Icon Structures, Inc. v. 84 Lumber Co.
| Decision Date | 18 August 2020 |
| Docket Number | Case No. 19-1009-JWB |
| Parties | ICON STRUCTURES, INC., Plaintiff/Counter Defendant, v. 84 LUMBER COMPANY, L.P., Defendant/Counter Claimant/Third Party Plaintiff, v. TRUSS OPS NORTH, LLC d/b/a LATCO TRUSS, Third Party Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter comes before the court on the following motions and briefs: Counter Claimant 84 Lumber Company, L.P.'s ("84 Lumber") motion for summary judgment against Latco Truss ("Latco") on its affirmative defenses (Docs. 72, 73, 82, 88); 84 Lumber's motion for summary judgment against Plaintiff Icon Structures, Inc. ("Icon") (Docs. 74, 75, 81, 87); and Latco's motion for partial summary judgment on Icon's claim for prejudgment interest (Docs. 76, 77, 80, 89). For the reasons stated herein, 84 Lumber's motions for summary judgment are DENIED and Latco's motion for partial summary judgment is DENIED.
The following statement of facts are taken from the parties' submissions and the stipulations in the pretrial order. Factual disputes about immaterial matters are not relevant to the determination before the court. Therefore, immaterial facts and factual averments that are not supported by the record citations are omitted. A citation to a pleading, such as the complaint or answer, is not a properly supported fact. Fed. R. Civ. P. 56. Legal conclusions are also not proper facts.
Plaintiff Icon was the general contractor for the construction of the Primrose of Blue Valley, a building located in Overland Park, Kansas (the "building"). Icon contracted with Ohana Land Company, LLC, who was the owner of the building. As the general contractor, in June 2017, Icon contracted with 84 Lumber to provide certain building materials ("the agreement"). The parties did not execute a formal written contract. 84 Lumber was to provide both windows and a truss package for the construction of the building. The price of the materials provided by 84 Lumber was $109,279.77. The price of the windows was $66,722.93. Icon has not claimed that the windows were defective. Rather, the issue in this litigation is the truss package delivered to Icon. (Docs. 75 at 2-3; 81 at 2-3.)
On June 7, Icon issued a purchase order to 84 Lumber for the truss package. (Doc. 81, Exh. 1.) The purchase order stated that the materials were to be provided "in accordance with the drawings and specifications submitted for above work and completed in a substantial workmanlike manner." (Id.) The purchase order also refers to the specific plans and drawings for construction of the materials by date of approval. Although there is a signature line for the vendor, 84 Lumber, it is blank. According to Robert Wilson, Icon's president, 84 Lumber was to provide conforming trusses according to the plans and specifications provided with the purchase order. (Doc. 82, Exh. B at 16.) 84 Lumber asserts that it never agreed to the terms in the purchase order.
On or about June 17, 2017, 84 Lumber contracted with a third party, Latco, a truss designer and manufacturer, to build the trusses. (Doc. 66 at 3.) Icon did not have a contract with Latco.(Docs. 81 at 11; 82 at 14.) The parties dispute 84 Lumber's involvement in the design and construction of the truss package. 84 Lumber asserts that it played no role in the design and construction of the truss package. However, those facts are controverted. Icon cites to the deposition of Chris Ford, 84 Lumber's sales representative, in which he discusses his involvement with the truss shop drawings. According to Ford, he was provided plans and specifications from Icon for the trusses and he then forwarded those plans to Latco. When Latco provided drawings to Ford, he would then forward those drawings on to Icon. (Doc. 75, Exh. A at page 9-11.) Ford did not review the drawings submitted by Latco and did not inform Latco that the drawings had to be approved by the project architect. (Id. at 53-54.) After receiving the drawings, Icon would then submit those drawings to the project architect. After approval, the drawings were then returned to 84 Lumber. (Docs. 81 at 11-12; 87 at 3.) In addition to being included on emails regarding the plans and specifications, Ford also was present at some meetings and phone calls in which the design, construction, and installation of the truss package was discussed. Ford was also included in some of these meetings after problems arose with the trusses. (Docs. 75 at 4-5; 81 at 7-9.) For example, in one email, Ford was given notes about issues with the drawings and was told by Icon to have the "truss supplier" [Latco] modify the trusses. (Doc. 82, Exh. E at 5.) Ford then sent an email to Latco telling him to "see these notes and let me know if you have any questions." (Id.) 84 Lumber was involved in the timing of the delivery of the truss package to the building site. (Doc. 82, Exh. E.)
On June 30, Bryan Wunsch, Icon's project manager, approved the truss shop drawings provided by Latco. There is a dispute between Icon and Latco as to this approval. (Doc. 82 at 16-17.) Icon contends that 84 Lumber and Latco needed final approval from the architect prior to manufacturing the trusses. 84 Lumber did not advise Latco that Icon needed a sealed engineeredstamped copy of the drawings to forward to the architect for final approval. (Docs. 82, Exh. C at 53; 88 at 6.) On July 17, 2017, the truss package was delivered to the building site. (Doc. 66 at 3.) The trusses manufactured by Latco were then installed at the site. 84 Lumber had no role in the installation of the trusses.
Icon asserts that the trusses were defective and did not conform to the construction drawings or specifications that it provided to 84 Lumber. Basically, Icon contends that there were significant problems with the trusses, including that the truss elevations did not match the height elevations on the architectural specifications. (Docs. 77, Exh. B, August 2, 2018, Letter; 80 at 11.) Latco contends that the plans and specifications for the building supplied by Icon were defective. Latco's engineering expert, Brian Campbell, has opined that the architectural plans for the building had cross-sections with varying heel heights. (Doc. 82, Exh. D.)
The parties attempted to fix the issue with the heel height on the trusses. Icon made various proposals to the owner in lieu of removing and replacing the trusses and roof system. Ultimately, the truss package was removed, and a new truss package was installed by another vendor. (Doc. 82 at 18.) Icon alleges that its damages were at least $267,786.50. (Doc. 66 at 6.) Latco's expert, Mr. Campbell, has opined that the truss package was structurally sufficient and that removing and replacing the truss package was unnecessary. (Doc. 82, Exh. D.) Although Icon disagrees with Mr. Campbell's opinions, Icon asserts that there were several defects in the trusses and that Latco did not provide a repair for all of those defects. (Doc. 80 at 5; Exh. 1 at 54-55.)
On August 2, 2018, Icon sent a letter to 84 Lumber requesting payment of expenses. The request included an itemized spreadsheet titled "costs for roof truss removal and replacement." (Doc. 77, Exh. B.) The spreadsheet identified total expenses of $293,002.50. That spreadsheet included two line items for attorney's fees. After subtracting the attorney's fees in the August 2,2018, spreadsheet, the amount Icon was seeking at that time was $267,786.50. (Compare Doc. 77, Exh. B with Doc. 66 at 10.)
On January 17, 2019, Icon filed this action against 84 Lumber alleging breach of contract and breach of implied warranty of merchantability. (Doc. 1.) 84 Lumber filed an answer and asserted a counterclaim against Icon for breach of contract in that Icon failed to pay the invoices for the windows and the truss package. (Doc. 4.) Icon admits that it has withheld funds but has allegedly done so as a setoff to Icon's damages due to the alleged breach of the agreement by 84 Lumber. (Doc. 10.) 84 Lumber also filed a third-party complaint against Latco for breach of implied warranty, negligence, and breach of contract. In its answer, Latco asserted various defenses. (Doc. 5.) The pretrial order in this matter now controls. In it, Latco has raised several defenses. Latco also asserts that 84 Lumber was comparatively negligent or at fault by: 1) participating in the approval of the truss shop drawings; 2) providing defective, inaccurate, and nonconforming architectural plans; 3) failing to equally participate in resolving the truss issues; and 4) failing to resolve the issues without the expense of removing and replacing the trusses and roof system. (Doc. 66 at 9.)
84 Lumber has moved for summary judgment on Icon's claims asserting that it was not responsible for the design, construction, or installation of the truss package and therefore judgment must be entered on Icon's claims against it. (Doc. 74.) 84 Lumber has also moved for partial summary judgment on various defenses asserted by Latco. (Doc. 72.) Latco has moved for partial summary judgment on Icon's claim for prejudgment interest asserting that Icon's damages are not fixed and certain. (Doc. 76.) The court will address the pending motions in turn.
Summary judgment is appropriate if the moving party demonstrates that 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" when it is essential to the claim, and the issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must...
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