E & J Construction Company v. Liberty Building Systems, Inc. ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 6, 2010 Session
E & J CONSTRUCTION COMPANY v.
LIBERTY BUILDING SYSTEMS, INC.
Appeal from the Circuit Court for Campbell County
No. 12757 John D. McAfee, Judge
No. E2009-01403-COA-R3-CV - FILED AUGUST 27, 2010
E & J Construction Company (“Plaintiff”) purchased a metal building from Liberty Building
Systems, Inc. (“Defendant”). The metal building was purchased by Plaintiff for one of its
customers, Camel Manufacturing Company (“Camel”). Plaintiff constructed the metal
building for Camel and connected it to an existing building. Almost from the outset, there
was a problem with leaking. Plaintiff sued Defendant raising various claims including,
among others, breach of contract. After the Trial Court granted Defendant’s motion for
partial summary judgment, the case proceeded to trial on the few remaining claims. At the
conclusion of Plaintiff’s proof, the Trial Court granted Defendant’s motion for directed
verdict. Plaintiff appeals. We reverse the grant of a directed verdict on Plaintiff’s breach of
contract claim and remand for further proceedings. The judgment of the Trial Court
otherwise is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Thomas M. Leveille, Knoxville, Tennessee, for the Appellant, E & J Construction Company.
James G. O’Kane, Knoxville, Tennessee, for the Appellee, Liberty Building Systems, Inc.
OPINION
Background
In May of 2005, Plaintiff filed a complaint asserting several causes of action
against Defendant arising from the purchase of an allegedly defective metal building.
According to the complaint:
In late 2003, [Plaintiff] issued a purchase order to
[Defendant] for a metal building which was designed and
engineered by [Defendant]. The purchase price for this building
was $102,811.90. [Plaintiff] subsequently erected this building
for its customer, [Camel Manufacturing Company (“Camel”)]
at Camel’s facility in Campbell County, Tennessee.
At the time that this building began to be erected by
[Plaintiff], [Plaintiff’s] personnel observed that the gutter for
this large building appeared to be too small. [Plaintiff] had
purchased other metal buildings from [Defendant] and
recognized that this guttering appeared to be under-sized. Prior
to the building being erected, [Plaintiff] notified [Defendant’s
personnel] and [Plaintiff] was assured that the guttering was
correctly sized.
The building was erected according to [Defendant’s]
specifications and in accordance with [Defendant’s] drawings.
[Defendant’s personnel] inspected the building and certified that
the building was erected correctly.
Shortly after the building was erected, leaks began to
occur as a result of the guttering being undersized. [Plaintiff]
had been concerned from the outset about this guttering and its
fears came true. [Defendant] was contacted and [Plaintiff] was
instructed to do various things to try to attempt to resolve the
guttering problem. [Plaintiff] utilized its personnel and
materials in attempting to repair the gutter, when [Defendant],
in fact, knew that the gutter was mis-sized and that the
replacement of the gutter was the only solution to this problem.
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[Plaintiff] expended approximately $4,200.00 in labor
and materials in trying to follow [Defendant’s] instructions with
regard to these attempted repairs.
[Plaintiff] had enjoyed an excellent relationship with
Camel . . . , a business that is growing quickly in Campbell
County. In fact, [Plaintiff] had been involved in some
construction of 8 buildings at Camel’s facility at the time that
this particular building was erected. Unfortunately, the leaking
problems impacted [Plaintiff’s] relationship with Camel, making
it impossible for [Plaintiff] to bid on other Camel projects until
this problem was solved.
Plaintiff went on to allege that Camel threatened to sue Plaintiff if the leaks
were not repaired. According to Plaintiff, in order to avoid litigation with its client, Plaintiff
designed a new guttering system and incurred expenses in the amount of $17,852.38 in the
fabrication and installation of the new gutter. Plaintiff further claimed that its business
relationship with Camel has been ruined. Plaintiff sued Defendant for: (1) breach of
contract; (2) violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-
101 et seq.; (3) interference with business relationships; and (4) intentional and/or negligent
misrepresentation.
Defendant answered the complaint and generally denied any liability to
Plaintiff. Defendant admitted that Plaintiff purchased the metal building in question from
Defendant, but denied that the guttering was too small or otherwise improperly sized.
Defendant averred that Plaintiff negligently constructed the building and that the Tennessee
Consumer Protection Act claim was barred by the one year statute of limitations.
In August of 2007, Defendant filed a motion for summary judgment and/or
motion for partial summary judgment. Defendant claimed it was entitled to summary
judgment on Plaintiff’s claims because the undisputed material facts established that the
gutter was of a proper size. Alternatively, Defendant argued that Plaintiff’s Consumer
Protection Act claim was barred by the one year statute of limitations. Attached to
Defendant’s motion was the affidavit of David Ryan Hill (“Hill”). Hill is employed by
Defendant as an engineering manager. Hill earned a bachelor of science degree in
engineering in 1996 and has been a licensed engineer since 2002. Hill has continuously
worked in the metal building business. According to Hill:
At the request of [Defendant’s attorney], I have reviewed
the drawings of the metal buildings which [Defendant] provided
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to [Plaintiff], and I have also reviewed a drawing with
dimensions, which illustrates the relationship of the existing
buildings to the new metal buildings that were constructed on
the Camel Manufacturing Company premises. I have also
reviewed the purchase order documents for this project. Finally,
I have been asked to assume that the valley gutter that was
placed between the existing building and the newly
manufactured Liberty buildings had six equally spaced down
spouts as described by [Plaintiff] in its purchase order and the
testimony of [Jack Heatherly, a licensed contractor and
Plaintiff’s director of field operations]. . . .
Based on the information I reviewed and my knowledge
and expertise as a structural engineer, experienced in the design
and manufacture of metal buildings, I have been asked to
determine whether or not in my opinion the valley gutter that
was provided to [Plaintiff] by [Defendant] was correctly sized
or whether it was too small as alleged by [Plaintiff]. I have
completed an analysis, and it is my opinion within a reasonable
degree of engineering certainty that the valley gutter
manufactured by [Defendant] and provided to [Plaintiff] was
properly sized, and was at least one inch deeper than necessary.
In addition thereto, it is my opinion within a reasonable degree
of engineering certainty that any roof leaks that occurred near
the valley gutter which is at issue in this case were not caused by
an undersized or missized valley gutter. In my opinion, as set
forth above, this valley gutter was of proper size for the
application, and [Plaintiff’s] allegation that it was too small is
incorrect. (original paragraph numbering omitted)
Plaintiff responded by filing the affidavit of Jack Heatherly (“Heatherly”),
whose wife is the owner of Plaintiff. Although Heatherly is not an engineer, he is a field
supervisor for Plaintiff. Heatherly stated that Plaintiff ordered a series of three metal
buildings that were to be connected to Camel’s existing building. When the components
were uncrated, Heatherly was concerned that the guttering was too small and contacted Ben
Barcroft, a district manager for Defendant. Barcroft supposedly contacted one of
Defendant’s engineers and was told that the guttering was the proper size. Barcroft relayed
this information to Heatherly. Relying on that representation, Heatherly proceeded to install
the gutter and complete the metal buildings. Heatherly then stated:
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Had I known at that time that the gutter was incorrectly
sized, I would not have continued building the building.
[Defendant] sold [Plaintiff] a pre-engineered building which
was represented to be correctly designed and to comply with all
standards applicable in the State of Tennessee and I relied on
that representation.
After the building was completed during the summer of
2004, there were problems with leaks in the building. I went
back and checked the screws and the gutter. After the problem
continued, I contacted Ben Barcroft and a series of
recommendations were made by [Defendant] for me to do
various things to the building which I did. None of those things
worked. It was not until the summer of 2004 when the building
was completed that I knew about the valley gutter overflowing.
It was not until August 2 and 3, 2004, that Daniel Moore
visited the building in question at Camel. . . . I was working on
another job at the time and my son Jack Heatherly, Jr., was
present at Camel and went up on the building with Daniel
Moore. Daniel Moore stated at that time that the gutter was too
small and that was reported to me by Jack Heatherly, Jr. That
was the first time that anyone from [Defendant] admitted that
the gutter was too small.
After that date, I continued to be called to Camel
Manufacturing Company whenever it rained because the
building leaked at the location of the valley gutter. I continued
to try to deal with this problem and my wife and I continued to
keep [Defendant] advised that the problem was not solved.
It was not until November, 2004, that Daniel Moore came
back to the site. At that time, he guaranteed that the work he
performed would stop the leaking. His work did not stop the
leaking and I continued to get complaints from Camel and
continued to contact [Defendant] regarding these problems.
* * *
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I have stood on the roof of this building in question at
Camel during a rainstorm in 2004. I observed the gutter
overflowing. I checked the downspouts and none were blocked.
When I went inside the building, I observed leaks from the
valley gutter. The size of the gutter caused the gutter to
overflow and, in turn, caused leaks in the building. (original
paragraph numbering omitted)
Heatherly went on to explain that prior to this situation involving the leaking
metal building, Camel was a very good customer of Plaintiff. After the incident involving
the leaking metal building, Plaintiff no longer was asked to perform any work for Camel.
Plaintiff also filed the affidavit of Louis Cortina (“Cortina”) an engineer who
has been licensed since 1987. According to Cortina:
I have reviewed the calculations by Ryan Hill and in my
professional opinion, the gutter originally provided by
[Defendant] is too small. A gutter with the dimensions
suggested by Ryan Hill would likely overfill and cause leaks in
the building.
The design by [Defendant] and the dimensions of the
gutter suggested by Mr. Hill leave very little or no additional
capacity for blocked downspouts, heavy downpours, or debris
in the gutter. Based on my past experience with regard to the
design of gutters and roof[s], additional capacity is necessary
and as a result, I would not agree with Mr. Hill’s
recommendation.
A gutter in the dimension of 10O deep by 12O wide would
be my recommendation and it is my opinion that a gutter 11½O
wide by 6O deep is inadequate. . . . (original paragraph
numbering omitted)
The contract between Plaintiff and Defendant contained the following
provision:
Warranty: Liberty Building Systems, Inc., warrants all materials
included in our building systems package for a period of one
year from date of shipment. All materials must be properly
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installed and erected in a timely fashion upon receipt of
shipment. Prolonged storage or exposure to the elements or
hazardous environments will void this warranty. Any damaged
materials discovered while unloading the shipment must be
reported and signed off by the delivery driver for validation. All
shortages and concealed damage must be reported within 10
working days of receipt of shipment.
A hearing was conducted on Defendant’s motion for summary
judgment/motion for partial summary judgment. Following the hearing, the Trial Court
entered an order stating as follows:
This cause came on to be heard . . . on defendant’s Motion for
Summary Judgment and Motion for Partial Summary Judgment.
The parties were represented by counsel and presented their
argument to the court. The court having considered defendant’s
Motion for Partial Summary Judgment, plaintiff’s response
thereto, the supporting evidence of record, and having heard the
argument and representations of counsel, the court made its
ruling from the bench with respect to defendant’s Motion for
Partial Summary Judgment.1 The court found that defendant’s
Motion for Partial Summary Judgment seeking dismissal of
plaintiff’s claims pursuant to the Tennessee Consumer
Protection Act that defendant engaged in unfair or deceptive
acts or practices pursuant to Tenn. Code Ann. § 47-18-104should be granted. Having found that plaintiff’s Tennessee
Consumer Protection Act claims of unfair or deceptive acts or
practices should be dismissed, the court ruled that defendant’s
motion to dismiss the Tennessee Consumer Protection Act
claims pursuant to the one-year statute of limitations is moot.
The court further found that defendant’s Motion for Partial
Summary Judgment seeking dismissal of plaintiff’s claim for
tortious interference with a business relationship should be
granted. The court further found that defendant’s Motion for
Partial Summary Judgment seeking dismissal of plaintiff’s claim
for lost profits should be granted. Finally, the court denied at
1
For obvious reasons, we should have been provided a transcript from this hearing, but the record
contains no such transcript. Thus, we cannot ascertain what “representations” were made to the Trial Court
and by whom.
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this time defendant’s Motion for Partial Summary Judgment
seeking dismissal of plaintiff’s intentional/negligent
misrepresentation claims, and further withheld ruling on
plaintiff’s Motion for Summary Judgment seeking dismissal of
plaintiff’s suit, pending submission by defendant of a
supplement to the Motion for Summary Judgment on or before
Monday, March 10, 2008, or defendant’s announcement of a
withdrawal of the Motion for Summary Judgment. . . . (footnote
added)
Following entry of the order partially granting Defendant’s motion for
summary judgment, Defendant withdrew its motion on the remaining claims and this case
proceeded to trial. For the most part and except as discussed below, the testimony of
Plaintiff’s witnesses at trial was consistent with that set forth in their respective affidavits.
At the close of Plaintiff’s proof, Defendant moved for and the Trial Court
granted a motion for a directed verdict. According to the Trial Court:
After the plaintiff rested, the jury was excused and defendant
moved for a directed verdict in its favor. After hearing
arguments of counsel and considering the evidence and record
as a whole, the court found that defendant’s Motion for a
Directed Verdict in its favor with respect to plaintiff’s claim of
negligent or intentional misrepresentation and punitive damages
is well-taken, because the plaintiff presented no competent proof
of a negligent or intentional misrepresentation that would entitle
the plaintiff to recover compensatory or punitive damages; and
the court further found that defendant’s Motion for a Directed
Verdict with respect to the remaining issue of a breach of
contract and breach of the implied warranty of fitness for a
particular purpose was well-taken, because there was no
competent expert testimony presented that the gutter at issue
was not fit for a particular purpose or that defendant breached its
contract with the plaintiff. . . .
After entry of the directed verdict for Defendant, Plaintiff filed a motion for
a new trial. In this motion, Plaintiff claimed that not only was it pursuing a claim for breach
of an implied warranty of fitness for a particular purpose, it also was seeking relief for breach
of an implied warranty of merchantability. In addition, Plaintiff asserted that there was
sufficient proof to withstand a motion for directed verdict as to whether Defendant breached
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the contract and implied warranties, as well as whether Defendant had committed negligent
and/or intentional misrepresentations. The Trial Court denied the motion, and Plaintiff
appeals challenging both the granting of Defendant’s motion for partial summary judgment
as well as the granting of Defendant’s motion for directed verdict following the close of
Plaintiff’s proof at trial.
Discussion
We first discuss whether the Trial Court properly granted Defendant’s motion
for partial summary judgment. Our Supreme Court reiterated the standard of review in
summary judgment cases as follows:
The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
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Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
We begin by addressing the grant of Defendant’s motion for summary
judgment with regard to Plaintiff’s Tennessee Consumer Protection Act (“TCPA”) claim.
Plaintiff cites very little evidence and no law whatsoever in the argument section of its brief
addressing the grant of Defendant’s motion for partial summary judgment. Plaintiff’s entire
argument as to the dismissal of the TCPA claim comprises one paragraph in the argument
section of its brief. Plaintiff cites Heatherly’s affidavit twice and improperly attempts to rely
on trial testimony pertaining to Plaintiff’s misrepresentation claim.2 According to Plaintiff,
Jack Heatherly’s statements in his affidavit: (1) that he was advised by Defendant that the
guttering was the correct size; and (2) that Heatherly would not have continued building the
building had he known the gutter was not the correct size, are sufficient to create a fact issue
on the TCPA claim. As noted, Plaintiff cites absolutely no law supporting his claim that
these two facts, standing alone, are sufficient to create a genuine issue of material fact as to
its TCPA claim. Plaintiff does not even discuss what is required to properly set forth a
TCPA claim. Plaintiff even fails to cite to the TCPA.
2
Plaintiff cites trial testimony when discussing the misrepresentation claim. Testimony at trial is
irrelevant when ascertaining whether the pre-trial motion for partial summary judgment should have been
granted.
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The entire discussion in Plaintiff’s argument section of its brief addressing the
grant of summary judgment on its claim for interference with business relationship is as
follows:
There was also a fact issue with regard to the claim for
interference with the business relationship with Camel
Manufacturing. The Affidavit and deposition testimony showed
that Liberty contacted representatives of Camel Manufacturing
directly and placed blame on the Plaintiff for the problems with
the gutter system. Affidavit of Jack Heatherly ¶ 21.
Again, Plaintiff cites no law setting forth the elements necessary to state a
claim for intentional interference with a business relationship or any law supporting its
argument that the two alleged facts set forth in Heatherly’s affidavit, standing alone, are
sufficient to withstand a properly supported motion for summary judgment on such a claim.
The same can be said for Plaintiff’s argument as to the grant of summary judgment for lost
business profits.
In Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000) we observed:
Courts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the
argument section of the brief as required by Rule 27(a)(7)
constitutes a waiver of the issue. See State v. Schaller, 975
S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI
Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); State
v. Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). . . .
As noted in England v. Burns Stone Company, Inc., 874 S.W.2d
32, 35 (Tenn. Ct. App. 1993), parties cannot expect this court to
do its work for them.
Bean, 40 S.W.3d at 55-56.
Because Plaintiff has failed to cite any authority whatsoever with respect to its
argument that the Trial Court improperly granted Defendant’s motion for partial summary
judgment as to the various claims at issue in that motion, we find that Plaintiff has waived
these issues on appeal. Accordingly, we affirm the Trial Court’s grant of partial summary
judgment to Defendant.
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The next issues surround the Trial Court’s granting of a directed verdict to
Defendant. With respect to the Trial Court’s granting of Defendant’s motion for directed
verdict, our standard of review is different from that related to a summary judgment. In
Johnson v. Tennessee Farmers Mut. Ins. Co., 205 S.W.3d 365 (Tenn. 2006), our Supreme
Court set forth the standard of review with regard to directed verdicts, stating:
In reviewing the trial court’s decision to deny a motion
for a directed verdict, an appellate court must take the strongest
legitimate view of the evidence in favor of the non-moving
party, construing all evidence in that party’s favor and
disregarding all countervailing evidence. Gaston v. Tenn.
Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). A
motion for a directed verdict should not be granted unless
reasonable minds could reach only one conclusion from the
evidence. Id. The standard of review applicable to a motion for
a directed verdict does not permit an appellate court to weigh the
evidence. Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978).
Moreover, in reviewing the trial court’s denial of a motion for
a directed verdict, an appellate court must not evaluate the
credibility of witnesses. Benson v. Tenn. Valley Elec. Coop.,
868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993). Accordingly,
if material evidence is in dispute or doubt exists as to the
conclusions to be drawn from that evidence, the motion must be
denied. Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d
887, 891 (Tenn. Ct. App. 1995).
Johnson, 205 S.W.3d at 370.
Plaintiff claims Defendant violated both the implied warranty of fitness for a
particular purpose and the implied warranty of merchantability. Neither of these warranty
claims was specifically asserted in the complaint, and we were unable to find in the record
an amended complaint setting forth these claims. Plaintiff does not direct us to anywhere in
the record where breach of either implied warranty actually was pled. As to the implied
warranty of merchantability, the Trial Court obviously did not believe that Plaintiff was
pursuing this un-pled claim. The pleadings support this conclusion. We hold that a claim
for breach of the implied warranty of merchantability never was properly raised.
As to the implied warranty of fitness for a particular purpose, at trial Plaintiff’s
expert, Louis Cortina, expressly testified that the gutter at issue was fit for its particular
purpose. While Cortina testified that the gutter would have been more effective had it been
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deeper, he, nevertheless, acknowledged to the Trial Court that the gutter was built according
to industry guidelines and was fit for its particular purpose. Specifically, Cortina stated:
THE COURT: Do you agree or disagree, was that gutter fit for
the particular purpose and that purpose would be to handle the
water volume coming off that roof line for a 50-year rain. . . .
THE WITNESS: Based on the volume, it meets the minimum
guidelines.
THE COURT: Which would be fit for the particular purpose in
which it was designed.
THE WITNESS: For handling quantity of water, yes.
On appeal, Plaintiff argues that we should simply ignore the testimony of its
own expert. This, we cannot do. We affirm the Trial Court’s judgment granting a directed
verdict to Defendant on Plaintiff’s claim that Defendant violated the implied warranty of
fitness for a particular purpose.3
Next we address the Trial Court’s grant of a directed verdict for Defendant on
Plaintiff’s claims for negligent and intentional misrepresentation. In Robinson v. Omer, 952
S.W.2d 423 (Tenn. 1997), the Supreme Court discussed the essential elements of a negligent
misrepresentation claim as follows:
Tennessee has adopted Section 552 of the Restatement (Second)
of Torts “as the guiding principle in negligent misrepresentation
actions against other professionals and business persons.”
Section 552 provides, in pertinent part, as follows:
(1) One who, in the course of his business, profession or
employment, or in any other transaction in which he has
a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails
3
Due to our resolution of this issue, we pretermit Defendant’s argument that Plaintiff never pled a
violation of the implied warranty of fitness for a particular purpose.
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to exercise reasonable care or competence in obtaining or
communicating the information. . . .
Id. at 427.
The only alleged “misrepresentation” of Defendant at issue on appeal occurred
when Plaintiff was told that the gutter was the correct size after concerns were initially raised
by Mr. Heatherly. However, there was no proof offered by Plaintiff that Defendant or one
of its representatives failed to exercise reasonable care when informing Plaintiff that the
gutter was the correct size. Even Plaintiff’s expert agreed that the gutter met minimum
industry standards and was fit for its particular purpose. Accordingly, the Trial Court
correctly granted Defendant’s motion for directed verdict as to the negligent and intentional
misrepresentation claims.
The final issue is whether the Trial Court correctly granted Defendant’s motion
for a directed verdict as to the breach of contract claim. As set forth previously, the contract
between the parties contained the following express warranty:
Warranty: Liberty Building Systems, Inc., warrants all materials
included in our building systems package for a period of one
year from date of shipment. All materials must be properly
installed and erected in a timely fashion upon receipt of
shipment. Prolonged storage or exposure to the elements or
hazardous environments will void this warranty. Any damaged
materials discovered while unloading the shipment must be
reported and signed off by the delivery driver for validation. All
shortages and concealed damage must be reported within 10
working days of receipt of shipment.
At trial, Heatherly testified that he installed the metal building according to
Defendant’s specifications and that it, nevertheless, repeatedly leaked. The leaks began well
before one year had elapsed from the date of shipment. Heatherly’s attempted repairs were
unable to stop the leak, and eventually a new and deeper gutter was installed.
As noted previously, when reviewing the grant of a motion for directed verdict,
we “must take the strongest legitimate view of the evidence in favor of the non-moving party,
construing all evidence in that party’s favor and disregarding all countervailing evidence.”
Johnson, 205 S.W.3d at 370. When viewing the evidence in this light, we believe Plaintiff
did present sufficient evidence to withstand Defendant’s motion for a directed verdict on
Plaintiff’s breach of contract claim asserting that Defendant violated the express warranty
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contained in the contract. Viewing the evidence in the light most favorable to Plaintiff,
Plaintiff purchased the building from Defendant; Defendant instructed Plaintiff how to install
the building; Plaintiff installed the building as directed by Defendant; and the building leaked
despite being installed as directed by Defendant. In short, construing this evidence in
Plaintiff’s favor, the building bought from Defendant leaked despite the fact that it was
installed as directed by Defendant. We believe this evidence to be sufficient such that doubt
exists as to the conclusions to be drawn from this evidence. We reverse the judgment of the
Trial Court on this sole issue. Any remaining issues are pretermitted.
Conclusion
The judgment of the Trial Court granting Defendant’s motion for a directed
verdict on Plaintiff’s breach of contract claim is reversed. In all other respects, the judgment
of the Trial Court is affirmed. This case is remanded to the Campbell County Circuit Court
for further proceedings consistent with this Opinion and for collection of the costs below.
Costs on appeal are taxed one-half to the Appellant, E & J Construction Company, and its
surety, and one-half to the Appellee, Liberty Building Systems, Inc., for which execution may
issue, if necessary.
________________________________
D. MICHAEL SWINEY, JUDGE
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