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Thacker v. Menard

January 28, 1997

DARRELL THACKER AND SHARON THACKER,

PLAINTIFFS-APPELLANTS,

v.

MENARD, INC.,

DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLEE,

v.

NATIONAL PLAN SERVICE, INC.,

THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Illinois.

No. 94-4065-JPG J. Phil Gilbert, Chief Judge.

Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

SUBMITTED JULY 16, 1996 *fn*

DECIDED JANUARY 28, 1997

When a deal seems too good to be true, it probably is. Darrell and Sharon Thacker learned this lesson when they purchased materials to build a vacation home from Menard, Inc. ("Menards"), at a price that was "dirt cheap compared to the regular lumberyards." The sales personnel at Menards assured the Thackers repeatedly that the materials were all they needed to build the house, with the exception of six or seven items, but this turned out not to be the case. Instead, when all was said and done, the Thackers wound up spending more than ten times the original price quoted by Menards to complete the home. They responded by suing Menards in diversity, but this effort also failed when the district court granted summary judgment for Menards. We agree that summary judgment was proper on the Thackers' contract-based theories, but we conclude that they presented enough to survive summary judgment on their claim based on the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 ("Consumer Fraud Act"). We therefore reverse and remand for further proceedings.

I.

The Thackers began their project by obtaining a large book from National Plan Service, Inc., that contained a plan for a Vacation A-Frame Home LakePoint, which included blueprints with all the specifications for building the house. Book in hand, they went to Menards on May 17, 1992, to shop for the necessary materials. Once there, they spoke to Mark Rhinehart, one of the salesmen on duty that day, and they asked him how much it would cost them to purchase what they needed to build the house. Rhinehart looked at the book, found the plan number, and entered it into the store's computer, which then generated a six-page estimate of what was needed and how much it would cost. Each page of the estimate contained the following disclaimer:

This is an estimate. It is given only for general price information. This is not an offer and there can be no legally binding contract between the parties based upon this estimate. The prices stated herein are subject to change depending upon the market conditions. The prices stated on this estimate are not firm for any time period unless specifically written otherwise on this form. The availability of materials is subject to inventory conditions. MENARDS IS NOT RESPONSIBLE FOR ANY LOSS INCURRED BY THE CUSTOMER WHO RELIES ON PRICES SET FORTH HEREIN OR ON THE AVAILABILITY OF ANY OF THE MATERIALS STATED HEREIN. All information on this form, other than price, has been provided by customer and Menards is not responsible for any errors in the information on this estimate, including but not limited to quantity, dimension and quality. Please examine this estimate carefully. MENARDS MAKES NO REPRESENTATIONS, ORAL, WRITTEN OR OTHERWISE THAT THE MATERIALS LISTED ARE SUITABLE FOR ANY PURPOSE BEING CONSIDERED BY THE CUSTOMER. BECAUSE OF WIDE VARIATIONS IN CODES, THERE ARE NO REPRESENTATIONS THAT THE MATERIALS LISTED HEREIN MEET YOUR CODE REQUIREMENTS. The Thackers did not read this language, either when the estimate was generated or at any time prior to agreeing to purchase the materials. It was relatively inconspicuous, appearing on the form in type approximately one-half the size of the type on the remainder of the form. The bottom-line price on the estimate was $13,151.87.

This estimate was significantly lower than the two estimates the Thackers had already received. Rhinehart assured them, however, that the estimate contained all the materials they would need (with the exceptions not at issue here). When the Thackers, suspicious of the low price, interrogated him for a half-hour, Rhinehart explained the price on the basis of Menards' high volume method of doing business. The Thackers went home, thought about matters for a week, and returned to Menards on Sunday, May 24th. At that time, they discussed the estimate with employee John Melbrech, who also assured them that the package was complete. Again, the Thackers went home, and again they returned on May 31, 1992. During this third consultation, Mr. Thacker sought and received the same assurances from Rhinehart. At the end of the conversation on the 31st, the Thackers placed their order for the materials listed on the estimate.

When the materials were delivered to the Thackers' construction site in Robinson, Illinois, they learned that Menards' high volume was not the only reason for the low estimate. The list, despite Rhinehart's and Melbrech's assurances, was incomplete, in that it omitted items like the two-by-twelve beams necessary to build the center of the house and some of the fixed glass windows called for in the plans. In the end, the Thackers claimed that they had to spend $147,398.40--more than ten times the original $13,151.87 bid--trying to build the home (excluding the construction of the foundation, floor coverings, plumbing, heating and electric wiring, which the Thackers were handling separately).

To recoup the additional monies, the Thackers brought a five-count complaint against Menards (a citizen of Wisconsin for diversity jurisdiction purposes) in federal district court. They alleged breach of contract, promissory estoppel, breach of express warranty, breach of warranty for a particular purpose, and violation of the Consumer Fraud Act. Menards then brought a third-party complaint against National Plan Service, Inc., for indemnification in the event it was found liable to the Thackers. Since the Thackers alleged damages in excess of $50,000, their claims nominally satisfied the requirements of diversity jurisdiction. We note, however, that it remains unclear how, through the purchase of additional supplies and the alteration of their construction plans, the Thackers suffered this level of damages. Nevertheless, we cannot say at this juncture that it appears "to a legal certainty" that the jurisdictional amount of 28 U.S.C. sec. 1332(a) cannot be satisfied. See St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 289 (1938). See also Wellness Community-National v. Wellness House, 70 F.3d 46 (7th Cir. 1995). It is also worth remarking that the Thackers may have costs assessed against them if they ultimately recover less than $50,000 after adjudication on the merits. See 28 U.S.C. sec. 1332(b).

As it turned out, the case was short-lived, because the district court granted summary judgment in favor of Menards on July 24, 1995. The court found that the express disclaimer printed on the estimate defeated the Thackers' effort to prove a written contract between themselves and Menards and that it precluded any express or implied warranty. Furthermore, the court rejected the Thackers' argument that an oral contract arose through the conversations of the two salesmen with them, looking again to the printed disclaimer on the estimate form. With respect to the Consumer Fraud Act claim, the court acknowledged that lack of intent on Menards' part did not preclude a claim, but it found that the salesmen's statements were merely "opinions," and thus not actionable. The Thackers appealed from the entry of that order, but in Thacker v. Menard, Inc., No. 95-2978 (7th Cir., decided May 13, 1996), this Court dismissed the appeal for lack of jurisdiction, because the ...


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