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Arundel Valley, LLC

Supreme Court of Maine

December 1, 2016

ARUNDEL VALLEY, LLC, et al.

          Argued: May 3, 2016

         On the briefs:

          Catherine R. Connors, Esq., and Michael J. Daly, Esq., Pierce Atwood LLP, Portland, for appellant Branch River Plastics, Inc.

          Timothy J. Bryant, Esq., and Jonathan G. Mermin, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellee Arundel Valley, LLC

         At oral argument:

          Catherine R. Connors, Esq., for appellant Branch River Plastics, Inc.

          Timothy J. Bryant, Esq., for appellee Arundel Valley, LLC

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] This appeal involves a complex construction dispute between Arundel Valley, LLC, the developer of a facility for a butter manufacturer, and Branch River Plastics, Inc., a manufacturer and distributor of insulated roofing panels. After a six-day trial in the Business and Consumer Docket, a jury found in Arundel Valleys favor on its claims that Branch River breached implied warranties by supplying defective roofing panels. Branch River appeals from the courts (Horton, J.) denial of its motion for a new trial, arguing that (1) it was unfairly surprised by certain expert testimony at trial and (2) the court erroneously declined to adjudicate whether Branch River had disclaimed implied warranties. Because we agree with Branch Rivers second contention, we remand the case for the court to determine whether Branch Rivers purported disclaimer of implied warranties was effective.

         I. BACKGROUND

         [¶2] On December 28, 2012, Arundel Valley and Kates Homemade Butter, Inc., filed a twelve-count complaint in the Superior Court (York County) against Branch River and other defendants alleging, inter alia, defects in roofing panels that Branch River had manufactured and supplied to Arundel Valley for a construction project. Branch River was named as a defendant in seven counts.[1] After the case was transferred to the Business and Consumer Docket, the court (Horton, J.) ultimately entered summary judgments in Branch Rivers favor on five of those counts.[2] Two counts remained for adjudication at trial, with Arundel Valley as the sole plaintiff and Branch River as the sole defendant. In those counts, Arundel Valley claimed that Branch River had breached the implied warranties of merchantability (Count XI) and fitness for a particular purpose (Count XII) by providing defective roofing panels.[3]

         [¶3] Before trial, pursuant to M.R. Civ. P. 26(b)(4), Arundel Valley designated James B. DeStefano, a professional engineer, as an expert witness. At trial, DeStefano testified, on direct examination, about two types of manufacturing defects in the panels that would affect the roofs performance: (1)manufacturing defects that created gaps between the panels, [4] and (2)manufacturing defects involving gaps between foam components inside each panel.[5] Branch River did not object to this testimony.

         [¶4] During redirect, counsel for Arundel Valley asked DeStefano about a "third report, " referring to a letter from DeStefano to an Arundel Valley representative that described "open joints between sections of [] foam within the panels." Counsel for Branch River expressed concern that Branch River had not received the "third report, " and that it was surprised at DeStefanos testimony describing defects inside each panel. Arundel Valleys attorney argued that the letter was attached to a pretrial motion in limine and that Arundel Valley had otherwise made Branch River aware that DeStefano would testify about both types of defects. After some discussion, ...


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