Chancellor Development Co. v. Brand, 66198

• Decision Date: 21 March 1995
• Docket Number: No. 66198,66198
• Parties: 27 UCC Rep.Serv.2d 1250 CHANCELLOR DEVELOPMENT COMPANY, d/b/a Chancellor Farms, Plaintiff, v. Louis A. BRAND, III and Debra Brand, Defendants/Third-Party Plaintiffs/Appellants, v. JACOB MOBILE HOMES, INC., Third-Party Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 672

896 S.W.2d 672

27 UCC Rep.Serv.2d 1250

CHANCELLOR DEVELOPMENT COMPANY, d/b/a Chancellor Farms, Plaintiff, v. Louis A. BRAND, III and Debra Brand, Defendants/Third-Party Plaintiffs/Appellants, v. JACOB MOBILE HOMES, INC., Third-Party Defendant/Respondent.

No. 66198.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 21, 1995.

Rehearing Denied April 20, 1995.

William L. Hetlage, Jones, Korum & Jones, Clayton, for appellant.

Robbye Hill Toft, St. Louis, for respondent.

CRANE, Presiding Judge.

Third-Party Plaintiffs, Louis and Debra Brand (hereinafter plaintiffs) brought this action against Third-Party Defendant, Jacob Mobile Homes, Inc. (Jacob) in two counts seeking damages for breach of contract and negligence in the sale and delivery of a mobile home. The trial court granted Jacob's motion for summary judgment on both counts. Plaintiffs appeal, asserting that genuine issues of material fact precluded summary judgment. We affirm.

In count one of their third-party petition, plaintiffs alleged that they had entered into a contract with Jacob to purchase a mobile home, that the mobile home was delivered in a nonconforming and damaged condition, and that plaintiffs notified Jacob of the nonconformity, rejected delivery, and tendered the home back to Jacob. As damages for this breach of contract, they sought return of their downpayment, sales tax, and interest payments as well as reimbursement for installation and other expenses in the total amount of $13,000. In count two plaintiffs reincorporated the allegations relating to their contract with Jacob and further alleged that Jacob or its agents negligently delivered the mobile home before the slab and driveway were prepared, resulting in damage to the mobile home.

Jacob denied the allegations and moved for summary judgment. As one of its grounds it stated that it had repaired the damage to the home and that plaintiffs had accepted those repairs and their acceptance constituted full accord and satisfaction. In support of its motion, Jacob filed affidavits and exhibits.

Plaintiffs filed a memorandum in opposition supported by affidavits of the two plaintiffs and the subsequent purchaser of their mobile home. They asserted that summary judgment was improper because substantial fact questions remained. The trial court granted the motion.

For their sole point relied on plaintiffs assert:

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THIRD PARTY DEFENDANT JACOB MOBILE HOMES, WHERE THE AFFIDAVITS AND DEPOSITIONS ON FILE SHOWED GENUINE ISSUES OF MATERIAL AND FUNDAMENTAL FACTS, INCLUDING THE DAMAGE TO THE MOBILE HOME, THE REPAIR OF THE MOBILE HOME, AND DEMAND FOR REPAIR OF THE MOBILE HOME; AND THE EVIDENCE, EXAMINED IN A LIGHT MOST FAVORABLE TO THIRD PARTY DEFENDANT BRANDS, SUPPORTED JUDGMENT IN FAVOR OF THE BRANDS AS A MATTER OF LAW.

The contentions advanced in this point are too general to raise an issue on appeal. Rule 84.04(d); Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 858-59 (Mo.App.1993). These statements do not set forth with sufficient specificity "wherein and why" the trial court erred. In particular they fail to present: the disputed facts; why the disputed facts are material; and the legal theory upon which the trial court should have relied in granting judgment in their favor as a matter of law. See id. Further, phrasing a point in terms of "whether" an action is error is not proper form. Schnucks Carrollton Corp. v. Bridgeton Health and Fitness, Inc., 884 S.W.2d 733, 741 n. 1 (Mo.App.1994). In addition, all of plaintiffs' contentions on appeal with respect to both the contract count and the negligence count are made in the argument under this one point. Where an appellant contends that an order which disposes of multiple counts based on different causes of action is erroneous, a separate point of error with respect to each count is advisable. Gould v. Missouri State Bd. of Registration for the Healing Arts, 841 S.W.2d 288, 290 n. 3 (Mo.App.1992). Moreover, separate issues should be stated in separate points. In re Marriage of Cohen, 884 S.W.2d 35, 37 n. 1 (Mo.App.1994). We will nevertheless gratuitously address the arguments in the brief which are arguably encompassed by this point.

Summary judgment shall be entered where the moving party has demonstrated, through the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). ¹ The propriety of summary judgment is purely an issue of law. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When considering an appeal from an order granting summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. Id. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. The review of a grant of summary judgment is equivalent to reviewing a court-tried proceeding; if the judgment is sustainable under any theory, it must be sustained. City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 34 (Mo.App.1979).

A summary judgment movant who is a "defending party" need not controvert each element of a non-movant's claim to establish a right to summary judgment. Rather a "defending party" may establish that right by showing (1) facts that negate any one of the claimant's element facts; (2) that non-movant does not have sufficient evidence to support a finding of the existence of any one of the claimant's elements; or (3) no genuine dispute exists as to each of the facts necessary to support the movant's properly-pleaded affirmative defense. ITT Commercial Fin., 854 S.W.2d at 381. "Regardless of which of these three means is employed by the 'defending party,' each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper." Id.

A.

Plaintiffs contend that in count one they stated a claim for relief for breach of contract based on a delivery of nonconforming goods. In response to Jacob's claim that plaintiffs accepted the mobile home after it was repaired, plaintiffs assert they accepted the mobile home under the reasonable assumption that the defects would be cured and that they revoked their acceptance under § 400.2-608 when the defects were not seasonably cured.

Section 400.2-608 RSMo 1994 provides for rejection after acceptance, as follows:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

However, § 400.2-606(1)(c) RSMo 1994 provides that any act by a buyer inconsistent with seller's ownership will constitute acceptance of goods. Accordingly, if, after proper rejection, a buyer uses goods in a manner inconsistent with the seller's ownership, that use nullifies the recission and constitutes an acceptance of the goods. Stephens Indus., Inc. v. American Express Co., 471 S.W.2d 501, 505 (Mo.App.1971); see also, Hays Merchandise, Inc. v. Dewey, 78 Wash.2d 343, 474 P.2d 270, 273 (1970). Once a buyer accepts a tender, the seller acquires a right to its price on the contract terms § 400.2-607(1) and cmt. 1 RSMo 1994. ² A buyer's actions which are inconsistent with seller's ownership are "many and varied" and include "making payments, taking possession of the goods, use of the goods, repairing, working on them, attempts to resell them, and dealing with them in other varied ways." J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL CODE § 8-2, at 398 (3d ed. 1988). Thus a buyer's acts of pricing, displaying, advertising, and selling goods after giving notice of revocation were inconsistent with seller's ownership and constituted acceptance. Hays, 474 P.2d at 273.

A buyer's revocation of acceptance under the Uniform Commercial Code (UCC) is necessarily the buyer's recognition that the property as to which acceptance is revoked belongs to the seller. Delhomme Indus., Inc. v. Houston Beechcraft, Inc., 735 F.2d 177, 181 (5th Cir.1984). A buyer's act of dominion over goods, including sale of the goods, is inconsistent with a buyer's claim of revocation of acceptance. Id. at 181 (citing Hays, 474 P.2d at 273).

In Delhomme, a buyer, prior to inspection, executed a contract for the purchase of an aircraft from the seller. Several days after delivery the buyer noticed problems with the aircraft and notified the seller. The seller attempted to make repairs to eliminate the reported problems. The buyer notified the seller of remaining problems. The seller, in attempting to repair one of the engines, discovered that the engine was heat-damaged. It took the position that the damage was caused by the buyer's improper use and refused to do further repair without payment from the buyer for the engine repair. The buyer offered to resell the aircraft to the seller "as is" for less than the purchase price. The seller accepted. Later the buyer filed an action to recover the damages. The trial court awarded...