Submitted: September 21, 2016
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
WOLLMAN, Circuit Judge.
City School District (the District) filed suit against ACI
Building Systems, LLC (ACI), a company that manufactured and
supplied roofing materials that were used in the construction
of a high school building. The complaint alleged that the
building's roof was not watertight and that ACI had
failed to repair or replace the roof, despite its promises
and obligation to do so. The district court granted ACI's
motion to dismiss the claims of fraud and constructive fraud
and later granted summary judgment in favor of ACI on the
remaining claims of breach of warranty, breach of contract,
and negligence. We affirm.
2003, the District entered into a construction contract with
Southeast Building Concepts, Inc. (SBC), for SBC to construct
a new high school building. SBC served as the general
contractor for the project and issued a performance and
payment bond that named the District as the obligee. Steve
Elliot served as the District's architect.
began working on the project in late April 2003 and
thereafter entered into an agreement with ACI, under which
ACI agreed to supply SBC with certain metal building and
roofing materials to be used in the construction of the high
school building. ACI was not a party to the construction
contract between SBC and the District, and ACI did not
install the roof. That work was completed by SBC or others as
directed by SBC.
school's roof was not properly installed and has never
been watertight. In a December 2004 letter addressed to the
president of SBC and copied to the District's
superintendent, Elliot's architectural firm expressed
concerns that SBC had not yet repaired "several major
roof leaks that [had been] brought to the job
superintendent's attention several months ago." An
ACI employee also discovered problems related to the
roof's installation while inspecting the roof in March
2005. In an email to another ACI employee, he wrote: "I
did a preliminary inspection on this roof yesterday-3/23/05.
Absolutely pitiful. . . . I don't know if it will ever
pass inspection. This is primarily FYI and to have a record
in file." SBC later assured ACI that it had made the
architectural firm issued a certificate of substantial
completion on March 28, 2005, and the District took
possession of the building that June. In February 2006, ACI
and SBC issued a 10-year warranty on the roof that provides,
[T]he total liability and warranty of [SBC] shall be only to
provide such workmanship as is necessary to repair or replace
any defective material or workmanship without cost to the
original owner, and the total liability and warranty of [ACI]
shall be only to repair or replace any material without cost
to the original owner.
warranty further provides:
2.) This warranty shall not be enforceable if the roof system
was not erected in accordance with ACI Building Systems, Inc.
erection drawings . . . .
3.) This warranty does not apply to cover any damages or
leakage caused by or associated with . . . roof penetrations,
trim, flashing, evidence of repair work done by unqualified
or un-authorized personnel, or any modifications or