Sunset Point Partnership v. Stuc-O-Flex Intern., Inc., STUC-O-FLEX
| Decision Date | 24 February 1998 |
| Docket Number | O-F,STUC-O-FLEX,No. 97-364,97-364 |
| Citation | 287 Mont. 388,954 P.2d 1156 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,301, 1998 MT 42 SUNSET POINT PARTNERSHIP, Plaintiff and Appellant, v.INTERNATIONAL, INC., Greg Wolstein, d/b/a Stuc-lex Systems; and Mike Melton and Dan Fischer, d/b/a Melton Fischer Construction, Defendants and Respondents. |
| Court | Montana Supreme Court |
Shelly F. Brander; Kaufman, Vidal & Hileman, P.C.; Kalispell, for Appellant.
Kenneth E. O'Brien; Hash & O'Brien, P.L.L.P.; Kalispell, for Stuc-O-Flex International, Inc.
¶1 In August 1994, plaintiff and appellant Sunset Point Partnership filed an action in the District Court for the Eleventh Judicial District in Flathead County against Stuc-O-Flex International, Inc., and Greg Wolstein, d/b/a Stuc-O-Flex Systems, as well as against Mike Melton and Dan Fischer, d/b/a Melton Fischer Construction. Sunset Point, a condominium developer, brought suit against the named defendants seeking to recover damages incurred when problems with the exterior surface of certain condominium units developed. In its complaint, Sunset Point alleged counts for breach of contract, breach of warranty, indemnity, negligence, and strict liability in tort against the defendants.
¶2 Defendants Melton and Fischer filed a motion for summary judgment on July 17, 1996, as did Stuc-O-Flex International, Inc. On September 5, 1996, Sunset Point filed a motion for leave to amend its complaint to add Perma-Chink Systems, Inc., as an additional defendant. In an October 15, 1996, order, the District Court denied Sunset Point's motion to amend the complaint and ¶3 The sole dispositive issue on appeal is whether the District Court erred in granting Stuc-O-Flex, Inc.'s, motion for summary judgment.
granted Stuc-O-Flex, Inc.'s, motion for summary judgment. The District Court additionally granted partial summary judgment in favor of Melton and Fischer. It is from that portion of the District Court's order denying its motion to amend the complaint to add an additional defendant, and granting Stuc-O-Flex, Inc.'s, motion for summary judgment, that Sunset Point presently appeals. For the reasons stated below, we affirm.
¶4 On November 7, 1989, Sunset Point entered a contract with Melton and Fischer, hiring them to act as general contractors for a condominium project located on Flathead Lake, south of Bigfork, Montana. On April 3, 1990, Melton and Fischer executed a construction subcontract with Wolstein, d/b/a Stuc-O-Flex Systems, pursuant to which Wolstein was to apply Stuc-O-Flex, a synthetic stucco product, to the exterior surface of the condominiums.
¶5 In 1990, Wolstein purchased the Stuc-O-Flex product he subsequently applied to Sunset Point's condominiums from manufacturer and seller, Perma-Chink Systems, Inc. In October 1991, Stuc-O-Flex International, Inc., incorporated and agreed to assume Perma-Chink's assets and liabilities.
¶6 When construction was completed, Sunset Point sold the condominium units to various homeowners. Sometime prior to July 1991, the exterior surface of the condominiums developed problems, and the Sunset Point Homeowners contacted Sunset Point and demanded repairs. Sunset Point tendered the homeowners' demands to the defendants. Defendants rejected Sunset Point's tender. Sunset Point then hired architect Raymond Cortner to inspect the condominiums. In June 1994, Sunset Point spent $79,365.50 on necessary repairs.
¶7 On August 23, 1994, Sunset Point filed suit against Stuc-O-Flex, Inc., and Wolstein, d/b/a Stuc-O-Flex Systems, as well as against Melton and Fischer, d/b/a Melton Fischer Construction, seeking to recover the $79,365.50 in costs incurred repairing the condominiums. Wolstein defaulted on January 19, 1995, and Stuc-O-Flex, Inc., filed a motion for summary judgment on May 23, 1995. In a December 11, 1995, order, the District Court denied Stuc-O-Flex, Inc.'s, motion on the basis that the record contained insufficient facts upon which it could premise a grant of summary judgment.
¶8 Following completion of additional discovery and supplementation of the record, Stuc-O-Flex, Inc., filed a second motion for summary judgment on July 17, 1996. Melton and Fischer similarly filed a motion for summary judgment on July 17, 1996. On September 5, 1996, Sunset Point filed a motion for leave to file an amended complaint adding Perma-Chink as an additional defendant.
¶9 On October 15, 1996, the District Court issued an order granting Stuc-O-Flex, Inc.'s, motion for summary judgment, and denying Sunset Point's motion for leave to file an amended complaint. The court additionally granted Melton and Fischer's motion for summary judgment in part, and denied it in part. Sunset Point subsequently reached a settlement with Melton and Fischer with respect to all claims, and on January 7, 1997, stipulated to Melton and Fischer's dismissal from the case. On April 29, 1997, Sunset Point obtained a default judgment against Greg Wolstein.
¶10 On May 19, 1997, Sunset Point filed its notice of appeal from the District Court's October 15, 1996, order granting Stuc-O-Flex, Inc.'s, motion for summary judgment and denying Sunset Point's motion to amend the complaint.
¶11 This Court's standard of review in appeals from summary judgment rulings is de novo. Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663 (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). This Court reviews a summary ¶12 In proving that summary judgment is appropriate:
judgment order entered pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. Treichel, 280 Mont. at 446, 930 P.2d at 663 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903).
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determinations made by the district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903.
¶13 Moreover, the "moving party has the burden of showing a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment." Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869.
¶14 Did the District Court err in granting Stuc-O-Flex Inc.'s, motion for summary judgment?
¶15 In its October 15, 1996, order, the District Court granted summary judgment in Stuc-O-Flex, Inc.'s, favor with respect to each of the five counts asserted against it in Sunset Point's complaint. In so doing, the court concluded the evidence of record did not support Sunset Point's assertion that Stuc-O-Flex, Inc., could be held vicariously liable for Wolstein's actions pursuant to a theory of either actual or ostensible agency and, therefore, held Stuc-O-Flex, Inc., was entitled to summary judgment on the claims leveled against it for breach of contract, breach of warranty, and negligence. The District Court additionally granted Stuc-O-Flex, Inc.'s, motion for summary judgment with respect to Sunset Point's claim for indemnity, concluding that Sunset Point could in no event establish a claim for liability against Stuc-O-Flex, Inc. Finally, the District Court ordered summary judgment in Stuc-O-Flex, Inc.'s, favor with respect to Sunset Point's claim for strict liability in tort, concluding there existed no evidence of record supporting Sunset Point's assertion that the Stuc-O-Flex product was in any way defective.
¶16 As it is potentially dispositive of Sunset Point's claims for breach of contract, breach of warranty, and partially dispositive of its claim for negligence, we turn first to the question of whether the District Court erred in concluding the evidence of record did not support Sunset Point's assertion that Stuc-O-Flex, Inc., could be held vicariously liable for Wolstein's actions pursuant to a theory of either actual or ostensible agency, and that there existed no genuine issues of material fact precluding summary judgment.
¶17 In Count I of its complaint, Sunset Point asserts that it contracted with Wolstein and Melton Fischer for the application of Stuc-O-Flex to the exterior walls of its condominiums, and alleges "[d]efendants Wolstein and Melton Fischer" breached that contract by failing to "do all work in a first-class and workmanlike manner and to the entire satisfaction of the Owner, Contractor and Architect." In Count II of its complaint, Sunset Point alleges breach of warranty, asserting that "defendants Wolstein and Melton Fischer" breached the fifteen-year warranty included in the construction subcontract. Finally, in Count IV of its complaint, Sunset Point asserts the "[d]efendants were negligent in the manner in which they applied stuc-o-flex to the exterior walls."
¶18 In its motion for summary judgment, Stuc-O-Flex, Inc., argued that Sunset Point's claims for breach of contract, breach of warranty, and negligence contained no allegations of wrongdoing on the part of, or representations by, Stuc-O-Flex, Inc., and accordingly asserted it was entitled to summary judgment on each of those three counts. In response, Sunset Point maintained that Wolstein was Stuc-O-Flex, Inc.'s, agent, and asserted the corporation could therefore be held vicariously liable...
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