In re Joan Cravens, Inc.

Decision Date30 November 2016
Docket NumberCIVIL ACTION NO. 1:15-CV-385-KS-MTP
CourtU.S. District Court — Southern District of Mississippi

This matter is before the Court on the Motion for Summary Judgment [183] filed by Defendant Deas Construction, Inc. ("Deas"), the Motion for Summary Judgment [189] filed by Defendant Weather Shield Manufacturing, Inc. ("Weather Shield"), the Motion to Exclude Darius Grimes Pursuant to Daubert ("Motion to Exclude Grimes") [186] filed by Weather Shield and joined by Deas, and the Daubert Motion and Motion in Limine to Exclude, or in the Alternative Limit, the Expert Testimony of Patricia J. Fritche ("Motion to Exclude Fritche") [192], Daubert Motion and Motion in Limine to Exclude, or in the Alternative Limit, the Expert Testimony of Lee R. Connell ("Motion to Exclude Connell") [194], and Daubert Motion and Motion in Limine to Exclude, or in the Alternative Limit, the Expert Testimony of William D. Smith ("Motion to Exclude Smith") [196] filed by Plaintiffs Joan Cravens, Inc. and Jason V. Smith. After considering the submissions of the parties, the record, and the applicable law, the Court finds the following:

1. Deas' Motion for Summary Judgment [183] should be granted in part and denied in part;
2. Weather Shield's Motion for Summary Judgment [189] should be granted in part and denied in part; 3. the Motion to Exclude Grimes [186] is not well taken and should be denied;
4. the Motion to Exclude Fritche [192] is well taken and should be granted;
5. the Motion to Exclude Connell [194] is not well taken and should be denied;
6. the Motion to Exclude Smith [196] should be denied in part and deferred in part until a Daubert hearing can be held.

On November 11, 2015, Plaintiffs Joan Cravens, Inc. ("JCI") and Jason V. Smith (collectively "Plaintiffs") filed this action against Defendants Deas and Weather Shield (collectively "Defendants"), bringing the following claims: (i) breach of contract, (ii) breach of good faith and fair dealing, (iii) fraudulent misrepresentation, (iv) fraudulent inducement, (v) negligent misrepresentation, (vi) breach of implied warranty of merchantability, (vii) breach of implied warranty of fitness for a particular purpose, and (viii) violation of the Lanham Act. Many of the facts in the case are disputed, but the following is a brief account of the factual history of the case as it relates to the motions at bar.

This matter arises out of the purchase of windows for the construction of a home located in Gulfport, Mississippi. Smith contracted with JCI to build this home, intending for it to be a "fortified" home in order to qualify for certain insurance programs. In June 2011, Smith hired George Denmark ("Denmark") to design the home, and plans were issued in July 2013. Plaintiffs planned to order impact-rated Kolbe Ultra Series windows for the construction project, and Kolbe submitted a quote in October 2013.

Weather Shield is a window manufacturer, and Deas is a dealer for Weather Shield. Deas was allowed to place a bid for the project after providing a sample of their Premium series window for evaluation by Plaintiffs and Denmark. The sample consisted of a corner piece of window andshowed the quality and materials of the framing. However, it is undisputed that, at the time, Weather Shield did not manufacture impact-rated Premium windows. Whether or not Plaintiffs related that the windows had to be impact-rated is disputed.

The procurement process for the windows involved multiple quotes submitted to Plaintiffs by Deas. The first quotes submitted to Plaintiffs were for Premium windows. However, as Deas realized that impact-rated windows were required, it at some point began quoting Lifeguard series windows instead, as they were the only impact-rated windows Weather Shield made at the time. The final accepted quote, Quote 1460342, listed Lifeguard and Weather Shield windows, not Premium.

Plaintiffs noticed problems with the windows as they were being installed, with an entire sash of one window falling out during the installation process. After attempts to contact Defendants to remedy the problems with the windows, Plaintiffs filed suit in this Court.

A. Standard of Review

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows 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). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is 'genuine' if the evidence is sufficient for areasonable [fact-finder] to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812 (citation omitted).

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is mandatory "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." Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

B. Breach of Contract

Deas contends that Quote 1460342 represents the whole of the contract between it and Plaintiffs, and because it provided exactly what was contracted for in Quote 1460342, Plaintiffs' breach of contract claim must fail. Plaintiffs argue that this quote is merely evidence of the contract between them, not the entirety of the contract itself. An unwritten, but understood, term, they argue, was that the windows had to be impact-rated, which not all of the windows provided were. Whichever view is correct, there can be no doubt that Quote 1460342 is at least written terms of the contract between the two, specifying the quantity, price, and technical specifications of the providedwindows. As such, the Court must consider whether the parol evidence rule applies to exclude all evidence of unwritten terms of the contract.

Deas argues that all evidence of oral terms is inadmissible because the parol evidence rule excludes any evidence "which contradicts, varies, alters, adds to, or detracts from the written agreement." See Turner v. Terry, 799 So.2d 25, 32 (Miss. 2001). However, though this is a "bedrock rule," it "is subject to many exceptions and is said to be very flexible." Id. (quoting Byrd v. Rees, 171 So.2d. 864, 867 (Miss. 1965)). One of these exceptions is fraud. Bedford v. Kravis, 622 So.2d 291, 295 (Miss. 1993). "If . . . fraud is properly pled, prior oral representations or negotiations are admissible to prove the real intent of the contracting parties." Id. (citing Holliman v. Cherry & Assocs., 569 So.2d 1139, 1146 (Miss. 1990)). Because the Court finds that Plaintiffs' claims of fraudulent misrepresentation and fraudulent inducement against Deas survive summary judgment, see infra Part II.E, parol evidence will be allowed to prove intent. See id.

Plaintiffs maintain that it was their intent to purchase windows which were impact-rated, and that Deas knew of this requirement from the beginning of the project. Deas claims to have only learned of this requirement in May 2014. Regardless, before the contract was finalized and the windows ordered, there is evidence that all parties to the contract knew that the intent of the contract was to purchase impact-rated windows. "[W]here parties contract for a particular result, and intend to effect it, and fail to accomplish it . . . , equity will effectuate the intent of the parties." Bedford, 622 So.2d at 295-96 (quoting Hall v. State to Use of Lafayette Cnty., 13 So. 38, 29 (Miss. 1891)) (alteration in the original). Because there is evidence of this intent and that Deas breached this understanding by providing non-impact-rated windows, the Court will deny Deas' Motion for Summary Judgment [183] as to this claim.

C. Breach of Good Faith and Fair Dealing

Deas' arguments that Plaintiffs' breach of good faith and fair dealing claim fail, are premised on Quote 1460342 being the entirety of the contract between them. As the Court finds that the agreement between parties could include the oral representations and negotiations through the fraud exception of the parol evidence rule, Deas' motion will be denied as to this claim as well.

D. Fraudulent Misrepresentation and Fraudulent Inducement

Plaintiffs' claim of fraudulent misrepresentation requires them to show the following elements by clear and convincing...

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