Muchisky v. Frederic Roofing Co., Inc.

• Decision Date: 04 August 1992
• Docket Number: No. 60669,60669
• Citation: Muchisky v. Frederic Roofing Co., Inc., 838 S.W.2d 74 (Mo. App. 1992)
• Parties: 1992-2 Trade Cases P 70,036 Thomas P. MUCHISKY, Plaintiff-Respondent, v. FREDERIC ROOFING COMPANY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 74

838 S.W.2d 74

1992-2 Trade Cases P 70,036

Thomas P. MUCHISKY, Plaintiff-Respondent, v. FREDERIC ROOFING COMPANY, INC., Defendant-Appellant.

No. 60669.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 4, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 14, 1992.

Application to Transfer Denied Oct. 27, 1992.

James E. Godfrey, Jr., Godfrey & Fenlon, St. Louis, for defendant-appellant.

Jeffrey J. Lowe, Gray & Ritter, P.C., St. Louis, for plaintiff-respondent.

SMITH, Presiding Judge.

This appeal follows a judgment for homeowner, Thomas P. Muchisky, against contractor, Frederic Roofing Co., Inc. The suit involved a contract to re-roof the Muchisky home with one layer of U.S. Intec ¹ Brai/Flex, modified bitumen, single ply system. After contractor installed the roof and made two attempts at remedial work, homeowner filed a three count petition. Count I alleged breach of contract. Count II alleged breach of warranty. Count III alleged a violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301. Contractor counterclaimed alleging breach of contract for failure to pay the agreed price. All the claims were submitted to the jury which found in favor of homeowner on each claim and awarded $10,000 as damages on each claim. It additionally awarded $11,200 as attorney's fees on Count III. The court entered judgment in favor of homeowner for $10,000 damages and $11,200 attorney's fees under Verdict A, which found for homeowner on Count III, the Magnuson-Moss breach of written warranty claim. To avoid duplicity the court did not enter judgments on verdicts for homeowner on the alternative counts.

Contractor appeals presenting nine points of alleged error for our consideration. Briefly summarized, contractor challenges the sufficiency of the evidence, as well as the verdict directing and damage instruction for each of homeowner's three counts, and the judgment entered by the court. Taken with the case is homeowner's motion for attorney's fees on appeal. We affirm the judgment on Count III, making review of Counts I and II unnecessary. Homeowner's motion for fees is granted in the amount of $5,856.00.

Homeowner solicited a bid from contractor to re-roof his home. Contractor submitted a written offer of $8,272. Homeowner made a counter offer by letter which specified terms of performance and incorporated the provisions of contractor's offer by reference. Contractor pencilled in modifications. Homeowner accepted contractor's counter offer. The contract included a twelve year warranty guaranteeing the completed roof would be free from defects in workmanship and materials. Contractor guaranteed the first two years. U.S. Intec, the materials manufacturer, guaranteed the next ten.

Contractor re-roofed home on March 21, 1988. Homeowner called contractor back for remedial work. Still unhappy, homeowner sent a letter to contractor outlining his concerns. He also sent a partial payment of $4,000. Contractor worked on remedial repairs a second time. On August 16, 1988, homeowner notified contractor by letter that he was not satisfied with the re-roofing and was denying contractor further access to his home.

Contractor in its first point asserts:

THE COURT ERRED IN REFUSING TO DIRECT A VERDICT AT THE CLOSE OF ALL THE EVIDENCE AS TO THE COUNT ASSERTED UNDER THE MAGNUSON-MOSS ACT BECAUSE THE CONTRACT SUED UPON WAS A SERVICES CONTRACT, NOT A SALES CONTRACT, AND BEING A SERVICES CONTRACT, THE PROVISIONS OF MAGNUSON MOSS DO NOT APPLY, AND THE COUNT BASED UPON MAGNUSON MOSS WAS ILL FOUNDED AS A MATTER OF LAW.

Contractor invites us to apply a U.C.C. dominant element test for a "transaction in goods," to the case at bar. Contractor has presented no authority supporting application of the test to define a "consumer product" under the Magnuson-Moss Act. Furthermore, the definition of "goods" in U.C.C. § 2-105 and § 400.2-105 RSMo is not parallel to the definition of "consumer product" as defined by 15 U.S.C. § 2301(1).

Homeowner argues the regulations promulgated by the Federal Trade Commission demonstrate the warranty given by contractor is covered by the Act. ² Here also, homeowner does not cite authority for his position. We find no authority and conclude this is an issue of first impression. The issue is whether the re-roofing of a home is a "consumer product" as defined by the Magnuson-Moss Act so that an action based upon a written contract for re-roofing of a home may lie as a matter of law where the written contract contains a twelve year defect-free warranty on workmanship and materials.

The section under which homeowner brought this action provides in pertinent part ³:

15 U.S.C. § 2310(d)(1):

... a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief--

(A) in any court of competent jurisdiction in any State or the District of Columbia;

* * * * * *

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended)....

For purposes of this chapter:

15 U.S.C. § 2301(1):

(1) the term "consumer product" means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed ).

* * * * * *

(3) The term "consumer" means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

(4) The term "supplier" means any person engaged in the business of making a consumer product directly or indirectly available to consumers.

The relevant regulations are:

16 CFR:

§ 700.1 Products covered.

(a) The Act applies to written warranties on tangible personal property which is normally used for personal, family, or household purposes. This definition includes property which is intended to be attached to or installed in any real property without regard to whether it is so attached or installed. This means that a product is a "consumer product" if the use of that type of product is not uncommon. The percentage of sales or the use to which a product is put by any individual buyer is not determinative. For example, products such as automobiles and typewriters which are used for both personal and commercial purposes come within the definition of consumer product. Where it is unclear whether a particular product is covered under the definition of consumer product, any ambiguity will be resolved in favor of coverage.

* * * * * *

(c) The definition of "Consumer product" limits the applicability of the Act to personal property, "including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed.

* * * * * *

(e) The coverage of building materials which are not separate items of equipment is based on the nature of the purchase transaction. An analysis of the transaction will determine whether the goods are real or personal property. The numerous products which go into the construction of a consumer dwelling are all consumer products when sold "over the counter," as by hardware and building supply retailers. This is also true where a consumer contracts for the purchase of such materials in connection with the improvement, repair, or modification of a home (for example, paneling, dropped ceilings, siding, roofing, storm windows, remodeling). However, where such products are at the time of sale integrated into the structure of a dwelling they are not consumer products as they cannot be practically distinguished from realty. Thus, for example, the beams, wallboard, wiring, plumbing, windows, roofing, and other structural components of a dwelling are not consumer products when they are sold as part of real estate covered by a written warranty.

(f) In the case where a consumer contracts with a builder to construct a home, a substantial addition to a home, or other realty (such as a garage or an in-ground swimming pool) the building materials to be used are not consumer products. Although the materials are separately identifiable at the time the contract is made, it is the intention of the parties to contract for the construction of realty which will integrate the component materials. Of course, as noted above, any separate items of equipment to be attached to such realty are consumer products under the Act.

Homeowner relies on 16 CFR § 700.1(e) for his position that the transaction is covered by the Magnuson-Moss Warranty Act because the re-roofing work was done for the improvement and repair of his home.

The House Report on the Act states:

Under concepts of property law, fixtures such as hot water heaters and air conditioners when incorporated in a dwelling become a part of the real property. It is intended that the provisions of [the Act] continue to apply to such products regardless of how they are classified [under traditional common law distinctions].

H.Rep. No. 1107, 93rd Cong.2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7702, 7717.

It is apparent that the Congress intended to have the act cover some items which normally or usually become a part of real estate under commonly applied...