Opinion
CIVIL ACTION NO. 01-11533-RWZ.
July 16, 2003.
MEMORANDUM OF DECISION
In 1991, plaintiffs Roger and Louise Neuhoff, purchased for installation at their home sixty windows manufactured and sold by defendants Marvin Lumber and Cedar Company and Marvin Windows of Tennessee, Inc. In 1994, plaintiffs discovered that many of the windows were decaying and they apparently complained to defendants in 1998. After an inspection, defendants agreed to replace the defective windows at no cost to plaintiffs, and did forthwith replace 33 windows. Plaintiffs assert, and defendants deny, that in the course of the 1998 discussions, defendants' representative promised that the remaining windows would similarly be replaced when necessary. In mid-2000, plaintiffs told defendants that the remaining windows had indeed deteriorated to the point that they needed immediate attention. Defendants took the position that any claims against them were barred by the statute of limitations; but, nonetheless, they would provide replacement windows to plaintiffs at a 32% discount off the list price. Believing that the parties had made an oral agreement for free replacement windows, plaintiffs rejected the discount offer and on July 31, 2001, brought suit.
The amended complaint contains four counts: breach of express and implied warranties (Count 1), breach of an oral contract to provide replacement windows (Count 2), promissory estoppel (Count 3), and violation of Mass. Gen. L., ch. 93A (Count 4). Defendants have moved for summary judgment, primarily on the ground that Counts 1, 2, and 4 are time-barred and no contract existed as alleged in Count 3.
Certain dates are not in dispute. Plaintiffs did purchase the windows in 1991 and they discovered the alleged defects in 1994. The parties also agree that under the Uniform Commercial Code, Mass. Gen. L. ch. 106, § 2-725, claims for breach of warranty are subject to a four-year statute of limitations and accrue upon tender of the goods "except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered." Mass. Gen. L. ch. 106 § 2-725(2). This law suit was filed in July 2001, some ten and a half years after the windows had been purchased and approximately seven and a half years after plaintiffs discovered that they were defective. Plaintiffs claim that defendants had given a ten-year express warranty, which presumably provided that the windows were guaranteed to function as intended for ten years. Even if there was such a warranty, which defendants deny, the exception under Section 2-725(2) does not apply. Under Section 2-725(2), if discovery of the breach was possible before the end of the ten-year period, as it was in this case since plaintiffs discovered the defects in 1994, then the requirement that discovery "must await" future performance is not met and the exception does not apply. Coady v. Marvin Lumber and Cedar Co., 167 F. Supp.2d 166, 170 (D. Mass. 2001). Therefore, plaintiffs' claims for implied and express warranties are barred unless they are saved by application of the doctrine of equitable estoppel.
Equitable estoppel requires plaintiffs to show that "defendants made representations they knew or should have known would induce plaintiffs to put off bringing a suit and that plaintiffs did in fact delay in reliance on the representations." White v. Peabody Construction Co., Inc., 434 N.E.2d 1015, 1023 (Mass. 1982). Defendants, by letters dated February 13, 1998 and March 16, 1998, unquestionably promised to replace certain designated windows and they did replace them. However, there is no written evidence that defendants also promised to replace the remaining windows.
In any case, the initial decaying of the windows in 1994 should have put plaintiffs on notice that they had claims against defendants. In addition, given defendants' explicit refusal in June 2000 to provide more windows free of charge as alleged in the complaint, plaintiffs were then on notice that defendants would not live up to any of the alleged representations and that a law suit was their only remedy. The further delay of more than a year between defendants' refusal and the filing of this lawsuit was certainly not induced by defendants. The doctrine of estoppel does not extend the limitations period indefinitely and unreasonably. Thus, even with the invocation of equitable estoppel, plaintiffs' claims for breach of express and implied warranties are time-barred and no promise by defendants can resurrect them. Plaintiffs' Chapter 93A claim derives from the alleged breach of warranties and likewise accrues when those claims accrued. Therefore, this claim is also time-barred.
Plaintiffs' breach of contract claim, premised on defendants' alleged oral promises to replace all defective windows, also fails. Rather than constituting a new contract, promises to repair or replace are generally viewed as remedies. New England Power Co. v. Riley Stoker Corp., 477 N.E.2d 1054, 1058 (Mass.App.Ct. 1985). The rationale is that:
Plaintiff's argument is in essence that by failing to remedy its first breach, the defendant committed a second breach, giving rise to a brand new cause of action and starting anew the limitations period. The fallacy of this approach is apparent. If we adopted plaintiff's position, limitations periods could be extended for virtually infinite time. We doubt that the Legislature intended such a result.Id. (citation omitted.). Therefore, plaintiffs' breach of contract claim fails.
Finally, plaintiffs promissory estoppel claim cannot succeed. "An essential element under the promissory estoppel theory is that there be an unambiguous promise and that the party to whom the promise was made reasonably relied on the representation."Pappas Industrial Parks, Inc. v. Psarros, 511 N.E.2d 621 (Mass.App.Ct. 1987). A party bringing a promissory estoppel action "must prove all the necessary elements of a contract other than consideration." Rhode Island Hospital Trust National Bank v. Varadian, 647 N.E.2d 1174, 1179 (Mass. 1995). Testimony concerning oral representations in direct contradiction to a written contract and unsupported by any evidence is insufficient to create a jury question as to whether a "promise" had been created. See Trent Partners and Associates, Inc. v. Digital Equipment Corp., 120 F. Supp.2d 84, 105 (D. Mass. 1999) (citation omitted).
Here, plaintiffs allege that pursuant to their February 1998 discussions, defendants stated that they would replace only the windows in an advance state of deterioration, but eventually they would replace all of the defective windows. (Complaint T 9). Notably, defendants' letters to plaintiffs during the same period focus only on replacing the 33 windows, and do not mention an intent or agreement to replace the remaining windows. A customer satisfaction form, dated April 9, 1999, signed by Simon Hickman on behalf of plaintiff Roger Neuhoff, states that the job is "100% Complete." Finally, a handwritten, undated note from Simon Hickman to the defendants' representative, Greg Muirhead, observes that the remaining windows are deteriorating and will "probably have to be dealt with soon[.]" The note is ambiguous; it does not detail how the remaining windows will be handled, and it certainly does not communicate that the defendants had promised to replace the windows free of charge. The writings, concurrent and subsequent to the oral discussions between the parties, only reflect an agreement as to the 33 windows. There is no evidence, written or otherwise, to support plaintiffs' assertions that defendants "promised" to replace the remaining windows.
The Motion for Summary Judgment is allowed. Judgment may be entered for defendants.