Bond v. Nibco, Inc.

MOTZ, Judge. , This case involves application of the principles governing the grant of summary judgment. ¹³¹ (i) On November 16, 1989, appellant, Joseph F. Bond, trading as J & E Plumbing, filed a single count complaint in the Circuit Court for Baltimore County, against appellee, NIBCO, INC., alleging breach of warranty and claiming $500,000.00 in “consequential and incidental damages.” Bond, a licensed plumber, alleged that he successfully bid on a plumbing installation contract for the Daybreak Section I Townhomes in Baltimore County, Maryland. At various times between November 20, 1985 and April 25, 1986, he purchased NIBCO washerless faucets from Northeast Plumbing Supply for use in this contract. The faucets were accompanied by a NIBCO five-year limited warranty. Bond installed these faucets in the townhouses pursuant to the plumbing installation contract.

After the townhouses were sold, in the fall of 1986, Bond began receiving complaints about the faucets leaking. These complaints continued through the spring of 1988. Bond notified NIBCO; NIBCO agreed to pay both the replacement cost of the faucets and Bond’s labor to replace the faucets. Thereafter, Bond bid on a plumbing contract for the Daybreak Section II Townhomes, which were being built by the same developer who had built the Daybreak Section I Town-homes.

Even though Bond’s bid was the lowest, he was not awarded that plumbing installation contract, allegedly because of the faucet problems experienced at the Daybreak Section I development. Bond was also informed that he would not be considered for a third plumbing contract (for the Daybreak Section III Townhomes) with this same developer because of the faucet problems. Bond further alleged that NIBCO “expressly and impliedly warranted, that the faucets were merchantable and fit for the use they were intended, and contained no undisclosed, latent defects;” that the faucets “breached said warranties because they were unfit for the use which they were intended;” that he “relied on the warranties made by the Defendants and was caused to suffer and sustain loss of profit and damage to reputation to [sic] direct and proximate result of such reliance and as a direct and proximate result of said breach by the ¹³² Defendant.” Finally, Bond alleged that the breach of warranties “directly and proximately resulted in consequential and incidental losses damages” to him in the amount of $500,000. After limited discovery, on January 31, 1992, NIBCO filed a motion for summary judgment and supporting memorandum.

In that motion and memorandum, NIBCO asserted that it was entitled to summary judgment on five grounds. NIBCO attached to its memorandum a copy of its limited warranty, which expressly excluded liability for “incidental and consequential damages.” No other exhibit and no affidavit, deposition extract, interrogatory answer, or other material of any kind was submitted in support of the motion. Bond filed a “response” to the motion on February 18, 1992. In that response, Bond asserted that there were “many disputes as to material facts.” Bond did not file any affidavit, deposition, interrogatory answer, or other material in support of his-position.

NIBCO responded to Bond’s response; no evidentiary materials were filed by NIBCO in support of its response. The trial court heard argument on the motion on April 27, 1992. Six weeks later, on June 12, 1992, the circuit court issued an order granting NIBCO’s motion for summary judgment. The lower court’s ruling, in its entirety, is: Having considered the argument of counsel and the pleadings previously filed, it is the ruling of the Court that Defendant’s Motion for Summary Judgment (paper # 20) is granted as no factual dispute exists between the parties.

Summary judgment is granted in favor of Defendant for costs. On appeal, Bond presents the following questions for review: 1. Does the issue of the applicability of the defendant’s limited warranty preclude summary judgment in this action? 2. Are lost profits and/or loss of anticipated profits, goodwill and reputation recoverable damages in Maryland?

NIBCO, however, asserts that since the lower court did not state the “specific basis” for its order, Bond “must convince ¹³³ [this Court] that all possible grounds were erroneous.” (emphasis in original). NIBCO then proceeds to argue that the grant of summary judgment was proper on the following grounds, which we have reordered, but not in any way restated: 1. Plaintiff has failed to state a claim against NIBCO for breach of express warranty because NIBCO was not a seller. 2. The Plaintiff has no claim against NIBCO for breach of an implied warranty of fitness for a particular purpose. 3.

The Plaintiff has not sufficiently alleged a breach of warranty of merchantability under Md.Com.Law Code Ann. § 2-314. 4. Because an expert is required as proof of defect in a breach of warranty case, summary judgment for the Defendant was properly entered where Plaintiff could produce no such expert. 5. The Plaintiffs claims for incidental and consequential damages are precluded by a valid exclusion. 6. Damages for “loss of goodwill” are not recoverable as a matter of law for breach of warranty.

All of the above arguments were asserted by NIBCO as a basis for its summary judgment motion. It would certainly be preferable to have before us the basis for the circuit court’s order. This would not only give us the benefit of the circuit court’s reasoning as to why summary judgment was proper but also make it clear whether the lower court found any of the asserted grounds lacked merit, i.e., did not support the grant of summary judgment. In the absence of any such discussion, we must assume that the circuit court carefully considered all of the asserted grounds and determined that all or at least enough of them as to merit the grant of summary judgment were meritorious.

We will address the first four grounds, dealing with the warranties, and then the last two, which concern damages. Before analyzing any of these issues, however, because the parties appear confused, both here and in the court below, as to the standards govern ¹³⁴ ing motions for summary judgment, we briefly address those standards. (ii) Maryland Rule 2-501 provides in pertinent part: Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.... The response to a motion ... shall identify with particularity the material facts that are disputed____ The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md.Rule 2-501(a), (b), and (e) (1998). Thus, a moving party must set forth sufficient grounds for summary judgment. Although the movant is not required to support his motion with an affidavit unless he files it “before the day on which the adverse party’s initial pleading or motion is filed”, see Md.Rule 2-501(a), he must support his various contentions by placing before the court facts that would be admissible in evidence or otherwise detailing the absence of evidence in the record to support a cause of action. See Washington Homes, Inc. v. Interstate Land Dev.

Co., Inc., 281 Md. 712, 716 , 382 A.2d 555 (1978). The Supreme Court and the Court of Appeals have, in recent years, emphasized that a trial court should not be reluctant to grant a motion for summary judgment in an appropriate case. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); King v. Bankerd, 303 Md. 98 , 492 A.2d 608 (1985); Washington Homes, 281 Md. at 717 , 382 A.2d 555 . In Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992), we discussed at some length these teachings, emphasizing that a motion for summary judg ¹³⁵ ment, although not a substitute for trial, is nevertheless not disfavored.

A proper summary judgment motion is to be granted unless the parties truly dispute a material fact, ie., the evidence is such that a fair minded jury could return a verdict for the nonmovant. Id. at 244 , 603 A.2d 1357 . For this reason, although a party opposing a proper motion for summary judgment need not file an affidavit unless “the motion ... is supported by an affidavit or other statement under oath,” see Md.Rule 2 — 501(b), the opponent cannot rely on formal denials or general allegations. King, 303 Md. at 112 , 492 A.2d 608 ; Washington Homes, 281 Md. at 717 , 382 A.2d 555 ; Seaboard Surety, 91 Md.App. at 243 , 603 A.2d 1357 .

Instead, an opponent must “identify with particularity the material facts that are disputed.” Md.Rule 2-501(b). Thus, “[wjhen a moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with ‘some precision’ that there is a genuine dispute as to a material fact,” Seaboard Surety, 91 Md.App. at 243 , 603 A.2d 1357 (emphasis added), and place before the trial court facts that would be admissible in evidence. Washington Homes, 281 Md. at 716 , 382 A.2d 555 ; Melbourne v. Griffith, 263 Md. 486, 491 , 283 A.2d 363 (1971). All of these principles remain good law; we do not disavow or limit any of them.

They are, however, all premised on a proper motion for summary judgment. A party moving for summary judgment, like a party filing any other motion, must comply with Md.Rule 2-311. See Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 171 (2d ed. 1992) (“Niemeyer”). See also Md.Rules Committee, Minutes of Oct. 17, 1981 meeting, at 48 (“Rule 2-311 ... governs all motions, including summary judgment motions”).

That is, if the summary judgment motion is based on facts not contained in the record or papers on file in the proceeding it “shall be supported by affidavit and accompanied by any papers on which it is based.” Md.Rule 2-311(d) (1993). Moreover, as the Supreme Court noted in articulating its now famous Celotex holding, even when an affidavit is not necessary ¹³⁶ ... a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323 , 106 S.Ct. at 2553 . (emphasis added). “To satisfy the requirement that there be no genuine dispute as to any material fact, the moving party must include in the motion the facts necessary to obtain judgment and a showing that there is no dispute as to any of those facts.” Niemeyer at 330 (emphasis added).

Only if a movant “bears this initial responsibility” or makes this “showing” does the party opposing the summary judgment motion have the burden of identifying “with particularity the material facts that are disputed.” Md.Rule 2-501(b). See Galindo v. Precision American Corp., 754 F.2d 1212, 1216, 1221 (5th Cir.1985). Thus, a motion for summary judgment that simply asserts that the opponent has not identified disputed facts is not sufficient. A summary judgment movant usually is not required to file an affidavit, see Md.Rule 2-501(a), but if the movant disputes facts alleged in the complaint (or answer if the movant is the plaintiff), the movant must himself identify the portions of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 , 106 S.Ct. at 2553 .

Indeed, the movant must attach “as an exhibit” to his motion “any document” that he “wishes the court to consider in ruling on the motion ... unless the document is adopted by reference as permitted by Rule 2-303(d) or set forth as permitted by Rule 2-432(b).” Md.Rule 2-311(c) (1993). With these principles in mind, we turn to the questions at issue in this case. (in) NIBCO’s initial argument as to the propriety of the summary judgment motion is that Bond failed to state a claim against NIBCO for breach of an express warranty. On ap ¹³⁷ peal, Bond has apparently conceded the absence of any express warranty claim.

Bond makes no argument on that point in its appellate brief, and in response to direct questions at oral argument, acknowledged this concession. Since on appeal Bond makes no claim that summary judgment was improper as to the express warranty claim, we affirm the grant of judgment as to it. NIBCO’s second argument is that Bond “has no claim against NIBCO for breach of an implied warranty of fitness for a particular purpose.” This is phrased as, and is more properly treated as, the basis for a motion pursuant to Md. Rule 2-322(b)(2) (1993) (dismissal is proper because the complaint fails “to state a claim upon which relief can be granted”). Md.Code Ann., Com.Law § 2-315(1) (1992) provides: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

The official comment to this portion of Maryland’s codification of the Uniform Commercial Code explains: A “particular purpose” differs from the ordinary purpose for which goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and to uses which are customarily made of the goods in question. Com.Law § 2-315 cmt. 2. All that Bond alleged in his complaint was that he purchased NIBCO faucets from a plumbing supply company, that he installed them in new townhouses, that the faucets leaked and that by NIBCO’s “own admissions ... cartridges inside the faucet[s] were defective causing the leak problem.” Bond nowhere alleged that he bought the faucets for a “particular purpose” that in any way differed from the “ordinary purpose” for which these faucets might be used, let alone that NIBCO, ¹³⁸ which manufactured but did not sell these faucets to him, knew of this “particular purpose.” Accordingly, Bond’s complaint fails to state a claim for breach of implied warranty for a