DeGroft v. Lancaster Silo Co., Inc., 1528

CourtCourt of Special Appeals of Maryland
Writing for the CourtBLOOM
Citation72 Md.App. 154,527 A.2d 1316
Parties, 4 UCC Rep.Serv.2d 20 Homer DeGROFT v. LANCASTER SILO COMPANY, INC. ,
Docket NumberNo. 1528,1528
Decision Date01 September 1986

Page 154

72 Md.App. 154
527 A.2d 1316, 4 UCC Rep.Serv.2d 20
No. 1528, Sept. Term, 1986.
Court of Special Appeals of Maryland.
July 13, 1987.

[527 A.2d 1317]

Page 158

Leonard J. Levine (Lisa Grosscup, on brief), Baltimore, for appellant.

Thomas A. Appel, Sykesville, for appellee.

Argued before MOYLAN, BLOOM and WENNER, JJ.

BLOOM, Judge.

In March, 1983, appellant, Homer DeGroft, filed suit in the Circuit Court for Carroll County against appellee, the Lancaster Silo Co., Inc., asserting causes of [527 A.2d 1318] action for (Count 1) breach in 1975 of a written contract to construct a silo on his property; (Count 2) negligence in constructing the silo and preparing its footings; and (Count 3) breach of a subsequent oral contract to build a new silo after it became necessary to tear down the original one because it was unsafe.

Appellee moved for summary judgment as to all counts and, in September 1986, the court granted that motion. The court determined that the Uniform Commercial Code (UCC), Title 2 of the Md. Commercial Law Code Annotated, was applicable to the breach of contract claims because a sale of goods was involved. The first count was held to be barred because it was not filed within four years of the occurrence of the breach of the contract, as required by § 2-725 of the UCC; recovery under the third count was deemed to be unavailable because the oral agreement constituted a modification to the original contract for the sale of goods and, as such, was required by § 2-209 of the UCC to be in writing. Finally, the court determined appellee was entitled to judgment

Page 159

as a matter of law as to the second count because the only injury appellant alleged he sustained as a result of appellee's negligence was economic and an action for pure commercial or economic loss resulting from negligence in performing a contract will not lie.

We agree with appellant that the court erred in granting summary judgment against him as to the first and third counts. We shall not address the question of the propriety of the grant of summary judgment on the second count (negligence) for the simple reason that appellant did not present or argue the issue in his brief. Rule 1046 f provides that "This Court may decline to hear or consider oral argument on any legal proposition or question of fact not presented in the briefs." (Emphasis added.) In Pride Mark Realty, Inc. v. Mullins, 30 Md.App. 497, 510, 352 A.2d 866, cert. denied, 278 Md. 730 (1976), we cautioned that we would "no longer indulge litigants by considering questions tangentially raised or mentioned in passing by brief or oral argument." (Emphasis in original.) We there held that when an issue, although raised below, is not raised on appeal, "we are as completely denied the right to review such question as if the appeal were premature or had not been taken at all." Id. at 511, 352 A.2d 866. See also Hyde v. State, 228 Md. 209, 218, 179 A.2d 421 (1962), cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); Comptroller of Treasury v. Aerial Products, Inc., 210 Md. 627, 644-45, 124 A.2d 805 (1956).

Summary Judgment--Standard for Granting

A grant of summary judgment is appropriate only where a two-fold test is met. The movant for summary judgment must clearly demonstrate the absence of any genuine issue of material fact and must also demonstrate that he is entitled to judgment as a matter of law. Md.Rule 2-501(a). See also Dietz v. Moore, 277 Md. 1, 4, 351 A.2d 428 (1976); Castiglione v. The Johns Hopkins Hospital, 69 Md.App. 325, 332, 517 A.2d 786 (1986); Metropolitan Mortgage Fund, Inc. v. Basiliko, 44 Md.App. 158, 162, 407 A.2d 773

Page 160

(1979), aff'd, 288 Md. 25, 415 A.2d 25 (1980); Vanhook v. Merchants Mutual Insurance Co., 22 Md.App. 22, 25, 321 A.2d 540 (1974). A fact is "material" if it somehow affects the outcome of the case. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Lynx, Inc. v. Ordnance Products, Inc., 281 Md. 712, 717, 382 A.2d 555 (1978). The court, in ruling on a motion for summary judgment, must consider the pleadings, depositions, answers to interrogatories, admissions and affidavits submitted by the parties. Md. Rule 2-501(e).

At a hearing on a motion for summary judgment, the function of the judge is "much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict ... require him to determine whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law." Vanhook, supra, 22 Md.App. at 25, 321 A.2d 540 (quoting Knisley v. Keller, 11 Md.App. 269, 272-73, 273 A.2d 624, (cert. [527 A.2d 1319] denied, 261 Md. 726 (1971)). The court does not attempt to decide any issue of fact or credibility, but only whether such issues exist. Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 178, 274 A.2d 121 (1971); White v. Friel, 210 Md. 274, 285-86 123 A.2d 303 (1956). In ruling on a motion for summary judgment, all disputed facts and inferences therefrom should be viewed in the light most favorable to the party against whom the motion is made. DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 445, 418 A.2d 1191 (1980); Berkey v. Delia, 287 Md. 302, 306, 413 A.2d 170 (1980); Barb v. Wallace, 45 Md.App. 271, 275, 412 A.2d 1314 (1980).


The facts, viewed in the light most favorable to appellant, are as follows:

On June 5, 1975, the parties executed a one page, two-sided printed form contract labeled "Silo Construction Order." On the front of the form, the parties are referred to as

Page 161

Lancaster Silo Co., Inc. and "landowner." Appellee was "authorized to construct a standard Lancaster silo" 30 feet by 80 feet in size on appellant's farm. Several of various boxes were checked off to indicate the "standard Lancaster silo accessories" with which the silo was "to be equipped," among them a distributor, chute, ladder and 31 redwood hinged doors. The silo was to be "delivered anytime" and "erected as soon as the [silo's] footing is in." The contract further specified that the "landowner agrees to pay [appellee] for such construction" a "total" of $17,256.00. No allocation between the cost of labor and materials is included. Spaces were provided to list the cost of the silo and other "items," but they were left blank.

The parties' signatures appeared at the bottom of the front side of the form, beneath a paragraph indicating the agreement constituted their "full and entire contract."

The other side of the form contract is headed "General Provisions." In several numbered paragraphs the parties are referred to as "Buyer" and "Seller." Paragraph 6 states in part that the "Seller assures the Buyer that the silo will be built within the average field practices of the National Silo Association and stands behind the materials and workmanship of the silo and associated equipment manufactured by [appellee] or its manufacturing agents."

Other paragraphs refer to the "construction" or "erection" of the silo (e.g., Buyer's responsibility for "any unsafe condition on the construction site") and "materials" or "goods" (e.g., "any sales tax upon the sale of goods ... shall be paid by the Buyer").

Attached to the contract, which was filed with the complaint as appellant's "Exhibit A," was a May 21, 1975, document prepared by W. Roger Roop on "Patz Material Handling Equipment" stationery entitled, "Estimate for Homer DeGroft." The cover page of that document contained the following:

Estimate for Homer DeGroft

30 ft. by 80 ft. silo with aluminized
                steel roof, silo ladder, fill platform,
                multi flo silage spreader & 9 inch
                galvanized fill pile ..................... $18,000.00
                70 ft. stave chute ; $2.00 extra per
                ft........................................ 140.00
                31-hinged redwood doors ; $5.00
                each ..................................... 155.00
                60 ft. safety cage ; $3.25 per ft......... 195.00
                Freight .................................. 350.00
                Room & Board ............................. 280.00
                5% discount, early order ................. 956.00
                5% discount with $15,000.00 with or-
                der ...................................... 908.00

Page 162

The rest of the May 21 document is immaterial; it merely referred to items of equipment not purchased by appellant. Also attached as a part of "Exhibit A" was an invoice listing at $17,256.00 the price of "30x80 Silo, Pipe and Dist."

Roop, allegedly an agent of appellee, did subsequently advise appellant on the size [527 A.2d 1320] and type of footing needed for the silo, the amount of concrete required, and the pouring of the concrete. Additionally, he supervised the installation of the footing and leveled and smoothed the concrete. Appellee then erected the silo in the fall of 1975.

A few days after the silo was built, appellant noticed that several of the silo's hoops had ruptured. Appellee promptly, and to appellant's satisfaction, made repairs to the hoops.

Sometime in 1977, appellant's neighbors mentioned to him that the silo appeared to be off-center and "wasn't standing true."

Page 163

During the next three or four years appellant contacted appellee's representatives on several occasions regarding the leaning of the silo. Representatives of appellee made several trips to view the silo. They assured appellant that there was nothing wrong with the silo and that it was sound. They further stated that "they would continue to watch it."

In late 1981 or early 1982, the leaning became more pronounced. An agent of appellee who observed the silo in August, 1982, noted that it was leaning dangerously. He orally promised appellant that Lancaster would build a new silo without cost to appellant if appellant would empty the existing silo and arrange to make a crane available to take the silo down. Appellee was to supervise the tearing down of the silo. Appellant, in reliance on this...

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