Palmer, et al. v. Gentek Building Products, Inc.

Docket No. 20180450
Oral Argument: Wednesday, June 19, 2019 2:45 PM

Docket Info

Title
Richard Palmer and Angela Palmer, Plaintiffs and Appellees
v.
Gentek Building Products, Inc., Defendant and Appellant
Case Type
CIVIL APPEAL : CONTRACTS
Appeal From
Case No. 2015-CV-00123
Northwest Judicial District, Williams County
Paul W. Jacobson

Parties' Statement of Issues

  • Appellant

    1.Whether the district court erred when it concluded the Palmers were not Class Members, their claim was not barred, and found it had jurisdiction over this dispute in light of the Final Order and Judgment approving class-action settlement by a federal court in Eliason et. al. v. Gentek Building Products, Inc. et. al. Case No. 1:10cv2093 (August 1, 2013, N.D. Ohio).
    2.If, and only if, the district court had power to review and issue an order contrary to Eliason, whether the district court abused its discretion by awarding the Palmers $80,379.00 in attorneys’ fees when the jury determined they were not entitled to consequential damages and entered a verdict in the amount of $10,791.
    3.If, and only if, the district court had power to review and issue an order contrary to Eliason, whether the district court abused its discretion by awarding the Palmers their costs for retaining an expert who never testified and whose report was not submitted as evidence.

  • Appellee 1

    [1] The court did not err in concluding that it had jurisdiction over the parties and this case because Eliason was not binding on the Palmers and had no preclusive effect on this case.
    [2] The court did not abuse its discretion in making an attorneys’ fees expense award of $80,379 to the Palmers under the Magnuson-Moss Warranty Act.
    [3] It was not an abuse of discretion to award the $1,000 appraisal fee from Seitz Appraisal as a statutory disbursement to the Palmers.


Summary

Gentek Building Products, Inc. appeals after a jury awarded Richard and Angela Palmer damages of $10,791 plus interest, and the district court awarded the Palmers’ attorney fees of $80,379, in addition to taxing costs and disbursements.
In 2003, the Palmers installed Gentek Driftwood steel siding covered by a lifetime limited warranty for their home in Williston. In September 2011, paint began to peel on siding installed on the south side of their home. The Palmers submitted a warranty claim with Gentek. Although Gentek had discontinued producing Driftwood, it provided the Palmers the option of a cash settlement or replacement with a substitute under the warranty. The Palmers chose to have their siding replaced with a substitute, but Gentek had difficulty finding a contractor willing to perform the warranty work due to the oil boom.
In 2014, the Palmers sued Gentek, alleging Gentek breached the warranty by failing to replace the Palmers’ defective steel siding and sought attorney fees under the Magnuson-Moss Warranty Act. Gentek moved the district court for summary judgment twice, asserting that a federal district court order approving a class-action settlement barred the Palmers’ claim as a matter of law, which the court denied. The Palmers moved for partial summary judgment on liability, which the court granted, and the case proceeded to trial on damages. After a two-day trial, the jury entered a verdict of $10,791 to replace siding on the south wall of the house. The district court subsequently granted $80,379 in attorney fees and also Palmers’ costs for procuring its appraisal expert.
On appeal, Gentek argues the district court erred when the court concluded the Palmers were not class members, the claim was not barred, and the court had jurisdiction over the dispute despite a federal district court’s final order and judgment approving a class-action settlement. Gentek also argues the court abused its discretion in awarding the Palmers’ attorney fees and in awarding the Palmers their costs for retaining an expert who never testified and whose report was not submitted as evidence.


Briefs

Filing Date Description
04/03/2019 APPELLANT BRIEF View
05/03/2019 APPELLEE BRIEF View
05/17/2019 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Scott Kenneth Porsborg - 04904
APPELLANT PRIVATE PRACTICE Brian Schmidt - 07498
APPELLEE PRIVATE PRACTICE Lisa Marie Six - 07232
APPELLEE PRIVATE PRACTICE Garth H Sjue - 03873

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 12/27/2018 NOTICE OF APPEAL : 12/27/2018
2 12/27/2018 ORDER FOR TRANSCRIPT : 12/31/2018
3 12/28/2018 Rec'd $125 filing fee
4 12/31/2018 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
5 12/31/2018 Notice served on Scott K. Porsborg, Brian D. Schmidt, Kent
6 12/31/2018 ANNOUNCED DISQUALIFICATION : McEvers, Lisa K. Fair
7 01/04/2019 Order for Transcript received from Appellee's
8 01/30/2019 ELEC. RECORD ON APPEAL DATED JANUARY 29, 2019(ENTRY NOS. 1 - 155, 157 - 167,169 - 179, 181 - 189,
9 01/30/2019 #191 - #202, #205 - #212, (Not Rec'd -156, 168, 180, 190, 203, 204, 206 - 211)
10 02/08/2019 ELECTRONIC TRANSCRIPTS DATED 9-4-18 AND 9-5-18 & C.O.S.
11 02/22/2019 ELECTRONIC TRANSCRIPTS DATED APRIL 13, 2015, MAY 25, 2017 & C.O.S.
12 02/25/2019 1ST ELEC. SUPP. RECORD ON APPEAL DATED FEBRUARY 22, 2019 (ENTRY NOS. 267-269)
13 04/03/2019 APPELLANT BRIEF View
14 04/03/2019 APPELLANT APPENDIX
15 04/05/2019 Rec'd $25.00 e-filing surcharge for ATB
16 04/08/2019 Rec'd ATA non-substantive corrections
17 04/08/2019 Rec'd $58.50 for ATA (117 pages over) (receipt #26992)
18 04/10/2019 Rec'd 6 copies of ATB back from Central Duplicating
19 04/10/2019 Rec'd 6 copies of ATA back from Central Duplicating
20 05/03/2019 APPELLEE BRIEF View
21 05/03/2019 APPELLEE APPENDIX
22 05/08/2019 Rec'd $62.50 e-filing surcharge for AEB & AEA (receipt #27045)
23 05/10/2019 Rec'd 6 copies of AEB & AEA from CSD
24 05/17/2019 REPLY BRIEF View
25 05/22/2019 NOTICE OF ORAL ARGUMENT SENT
26 05/22/2019 NOTICE OF RESCHEDULED ORAL ARGUMENT SENT
27 05/23/2019 SITTING WITH THE COURT : Cruff, Bradley Allen
28 05/23/2019 Rec'd 6 copies of RYB from Central Duplicating