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Haley v. Kolbe & Kolbe Millwork Co.

United States Court of Appeals, Seventh Circuit

July 11, 2017

Mary Haley, et al. Plaintiffs-Appellants,
v.
Kolbe & Kolbe Millwork Co. Defendant-Appellee.

          Argued March 28, 2017

         Appeal from the United States District Court for the Western District of Wisconsin. No. 14-cv-99-bbc - Barbara B. Crabb, Judge.

          Before Flaum, Kanne, and Hamilton, Circuit Judges.

          Flaum, Circuit Judge.

         Seven pairs of spouses and one individual filed this putative class action against Kolbe & Kolbe Millwork Company, alleging that Kolbe sold them defective windows that leak and rot. Plaintiffs brought common-law and statutory claims for breach of express and implied warranties, negligent design and manufacturing of the windows, negligent or fraudulent misrepresentations as to the condition of the windows, and unjust enrichment. The district court granted partial summary judgment in Kolbe's favor on a number of claims, eventually excluded plaintiffs' experts and denied class certification, and ultimately found that plaintiffs' individual claims likewise could not survive without expert support. We affirm.

         I. Background

         A. Factual Background

         Kolbe is a Wisconsin corporation that designs, manufactures, and sells windows. Plaintiffs-appellants live in Michigan (Mary and Michael Haley, and Terrance and Jean Mclver), Florida (Leslie and Hal Banks), Pennsylvania (Annie and Brian Buinewicz, and Susan and Christina Senyk), Ohio (Matthew and Renee Deller), New Hampshire (Patricia Groome and Gary Samuels), and Wisconsin (Marie Lohr); and all had Kolbe windows installed in their homes at different times since 1997.

         Also since 1997, Kolbe has issued at least seven different versions of a written window warranty.[1] In addition, certain of the plaintiffs-appellants' Kolbe windows were finished with an optional exterior paint, known as the "K-Kron system, " that came with its own warranty. Kolbe has issued at least six different versions of the K-Kron warranty.[2]

         All plaintiffs-appellants experienced one or more problems with some of their windows, including leaking, warping, rotting, or cracking or peeling paint. Kolbe's responses to plaintiffs' problems varied, ranging from doing nothing (e.g., with respect to the Haleys and the Senyks) to making recommendations on maintenance and care (e.g., to the Bankses, the Mclvers, the Dellers, Groome and Samuels, and Lohr) to replacing a number of window sashes-that is, the movable panels that form the frame holding the glass pane(s)-(e.g., for the Bankses, the Buinewiczes, the Dellers, and Lohr). All of the plaintiffs-appellants eventually concluded that Kolbe would not honor its written warranties.

         B. Procedural Background

         1. Amended Complaint

         Plaintiffs-appellants filed this putative class action against Kolbe in February of 2014. Their amended complaint alleged numerous causes of action:

• Breach of express warranties, including Kolbe's written warranties stating that the windows would remain free from defects ("no-defect" written-warranty claims) and that Kolbe would repair, replace, or refund the price of defective windows ("failure-to-honor" written-warranty claims), as well as other warranties allegedly stemming from statements in Kolbe advertising (advertising-warranty claims);
• Breach of implied warranty of merchantability and implied warranty that windows were fit "for their intended use";
• Negligent misrepresentation;
• Negligence;
• Unjust enrichment;
• Violations of Wisconsin's Deceptive Trade Practices Act ("WDTPA"), Wis.Stat. § 100.18; and
• Violations of Wisconsin's Home Improvement Practices Act ("HIPA"), Wis. Admin. Code ATCP § 110.

         All plaintiffs except Samuels and Groome later voluntarily dismissed their WDTPA claims, and the district court granted Kolbe's motion to dismiss the HIPA claims. The remaining claims were all premised on the allegation that Kolbe windows had common design defects that caused them to rot prematurely.[3]

         2. Partial Summary Judgment

         In February 2015, Kolbe moved for partial summary judgment, arguing that a number of plaintiffs' claims were barred by the applicable statutes of limitations and the economic loss doctrine, and that plaintiffs had failed to establish the elements of some of their claims. Plaintiffs challenged Kolbe's statute-of-limitations arguments with respect to their express-warranty and fraudulent-misrepresentation claims, but did not respond as to their claims of breach of implied warranty for six sets of plaintiffs, or to any of the claims for negligence, negligent misrepresentation, or unjust enrichment.

         In June 2015, the district court granted summary judgment with respect to the following claims:

• The Buinewicz plaintiffs' express-warranty claims (both "no-defect" and "failure-to-honor"), because the Buinewiczes had first discovered rot in their windows in 2003 -six years after the one-year warranty period had ended;
• The Mclver plaintiffs' "no-defect" express-warranty claim, because it was barred under the applicable four-year statute of limitations, and the Mclvers had not developed arguments justifying the claim's survival;
• All plaintiffs' advertising-warranty claims, because some were barred by the statute of limitations and the remaining ones (for the Haleys and Samuels and Groome) involved statements that were mere puffery or otherwise too vague to support such a claim;
• The Banks, Buinewicz, Mclver, Senyk, Deller, and Lohr plaintiffs' implied-warranty claims, both because plaintiffs had abandoned the claims by failing to identify the factual bases, and because the claims were barred under the relevant statute of limitations;
• The Samuels and Groome plaintiffs' fraudulent-misrepresentation claim, because both had testified that their builder had offered only Kolbe windows and that this fact had not influenced their decision to buy their home through that builder; and
• All plaintiffs' negligence, negligent-misrepresentation, and unjust-enrichment claims, because plaintiffs had waived the claims by failing to respond to Kolbe's arguments in its motion for summary judgment.

         On October 21, 2015, Groome and Samuels moved for reconsideration of the grant of summary judgment on their fraudulent-misrepresentation claim.[4] They asserted that they had newly discovered evidence (a 2005 Kolbe email, which plaintiffs had received three months prior to the district court's summary judgment decision) showing that Kolbe had made false representations in its product literature and labeling related to, inter alia, the company's compliance with manufacturing standards and ...


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