Loper v. Weather Shield Manufacturing, Inc.

203 So. 3d 898, 2015 Fla. App. LEXIS 9564
CourtDistrict Court of Appeal of Florida
DecidedJune 24, 2015
DocketNo. 1D14-4563
StatusPublished

This text of 203 So. 3d 898 (Loper v. Weather Shield Manufacturing, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loper v. Weather Shield Manufacturing, Inc., 203 So. 3d 898, 2015 Fla. App. LEXIS 9564 (Fla. Ct. App. 2015).

Opinion

MAKAR, J.

Foggy windows, and an oral agreement to replace and issue a new warranty for them, were the focus of a week-long jury trial,. which ended in a verdict for the homeowner against the window manufacturer, At issue is whether the trial court erred in setting aside the jury’s verdict on the homeowner’s breach of contract and fraud claims. We reverse for the entry of judgment for the homeowner on the contract claim.

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Construction on Doctor Michael Loper s three-story, modern-style, ■ oceanfront home in Neptune Beach, Florida, began in August 2001. Large vinyl-clad windows, made by Weather Shield Manufacturing, Inc,, were used throughout the home, in-[900]*900eluding massive two-story windows facing the Atlantic Ocean. Many .of the panes were “gigantic,” some larger than 4-by~8 feet, weighing hundreds of pounds. Within a year after moving into the house in 2002, Dr. Loper noticed condensation on the inside seal of a few windows and later “fog” forming between some panes. The builder attempted to correct some of the moisture intrusion issues, but problems persisted. In 2005, a representative from Weather Shield, Kevin Mobley, came to inspect the windows. Though Dr. Loper never learned of the inspection’s results, over the next few years a few windows were replaced by the initial installer under the existing Weather Shield warranty, which required Dr. Loper to pay for labor charges that ranged from $250-$550 per pane. Thereafter, the window fogging problem persisted to the point that Dr. Loper estimated that between one-half to three-quarters of the windows were affected. By 2010, the situation worsened when window frames began leaking, causing wood floors to warp and drywall to sag. At that point, Dr. Loper contacted Weather Shield again, but his calls were not returned. His builder was able to arrange a meeting with the company in late November/early December 2010, the events and ensuing fallout of which — as recounted by Dr. Loper and his contractor — are central to this case.

Initially, six people were at the meeting: Dr. Loper and his wife, his contractor, two owners of the installation company, and Mr. Mobley of Weather Shield, who had inspected the home five years earlier. Mr. Mobley and Dr. Loper separated from the group to discuss the situation and to allow Mr. Mobley to visually inspect a few of the windows. At the outset, Mr. Mobley asked if Dr. Loper had an attorney (“The first thing that he asked me was whether I had an attorney.”), to which Dr. Loper replied, “No, I do not, but if this problem is not settled to my satisfaction, I plan to seek legal action.” Mr. Mobley responded, “Good. If you have an attorney, I can’t help you.” When asked what he sought, Dr. Loper said he wanted Weather Shield to replace the defective windows and issue a new written ten-year warranty, like the one issued for the initial set of windows (which Mr. Mobley said was set to run out in around October 2011). Mr. Mobley said he’d relay' the request to his superiors. According to the contractor, who was present, Dr. Loper left “happy,” it appearing the meeting had been successful.

Mr. Mobley contacted Dr. Loper in early 2011 saying, “we have a deal.” The terms were reiterated and Mr. Mobley agreed to them without negotiation. Dr. Loper asked for the agreement to be put into writing. A month later, Dr. Loper followed up with Mr. Mobley, who said that the “legal department” was drawing up the deal and that he would check on its status and call Dr. Loper.

Mr. Mobley never returned the call. Dr. Loper followed up, however, calling “dozens of times” and leaving voicemails. Receiving no response, Dr. Loper began calling Weather Shield’s corporate offices, learning at some point that Mr. Mobley had been laid off from the company. He was referred to Mr. Mobley’s boss, Bill Dix, with whom he spoke about the matter. Mr. Dix was familiar with the situation, reiterated a deal had been reached, and said “he had approved the agreement.” Mr. Dix said he would check on the status of the agreement in the legal department and get back with .Dr. Loper; but, as occurred the last time with Mr. Mobley, the promised call-back never happened. Dr. Loper called Mr. Dix multiple times to no avail.

In August 2011, with the warranty about to expire, Dr. Loper sent an email to [901]*901Weather Shield explaining the problem, stating that “[ajlmost every window in my home is fogged and has lost its seal.” He asked to speak with one of the owners of the company directly. At this point, eight or nine months had passed since Weather Shield had promised him what he requested. Dr. Loper was “begging for help at this point. My home is deteriorating around me as ... I’m being stalled. The problem is getting worse. Water intrusion is getting worse. This is not a simple matter that I can’t see out of a window. Again, floors are warping, ceilings are sagging, walls are losing their paint and chipping. It’s becoming an unhealthy environment.”

Eventually, on Friday, September 5th at 8:53 p.m., Dr. Loper received an email from Katie Zenner of Weather Shield, whom he had never met nor heard of, stating “Michael: ... Weather Shield will not extend the warranty on your product” and that any “claims will be processed under the terms of our standard limited warranty.” The email told Dr. Loper to “[pllease continue to work with [the window installer] on any warranty claims.” This was the last contact between the parties prior to Dr. Loper filing suit.

Dr. Loper said he relied on the statements made by Weather Shield representatives up until he received the Friday evening email from Ms. Zenner, at which point he realized that he had been misted. During the entire time he’d been communicating and cooperating with Weather Shield, he did not hire an attorney or pursue filing a lawsuit, and never thought about putting a definite time on how long he would refrain from doing so. He chose to work with the company and believed he had fully performed his part of the bargain by not seeking to hire a lawyer or by suing.

But now things had changed. In February 2012, Dr. Loper sued Weather Shield alleging breach of an oral agreement and fraud. In the first count, Dr..Loper alleged that Weather Shield breached their oral contract by refusing to replace the defective windows and failing to issue a new warranty as promised. The fraud count alleged that Weather Shield misted Dr. Loper into believing it would replace and re-warrant his windows when it had nó intention of doing so.

At trial, the parties presented conflicting testimony as. to whether an oral agreement had been reached to replace and re-warrant the windows. Dr. Loper testified, as recounted in the facts set forth above. At the close of Dr. Loper’s case, Weather Shield moved for directed verdict or new trial, arguing that Dr. Loper did not present any evidence to establish that the two parties had a “meeting of the minds” as to the essential terms of the oral agreement or that adequate consideration was given. Weather Shield also argued that the parties’ agreement should have been reduced to writing under the statute of frauds, which barred the enforcement of the alleged oral contract. Dr. Loper responded that equitable estoppel and performance in the form of refraining from filing legal action prevented Weather Shield from relying on the statute of frauds, and that refraining from taking legal action was adequate consideration for an oral contract. The- trial court reserved ruling on the motion.

In support of its case, Weather Shield presented the testimony of Mr. Mobley, who was laid off in 2011 but returned to Weather Shield in 2013.

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Bluebook (online)
203 So. 3d 898, 2015 Fla. App. LEXIS 9564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loper-v-weather-shield-manufacturing-inc-fladistctapp-2015.