Centimark Corp. v. Christofferson

Decision Date29 January 2013
Docket NumberNo. 4:11-CV-720 CAS,4:11-CV-720 CAS
PartiesCENTIMARK CORPORATION, Plaintiff, v. PHILIP J. CHRISTOFFERSON, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri
MEMORANDUM AND ORDER

This matter is before the Court on defendants Philip J. Christofferson and Cockriel and Christofferson L.L.C.'s motion for summary judgment. Plaintiff opposes the motion, which is fully briefed and ready for disposition. For the following reasons, defendants' motion for summary judgment will be granted.

I. Background

This is an action for legal malpractice arising from defendants' representation of CentiMark Corporation ("CentiMark") in the case Liberty Mutual Fire Insurance Company v. CentiMark Corporation, 4:08-CV-230 DJS. CentiMark was sued over damages when a roof it installed peeled back during a storm causing significant damage to the building and its contents. Liberty Mutual Fire Insurance Company ("Liberty Mutual") sued CentiMark for breach of the installation contract and for negligence on behalf of Loy Lange Box Company ("Loy Lange"), the owner of the building.

CentiMark hired defendants Philip Christofferson and his firm Cockriel and Christofferson L.L.C. to defend the company in the lawsuit. After an adverse ruling on a partial summary judgment motion, CentiMark terminated its relationship with defendants, and hired new counsel. The casewent to trial with new counsel. The case was submitted to the jury, which rendered a verdict against CentiMark. CentiMark appealed, but ultimately the parties settled.

CentiMark now brings a claim of legal malpractice against defendants Philip J. Christofferson and Cockriel and Christofferson L.L.C. In its complaint, plaintiff alleges defendants were negligent in that they failed to take depositions of material witnesses; did not list witnesses in a timely manner, and therefore their testimony was unavailable at trial; did not adequately prepare witnesses for depositions; failed to make appropriate discovery requests or produce documents that would have aided in the defense; failed to list or designate appropriate expert witnesses; failed to plead contributory negligence and raise the economic loss doctrine; failed to name the correct party in the counterclaim; and did not fully investigate the facts and circumstances at issue.

Defendants answered the complaint and denied the allegations. In addition, they have brought a counterclaim against CentiMark for their attorneys' fees. Defendants now move for summary judgment as to all the claims against them.

II. Standard of Review

The standard applicable to summary judgment motions is well-settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Ia. v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden thenshifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence he or she must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). The non-moving party "must do more than 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 (1986). 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." Herring, 207 F.3d at 1029 quoting Anderson, 477 U.S. at 248. A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). "Self-serving, conclusory statements without support are not sufficient to defeat summary judgment." Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).

In passing on a motion for summary judgment, it is not the court's role to decide the merits. The court should not weigh evidence or attempt to determine the truth of a matter. Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).

With this standard in mind, the Court accepts the following facts as true for purposes of resolving this motion for summary judgment.

III. Facts

CentiMark is in the business of installing roofs on commercial properties. On August 14, 2000, Loy Lange and CentiMark entered into a contract for the installation of a new roof on Loy Lange's commercial property.

The parties in this case dispute what documents comprised the contract between CentiMark and Loy Lange. Defendants maintain that the contract was a four-page document dated August 14, 2000. See Doc. 89, Ex. A. The only reference to a warranty in this document is on the Proposal Summary which states: "WARRANTY: Twenty (20) Year Labor and Material Total System Warranty." Id. Plaintiff asserts that the contract between CentiMark and Loy Lange also included CentiMark's "Non-Prorated Limited Roof Warranty - EPDM Roof Systems," which is dated October 4, 2000 ("Non-Prorated Warranty"); the Job Completion Form, dated October 4, 2000; and a three-ring binder, which included promotional materials from CentiMark as well as a sample warranty ("the Proposal Binder"). See Doc. 89, Exs. 1-3.

It is undisputed in the current litigation that after the roofing job was completed, CentiMark mailed to Loy Lange the Non-Prorated Warranty dated October 4, 2000. The Non-Prorated Warranty states, in part:

This Warranty Agreement is understood to be the complete and exclusive warranty agreement between the Purchaser and CentiMark, superseding all prior agreements, whether oral or written, and all other communications between the parties relating to the subject matter of this warranty. Any additional or contradictory warranty terms of conditions stated in Purchaser's order/acceptance documents other written communication, shall not be valid or binding upon CentiMark under any circumstances, unless specifically adopted and approved by written response from CentiMark.

Sometime after August 14, 2000, CentiMark installed the roof on Loy Lange's property. On July 19, 2006, a severe store hit the St. Louis region. The roof on the Loy Lange building peeled back during the storm. Water entered the building and damaged offices and equipment.

On February 14, 2008, Liberty Mutual, a subrogee of Loy Lange, filed a two-count complaint in the United States District Court, Eastern District of Missouri against CentiMark for negligence and breach of contract. The case was assigned to the Honorable Donald J. Stohr, and was captioned Liberty Mutual Fire Insurance Company v. CentiMark Corporation, No. 4:08-CV-230 DJS ("Underlying Litigation"). In the complaint in the Underlying Litigation, Liberty Mutual alleged that CentiMark had breached its duty of care in failing to install a properly fully adhered roof system. See 4:08-CV-230 DJS, Doc. 1.1 Liberty Mutual sought recovery against CentiMark in the amount of $1,234,735.81 for CentiMark's allegedly negligent installation of a roof and for breach of contract.

Philip Christofferson and his firm, Cockriel and Christofferson, L.L.C., entered an appearance on CentiMark's behalf. Mr. Christofferson filed an answer in which he asserted as an affirmative defense that Liberty Mutual's claims were barred by a one-year limitations period set forth in "the Express Warranty that was negotiated by Loy Lange and CentiMark as part of their contract dated August 14, 2000," and that this warranty excluded "any special, incidental, or consequential damages," including "lost profits or revenue, cost of substitute equipment, facilities or services, business interruption, and the cost of repairing and/or replacing other property when the roof services so no perform as warranted." See 4:08-CV-230 DJS, Doc. 7 at 4-5.

Mr. Christofferson filed a motion to dismiss and moved to dismiss Liberty Mutual's tort claim on the ground that Liberty Mutual was improperly trying to "recast" its contract claim as a tort claim. See 4:08-CV-230 DJS, Doc. 9. Citing Missouri law, Mr. Christofferson argued, "[w]here the only damage complained of is an economic loss resulting from defects in the item built pursuant to a contract, a negligence action does not lie." See 4:08-CV-230 DJS, Doc. 10 at 2. Mr. Christofferson cited Business Men's Assurance Co. of America. v. Graham, 891 S.W.2d 438, 453 (Mo. App. 1994) and Summer Chase Second Addition Subdivision Homeowners Association v. Taylor-Morley Inc., 146 S.W.3d 411, 417 (Mo. App. 2004) in his brief. Liberty Mutual opposed CentiMark's motion to dismiss its negligence claim on the ground that the economic loss doctrine does not apply where there is damage to other property not covered by the contract. Liberty Mutual argued that its negligence claim was not subject to the economic loss doctrine because it was seeking recovery for damages to real property and personal property within the building - in other words, beyond what was covered by the contract. See 4:08-CV-230 DJS, Doc. 11 at 2-3. On December 29, 2008, Judge Stohr denied CentiMark's ...

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