Opinion
10-P-1966
10-28-2011
RAQUEL WELSCH & another. v. HENDERSON-JOHNSON CO., INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Raquel and Wilfried Welsch, husband and wife, appeal from a Superior Court judgment dismissing claims they brought against Henderson-Johnson Co., Inc. (HJC), the company that installed a roof deck during the construction of their new home. Several months after the home was completed, the Welsches noticed that the roof was leaking. When the problem remained unresolved, they brought this action to recover damages caused by the leaks. On crossmotions for summary judgment, the judge ruled in favor of HJC, and this appeal ensued. For the reasons that follow, we affirm.
The Welsches settled claims against the architect, the roof installer, and various insurers.
Background. We summarize the relevant facts from the summary judgment record in the light most favorable to the Welsches. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The Welsches received a building permit from the town of North Andover on August 18, 2000, to construct a house on their property. In consultation with their architect, and after considering a design proposal prepared by HJC, the Welsches hired HJC to install a Loadmaster roof deck. On August 8, 2001, Mr. Welsch signed an installation contract, which specified that approval of the contract was 'subject to the Loadmaster warranty provision set forth in section 1.08 (Loadmaster Warranty 10 years) and the specifications set forth in the project proposal for the Welsch residence.' The warranty provision was not included with the contract.
A roof deck is an underlying support structure on which an exterior watertight finished roof is attached.
The roof deck was installed in the fall of 2001. Thereafter, in the beginning of December, 2001, another company installed the finished roof. In February, 2002, the Welsches received the limited warranty agreement referenced in the installation contract. Among other provisions, the warranty stated that the roof deck was not intended to be watertight and that HJC bore no liability for any consequential damages caused by either leaks or faulty installation. Specifically, the warranty stated that HJC's sole obligation in the event of faulty installation was to repair the roof deck or install a new deck (at HJC's option), and that the Welsches were obligated to notify HJC of any claims within thirty days after they actually did notice, or should have noticed, any problems with the installation. Mr. Welsch signed the warranty and returned it to HJC.
Paragraph 7.a. provides: 'Under no circumstances shall Loadmaster or [HJC] be liable for damages to the interior of the building, for consssequential [sic] damages, . . . or for any other cost, expense, or loss, except the cost of repair of the roof deck under the terms and conditions set forth herein.'
Not long afterward, in the spring and summer of 2002, the Welsches noticed leaks that resulted in water damage to their home. Although the Welsches claim that they contacted their architect, who in turn purportedly contacted HJC, it is undisputed that the Welsches did not personally notify HJC within the thirty-day period specified by the limited warranty.
Discussion. We review the allowance of a motion for summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). Here, our review is facilitated by the judge's well-reasoned memorandum of decision and order in which she determined that the warranty was supported by adequate consideration and was enforceable under Georgia law, the choice of law specified by the agreement. The judge reasoned that because the Welsches did not notify HJC within thirty days after the problems appeared, they had no remedy against HJC. Additionally, the judge observed that, even assuming that the Welsches had given HJC proper notice of a claim, any damages would still be excluded from coverage because the warranty specifically excludes coverage for '[w]ater leaks regardless of the cause thereof.' Consequently, the judge concluded, any claim by the Welsches related to leaks was barred by the warranty.
As the judge observed, 'The Limited Warranty mandates repairs for problems as to which an Owner has made a claim. To make a claim, the Owner must give notice within thirty days 'following the date on which Owner discovers or should have discovered the facts on which such claim is based.' The Limited Warranty further provides: '[T]his Limited Warranty shall not apply or be effective as to any claim for which such notice is not given.' The summary judgment record contains no evidence that the Welsches gave [HJC] notice of a claim, and the plaintiffs therefore are not entitled to any remedy against [HJC].'
On appeal, the Welsches claim, as they did below, that the limited warranty was not supported by adequate consideration. However, as the judge explained, the consideration given to the Welsches in return for the limitation of their remedies was a promise by HJC to repair the roof deck under certain circumstances for a period of ten years. As the judge correctly noted, this constituted adequate consideration.
The Welsches remaining arguments, that the warranty is not valid because (1) it was not fully executed, and (2) an HJC employee made oral misrepresentations about the content of the warranty, are raised for the first time on appeal. As such, we need not consider them. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting from Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County N.A., 405 Mass. 420, 421 n.2 (1989) ('An issue not raised or argued below may not be argued for the first time on appeal').
The claims were not raised until the Welsches filed a motion for reconsideration, supported by an affidavit, after the judge issued her summary judgment decision.
We observe, nevertheless, that there is no basis in the record for the Welsches' assertion that a genuine issue of material fact exists with regard to whether the warranty was executed. The record includes fax transmittals establishing that Loadmaster sent fully executed copies of the limited warranty to all parties. The Welsches have not contested this evidence.
Additionally, the claim that Mr. Welsch signed the warranty without reading it because he relied on alleged misrepresentations made by an HJC employee concerning the value of the warranty fails as matter of law. It is undisputed that 'one signing an instrument without reading it is bound by its terms, unless it appears that he could not read, and was for this reason imposed upon.' Grimsley v. Singletary, 133 Ga. 56, 58 (1909). See New Bedford Inst. for Sav. v. Gildroy, 36 Mass. App. Ct. 647, 658 (1994).
Judgment affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),