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The Lofts Essex, LLC v. Strategis Floor and Décor Inc.

Supreme Court of Vermont

November 8, 2019

The Lofts Essex, LLC, and The Wilson Inn, Inc.
v.
Strategis Floor and Décor Inc.

          On Appeal from Superior Court, Chittenden Unit, Civil Division

          Robert A. Mello, J. (summary judgment); Helen M. Toor, J. (final judgment) Adam P. Bergeron of Bergeron, Paradis & Fitzpatrick, LLP, Essex Junction, for Plaintiffs-Appellants.

          Marc Heath and William T. Clark, Burlington, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned

          CARROLL, J.

         ¶ 1. Plaintiffs, Lofts Essex, LLC and the Wilson Inn, Inc. (collectively the Lofts), [1] appeal the trial court's pretrial denial of summary judgment and the court's final decision ruling in favor of defendant, Strategis Floor and Décor, Inc. We conclude that the trial court's pretrial denial of summary judgment is not reviewable and affirm the final decision granting judgment to Strategis.

         I. Facts

         ¶ 2. The evidence viewed in the light most favorable to Strategis indicates the following.[2] In 2013, the Lofts built a fifty-four-unit upscale apartment building in Essex, Vermont. During the construction of the building, Roger Villemaire-the Lofts owner-and Joseph Villemaire-the Lofts property manager-approached Crowley Floors, a local Vermont flooring retailer, about purchasing flooring for the Lofts. Crowley Floors provided the Villemaires with a marketing brochure for a Strategis flooring product called "Inspira High Performance Luxury Vinyl Plank" (LVP), which described LVP as a "[s]pectacular, lifelike wood" product with a" '[t]ough-as-nails' finish."

         ¶ 3. LVP is a laminate wood product "designed to look like real wood flooring, but to be more durable." LVP consists of six layers. The top layer is a "[s]cratch [r]esistant [c]oating" designed "primarily . . . to give the product a uniform gloss level and an enhanced resistance to minor abrasions." Immediately beneath the scratch resistant coating is an additional 0.5 millimeter wear layer that "gives the floor . . . its long-term resistance to abrasion and day-to-day wear and tear." The next layer down is the "printed decor layer," which is a synthetic film designed to replicate the look of real wood. Beneath the printed decor layer is a high-density vinyl that makes up the product's core. The final bottom layer consists of polyvinyl chloride (PVC), which is a vinyl-based plastic "used extensively in plastic pipe, plastic wrap, electrical insulation, [and] carpeting." See J. Luddington, Annotation, Products Liability: Polyvinyl Chloride, 59 A.L.R.4th 129, § 2(a) (1988).[3]

         ¶ 4. The Villemaires decided to purchase approximately 30, 000 square feet of LVP flooring from Crowley Floors to install in "the entries, kitchens, dining areas and hall closets of the 54 apartment units."[4] About a year after the LVP flooring was installed, Joseph Villemaire began noticing problems: the floor was separating and small blue spots were appearing in the flooring. In the summer of 2015, the Lofts contacted Sean Ryan-the owner of Elegant Floors, another local flooring retailer-for assistance in dealing with these problems.[5]

         ¶ 5. On behalf of the Lofts, Mr. Ryan filed a warranty claim with NRF distributors, the regional distributor for Strategis' LVP product. On August 10, 2015, John Kimball, NRF's Claim Manager, forwarded the Lofts' warranty claim to Strategis' vice president, William Friend. Mr. Kimball also arranged for Richard Reed, a professional flooring inspector, to inspect the LVP flooring at the Lofts. On August 25, 2015, Mr. Reed inspected one unit at the Lofts and noticed "a number" of spots in the kitchen and dining room. During this inspection, Mr. Reed cut open a few pieces of LVP flooring with the spots, "peeled back the wear layer," and found a dense "powdery substance" underneath the wear layer that he scraped out.

         ¶ 6. In March 2016, Mark Reagan, Strategis' flooring expert, inspected eighteen to twenty apartments at the Lofts. Mr. Reagan thereafter issued a report in which he concluded that the cause of dots was unknown. In June 2016, Mr. Reed returned to the Lofts and inspected around ten units. Each apartment had from thirty to fifty spots randomly placed in the floor in no observable pattern. Following Mr. Reed's second inspection, he filed a report in which he concluded that "the discoloration and the material under the wear layer was foreign matter. And anything that's foreign matter . . . is a manufacturing-related issue."

         ¶ 7. On June 27, 2016, the Lofts filed its initial complaint, alleging claims of breach of express and implied warranties, violation of the Vermont Consumer Protection Act (VCPA), and negligent misrepresentation.[6] On July 14, 2017, the Lofts filed a motion for partial summary judgment on the express warranty claim. The Lofts contended it was entitled to summary judgment because it demonstrated that the LVP "failed to conform to [its] express warranty." Strategis argued, however, that the Lofts was also required to prove the blue spots were "caused by a product defect and that the defect existed in the product at the time it left Strategis' possession and control." After an extensive discussion of the relevant case law, the court concluded that "the burden remain[ed] on [t]he Lofts to prove that" the blue spots were caused by a manufacturing defect. Applying this standard, the trial court denied the Lofts' motion for summary judgment because, although the Lofts had produced "compelling evidence that the [spots] must be due to a manufacturing issue," "Strategis ha[d] come forward with sufficient evidence to create a genuine dispute as [their] cause."

         ¶ 8. On February 5, 2019, the trial court held a bench trial and heard testimony from several witnesses, including: Richard Reed, William Friend, and Mark Reagan. On February 11, 2019, the court entered judgment for Strategis. On the breach-of-warranty claims, the court assumed, without deciding, that Strategis had the burden of demonstrating the blue spots were not the result of a manufacturing defect. The court nevertheless concluded that Strategis had met its burden by producing enough evidence to demonstrate that it was "more likely than not that the spots on the flooring occurred after manufacturing." Finally, the court held that Strategis could not be liable under the VCPA because "there [was] no evidence that Strategis knew or should have known of the problem."

         ¶ 9. On appeal, the Lofts argues that the trial court incorrectly allocated the burden of proof in its summary judgment decision. The Lofts contends that according to Alpert v. Thomas, 643 F.Supp. 1406 (D. Vt. 1986), it properly revoked its acceptance of the LVP flooring and, therefore, Strategis had the burden of demonstrating that the spots were not the result of a manufacturing defect. According to the Lofts, if the trial court had correctly followed Alpert, "summary judgment [w]ould have been granted to [the Lofts] on the basis of the summary judgment record." The Lofts also contends that the trial court improperly weighed the evidence in its merits decision by relying on conjecture and speculation and disregarding the uncontradicted testimony of the Lofts' expert witness. In addition, the Lofts argues that the trial court improperly precluded its fact witness from giving opinion testimony during the bench trial. Finally, the Lofts argues that the trial court erred in requiring an element of knowledge in the VCPA claim.

         ¶ 10. We conclude that the trial court's denial of summary judgment is not reviewable because it was decided on sufficiency-of-the-evidence-not legal-grounds. On the merits, we conclude that the trial court's weighing of the evidence was not clearly erroneous, and that the court did not err by precluding the Lofts' fact witness from giving opinion testimony. Finally, based on a different legal justification, we affirm the trial court's ruling on the VCPA claim.[7]

         II. Summary Judgment

         ¶ 11. The Lofts argues that the trial court erred in denying its pretrial motion for summary judgment. A threshold issue, however, is whether this Court can review a pretrial denial of summary judgment. "[A] party generally cannot appeal from the pretrial denial of a motion for summary judgment." Stratton Corp. v. Engelberth Constr., Inc., 2015 VT 69, ¶ 14, 199 Vt. 289, 123 A.3d 393 (emphasis added). "Once trial begins, summary judgment motions effectively become moot, and the trial court's judgment on the verdict after a full trial on the merits supersedes the earlier summary judgment proceedings." Id. (alterations and quotation omitted).

         ¶ 12. As is often the case, however, there is an exception to this general rule. In Rekhi v. Wildwood Industries, Chief Judge Posner explained that "the principle that an order denying summary judgment is rendered moot by trial and subsequent judgment on the merits is intended for cases in which the basis for the denial was that the party opposing the motion had presented enough evidence to go to trial." 61 F.3d 1313, 1318 (7th Cir. 1995); see also id. ("If the judge should have granted summary judgment for the [other party based on the record at the summary judgment stage] but did not, and the [other party] went on to present at trial enough evidence to show he [was] entitled to win his suit after all, this shows that the grant of summary judgment would have worked a substantive injustice."). Questions of law, however, do not pose the same problem because the moving party at the summary judgement stage could still win on a legal issue after trial "no matter how much evidence" is presented during trial. Id. ("Res judicata, like most defenses . . . remains available as a defense even when the plaintiff, having survived summary judgment, goes on to win a judgment on the merits."). As the Second Circuit has explained:

A critical distinction exists between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide. Where a motion for summary judgment based on an issue of law is denied, appellate review ...

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