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Evergreen Lumber & Truss, Inc. v. Certainteed Corporation

United States District Court, Fifth Circuit

October 29, 2013




BEFORE THE COURT are a Motion for Summary Judgment [96] filed by Defendant CertainTeed Corporation on July 18, 2013, and a Motion for Partial Summary Judgment [98] filed by Plaintiff Evergreen Lumber & Truss, Inc., on July 19, 2013. Both Motions are now fully briefed. After due consideration of the record, the submissions on file, and relevant legal authorities, the Court finds that Defendant's Motion for Summary Judgment [96] should be granted in part and denied in part and that Plaintiff's Motion for Partial Summary Judgment [98] should be denied. Plaintiff's equitable estoppel claim will be dismissed with prejudice.


In January 2008, Plaintiff Evergreen Lumber & Truss, Inc. ["Evergreen"], subcontracted with a general contractor, Debcon, Inc. ["Debcon"], to supply labor and materials for the construction of military housing at the United States Navy Seabee Base in Gulfport, Mississippi. Compl. [1] at 2; Subcontract [1-2] at 1-12.[1] Evergreen was to perform work including installation of siding and trim on the housing units. Subcontract [1-2] at 1, 6-7. According to the Complaint, around September 2010 Evergreen became aware of cracks and other defects developing in the installed siding. The siding was manufactured by Defendant CertainTeed Corporation ["CertainTeed"] and carried a warranty. Compl. [1] at 2. Evergreen filed a warranty claim with CertainTeed. Id.

Evergreen alleges that CertainTeed sent a field representative to inspect the housing and defective materials on December 7, 2010, and that the inspection was performed in the presence of representatives of Evergreen and Debcon. Id. at 3. Evergreen maintains that following the investigation, in early December 2010 CertainTeed awarded the work on the warranty claim to Evergreen. Id. Evergreen claims that after Debcon learned of a "sizable labor payment in excess of $256, 000.00" to be made by CertainTeed to Evergreen to perform the warranty work, Debcon contacted CertainTeed directly and initiated an effort to secure the work. Id. Evergreen asserts that Debcon made certain misrepresentations to CertainTeed in order to secure the warranty work. Id. at 4-5. After a site visit by a different CertainTeed representative on February 8, 2011, of which Evergreen says it had no contemporaneous knowledge, Debcon allegedly "struck a final deal" with CertainTeed to perform the warranty work. Id. at 5. Evergreen claims that Debcon subsequently billed CertainTeed almost $400, 000.00 for the warranty work and earned a significant profit on the job. Id. at 6.

Evergreen filed its Complaint [1] against CertainTeed and other Defendants on August 24, 2012, invoking this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. Id. at 2. The Complaint originally advanced claims against CertainTeed for breach of contact, intentional breach of contract, breach of express warranty, breach of implied warranty, civil conspiracy, and equitable estoppel. Id. at 8-10. A Judgment [84] and an Agreed Order [85] were entered on April 3 and 4, 2013, dismissing all other named Defendants, leaving CertainTeed as the sole Defendant in this case. The Agreed Order [85] also dismissed with prejudice Evergreen's claims against CertainTeed for breach of express and implied warranties and civil conspiracy. Evergreen's remaining claims against CertainTeed are for breach of contract, intentional breach of contract, and equitable estoppel.

CertainTeed has filed a Motion for Summary Judgment [96] seeking dismissal of Evergreen's remaining claims. Evergreen has filed a Motion for Partial Summary Judgment [98] asking the Court to grant summary judgment in its favor on its contract claims.


A. Legal Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "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). "There is no genuine dispute if the record, taken as a whole, could not lead a rational trier-of-fact to find for the non-moving party." Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013) (citation omitted). To rebut a properly supported motion for summary judgment, the opposing party must show, with "significant probative evidence, " that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). In deciding whether summary judgment is appropriate, the Court "may not make credibility determinations or weigh the evidence" and "must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party." Total E&P USA Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted).

B. Applicable Substantive Law

The Court has jurisdiction over this matter pursuant to diversity of citizenship under 28 U.S.C. § 1332. "Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). When sitting in diversity, courts usually apply the forum state's substantive law. See, e.g., Truong v. Bank of America, N.A., 717 F.3d 377, 382 (5th Cir. 2013). The Court applies Mississippi substantive law in resolving the present Motions.

C. Evergreen's ...

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