Hart v. Louisiana-Pacific Corporation

Filing 216

ORDER GRANTING 208 Defendant's Motion for Summary Judgment, DENYING AS MOOT 184 Plaintiff's Motion for Reconsideration, DENYING AS MOOT 199 Plaintiff's Motion for Trial Phasing, and DENYING AS MOOT 203 Defendant's Motio n to Expedite. Defendant's renewed request to decertify the class is hereby ALLOWED. Class counsel is directed to notify the class, pursuant to Rule 23(c)(2)(B), that the class has been decertified and that each member may proceed with their claims on an individual basis. The Clerk is directed to close this case. Signed by US District Judge Terrence W. Boyle on 8/30/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:08-CV-47-BO

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v.
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LOUISIANA-PACIFIC CORPORATION, )
Defendant.
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GWEN HART, JOSEPH DRUTHER,
LUCILLE DRUTHER, EDWARD
WUELLNER, and JENNIFER
WUELLNER, individually and on behalf
of all others similarly situated,
Plaintiffs,

ORDER

This cause comes before the Court on multiple pending motions. For the reasons
discussed below, defendant's motion for summary judgment is granted, the class is decertified,
and the remaining motions are denied as moot.
BACKGROUND
The Court hereby incorporates by reference as if fully set forth herein its recitation of the
facts and procedural history of this action as set out in its previous orders. This matter was
scheduled to proceed to trial during the Court's August 2013 term, but the trial was continued in
light of multiple motions filed. Pending are plaintiffs' motion for trial phasing and defendant's
motion for reconsideration of the Court's order denying partial summary judgment and declining
to decertify class, as well as defendants' motion to expedite consideration of the pending motions
in light of trial and now, most recently filed, defendant's motion for summary judgment. The
Court addresses first the motion for summary judgment.

DISCUSSION
Defendant contends that a recent decision of the North Carolina Court of Appeals
clarifies that the named plaintiffs' claims are barred by the applicable statute of repose under
North Carolina law. "Summary judgment is proper if the pleadings or proof show without
contradiction that the statute of repose has expired." Bryant v. Don Galloway Homes, Inc., 147
N.C. App. 655, 657 (2001) (citation omitted). Although the deadline for filing dispositive
motions has passed, the Court finds it appropriate to consider defendant's motion as it raises not
merely a defense but the absence of a "condition precedent to [plaintiffs'] right to maintain a
lawsuit." Tipton & Young Canst. Co. Inc. v. Blue Ridge Structure Co., 116 N.C. App. 115, 117
(1994). Furthermore, a court may reconsider its own orders entered before entry of final
judgment. Fed. R. Civ. P. 54(b).
The Court previously addressed defendant's argument regarding the application of the
statute of repose in its order denying defendant's motion for partial judgment on the pleadings
and motion for judgment on the pleadings [DE 47]. There, the Court found that, because an
express warranty is contractual in nature, a claim for breach of an express warranty may be
brought after the expiration of the applicable six year statute of repose if the express warranty
period extends beyond the statute of repose. Distinguishing a 2008 North Carolina Court of
Appeals opinion, Roemer v. Preferred Roofing, 190 N.C. App. 813 (2008), this Court further
held that because the express warranty at issue here provides that damages are the only remedy
available, plaintiff Hart was not limited to specific performance as a remedy for her breach of

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warranty claim. 1
On July 16, 2013, a panel of the North Carolina Court of Appeals, instructed by Roemer,
held that, even in the face of an express warranty that includes a longer term, "a plaintiff whose
action is not filed within the time set forth in the statute of repose has no cause of action for
damages." Christie v. Hartley Canst., Inc., 745 S.E.2d 60, 63 (N.C. App. 2013) (emphasis
added). "[F]ederal courts, under the doctrine of Erie . . . must follow the decisions of
intermediate state courts in the absence of convincing evidence that the highest court of the state
would decide differently." Assicurazioni Generali, S.p.A. v. Neil, 60 F.3d 997, 1002 (4th Cir.
1998) (quoting Stoner v. New York Life Ins. Co., 311 U.S. 464,467 (1940)). The Court has been
presented with insufficient evidence to find that the North Carolina Supreme Court would decide
this issue differently.
It is undisputed that this suit was filed beyond the six-year statute of repose applicable to

the claims of the named plaintiffs. Defendant's express warranty provides that the "sole
available remedy" is that defendant "will pay an amount equal to the cost of replacing any such
failed Product" or up to twice the cost of replacing the failed product, depending on the year of
the warranty. Although plaintiffs request "specific performance" of the warranty provision
remedying breach, at bottom such provision, as this Court has previously held, is one for
damages. As recently clarified by the North Carolina Court of Appeals, any action for damages
brought outside ofthe statute of repose is barred. Summary judgment is therefore appropriate as
to the claims of the named plaintiffs.

1

0n September 21, 2009, plaintiff Hart along with plaintiffs Druther and Wuellner filed
an amended class action complaint.
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Decertification of the Class
The Court is persuaded by defendant's argument that decertification of the class is
appropriate in light of Christie. Plaintiffs assert a claim for breach of express warranty, and
application of Christie provides that those class members who would bring claims within the
statute of repose would be permitted to seek damages under the existing or reformed warranty
while those bringing claims outside of the statute of repose would not. The underlying basis for
this Court's certification of the class was its finding that the statute of repose would not bar an
action for damages brought under the express warranty, meaning that the named plaintiffs and
any class member who purchased Trimboard within the last ten years would have standing to
bring an action alleging breach of the express warranty.

Christie now directs that the statute of repose does bar an action for damages, even if the
terms of the warranty extend beyond the applicable period of repose. Therefore, the task of
determining which plaintiffs would be permitted to bring an action for damages would
necessarily require an individualized determination of "the later of the specific last act or
omission of the defendant giving rise to the cause of action or substantial completion of the
improvement." N.C. Gen. Stat. § 1-50(a)(5). The necessity for such a determination does in fact
destroy "typicality, ... predominance, [and] otherwise foreclose class certification." Gunnells v.

Healthplan Services, Inc., 348 F.3d 417,427-28 (4th Cir. 2003). Accordingly, pursuant to Rule
23(c)(1)(3) of the Federal Rules of Civil Procedure and in light of the Court's broad discretion to
certify or decertify a class action, Ward v. Dixie Nat. Life Inc. Co., 595 F.3d 164, 179 (4th Cir.
2010), the class certified by this Court's July 18,2011, order is hereby DECERTIFIED.
Members of the former class may proceed with their claims solely on an individual basis.

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CONCLUSION
Accordingly, for the reasons discussed above, defendant's motion for summary judgment
[DE 208] is GRANTED.
Defendant's renewed request to decertify the class is hereby ALLOWED. Class counsel
is hereby DIRECTED to notify the class pursuant to Rule 23(c)(2)(B) that class has been
decertified and that each member may proceed with their claims on an individual basis.
All other pending motions [DE 184, 199 & 203] are DENIED AS MOOT.
The clerk is DIRECTED to close this case.

SO ORDERED, this ~day of August, 2013.

UNITED STATES DISTRICT JUD

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