Enterprises v. Soprema Roofing & Waterproofing, Inc.

• Decision Date: 08 November 2016
• Docket Number: CASE NO. 1:13-cv-2831
• Parties: JBLANCO ENTERPRISES, Plaintiff/Third-party Defendant, v. SOPREMA ROOFING AND WATERPROOFING, INC., Defendant/Third-party Defendant, v. BARLOVENTO, LLC, Third-party Plaintiff/Intervenor, v. GREAT AMERICAN INSURANCE GROUP, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Ohio

JBLANCO ENTERPRISES, Plaintiff/Third-party Defendant, v. SOPREMA ROOFING ANDWATERPROOFING, INC., Defendant/Third-party Defendant, v. BARLOVENTO, LLC, Third-party Plaintiff/Intervenor, v. GREAT AMERICAN INSURANCE GROUP, Third-Party Defendant.

CASE NO. 1:13-cv-2831

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

November 8, 2016

JUDGE SARA LIOI

MEMORANDUM OPINION

This matter is before the Court upon the motion of defendant and third-party defendant Soprema Roofing and Waterproofing, Inc.¹ ("Soprema") for summary judgment on: (1) the complaint of plaintiff JBlanco Enterprises, Inc. ("JBlanco"); (2) counts II, III, IV, and VII of the complaint of intervenor/third-party plaintiff Barlovento, LLC's ("Barlovento"); and (3) Soprema's breach of contract claim against JBlanco. (Doc. Nos. 67 and 67-1 ["Mot."].) Both JBlanco and Barlovento opposed Soprema's motion. (Doc. No. 68 ["Barlovento Opp'n"]; Doc.No. 70 ["JBlanco Opp'n"].) Soprema filed separate replies. (Doc. No. 72 ["Reply to Barlovento"]; Doc. No. 73 ["Reply to JBlanco"].) Barlovento was granted leave to file a sur-reply. (Doc. No. 74-3 ["Barlovento Sur-reply"].)

For the reasons that follow, Soprema's motion for summary judgment is granted.

I. BACKGROUND

JBlanco's complaint

This case, before the Court on diversity jurisdiction pursuant to 28 U.S.C. § 1332, was originally filed in district court in Colorado and transferred to the Northern District of Ohio. (Doc. No. 21.) JBlanco, a Colorado corporation, is a commercial roofing contractor. (Doc. No. 1 ["JBlanco Compl."] ¶ 1.) Soprema, an Ohio corporation, sells roofing materials to contractors like JBlanco. (Id. ¶ 2.) Soprema provided roofing materials to JBlanco for installation on certain government buildings at the United States Air Force Academy ("Academy").² (Id. ¶¶ 8-9.) Problems arose with those government roofing projects. JBlanco claims the problems are caused by the roofing materials supplied by Soprema, and asserts a single contract claim against Soprema for breach of express and implied warranties under the law of the State of Colorado. (Id. ¶¶ 10-24.)

Soprema's complaint

Soprema sued JBlanco in a separate lawsuit, Case No. 1:14-cv-79,³ for failing to pay Soprema for the roofing materials purchased by JBlanco for the government roofing projects at issue in JBlanco's complaint. (Doc. No. 1-2 in Case No. 1:14-cv-79 ["Soprema Compl."].)

Soprema's complaint asserts four causes of action in that regard: (1) breach of the authorized roofing contractor agreement between Soprema and JBlanco; (2) breach of JBlanco's application for credit contract with Soprema; (3) conversion of roofing materials supplied by Soprema to JBlanco; and (4) unjust enrichment. (Id. ¶¶ 14-39.) The Court consolidated Soprema's case with the above-captioned action, treating Soprema's complaint in Case No. 1:14-cv-79 as a counterclaim to JBlanco's complaint. (Doc. No. 15 in Case No. 1:14-cv-79.) On summary judgment, Soprema seeks $556,693.41 in unpaid invoices and finance charges, as well as attorney fees.⁴

Barlovento's complaint

Barlovento was granted leave to intervene as a third-party plaintiff in the above-captioned case when the roof repairs to the Air Force's Consolidated Educational Training Facility ("CETF") at the Academy in Colorado (the "CETF project") were added by JBlanco and Soprema to the scope of the litigation between them. (Doc. No. 49-1 at 239; Minute Order 09/09/2015.) Barlovento's complaint raises allegations against JBlanco and Soprema with respect to the CETF project only, and not the other government roofing projects at issue between JBlanco and Soprema. (See Doc. No. 50 ["Barlovento Compl."].)

Barlovento, an Alabama limited liability company, provides general contractor, design, and construction services to the government and industry clients. (Id. at ¶ 7.) Barlovento contracted with the United States Department of the Air Force to replace the roof on the CETF, and subcontracted with JBlanco to provide the labor, materials, and equipment for that job. (Id. ¶¶ 8-10.) JBlanco purchased the roofing materials from Soprema. Barlovento does not have acontract with Soprema. As part of the subcontract with Barlovento, JBlanco was required to obtain a performance bond, and did so from Great American Insurance Group ("Great American"). (Id. ¶¶ 11-12.)

After the CETF project was complete, the Air Force would not accept the roof because of discoloration, cracking, and blistering, and required the roof to be replaced in its entirety. (Id. ¶¶ 19-21.) Barlovento claims: (1) breach of contract against JBlanco (counts I⁵ and V⁶) for failing to properly store, prepare and apply the roofing materials on the CETF project, and for failing to indemnify Barlovento in accordance with the terms of the subcontract between them; (2) breach of contract against Soprema (Count II⁷) for breaching implied warranties of merchantability and fitness for a particular purpose in Soprema's agreement with JBlanco, to which Barlovento alleges it is a third-party beneficiary; (3) negligence against both JBlanco and Soprema (counts III⁸ and IV⁹); (4) breach of express warranty against JBlanco (count VI¹⁰) with respect to the subcontract between Barlovento and JBlanco; (5) breach of express warranty against Soprema (count VII¹¹) with respect to an alleged 10-year written manufacturer's warranty issued by Soprema to the Air Force for the CETF project, to which Barlovento alleges it is a third-party beneficiary; and (6) breach of performance bond against Great American (count VIII¹²). Soprema moves for summary judgment on all of Barlovento's claims against it.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if its resolution affects the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id.

The moving party must provide evidence to the Court which demonstrates the absence of a genuine dispute as to any material fact. Once the moving party meets this initial burden, the opposing party must come forward with specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 250. The nonmoving party may oppose a summary judgment motion "by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]" Celotex, 477 U.S. at 324. The Court must view all facts and evidence, and inferences that may be reasonably drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

General averments or conclusory allegations of an affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). "Summary judgment requires that a plaintiff present more than a scintilla of evidence to demonstrate each element of a prima facie case." Garza v. Norfolk S. Ry. Co. 536 F. App'x 517, 519 (6th Cir. 2013) (citing Van Gorder v. GrandTrunk W. R.R., 509 F.3d 265, 268 (6th Cir. 2007)). "'The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 252).

The district court's review on summary judgment is a threshold inquiry to determine whether there is the need for a trial due to genuine factual issues that must be resolved by a finder of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. Put another way, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir. 2003).

Summary judgment is required:

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 bears the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing of an essential element of [his] case with respect to which [he] has the burden of proof.

Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).

B. Soprema's Motion as to JBlanco's Complaint

Soprema maintains that it is entitled to judgment as a matter of law on JBlanco's single contract claim against it for breach of express and implied warranties because all warranties to JBlanco were expressly disclaimed by Soprema in a 2008 agreement between them. (Mot. at 504-05.) The parties do not dispute that on May 29, 2008, JBlanco entered into a Soprema Authorized Roofing Contractor Agreement ("Agreement") with Soprema, or that paragraph 7.1of the Agreement disclaims all express and implied warranties as to the roofing contractor—in this case, JBlanco. (Doc. No. 67-2 at 517-25 ["Agreement"].) The Agreement is signed on behalf of JBlanco by Jeannette Wellers ("Wellers") as...