Lang v. D&J Homes

• Decision Date: 06 July 2007
• Docket Number: No. 3:01cv306.,3:01cv306.
• Citation: 494 F.Supp.2d 799
• Parties: Darwin W. LANG, Plaintiff, v. D&J HOMES, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

494 F.Supp.2d 799

Darwin W. LANG, Plaintiff, v. D&J HOMES, et al., Defendants.

No. 3:01cv306.

United States District Court, S.D. Ohio, Western Division.

July 6, 2007.

COPYRIGHT MATERIAL OMITTED

Thomas Glasper, Dayton, OH, for Plaintiff.

Shawn Michael Blatt, Freund Freeze & Arnold, Dayton, OH, Timothy J. Abeska, Barnes & Thornburg, South Bend, IN, Maureen P. Haney, Frost Brown Todd LLC, Cincinnati, OH, for Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT FOUR SEASONS HOUSING, INC.'S MOTION FOR SUMMARY JUDGMENT (DOC. # 43) AND SUSTAINING DEFENDANT D & J HOMES'S MOTION FOR SUMMARY JUDGMENT (DOC. # 45); DIRECTIVE TO DEFENDANT AND TO PLAINTIFF

RICE, District Judge.

Plaintiff Darwin W. Lang ("Plaintiff" or "Lang") purchased a manufactured home from Defendant D & J Homes ("D & J"),¹ which D & J had procured from Defendant Four Seasons Housing, Inc. ("Four Seasons"). Plaintiff became unsatisfied with numerous aspects of the transaction and brought the current action, alleging claims under Ohio statutory and common law, as well as a federal claim under 42 U.S.C. § 1981. D & J subsequently filed a counterclaim, bringing claims under Ohio law. Plaintiff avers that this Court has subject matter jurisdiction over this matter pursuant to its diversity jurisdiction, 28 U.S.C. § 1332. Given that Plaintiff is a citizen of Ohio and that each Defendant is either a citizen of the State of Indiana or a corporation incorporated in and having its principal place of business in the State of Indiana, and given that the amount in controversy exceeds $75,000.00, the Court agrees that the requirements set forth in § 1332 are satisfied. The Court notes, however, that, given that Plaintiff brings a claim under 42 U.S.C. § 1981, jurisdiction over Plaintiff's claims would also be proper under 28 U.S.C. §§ 1331 and 1367.

I. Background²

Plaintiff is the owner of a hair salon who decided to purchase a manufactured home for his parents and himself and to operate his salon business out of that home. He contacted D & J, which is a seller of modular and manufactured homes, and discussed his business plan of having a "salon within the home" with Defendant Jerry Jennings, the owner-operator of D & J. On August 25, 1997, Plaintiff contracted to buy a Skyline brand modular home from D & J. The contract indicated that D & J would construct a manufactured home (the "home") with a specifically designed 24' × 24' addition to accommodate Plaintiff's salon business. Moreover, Plaintiff indicated that the design would need to include salon parking, restrooms and sidewalks. Although the contract provided that construction would begin in September, 1997, and end in October, 1997, delays were experienced due to a financing denial and because of a pre-existing lien on Plaintiffs property.

In the time between the completion of the financing and the commencement of the work, Plaintiff was informed by Defendant Chris Thompson, a representative of D & J, that the Skyline model home that he had originally selected was no longer available, because D & J had lost its franchise with Skyline Homes. Instead, the representative informed Plaintiff that D & J could provide him with a Four Seasons model home with virtually the same floor plan. Plaintiff did not object to this substitution (Deposition of Darwin W. Lang ("Lang Depo") (Doc. # 45, Exs.5-6) at 307) and a new contract was signed. Accordingly, on November 23, 1999, Jennings ordered the home from Four Seasons, and on December 8, 1999, D & J purchased the home from Four Seasons for $45,590.00. Plaintiff did not contract with Four Seasons for the home; instead, he purchased it directly from D & J for $65,616.00. Moreover, Four Seasons did not deliver the home to Plaintiffs property, nor did it .set the home up. Nor, for that matter, did Plaintiff ever have any contact with anyone at Four Seasons.

Sometime during the modification of the home, one of the construction subcontractors³ called Plaintiff the "n-word" and spat in his face (Lang Depo. at 176). Lang also believes that there was an ongoing joke about the length of the time that the job was taking.

Although construction of the home is now essentially complete, Plaintiff is dissatisfied with various perceived defects, including the presence of wood-eating ants, apparently known as "wiggers." D & J concedes that some work pertaining to fixtures and "other finishing touches" remains to be completed on Plaintiff's property. However, the construction-related portion of the dispute was submitted to arbitration on September 16, 2003, and the arbitrator ruled that D & J owes Plaintiff $15,934.00 for construction-related issues.

Plaintiff has not paid the purchase price on either the first or the second contract with D & J, although the home is currently on his property and he has full access to it.

Plaintiff filed an eight-count complaint, alleging the following: breach of contract (Count 1), or in the alternative, contract rescission against D & J and Four Seasons (Count 2); tortious fraud and deceit against D & J (Count 3); intentional discrimination under 42 U.S.C.. § 1981, the Fair Housing Act of 1968 and the Thirteenth Amendment to U.S. Constitution against all Defendants (Count 4); that the contract is unenforceable and seeking a declaratory judgment accordingly against D & J (Count 5); warranty violations under the Ohio Consumer Sales Practices Act against D & J and Four Seasons (Count 6); violation of "bait and switch" prohibitions under the Ohio Consumer Sales Practices Act against D & J and Four Seasons (Count 7); and intentional infliction of emotional distress against D & J and Four Seasons (Count 8).

D&J Homes subsequently filed a counterclaim (Doc. # 17), alleging breach of contract (Count 1); unjust enrichment (Count 2); and promissory estoppel (Count 3).

The matter is currently before the Court on the Motion for Summary Judgment of Four Seasons Housing, Inc. (Doc. # 43) and the Motion for Summary Judgment of Defendants D & J Homes, Jerry Jennings and Chris Thompson (Doc. # 45)

II. Standards Governing Motions for Summary Judgment

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must...