UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIANE BRENDSEL,
Plaintiff-Appellee,
and
LELAND C. BRENDSEL,
Plaintiff,
No. 00-1742
v.
MARVIN LUMBER AND CEDAR
COMPANY, d/b/a Marvin Lumber and
Doors, Incorporated,
Defendant-Appellant.
DIANE BRENDSEL,
Plaintiff-Appellant,
and
LELAND C. BRENDSEL,
Plaintiff,
No. 00-1743
v.
MARVIN LUMBER AND CEDAR
COMPANY, d/b/a Marvin Lumber and
Doors, Incorporated,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-99-1373-A)
Argued: December 3, 2001
Decided: March 8, 2002
2 BRENDSEL v. MARVIN LUMBER AND CEDAR
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Henry Boyd, WINTHROP & WEINSTINE,
P.A., St. Paul, Minnesota, for Appellant. Jack McKay, SHAW PITT-
MAN, Washington, D.C., for Appellee. ON BRIEF: Donald J.
Brown, WINTHROP & WEINSTINE, P.A., St. Paul, Minnesota;
Raymond D. Battocchi, GABELER, BATTOCCHI & GRIGGS,
L.L.C., McLean, Virginia, for Appellant. Erica S. Simpson, SHAW
PITTMAN, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Diane Brendsel, in a trial by jury, was awarded damages of
$70,000 against Marvin Lumber and Cedar Co. for breach of contract.
The district court entered judgment on the verdict, which it declined
to set aside, from which action Marvin appeals. We affirm.
I.
Mrs. Brendsel and her husband contracted and built their McLean,
Virginia home in 1988. Windows and doors manufactured by Marvin
were used in the construction of the house. A wood preservative, sold
by PPG, commonly known as PILT, was used by Marvin to treat the
BRENDSEL v. MARVIN LUMBER AND CEDAR 3
windows and doors. Unfortunately, PILT permitted rotting of these
units. Marvin customers began complaining about the premature rot
in the early 1990’s. Marvin began testing the windows and PILT to
confirm the problem, and subsequently sued PPG in April 1994.1
In an effort to remedy the premature rotting of its product, Marvin
dealt with customers as problems arose through manufacturing and
delivering replacement windows to affected homeowners. In addition,
Marvin often supplemented the replacement windows with reasonable
installation and painting costs. This policy of providing installation
and painting costs changed in the Spring of 1999 after Marvin’s initial
legal setback in its suit against PPG. First, the new written policy del-
egated power to the distributors to handle customer complaints; this
new policy offered rebated windows, as opposed to free replacements,
and eliminated reimbursement. Second, the policy specified that exist-
ing written commitments by Marvin would be honored.2
Mrs. Brendsel found deterioration in her windows and doors in
1997. She reported her problem and was told that Marvin would take
steps to respond. Marvin corresponded with Mrs. Brendsel in various
letters. The first from Marvin, dated September 26, 1997, was in
response to Mrs. Brendsel’s initial complaint. The letter acknowl-
edged receipt of Mrs. Brendsel’s complaint and then stated:
As part of the resolution process, we would like to do an
inspection of the Marvin units at your residence. Once that
inspection is complete and the gathered information is
returned to our office, the results will be analyzed by our
research team. Based on that analysis, we will then be work-
ing with you to develop an appropriate resolution.
1
Marvin suffered an adverse judgment in its suit against PPG which is
now on appeal.
Judgment was entered prior to trial against Mr. Brendsel, which is not
an issue in this appeal.
2
"Existing commitments Marvin Windows and Doors have in writing
will be honored. If Marvin has provided a formal written proposal to
repair or replace certain units (including labor where appropriate), that
commitment would be honored."
4 BRENDSEL v. MARVIN LUMBER AND CEDAR
After an inspection in January of 1998, Marvin determined that 37
window and door units needed to be replaced. Its second letter fol-
lowed on February 24, 1998. It read:
Dear Ms. Brendsel,
This letter is to confirm our intent to provide replacement
product for your residence at 8900 Gallant Green, Mclean,
VA 22102 . . . . [a listing of the units followed]
At this time, Marvin Windows & Doors will need your
assistance in finding contractors that can submit their bid for
the replacement of the above listed product. Please obtain
two bids for our analysis and subsequent labor resolution. I
have enclosed three Contractor Bid Forms for this purpose.
A completed bid form must accompany or represent any bid
submitted for our review. The product can be ordered after
an appropriate labor resolution has been established . . . .
I am also sending you a Customer Satisfaction Form. The
purpose of this form is to confirm that you are satisfied with
the replacement product and the work the contractor did.
When the job is complete and if you are satisfied with the
contractor’s work, please sign and date this form and have
your contractor do the same. . . .
Mrs. Brendsel obtained bids for removal and replacement of the
damaged units from Benchtop Carpentry (Benchtop) and SEI Design
and Build (SEI). Both of these bids did not comply with the specific
units Marvin intended to replace.3 Mrs. Brendsel relayed these bids to
Marvin. Marvin responded on July 23, 1998, stating that they still
intended to provide replacement product for the majority of windows
Mrs. Brendsel had requested and requesting a rebid by Benchtop.
Marvin’s representative, Goetz, was in direct contact with Benchtop
3
Benchtop’s bid was under inclusive — it failed to provide for replace-
ment of all of the windows Marvin specified. SEI’s bid was over inclu-
sive — it provided for replacement of every window in Mrs. Brendsel’s
home.
BRENDSEL v. MARVIN LUMBER AND CEDAR 5
4
concerning this rebid. He also asked Mrs. Brendsel to allow two
additional contractors to inspect her home, which she agreed to do. In
November 1998, Goetz told Mrs. Brendsel that the only issue remain-
ing was one of window storage.5
During these communications, Marvin changed its policy regarding
replacement units and installation costs. On March 26, 1999, Marvin
did, however, offer to replace the window and door units, in addition
to offering $6,976 toward labor costs.6 Mrs. Brendsel considered this
amount inadequate and subsequently sued Marvin for breach of con-
tract and breach of implied warranty of merchantability.
The district court held that the Brendsels’ breach of implied war-
ranty claim was barred by the U.C.C.’s four-year statute of limita-
tions. It allowed the breach of contract claim, which proceeded to
trial, and the jury awarded Mrs. Brendsel $70,000 in damages. Marvin
appeals the judgment entered on this jury award. Mrs. Brendsel cross-
appeals, claiming the district court erred in dismissing her U.C.C.
claim. Since we affirm the judgment of the district court on the breach
of contract issue, we do not address Mrs. Brendsel’s cross-appeal.
II.
This court has jurisdiction under 28 U.S.C. §1291. We review de
novo a district court’s denial of a Rule 50 motion for judgment as a
matter of law. Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th
Cir. 2001). We view the facts in the light most favorable to the non-
moving party. Chaudhry v. Gallerizzo, 174 F.3d 394, 404-05 (4th Cir.
1999). In doing so, if there is sufficient evidence for a reasonable jury
to have found in Mrs. Brendsel’s favor, we affirm the jury verdict.
Lack, 240 F.3d at 259. Judgment as a matter of law is proper only
4
Goetz also requested Benchtop bid on security wiring replacement
and window storage.
5
Goetz never mentioned to Mrs. Brendsel that the rebid or negotiations
with Benchtop were unreasonable or unproductive.
6
The $6,976 for labor amounts to $109 per replaced unit. A $700 per
unit cost was claimed by Goetz, a Marvin representative, as a reasonable
installation figure in his testimony.
6 BRENDSEL v. MARVIN LUMBER AND CEDAR
when there can be but one reasonable conclusion as to the proper
judgment. Chaudhry, 174 F.3d at 405.
The issues in this case are whether a contract existed and whether
it was breached. Evidence was presented to the jury concerning the
elements of a contract7 and damages for breach.8 Moreover, the jury
instructions carefully delineated the requirements of a contract, spe-
cifically the nature of a valid offer, the need for a meeting of the
minds on disputed terms, the adequate modes of acceptance, the need
for consideration, and the proof needed as to damages for breach of
contract. As noted in Charbonnages de France,
Disputes about whether a contract has or has not been
formed as the result of words and conduct over a period of
time are quintessentially disputes about "states of mind,"
since they involve not only the subjective intentions had by
the several parties but what "states of mind," what under-
standings, their manifestations of intention may have
7
Evidence was presented of an offer, acceptance, and consideration: an
offer, evidenced through the various letters and verbal communications
between Marvin and Mrs. Brendsel; an acceptance, evidenced through
Mrs. Brendsel’s actions in allowing contractors to inspect her house and
in fully complying with Marvin’s requests; and consideration, in expend-
ing numerous hours obtaining the bids and showing her house to these
contractors, not to mention the damage to the windows and doors and the
satisfaction of her claim.
8
One Gugino testified to the damage amount. The jury also heard testi-
mony relating to installation and painting costs from Benchtop. Even if
the district court may have technically erred in permitting Gugino’s testi-
mony, his name not appearing on the witness list as an expert but only
as a person knowledgeable about the facts as to "(1) the deteriorated win-
dows/doors in the Brendsel home; and (2) the cost of replacement and
installation for non-Marvin windows of the Brendsel home," we are of
opinion that Marvin had fair notice of the substance of Gugino’s testi-
mony well in advance of the trial. All of the parties to this litigation had
known about the damage to the windows and doors for about three years
before the trial, and, in any event, this is not a case which should be
reversed because of technical non-compliance with a rule or procedural
order which had no real effect on the litigation. We do not think any sub-
stantial right of Marvin was violated. See 28 U.S.C. § 2111.
BRENDSEL v. MARVIN LUMBER AND CEDAR 7
induced in others. These subjective states and objective
manifestations of intention present interpretive issues tradi-
tionally understood to be for the trier of fact.
Charbonnages de France v. Smith, 597 F.2d 406, 414-15 (4th Cir.
1979).
In our opinion the case at hand is a classic case, as described just
above in Charbonnages, with evidence manifested by writings, con-
versations, and actions, as well as a description of the damage to the
windows and doors which brought about this suit. We are further of
opinion that the verdict of the jury is supported by the evidence, the
jury was properly instructed, and the district court did not commit
reversible error.
The judgment of the district court is accordingly
AFFIRMED.