Opinion
99 Civ. 1849 (BSJ)
March 6, 2001
Memorandum Opinion and Order
Defendant Home Depot Inc., moves for summary judgment dismissing plaintiffs Sam and Limone Gjonis' claims for breach of contract, failure to remedy defects in goods delivered under the contract, and injury to their financial reputation. Because disputes of material fact exist with respect to plaintiffs' claims, defendant's motion is denied.
With respect to the breach of contract claim, the parties dispute what the agreed upon delivery date was for the merchandise ordered. The Gjonis contend that the delivery date was October 25, 1997, except for one item, which was to be delivered on November 2, 1997, in time for the scheduled closing on the Gjonis' new home on Novemeber 7, 1997. Home Depot contends that the delivery date was set for November 20, 1997, at the earliest. The "Special Services Customer Agreement" representing the written portion of the parties' contract does not unambiguously set a delivery date for the Gjonis' items, but rather lists "expected dates" of October 19, 1997 for some items and November 2, 1997 for others. See Gjoni Aff. Exh. A. It is unclear from the document whether "expected date" means the expected delivery date, or expected shipping date, or something else.
The Gjonis claim that the clerks who took the order at Home Depot understood that they had a closing deadline to meet. See Pl.'s Opp. Memo. at 7-8. However, the deposition testimony cited in support of this assertion does not indicate that the clerks knew the date of the Gjonis' closing deadline or had agreed with the Gjonis on a specified delivery date. Accordingly, there is a genuine dispute of material fact regarding what the parties' agreement was with respect to the delivery date for the Gjonis' merchandise.
The Gjonis also claim that Home Depot breached its contract with them because the delivered items did not fit properly into their home. First, there is a dispute as to whether one item is improperly sized or whether the wall against which it is placed is out of square. Second, Home Depot argues that the Gjonis accepted the goods and installed them, thereby waiving their objections to Home Depot's tender of performance. See Def.'s Memo. at 12-13. Although the Gjonis retained most of the delivered goods, they argue that their acceptance was conditioned on Home Depot eventually replacing them. See Pl.'s Opp. Memo, at 9. Accordingly, there is also a genuine dispute of material fact with respect to whether the goods were conforming and whether the Gjonis accepted the goods. Because there are material factual disputes about the delivery date and the parties' performance under the agreement, Home Depot's motion for summary judgment on the Gjonis' first claim is denied.
The Gjonis' second claim is that Home Depot failed to remedy the alleged defects in its performance. Home Depot claims first that it was only obligated to remedy the defects if the Gjonis rejected the goods, and that because the Gjonis' accepted them, their obligation to cure was obviated. See Def.'s Memo, at 14. Home Depot next argues that the Gjonis' acceptance notwithstanding, it ordered replacement items for them, but the Gjonis refused to schedule delivery for the items, thereby denying Home Depot the opportunity to cure any defects. The Gjonis, on the other hand, dispute whether Home Depot attempted to deliver replacement merchandise, noting that
[t]here is no documentation in writing showing proof that plaintiffs were ever contacted to schedule a delivery of re-ordered items and they refused. It is not claimed that plaintiffs were ever sent a written notice but merely that Plaintiffs would not answer their telephone!
Gjoni Aff. ¶ 12. Accordingly, there is also a genuine dispute of material fact as to whether Home Depot attempted to cure its allegedly defective performance, and Home Depot's motion for summary judgment on the Gjonis' second claim is denied.
The Gjonis' third claim is that Home Depot maliciously published false credit information regarding the Gjonis' to credit reporting agencies. The Gjonis claim that on June 20, 1998, they spoke with Val Sanchez, a Home Depot employee, about crediting their Home Depot credit card account. Ms. Sanchez wrote "customer is done + finished does not need anything at all" on a customer memorandum for the Gjonis. See Gjoni Aff. Exh. D. The Gjonis claim the Ms. Sanchez's note memorializes the parties' mutual understanding that the Gjonis' account would be credited for the items they returned and for the items that remained undelivered. See id. ¶ 22. However, Home Depot claims that the Gjonis were not entitled to keep the vanities that they claimed were defective without paying for them.
Despite what the Gjonis claim was an understanding between the parties, when the Gjonis subsequently applied for credit, they were turned down because the Gjonis' credit reports reflected a delinquent obligation to Home Depot. See id., ¶ 23. Both parties agree that General Electric Credit Card ("GECC"), the servicer of the credit card, notified Home Depot that the Gjonis were disputing their charge. GECC gave Home Depot 90 days to resolve the dispute. Home Depot claims that it tried numerous times to contact the Gjonis to resolve the issue, but the Gjonis did not respond. See Arturi Aff. ¶¶ 5, 8, 9; Sterzinger Aff. ¶¶ 6, 7, 8. The Gjonis claim that Home Depot never contacted them regarding the charge. See Gjoni Aff. ¶ 28. Accordingly because the validity of the charge to the Gjonis' account is disputed and the validity of the charge is central to the Gjonis' claim, as with the the Gjonis' first and second claims, genuine disputes of material fact preclude the entry of summary judgment.
Conclusion
Defendant's motion for summary judgment is denied. The parties are directed to submit a joint pretrial order no later than April 6, 2001.
SO ORDERED: