corp. v. Saber Energy, Inc., 845 F.2d
575, 580 (5th Cir. 1988) (applying subsection (b) only “when subsection (a)’s
measure is insufficient”).
2. Killian calculated the wrong measure of damages, rendering
his opinion irrelevant and unreliable.
Under Section 2.708(a), Wilmar’s contract damages are limited to the
market price of the unpurchased glycerin at the time and place of tender. But
that is not what Killian calculated. Instead, Killian determined the difference
between the profit Wilmar would have made under the contracts themselves
($1.10/lb for the second quarter of 2022, $1.06/lb for the third quarter, and
$.75/lb for 2023 multiplied by the outstanding volume for each delivery period)
and the profit Wilmar made from mitigating its damages. See Dkt. 58-1 at 8;
Dkt. 58-2 at 2-3. That method results in a lost profits figure—not the product’s
market price. Nowhere does Killian’s report mention or purport to explain the
glycerin’s market price at the time of tender. This is important because the
measure of damages in Section 2.708—i.e., market price at the time of breach—
is conceptually distinct from a plaintiff’s subsequent attempts to mitigate its
damages. See JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 487 n.3
(Tex. 2019) (citing mitigation of damages as an instance where damages
measured at the time of breach under Section 2.708(a) “can increase or
decrease after the breach”). Because Killian applied the wrong legal standard
for recoverable damages, his opinion is irrelevant. See AIG Eur. LTD. v.
Caterpillar Inc., 2019 WL 8806217, at *8 (E.D. Tex. Oct. 3, 2019) (portion of
report applying the wrong standard for damages was excluded as irrelevant),
aff’d, 831 F. App’x 111 (5th Cir. 2020); Mize v. BMW of N. Am., LLC, 2021 WL
5571165, at *7 (N.D. Tex. Oct. 1, 2021) (expert’s damages opinion was
irrelevant because it used the wrong standard).
Wilmar insists that Killian “did not ignore market price evidence,” but
rather relied on “arm’s-length sale transactions for the same product, during
the same time period” to determine the market price. Dkt. 55 at 2. That gloss
is nowhere in Killian’s report. And as Eastman correctly argues, Dkt. 58 at 10,
a party’s post hoc explanation cannot salvage an expert’s deficient
methodology. See Jacked Up, LLC v. Sara Lee Corp., 807 F. App’x 344, 349
(5th Cir. 2020) (per curiam) (rejecting party’s “post hoc rationalization” of
expert’s damages methodology); see also DeWolff, Boberg & Assocs., Inc. v.
Pethick, 2024 WL 1396267, at *10-11 (N.D. Tex. Mar. 31, 2024) (rejecting
party’s “attempt to fill the gaps” of damages report), aff’d on other grounds, 133
F.4th 448 (5th Cir. 2025).
Even if Killian intended to calculate the market price according to the
resale profit—although the report manifests no such intent—his opinion is
unreliable. Wilmar cites the principle that “[m]arket value may be calculated
by using comparable sales.” Dkt. 55 at 4 (quoting Exxon Corp. v. Middleton,
613 S.W.2d 240, 246 (Tex. 1981)). But “[c]omparable sales [] are those
comparable in time, quality, quantity, and availability of marketing outlets.”
Exxon, 613 S.W.2d at 246. That analysis is missing from Killian’s report.
Killian never attempts to explain how or why Wilmar’s mitigation sales
could adequately inform market value. This is hugely problematic because the
price of glycerin fluctuated significantly, including on a month-to-month basis.
See Dkt. 58-3 at 36, 207-08. The record also shows that Wilmar’s time of tender
was not static. Although the alleged contracts would span several months,
Eastman typically took and paid for only a portion at a time, without a regular
shipping schedule. See, e.g., Dkt. 54-3 at 148 (shipments on June 10th, 13th,
and 14th, 2022, but then no shipments until July 7, 2022).
Yet Killian performed no analysis and cited no data indicating that the
market price at the various points of tender throughout 2022 and 2023 would
accurately be reflected by the price paid by another buyer months after-the-
fact, in November 2023, December 2023, and January 2024, in this volatile
market. See Dkt. 58-2 at 2-3; Dkt. 58-1 at 8-9. The vast “analytical gap”
between Killian’s damages opinion and the underlying data renders his
opinions unreliable even assuming that he attempted to apply the correct
measure of damages under Section 2.708(a). See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997) (permitting courts to exclude expert testimony as
unreliable if “there is simply too great an analytical gap between the [basis for
the expert’s opinion] and the opinion proffered”).
3. Killian limited his damages opinions to Section 2.708(a).
Wilmar’s further attempts to salvage Killian’s opinions are not
convincing. For instance, Wilmar criticizes Eastman for “assum[ing] § 2.708(a)
provides the exclusive measure of damages” here. Dkt. 55 at 4. But those are
the damages Killian claims to calculate, and what this Court must assess. See
Dkt. 58-1 at 7 (quoting “Subsection (a)” of “Texas Business and Commerce Code
2.708”). Killian did not invoke the lost-profits alternative in Section 2.708(b).
So Wilmar cannot recast Killian’s calculations as a Section 2.708(b) opinion.
Moreover, Wilmar has submitted no evidence that default market-value
damages under Section 2.708(a) would be inadequate, which precludes it from
seeking recovery under Section 2.708(b). See, e.g., UniWell Lab’ys, LLC v.
Frain Indus. Inc., 2024 WL 385698, at *12 (N.D. Tex. Feb. 1, 2024) (“[B]ecause
there is no evidence that the measure of damages set forth in subsection (a) of
section 2.708 is inadequate, Defendants cannot recover damages under
subsection (b) ….”), aff’d sub nom. 2025 WL 1099692 (5th Cir. Apr. 14, 2025);
see also Garza v. Dealers Elec. Supply, 2004 WL 1193698, at *2 (Tex. App.—
Houston [14th Dist.] June 1, 2004, no pet.) (no damages under subsection
2.708(b) where “there is no evidence in this case that the damage measure in
subsection 2.708(a) is inadequate, so as to make subsection 2.708(b)
applicable”). Accordingly, any opinion about damages under Section 2.708(b)
would be irrelevant even assuming that Killian purported to offer one.
In sum, Wilmar failed to establish that Killian’s opinions are relevant
and reliable under Fed. R. Evid. 702. His opinions are therefore excluded.
Recommendations and Conclusion
For the foregoing reasons, it is RECOMMENDED that Eastman
Chemical Company’s motion for summary judgment (Dkt. 51) be GRANTED
IN PART as to the unjust enrichment claim (Count III) and DENIED IN
PART as to the breach-of-contract claims (Counts I and II).
It is further ORDERED that Eastman’s motion to exclude (Dkt. 53)
expert Karl L. Killian’s opinions is GRANTED as to the breach-of-contract
damages and DENIED AS MOOT as to the unjust enrichment damages.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Failure to file timely objections will preclude
appellate review of factual findings and legal conclusions, except for
plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on June 9, 2026, at Houston, Texas.
Yvofiye Y. Ho
United States Magistrate Judge
38