Mandeville
Mandeville v. Onoda Cement Co.
Opinion
Lead Opinion
MEMORANDUM **
The Estate of Richard Mandeville appeals an order granting summary judgment in favor of Defendant Onoda Cement Company. Mandeville also conditionally appeals the amount of the bill of costs. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and vacate and remand in part.
1. Breach of Contract
Mandeville first claims that the district court erred in granting summary judgment on count I for breach of contract. This claim lacks merit. The record contains no evidence of any contract, either directly between Onoda and Mandeville or between Onoda and Mandeville’s employer, Fairway.
Alleging breach of contract should not be construed as including breach of warranty theories. See, e.g., Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477, 481 (9th Cir.1995) (“common law warranty claims sound in tort”) (Arizona law); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 897 (Tex.App.2002) (“Because Ellis’s claim is based on the receipt of defective goods, he has a breach of warranty cause *419 of action, not a breach of contract case.”); cf. Amundsen v. Ohio Brass Co., 89 Nev. 378 , 513 P.2d 1234, 1235 (1973) (“No one doubts that, unless there is…