Opinion
66375-5-I
05-07-2012
TIM McCLINCY, an individual, and McCLINCY BROTHERS FLOOR COVERING, INC., a Washington corporation, dba McCLINCY'S HOME DECORATING, Respondents, v. MILLER ROOFING ENTERPRISES, INC., Appellant.
UNPUBLISHED
Cox, J.
Miller Roofing Enterprises, Inc. (Miller Roofing) appeals the decisions of the trial court following a bench trial. The trial court concluded that Miller Roofing breached one written and two oral contracts with Tim McClincy and McClincy Brothers Floor Covering, Inc. (McClincy Brothers). Based on these conclusions, the court entered judgment for substantial damages against Miller Roofing.
We hold that there is insufficient evidence to support the finding that Miller Roofing warranted the manufacture of either the torch down roof for 12 years or the metal roofs for 50 years. Accordingly, we reverse the judgment to the extent of the breach of the written contract claim.
We also hold that, on this record, it is unclear whether the oral contract claims are barred by the statute of limitations. It is unclear whether Miller Roofing waived the affirmative defense of untimely service of process. And it is also unclear when plaintiffs had notice of the defects underlying their claim for breach of the two oral contracts. Thus, liability is unclear.
We also note that the damages on which the breach of written contract claim is based are not segregated from the damages awarded for the breach of the oral contracts claims. Accordingly, on this record, any judgment for damages on the oral contract claims cannot stand.
For these reasons, we also reverse the judgment on the two breach of oral contract claims and remand for further proceedings.
Miller Roofing entered into a written contract with McClincy on June 16, 1997, for the construction and replacement of three roofs at the McClincy Brothers' commercial location. The building is owned by McClincy.
As part of the agreement, Miller Roofing agreed to re-roof all of the low pitched and flat roofs with rubber torch down roofing materials and all of the pitched roofs with Champion Snap-Lock metal roofing. The following provision of the agreement, which only Miller Roofing signed, follows 10 numbered contractual terms and states: "Roof guaranteed 5 years labor and 12 year manufacture on Torch down and 50 year manufacture waranty [sic] on metal."Miller Roofing completed the roofing project in May 1998.
Clerk's Papers at 50.
In January 2006, Miller Roofing orally agreed to fix some water leaks in the roofing. Miller Roofing returned on June 3, 2006, and performed additional repairs on the lower torch down roof.
During November and December 2007, severe weather caused substantial water intrusion and extensive damage to the building. In January 2008, a third party informed McClincy and McClincy Brothers that a cause of the damage was defective construction of the torch down roof by Miller Roofing.
On February 5, 2009, McClincy and McClincy Brothers commenced this action against Miller Roofing for breach of contract, negligence, violations of the Washington Product Liability Act (WPLA), fraudulent concealment, and breach of express and implied warranties. Miller Roofing never asserted that McClincy Brothers was not a proper party to this action and had no claim.
Miller Roofing moved for summary judgment. It argued that the breach of contract claim based on the June 1997 written contract was barred by the six-year statute of repose. It also claimed that the two 2006 oral agreements for repair work were barred by the three-year statute of limitations. The trial court denied the motion.
The case proceeded to a bench trial. After the close of the case's liability phase by McClincy and McClincy Brothers, Miller Roofing moved for dismissal of the claim related to the written contract. The trial court granted the motion, deciding that the "roof(s) installed by Miller Roofing Enterprises, Inc. were completed in 1998 and under the statute of repose (six years) any breach of contract claim expired in 2004." But the court further ruled on the written contract claim as follows:
Id. at 359.
Under [sic] Plaintiff's theory that the Defendant stepped into the role of manufacturer for the Torch down roof may be reconsidered by this court upon a showing within the record presented to the court in trial; otherwise, the claim[] for breach of [the written] contract [is] hereby DISMISSED.
Id.
At the trial's conclusion, the court entered findings of fact and conclusions of law. The court concluded that Miller Roofing warranted the manufacture of the torch down roof for a period of twelve years. It also concluded that Miller Roofing breached the written contract with McClincy and the two subsequent 2006 oral agreements. The court entered judgments for damages for all of these alleged breaches exceeding $1,387,000.
Miller Roofing appeals.
BREACH OF CONTRACT CLAIMS
Written Contract
Miller Roofing argues that the trial court erred in finding at the conclusion of trial that it warranted the torch down roof as a manufacturer under the parties June 1997 written contract. We agree.
A contract is actionable when it imposes a duty, that duty is breached, and the breach proximately causes damage to the one owed the duty. Failure to perform a contractual duty constitutes a breach.
NW Indep. Forest Mfrs. v. Dep't of Labor & Indus., 78 Wn.App. 707, 712, 899 P.2d 6 (1995).
Restatement (Second) of Contracts § 235(2) (1981).
The touchstone of contract interpretation is the parties' intent. Under the objective manifestation theory of contract interpretation, a court must attempt to ascertain the intent of the parties by focusing on the objective manifestations of the agreement, rather than the unexpressed subjective intent of the parties.Intent may be imputed based on the ordinary meaning of the words within the contract. Words in a contract are given their ordinary, usual, and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent. Extrinsic evidence may also be used to determine the parties' intent.
Tanner Elec. Co-op. v. Puget Sound Power & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996).
Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005).
Id.
Id. at 504 (citing Universal/Land Constr. Co. v. City of Spokane, 49 Wn.App. 634, 637, 745 P.2d 53 (1987)).
Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990).
We review de novo the trial court's interpretation of a contract. A trial court's findings of fact are reviewed for substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth. Unchallenged findings of fact are verities on appeal. This court reviews de novo the trial court's conclusions of law to determine if they are supported by the findings of fact.
Knipschield v. C-J Recreation, Inc., 74 Wn.App. 212, 215, 872 P.2d 1102 (1994).
Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).
Id.
In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).
Bingham v. Lechner, 111 Wn.App. 118, 127, 45 P.3d 562 (2002) (citing City of Seattle v. Megrey, 93 Wn.App. 391, 393, 968 P.2d 900 (1998)).
Here, the June 1997 written contract required, among other things, the installation of torch down roofing. The contract stated "Roof guaranteed 5 years labor and 12 year manufacture on Torch down and 50 year manufacture waranty [sic] on metal."
Ex. 1.
Id. (emphasis added).
The parties do not appear to dispute that Miller Roofing guaranteed its labor on the roof for a period of 5 years. But a plain reading of the above language does not support the theory that Miller Roofing was to provide a warranty for manufacture of either the torch down roofing for 12 years or the metal roofing for 50 years.
We reach this conclusion by considering the definition of the word "manufacture." Under the objective theory of contract interpretation, we first ascertain the parties' intent based on the ordinary meaning of the word "manufacture." According to the American Heritage Dictionary, it means:
See Hearst Commc'ns, 154 Wn.2d at 503.
1.a. To make or process (a raw material) into a finished product, especially by means of a large-scale industrial operation. b. To make or process (a product), especially with the use of industrial machines. 2. To create, produce, or turn out in a mechanical manner . . . . 3. To concoct or invent; fabricate . . . . To make or process goods, especially in large quantities and by means of industrial machines.
The American Heritage Dictionary 1096 (3d ed. 1992).
Based on this definition of "manufacture, " Miller Roofing did not manufacture either the torch down roof or the metal roof. Rather, it only provided labor to install the roofs. Thus, it did not warrant the materials that were manufactured for either roof, the theory that served as the basis for the breach of the written contract claim.
Our view of the ordinary meaning of "manufacture" in this agreement is consistent with common law distinctions between manufacturers and those who construct improvements on real estate. In 1519-1525 Lakeview Boulevard Condominium Ass'n v. Apartment Sales Corp., the supreme court considered this distinction in the context of former RCW 4.16.310, the statute of repose. The court summarized the differences as follows:
144 Wn.2d 570, 29 P.3d 1249 (2001).
This court has previously recognized that rational distinctions exist between manufacturers and people who construct improvements upon real estate. Recognized rational distinctions between these two classes include the following:
(1)Manufacturers have liability under products liability law, an independent area of law separate from basic negligence or breach of contract, and this area of law has its own statutes of limitation, which are keyed to the useful life of the product.
(2)Manufacturers produce standardized goods from pretested designs and in large quantities whereas contractors make a unique product designed to deal with the distinct needs of a particular piece of real estate.
(3)Manufacturers produce their goods in a controlled environment whereas contractors build improvements upon real estate in an ever-changing environment.
(4)Manufacturers do not contribute to the structural aspects of real estate improvements; nor do they engage in any of the construction activities enumerated in RCW 4.16.310.
Id. at 578-79 (internal citations omitted).
For these same reasons, the written contract does not impose any duty on Miller Roofing to warrant the manufacture of the torch down or metal roofs.
The trial court's ruling dismissing the breach of contract claim, subject to a further showing, is consistent with our view of the case. The court stated:
Under [sic] Plaintiff's theory that the Defendant stepped into the role of manufacturer for the Torch down roof may be reconsidered by this court upon a showing within the record presented to the court in trial; otherwise, the claim[] for breach of [the written] contract [is] hereby DISMISSED.
Clerk's Papers at 359.
Thus, the court dismissed the breach of written contract claim, subject to reconsideration upon a showing that Miller Roofing "stepped into the role of manufacturer for the Torch down roof." There is no such showing in this record.
First, there is no evidence in this record of any contemporaneous conversations between the parties when the written contract was executed showing that Miller Roofing stepped into the role of manufacturer of either roof.
On direct examination regarding the formation of the contract, McClincy testified as follows:
Q Can you recall sitting here today any specific
discussions about any of the ten items that appear in the proposal? Think [for] a moment if [you] would. Just read through it again.
A I believe we discussed sky lights and that I wanted metal on this portion of the building in that section. . . . .
Q All right. What else?
A And then the torch down roofing and all of the coping on the parapets.
Q Anything else you can recall?
A No.
Q Now, there's a statement made at the bottom of the
proposal, 108th—part of paragraph 10 or underneath paragraph 10. It's [sic] says, "roof guaranteed five years labor and 12 year manufacture on torch down and 50 year manufacture warranty on metal." Do you see that?
A Yes.
Q Do you recall there being any discussion between you and Mr. Miller at or a time he presented you with this contract proposal about warranties?
A Other than what's on my contract?
Q Were you shown any other materials by—material is probably a poor choice of words. Any other document by Mr. Miller referencing Champion metal roofing and whatever warranty they may have given you?
A No.
Q Were you shown anything by Mr. Miller having to do with warranties that may have been in existence with respect to the composition material that was to be used as part of the torch down?
A No.
Q So would it be fair to say that in hiring Mr. Miller and his company to do this project, you were relying solely on the warranties that appear—that were given in the proposal?
A Yes.
Report of Proceedings (Oct. 12, 2010) at 27-29.
Nothing in this testimony indicates an intention by either party that Miller Roofing would be held liable as the manufacturer of the torch down roof.
On cross examination, McClincy testified as follows:
Q. Do you recall any discussions with Rick Miller ater [sic] you received his proposal about his proposal?
A. I don't recollect right now.
Q. Do you recall getting a contract with him after receiving this proposal, or did you just hand this off to your [contractor]?
A. Me and Rick Miller had conversations at different time intervals.
Q. But do you recall any of the specifics of them?
A. Not right now.
Report of Proceedings (Oct. 13, 2010) at 82.
This testimony falls short of showing that Miller Roofing "stepped into the role of manufacturer for the Torch down roof."
Second, there is nothing in the record that indicates that the trial court considered whether McClincy and McClincy Brothers proved that Miller Roofing "manufactured" the torch down roof after the court dismissed the breach of contract claim. We also note there was evidence that the actual manufacturer of the metal roofing material, not Miller Roofing, provided warranty coverage after the making of the written contract. This evidence further undercuts the claim that Miller Roofing stepped into the role of manufacturer of either roof.
Notwithstanding the absence of any evidence to show that Miller Roofing "stepped into the role of manufacturer for the Torch down roof, " the trial court entered the following mixed findings and conclusions:
2. There was a valid binding contract between the parties entered into on June 16, 1997. Miller Roofing manufactured the torch down roof and warranted the torch down roof against manufacturing defects for a period of 12 years and the metal roofs, together with the metal coping over the parapet walls, for 50 years.
3. Miller Roofing breached the original contract with McClincy Brothers entered into June 16, 1997 and the subsequent oral agreements entered into in January and June, 2006.
Clerk's Papers at 411 (emphasis added).
There simply is no support for either of the findings or the conclusions in the above portions of the court's decision. Accordingly, we reverse the judgment based on these unsupported findings and conclusions.
McClincy and McClincy Brothers argue that there is no evidence that Miller Roofing intended that he look elsewhere for warranty protection. This argument falls well short of his duty to provide affirmative evidence that the parties intended Miller Roofing to step into the shoes of the manufacturer. Therefore, it is not persuasive.
McClincy and McClincy Brothers also argue that Rick Miller's testimony regarding the process used to install the torch down roof is evidence that Miller Roofing was solely responsible for manufacturing the roof. This argument is unpersuasive. Nothing in Miller's testimony evidences that, at the time of contracting in 1997, Miller Roofing "stepped into the role of manufacturer for the Torch down roof." His description of the labor performed to install the roof is not such evidence.
McClincy and McClincy Brothers attempt to distinguish this case from the definition of a manufacturer in the WPLA, the Uniform Commercial Code, and cases applying the statute of repose. Because liability in this case was based on breach of contract, nothing else, none of these definitions is relevant. The contract should be interpreted based on the ordinary definition of manufacture as that is the parties' objective manifestation of mutual intent.
Respondents' Answering Brief at 23-25. Washington Pattern Jury Instruction 110.04 defines "Manufacturer" as "a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer."
Hearst Commc'ns, 154 Wn.2d at 503.
Finally, none of the findings state that there was a defect in any of the roofing materials. Thus, even if Miller Roofing was a manufacturer, there is no basis in this record for imposing liability on it for a breach of any manufacturer warranty. This lack of evidence further undermines the breach of contract claim.
As the trial court properly determined, the six-year statute of repose bars any other claims that could arise from this written contract. Thus, the question of other claims on the written contract need not be revisited on remand.
For these reasons, we reverse the judgment based on the alleged breach of the terms of the June 1997 written agreement of the parties.
Oral Contracts
Miller Roofing also argues that the trial court erred in concluding that it breached the two 2006 oral contracts for repair work because those claims were time barred. We are unable to resolve this claim on this record.
The statute of limitations requires that actions for the breach of an oral contract be commenced within three years. A civil action is commenced by the service of a copy of a summons together with a copy of a complaint. But an action is not commenced for the purpose of tolling the statute of limitations except as provided for in RCW 4.16.170. This statute states, in relevant part:
Id.
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. . . .
RCW 4.16.170 (emphasis added).
Untimely service of process is necessarily insufficient to commence a lawsuit.
Adkinson v. Digby, Inc., 99 Wn.2d 206, 209, 660 P.2d 756 (1983).
The defense of insufficient service of process can be waived if its assertion is inconsistent with the defendant's prior behavior. "The doctrine of waiver in this context is 'designed to prevent a defendant from ambushing a plaintiff during litigation either through delay in asserting a defense or misdirecting the plaintiff away from a defense for tactical advantage.'"
Harvey v. Obermeit, 163 Wn.App. 311, 323, 261 P.3d 671 (2011) (quoting King v. Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002)).
Id. (citing King, 146 Wn.2d at 424).
Here, Miller Roofing performed repair work based on oral agreements with McClincy in January 2006 and June 2006, respectively. McClincy and McClincy Brothers filed a summons and complaint alleging breach of these oral contracts on February 5, 2009. Under RCW 4.16.170, personal service on Miller Roofing or commencement of service by publication was required within 90 days of this date. McClincy and McClincy Brothers did not attempt service by publication and were not successful in personal service of Miller Roofing within that time period. On June 25, 2009, more than 90 days after the complaint was filed, Miller Roofing's attorney accepted service, but specifically reserved the affirmative defense of failure to timely commence the lawsuit.
Miller Roofing argues that the statute of limitations expired in May 2009, 90 days after this action was filed. Thus, it claims the June 2009 service of process was untimely. But Miller Roofing filed interrogatories and requests for production on March 4, 2009. The interrogatories include requests for substantive information about the case and are not limited to the defense of insufficiency of service. Therefore, Miller Roofing may have waived its insufficiency of service of process defense because of the scope of discovery in which it engaged.
It is unclear whether the trial court ever expressly ruled on this issue with the benefit of a fully developed record. On this record, we cannot say whether the affirmative defense was waived. This is an issue that the trial court should consider on remand.
Another issue that affects the statute of limitations is when the causes of action for the alleged breaches of the oral agreements accrued. Although accrual of a contract action usually occurs at the time of breach, the supreme court has held that the discovery rule applies to construction contract actions where latent defects are alleged. Specifically, the court stated:
1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 580, 146 P.3d 423 (2006).
[t]he discovery rule requires that "when a plaintiff is placed on notice by some appreciable harm occasioned by another's wrongful conduct, the plaintiff must make further diligent inquiry to ascertain the scope of the actual harm. The plaintiff is charged with what a reasonable inquiry would have discovered." A person who has notice of facts that are sufficient to put him or her upon inquiry notice is deemed to have notice of all facts that reasonable inquiry would disclose.
Id. at 581 (quoting Green v. A.P.C., 136 Wn.2d 87, 96, 960 P.2d 912 (1998) (internal citations omitted)).
Here, the trial court found that the defects in the design and construction of the roof were latent and not discoverable until late 2009:
2.18 Plaintiffs could not reasonably have known of the precise nature and extent of the defective design and construction of the scuppers attached to the upper roof, and the lower torch down roof, the defects of the metal roof, the metal coping along the top of the parapets of the torch down roof and the defects in the surface of the lower torch down roof until late December 2009 or early January 2010 when presented with a report from a roofing expert specifically identifying those design deficiencies and defects in workmanship as a proximate cause of water intrusion.
Clerk's Papers at 408.
Although Miller Roofing does not assign error to this finding, it is clear from the briefing that it challenges whether there is substantial evidence to support it. Thus, we consider whether this finding is supported by substantial evidence.
See State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995) (failure to assign error in an opening brief does not preclude review of an issue where "the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced . . . .").
We conclude that it is not supported by substantial evidence. Gerald Burke did provide a report to McClincy dated January 18, 2010, which identifies many problems with the roof. But in light of the trial court's other findings and the evidence presented at trial, this is not substantial evidence supporting the trial court's finding.
Ex. 4.
First, the trial court entered inconsistent findings of fact, none of which are challenged, that McClincy was aware of water leaks before 2010. Second, McClincy and McClincy Brothers' own brief essentially admits that McClincy discovered defects in the roof by November 2007. Third, the fact that the complaint was filed in February 2009 belies the trial court's finding that McClincy was not aware of any defects until December 2009. For these reasons, Finding of Fact 2.18 is not supported by substantial evidence.
Respondents' Answering Brief at 29.
In order to determine when McClincy and McClincy Brothers were put on notice of defects related to the 2006 repairs, it is necessary to separately examine the unchallenged findings, which are verities on appeal, related to each of those repairs.
First, the trial court found that Miller Roofing performed repairs to the torch down roof on January 23, 2006, after water began leaking into the showroom. The findings go on to state that "[w]ater continued to leak into the premises." It is unclear how soon after the repair this occurred. But on April 3, 2006, McClincy Brothers received a report from American Leak Detection recommending certain repairs be performed to the torch down roof. This could mean that McClincy and McClincy Brothers were first on notice of defects in Miller Roofing's January 2006 repair work in April 2006. If so, the February 2009 filing of this action could be timely. We leave to the trial court to resolve this issue on remand.
Next, the trial court found that Miller Roofing performed additional repairs on the torch down roof on June 3, 2006. More than a year later, in November and December of 2007, the building experienced "substantial water intrusion into the interior of the showroom . . . ." Nothing in the findings suggests that McClincy or McClincy Brothers had notice that the repairs performed in June of 2006 were immediately identifiable as inadequate. Therefore, the repair defects could have been latent until their discovery in November 2007. As such, McClincy and McClincy Brothers could have timely commenced its action on this claim by June 25, 2009, when service was accepted. The trial court should also consider this matter on remand.
Miller Roofing argues that the defects described above were not latent because McClincy is a "water restoration specialist and sophisticated owner of a commercial building [who] could easily have discovered the alleged [defects]." It cites nothing in the record supporting this characterization of McClincy's knowledge. Therefore, this argument is not persuasive.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (the appellate court need not consider an issue absent argument and citation to legal authority).
Miller Roofing also relies on deposition testimony from McClincy that the defects in the roof were "observable to the naked eye." This is a mischaracterization of McClincy's testimony:
Q. But as far as [American Leak Detection's] concerns with the design of the scupper, that's something that you can visually see the design of the scupper, correct?
A. Oh, yeah, yeah.
Q. Okay. That was something that McClincy, as a general contractor, saw at the time it was installed, correct?
A. Well, I think we all saw, you know—You know, I certainly didn't pay attention to it.
Q. Right.
A. You know, it's not something that I want to sit there and look at the gutter or scupper or something.
Q. But it's observable to the naked eye, the design, the way it's installed?
A. Yeah.
Q. Okay.
A. Unless you're in tune to that as a specialist.
Q. I understand.
A. And you're probably not going to—
Q. Probably not going to what?
A. Probably not going to say, oh, well, that's installed improperly, you know, because it looked nice. [Y]ou know. It just doesn't function properly.
Clerk's Papers at 63 (emphasis added).
In making these statements, McClincy only conceded that the repairs looked "nice" to someone who was not an expert. Whether the defects were latent is simply not addressed. Therefore, Miller Roofing's reliance on this deposition testimony is not persuasive.
Finally, Miller Roofing argues that a January 2010 expert report stating that the defects were "very visible" also shows that the defects were not latent. But it is immaterial how the defects appeared in January 2010. The issue is whether the defects were latent in 2006 when the original oral contracts were entered into. Therefore, this report is not persuasive.
In sum, this record does not resolve the question of liability for the alleged breaches of the 2006 oral agreements. These are matters that the trial court should address in the first instance. Accordingly, we reverse the judgment to the extent of these claims.
A further reason for reversal of the judgment is that damages for the various breach of contract claims are not segregated. As we have held, there is no valid cause of action for damages for breach of the June 1997 written contract. It is unclear whether and to what extent there are damages for breach of either 2006 oral contracts. This problem should also be addressed by the trial court on remand.
FAILURE TO STATE A CLAIM
For the first time on appeal, Miller Roofing claims that McClincy Brothers failed to state a claim upon which relief can be granted. Miller Roofing argues that the amended complaint does not allege that a contract existed with McClincy Brothers, but only with McClincy, and that, as a result, it should not be liable for damages incurred by McClincy Brothers. Because this argument was not preserved below and it does not fall within the narrow exceptions of Rule of Appellate Procedure (RAP) 2.5(a), we do not address it.
RAP 2.5(a)(2) allows a party to raise, for the first time on appeal, the "failure to establish facts upon which relief can be granted." But RAP 2.5(a)(2) does not provide authority for a party to argue an absence of supporting facts when it took a contrary factual position below.
Hemenway v. Miller, 55 Wn.App. 86, 97, 776 P.2d 710 (1989), rev'd on other grounds, 116 Wn.2d 725 (1991).
Here, in its motion for summary judgment below, Miller Roofing stated the following in its statement of facts:
This lawsuit arises from the installation of three roofs completed over twelve years ago. In 1996, Plaintiff McClincy Brothers Floor Covering, Inc. (hereinafter "McClincy"), acting as its own general contractor undertook a substantial renovation of its commercial building. . . . McClincy hired Miller to install torch down flat roofs over McClincy's showroom ("lower torch down roof") and the apartments ("upper torch down roof"), and a metal steep slope roof over a small section of the building ("metal roof").
Clerk's Papers at 26-27 (emphasis added).
In a heading describing the subsequent oral contracts, Miller Roofing states, "[i]n 2006, the parties entered into an oral agreement whereby Miller made repairs to the lower torch down roof." Miller Roofing stated the same in its trial brief.
Id. at 27 (emphasis added).
In view of these concessions that the agreements at issue were between Miller Roofing and McClincy Brothers, Miller Roofing cannot now argue that McClincy was the only party to these agreements. Therefore, we do not reach the substance of this argument.
We reverse and remand for further proceedings.