Bluegrass Center, LLC v. U.S. Intec, Inc.

49 F. App'x 25
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 9, 2002
DocketNo. 01-3313
StatusPublished
Cited by9 cases

This text of 49 F. App'x 25 (Bluegrass Center, LLC v. U.S. Intec, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bluegrass Center, LLC v. U.S. Intec, Inc., 49 F. App'x 25 (6th Cir. 2002).

Opinion

PER CURIAM.

Defendant, U.S. Intec, Inc. (Intec), appeals from the judgment entered after a bench trial in favor of plaintiff, Bluegrass Center, LLC (Bluegrass). Bluegrass sought damages for the alleged faulty installation of an Intec roof. Bluegrass [27]*27claimed negligence in the training of the installer and breach of guarantee, but the judgment entered was based on promissory estoppel. Intec challenges the judgment because promissory estoppel was not pleaded in the complaint. Intec also argues that Bluegrass did not prove promissory estoppel, that the district court relied on improperly admitted parole evidence, and that the damages awarded were excessive. Finally, Intec appeals from the denial of summary judgment prior to trial. After review of the record, the applicable law, and the arguments presented on appeal, we affirm.

I.

Bluegrass owned a shopping center in Maysville, Kentucky. Bluegrass sought bids to replace the center’s roof and required that the new roof be guaranteed under a warranty. Randy Jewell from Jewell Construction (Jewell) submitted a bid and proposed to install an Intec roof with a 12-year factory warranty. Bernard Hackman, Bluegrass’s managing partner, testified that Bluegrass wanted assurances before awarding the roofing contract to Jewell. The district court described those assurances as follows: (1) Jewell would become certified by Intec; (2) Intec would instruct Jewell on how to correctly install the Intec roof; and (3) Intec would issue the 12-year factory warranty after installation.

Bluegrass knew that Jewell was not an experienced roofer and was not certified by Intec. Intec would issue the warranty only if the roof was installed by a certified contractor. Hackman testified that Bluegrass was “very concerned about [Jewell’s] ability to do a job this size” and wanted assurance that Intec would “stand by [Jewell’s] work.” Hackman talked to Larry Villers, an Intec salesperson, about these concerns and requirements. Villers reassured Hackman that “he was going to be with Jewell, not only for the certification, but the completion of the job.” Villers sent a letter to Jewell to document the assurances. The letter stated in part:

As per our conversation, the question arose that the property owner questioned how much time would be spent on this project by a person from U.S. Intec. Please assure your property owner that I will work with you on the start of the project to get you going and I’ll make several visits back to the property to assure your building owner that he will get a good installation. This is a twofold process for me to follow up on this project: U.S. Intec knows they have a good roofing product but they also know that it is only as good as the roofer installing it. We rely a lot on customers such as yourself to refer our roofing products to other customers and we know that if you do not get a good roof application we do not get another satisfied customer referral. Randy please let your customer know if he has any questions, he can give me a call....

Villers assumed that Jewell would submit this letter to Bluegrass. He commonly wrote such letters to help a contractor “consummate a deal.”

Intec later issued a “Certificate of Merit” indicating that Jewell had been approved as a “certified applicator.” Intec described its certification process as a review of the contractor’s financial information and roofing experience. In some cases, Intec also reviewed prior roof installations completed by the contractor. Intec, however, does not point to any evidence in the record that shows whether Intec followed its usual procedures in certifying Jewell. Villers testified that he was not involved in the certification of installers and did not remember anything [28]*28about Jewell’s certification.1 Jewell provided financial information to Intec, but did not know whether Intec checked work references or inspected prior roof installations. Villers thought he may have visited a hospital where Jewell installed a roof, but did not know whether or not he went up on the roof.

Hackman relied on both Villers’s letter and Jewell’s certification in awarding the roofing contract to Jewell. Another Bluegrass partner, Neal Hatcher, testified that Jewell was chosen because “we knew that he was going to do the job correctly, because he was going to be supervised on how to do the roofing.”

Jewell received no instruction before either being certified or beginning installation of the roof on the shopping center. Villers was at the job site for the first several days and helped install the first few roof sections. Villers told Hackman that he was there to instruct Jewell on the proper installation of the roof. Jewell testified that Villers showed him how to install the roof, including how to torch the seams and how to space the screws to attach the base. Jewell followed this pattern for spacing of the screws throughout the job. Villers stopped by approximately every two weeks to inspect the progress, and spoke to Jewel by telephone once or twice a week between the site visits. Jewell testified that he installed the roof exactly as Villers had instructed him.

While Villers testified that it was standard procedure for an Intec specification manual to be mailed to installers, Intec does not point to any evidence in the record suggesting that one was mailed to or received by Jewell. Villers did not remember whether he gave the manual to Jewell. Jewell testified that he did not receive any instructions before he was certilled, and that the only instructions he received were Villers’s oral directions.

The roof leaked before, during, and after installation. Jewell had numerous conversations with Villers about the leaks. Jewell caulked gaps he found in the parapet walls on the roof, but the leaking continued. Jewell then thought that the leaks were coming from separated seams. Villers advised Jewell to stop the leaks by retorching the membrane seals to reseal them. Villers was present for some of this retorching. Jewell observed that the leaking stopped around the retorched areas.

When a tenant complained to Hackman about leaks, Hackman discussed the problem with Jewell and Villers. Villers told him that the membrane sometimes “would not adhere to itself.” Bluegrass refused to make the final payment to Jewell until Intec assured it that the installation was proper, and that there were no more leaks. After an inspection, Craig Noble of Intec told Hackman that everything was fine. Hackman asked Noble whether the roof had been properly installed, and he said yes. Intec sent a fax to Jewell stating ‘We have completed the roof inspection ... the roof passed.”

Relying on Noble’s representations and the fax, Bluegrass released the final payment to Jewell. The written guarantee was issued and signed by Jewell; Jeff Dever, another partner from Bluegrass; and Noble on behalf of Intec. The guarantee stated:

U.S. Intec, Inc. (“Intec”) guarantees to the original building owner that, subject to the terms and conditions of this guarantee, it will repair or replace, AT ITS SOLE DISCRETION, the Intec roofing membranes and base flashing, or portions thereof, as is necessary to correct [29]*29leaks resulting from the causes listed below, for the guarantee term....

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Bluebook (online)
49 F. App'x 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bluegrass-center-llc-v-us-intec-inc-ca6-2002.