Malone v. Tamko Building Products Inc et al

Filing 44

MEMORANDUM OF DECISION granting 31 Motion for Summary Judgment. Summary judgment is granted in favor of defendants and against plaintiffs dismissing plaintiffs' breach of warranty claim with prejudice. Signed by District Judge Max O. Cogburn, Jr on 5/21/2014. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKETNO. 3:13-cv-00089-MOC-DCK
ERIC MALONE, et al.,
Plaintiffs,
Vs.
TAMKO BUILDING PRODUCTS INC, et al.,
Defendants.

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MEMORANDUM OF DECISION

THIS MATTER is before the court on defendants' Motion for Summary Judgment. After
the motion was fully briefed by the parties, oral arguments were heard May 14, 2014. Having
considered defendants' motion, reviewed the pleadings, and considered the arguments of counsel,
the court enters the following findings, conclusion, and Order granting summary judgment and
dismissing this case.
FINDINGS and CONCLUSIONS
I.

Background

This action concerns a substantial home built in Waxhaw, North Carolina, in 2006,
foreclosed on by the bank that financed the construction, and then purchased by plaintiffs (the first
homeowners of the property) from the bank in 2010.

At issue is whether defendants,

manufacturers of the roofing material used on the home, are liable for costs incurred by plaintiffs
when they replaced the roof in 2012.
It i s undisputed that before purchasing the home from the bank, plaintiffs hired a home
inspector to perform an inspection on April 6, 2010.
inspector informed plaintiffs, as follows:

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In t h e h o m e i n s p e c t i o n report, the

The composite shingles (main house roof covering) are loose in various locations.
There are missing shingles on the rear sides of the roof. Daylight can be seen
coming into the attic from behind the upstairs HVAC unit in the main attic space.
There is a missing shingle on the left side of the roof (visible from a window). It is
recommended that a Licensed Qualified Contractor further investigates the entire
roof covering to determine all the repairs needed.
It is also undisputed that the plaintiffs did not engage a roofing contractor to further investigate the

roof, but proceeded on to closing.
Two years later, plaintiffs submitted a warranty claim on the roof to defendants in
September 2012.

In that claim, plaintiffs informed the manufacturer that the shingles were

breaking and sliding off the roof, but also indicated that the roof was not leaking. Defendants
denied the claim on November 8, 2012, and plaintiffs then replaced the roof at their own expense
later that month. At the hearing, the parties informed the court that the cost incurred by the
plaintiffs in replacing the roof was approximately $49,000.00.1
With the earlier dismissal of all other claims, all that remains for resolution at this point is
plaintiffs' claim for breach of the express warranty.
II.

Summary Judgment Standard

Defendants have moved for summary judgment and supported their motion with citations
to properly submitted evidentiary materials.

Rule 56(a), Federal Rules of Civil Procedure,

provides:
A party may move for summary judgment, identifying each claim or defense -or
the part of each claim or defense -on which summary judgment is sought. The
court shall grant summary judgment 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. The court should state on the record the reasons for granting or denying the
motion.
Fed.R.Civ.P. 56(a).

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Despite plaintiffs' warranty claim not meeting the jurisdictional minimum of $75,000.00, the court has
decided to exercise supplemental jurisdiction over this claim after its earlier dismissal of state claims that sought treble
damages, which satisfied the jurisdictional minimum at the time this action was filed. The parties stated their
concurrence with exercising supplemental jurisdiction at the hearing.

Where a party files and properly supports a motion for summary judgment, Rule 56
provides procedures for a responding party to use in opposing a motion for summary judgment:

(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible
in evidence.

(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c).
On a motion for summary judgment, the moving party has the burden of production to
show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the
non-moving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the material
facts. In the language of the Rule, the nonmoving [sic] party must come forward
with "specific facts showing that there is a genuine issue for trial." Where the
record taken as a whole could not lead a rational trier of fact to find for the non3

moving party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations
omitted; emphasis in the original) (quoting Fed. R. Civ. P. 56). There must be more than just a
factual dispute; the fact in question must be material and readily identifiable by the substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
By reviewing substantive law, the court may determine what matters constitute material
facts. Anderson, supra. ''Only disputes over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about
a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Id. The court must credit factual disputes in favor of the party
resisting summary judgment and draw inferences favorable to that party if the inferences are
reasonable, however improbable they may seem. Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir.
1980). Affidavits filed in support of a motion for summary judgment are to be used to determine
whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v.
Rundle, 453 F.2d 147 (3d Cir.

1971).

When resolution of issues of fact depends upon a

determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458
(4th Cir. 1979).
In determining whether a genuine issue of material fact exists, the admissible evidence of
the non-moving party must be believed and all justifiable inferences must be drawn in its favor.
Anderson, supra, at 255. In the end, the question posed by a summary judgment motion is whether
the evidence "is so one-sided that one party must prevail as a matter of law." Id., at 252.

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III.

Discussion

The question presented by defendants' Motion for Summary Judgment is whether
plaintiffs' claim is foreclosed by the language of the express warranty, which warrants the
shingles from leakage only,2 and plaintiffs' admission that the roof did not leak prior to
replacement. Because the clear and unambiguous language of the policy only provides relevant
coverage for leakage, and plaintiffs have admitted that the shingles did not leak, defendants are
entitled to summary judgment on plaintiffs' express warranty claim as no genuine issues of fact
remain for trial.
In reaching such conclusion, the court has applied the substantive law of North Carolina
in considering plaintiffs' claim for breach of an express warranty and its reading of the
warranty itself.

Jones v. Penn Nat. Ins. Co., 835 F. Supp. 2d 89, 97 (W.D.N.C. 2011).

Under North Carolina law, a subsequent purchaser of a home, such as plaintiffs, can bring a
breach of express warranty claim despite a lack of privity between them and the defendants.
N.C. Gen. Stat. § 252-313. Here, plaintiffs contend that defendants breached the express warranty contained in
defendants' Limited Warranty by denying their claim.

In relevant part, the Limited Warranty

provides coverage if the shingles "are determined to have manufacturing defects which have
directly caused leaks." Def. App. 4,

11 9-10 and Ex.

A.

Plaintiffs have consistently maintained that the roof was not leaking when they decided to
replace it in 2012: first, on the warranty claim form, plaintiffs answered "No" to the question "Is
your roof leaking?" Def. App. 3, Resp. No. 1 and Ex. A); and second, in their responses to
defendants' First Requests for Admissions, plaintiffs admitted that they were aware of no leaks in
their roof prior to the removal and replacement of the Shingles in November 2012, and that they
are aware of no information or materials that might show that their roof leaked prior to removal

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The warranty also covers shingle failure due to wind damage; however, no claim is made that the shingles
failed due to wind damage.

and replacement of the Shingles in November 2012. Id., Resp. Nos. 5, 6, 7. Because the Limited
Warranty, in relevant part, only provides coverage for shingles that leak, plaintiffs' claim that
defendant breached such warranty by denying their claim for replacement of shingles that did
not leak cannot survive summary judgment.

The court, will, therefore, enter judgment

dismissing plaintiffs' claim.
In reaching such conclusion, the court has thoroughly considered plaintiffs' argument that
"Exclusion

10" of the Limited Warranty provides coverage for all manufacturing defects,

regardless of whether such defect resulted in a leak.

Exclusion 10 provides that defendants shall

not be liable for "[l]eaks or damage to the Shingles from any cause other than inherent
manufacturing defect in the shingle." Def, App. 4. If the court were to read the exclusion in the
manner suggested by plaintiffs, the warranty would be substantially broader than the plain
language of what the warranty provides is included, to wit, it would then cover damage to
the shingles due to manufacturing defects regardless of whether such damage caused the shingles
to leak. If read as plaintiffs suggest, the 50 year leakage warranty would turn into a 50 year
warranty that would cover discoloration, deterioration, curling, and other aesthetic issues that did
not cause leaks. Clearly, that is not the intent of the warranty at issue here as gleaned from the
entire document. Emmanuel African Methodist Episcopal Church v. Reynolds Const. Co., Inc.,
718 S.E.2d 201, 203-204 (N.C. Ct. App. 2011).
Due to such resolution of the claim on the merits, the court will not take up defendants'
challenge to the timeliness of this action except to hold, as it did at the hearing, that defendants
timely asserted the affirmative defense of the statute of limitations in light of its late discovery
of facts that could support assertion of such defense.

ORDER
IT IS, THEREFORE, ORDERED that defendants' Motion for Summary Judgment (#31)
is GRANTED, summary judgment is granted in favor of defendants and against plaintiffs
dismissing plaintiffs' breach of warranty claim with prejudice.

The Clerk of Court is instructed to enter a judgment consistent with this Order dismissing
this action in its entirety with prejudice and providing that plaintiffs have and take nothing from
defendants.
Signed: May 21, 2014

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