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Malone v. Tamko Building Products Inc.

United States District Court, W.D. North Carolina, Charlotte Division

May 22, 2014

ERIC MALONE, et al., Plaintiffs,
v.
TAMKO BUILDING PRODUCTS INC., et al., Defendants.

MEMORANDUM OF DECISION

MAX O. COGBURN, Jr., District Judge.

THIS MATTER is before the court on defendants' Motion for Summary Judgment. After the motion was fully briefed by the parties, oral arguments were heard May 14, 2014. Having considered defendants' motion, reviewed the pleadings, and considered the arguments of counsel, the court enters the following findings, conclusion, and Order granting summary judgment and dismissing this case.

FINDINGS and CONCLUSIONS

I. Background

This action concerns a substantial home built in Waxhaw, North Carolina, in 2006, foreclosed on by the bank that financed the construction, and then purchased by plaintiffs (the first homeowners of the property) from the bank in 2010. At issue is whether defendants, manufacturers of the roofing material used on the home, are liable for costs incurred by plaintiffs when they replaced the roof in 2012.

It is undisputed that before purchasing the home from the bank, plaintiffs hired a home inspector to perform an inspection on April 6, 2010. In the home inspection report, the inspector informed plaintiffs, as follows:

The composite shingles (main house roof covering) are loose in various locations. There are missing shingles on the rear sides of the roof. Daylight can be seen coming into the attic from behind the upstairs HVAC unit in the main attic space. There is a missing shingle on the left side of the roof (visible from a window). It is recommended that a Licensed Qualified Contractor further investigates the entire roof covering to determine all the repairs needed.

It is also undisputed that the plaintiffs did not engage a roofing contractor to further investigate the roof, but proceeded on to closing.

Two years later, plaintiffs submitted a warranty claim on the roof to defendants in September 2012. In that claim, plaintiffs informed the manufacturer that the shingles were breaking and sliding off the roof, but also indicated that the roof was not leaking. Defendants denied the claim on November 8, 2012, and plaintiffs then replaced the roof at their own expense later that month. At the hearing, the parties informed the court that the cost incurred by the plaintiffs in replacing the roof was approximately $49, 000.00.[1]

With the earlier dismissal of all other claims, all that remains for resolution at this point is plaintiffs' claim for breach of the express warranty.

II. Summary Judgment Standard

Defendants have moved for summary judgment and supported their motion with citations to properly submitted evidentiary materials. Rule 56(a), Federal Rules of Civil Procedure, provides:

A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment 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. ...

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