Gladhart v. Oregon Vineyard Supply Co.

• Citation: 164 Or. App. 438,994 P.2d 134
• Decision Date: 22 December 1999
• Docket Number: No. CV97346; CA A100805
• Court: Oregon Court of Appeals
• Parties: Peter GLADHART and Emily Gladhart, husband and wife, Wild Plum Farms, Inc., an Oregon corporation, dba Winter's Hill Vineyard, Appellants, v. OREGON VINEYARD SUPPLY COMPANY, an Oregon corporation, and Mark Benoit, Respondents, and State of Oregon, Defendant.

994 P.2d 134

164 Or. App. 438

Peter GLADHART and Emily Gladhart, husband and wife, Wild Plum Farms, Inc., an Oregon corporation, dba Winter's Hill Vineyard, Appellants, v. OREGON VINEYARD SUPPLY COMPANY, an Oregon corporation, and Mark Benoit, Respondents, and State of Oregon, Defendant.

Nos. CV97346; CA A100805

Court of Appeals of Oregon.

Argued and Submitted May 27, 1999.

Decided December 22, 1999.

James H. Marvin, Portland, argued the cause for appellants. With him on the briefs were Eric Carter, and Marvin, Chorzempa & Associates, P.C.

Thomas M. Christ, Portland, argued the cause for respondents. With him on the briefs was Mitchell, Lang & Smith.

Scott A. Shorr, and Stoll, Stoll, Berne, Lokting & Shlachter, P. C., Portland, filed a brief amicus curiae for Oregon Trial Lawyers Association.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

Plaintiffs appeal from an ORCP 67 B judgment dismissing their claims against defendants Benoit and Oregon Vineyard Supply Company.² This case is about which statutes of limitations apply to plaintiffs' claims arising out of the purchase of grape plants from defendants. We reverse, in part, and otherwise affirm.

In describing the parties' underlying dispute, we state the facts as alleged in plaintiffs' amended complaint: Plaintiffs allege that, in February 1991, they purchased 3,200 grape plants from defendants that they then planted in their existing vineyard. The plants were "guaranteed" to be free of phylloxera, a "microscopic aphid" that lives on grape vine roots. "Phylloxera infestations cause substantial damage to a vineyard including decreased grape production in early years and the death of the grape vines as the infestation progresses." In September 1997, plaintiffs filed their original complaint in which they alleged that the plants that they had purchased from defendants were infested with phylloxera. This appeal is from the dismissal of plaintiffs' claims against defendants in their amended complaint under ORCP 21. That complaint alleges separate claims based on the following theories of recovery: (1) negligence per se; (2) negligence; (3) breach of contract; (4) products liability; (5) breach of express warranty; (6) breach of the implied warranty of fitness for a particular purpose; (7) breach of the implied warranty of merchantability; (8) negligent misrepresentation; and (9) breach of an express warranty under ORS chapter 72.

Defendants moved to dismiss each of plaintiffs' claims pursuant to ORCP 21 A(9) on the ground that they were filed after the four-year statute of limitations in ORS 72.7250 had run, or, in the alternative, that they were filed after the six-year statute of limitations in ORS 12.080 had run. Defendants also moved to dismiss several claims under ORCP 21 A(8) on the ground that they failed to allege facts sufficient to constitute a claim. In its letter opinion, the trial court ruled on the motions:

"I have reviewed defendants' motions under ORCP 21. The transaction described in plaintiffs' complaint is governed by ORS 72.1010 et seq. (Uniform Commercial Code-Sales). Under ORS 72.7250, a disappointed buyer of goods must commence an action within 4 years from the date the breach occurs. Plaintiffs allege that they were sold defective grape plants. Consequently the breach occurred upon sale of the plants. ORS 72.7250(2) provides that the aggrieved party's lack of knowledge of the breach does not toll the running of the statute of limitations. The purported warranty i.e. `phylloxera free grape plants' does not explicitly extend to future performance of the goods. ORS 72.7250(2). Plaintiffs' claims are time-barred. Defendants' first motion is granted. The balance are moot." (Emphasis in original.)

Accordingly, the trial court entered a judgment dismissing plaintiffs' claims against defendants.

On appeal, plaintiffs make two assignments of error. First, they contend that "[t]he court erred in ruling that `[t]he transaction described in plaintiffs' complaint is governed by ORS 72.1010 et seq.' " Specifically, plaintiffs argue:

"The [Uniform Commercial Code's] UCC's statute of limitations found in ORS 72.7250 does not bar Plaintiffs' negligence per se, negligence, negligent misrepresentation, product liability, nor breach of warranty claims. The UCC specifically limits its scope so as to not impair or repeal statutory causes. In fact, it explicitly excludes from its purview, statutes regulating sales to consumers and farmers. Consequently, the UCC is not so pervasive as to bar Plaintiffs' product liability claim, nor its negligence per se claim which is based upon a statute that regulates the sale of feed, fertilizers, and seeds. The appropriate statute of limitations for these claims is the product liability statute of limitations, ORS 30.905, and arguably ORS 12.110 for the negligence per se claim. As each of those statutes provides for a two year period which does not begin to run until Plaintiffs reasonably knew or should have know[n] of the injuries suffered, and Plaintiffs did not discover their injuries until October of 1995, Plaintiffs timely filed their lawsuit. Thus [,] the trial court must be reversed[,] and this case remanded for trial.

"The Oregon products liability statute, ORS 30.905, is also the applicable statute of limitations for Plaintiffs' negligence, strict liability, and breach of warranty claims, as such claims are deemed product related. Therefore, Plaintiffs' timely filed these claims, and this case must be reversed and remanded.

"Alternatively, the applicable statute of limitations for all of Plaintiffs' claims is ORS 12.080(3) which applies to actions concerning interference or injury to real property.[³] Because Plaintiffs seek to recover for the decimation of their entire vineyard, real property, ORS 12.080(3) is controlling.

This statute provides a six year limitation and includes the `discovery rules.' As explained above, given the benefit of the `discovery rule' Plaintiffs have timely filed. Thus, the trial court must be reversed[,] and this case remanded for trial.

"Most importantly[,] Plaintiffs' negligence per se, negligence, negligent misrepresentation, and product liability claims do not sound in contract. These claims sound in tort. As such, the UCC statute of limitations cannot be applied to these claims, the tort statute of limitations must be applied, and this case must be reversed and remanded for trial."

Second, plaintiffs assert that the trial court erred in ruling that ORS 72.7250 bars plaintiffs' Uniform Commercial Code warranty claims because the warranties extended to future performance. Defendants dispute the contention that any warranties made by them extended to future performance. They counter that the Uniform Commercial Code statute of limitations, ORS 72.7250, applies to all of plaintiffs' claims and that, because plaintiffs did not file their complaint within four years of the delivery of the grape plants, their claims are time barred.

We review the trial court's dismissal pursuant to ORCP 21 A(9) "to determine whether the pleading on its face shows that the action was not timely filed." Allen v. Lawrence, 137 Or.App. 181, 186, 903 P.2d 919 (1995), rev. den. 322 Or. 644, 912 P.2d 375 (1996). "[W]e assume the truth of all allegations, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party." Jaqua v. Nike, Inc., 125 Or.App. 294, 296, 865 P.2d 442 (1993).

We begin by determining whether defendant's sale of grape plants is governed by ORS chapter 72. ORS 72.1020 provides:

"Unless the context otherwise requires, ORS 72.1010 to 72.7250 apply to transactions in goods; they do not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor do ORS 72.1010 to 72.7250 impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers."

"Goods" are defined as "all things * * * which are moveable at the time of identification to the contract for sale." ORS 72.1050(1). A "contract for sale" includes a present sale of goods, which consists of passing title "from the seller to the buyer for a price." ORS 72.1060(1). We hold that the sale of the grape plants as alleged in plaintiffs' complaint was a "contract" for the sale of "goods" that is governed by ORS chapter 72.

Nonetheless, plaintiffs argue that ORS 72.7250 does not bar their negligence per se claim.⁴ We need not decide if plaintiffs' argument is correct. In their negligence per se claim, plaintiffs allege that the "[v]iolation of Oregon Statutory Law is negligence per se" but they cite no particular statute. However, during oral argument to the trial court, plaintiffs' counsel referred to ORS chapter 633, apparently in the context of plaintiffs' negligence per se claim. In their brief, plaintiffs quote 633.651(1)(b) and assert that defendants owe plaintiffs a duty under that statute.

We question whether plaintiffs can now rely on ORS 633.651(1)(b) in light of the fact that they did not raise that specific statute to the trial court. Nevertheless, ORS 633.651(1)(b) does not assist plaintiffs. ORS 633.651 provides, in part:

"(1) No person shall sell, offer for sale, expose for sale or transport for use in planting in the State of Oregon any agricultural or vegetable seed:

"* * * * *

"(b) That bears a label that is false or misleading[.]"

Additionally, ORS 633.511 provides, in part:

"As used in ORS 633.511 to 633.750:

"(1) `Agricultural seed' means fiber, forage and grass crop seed and any other kind of seed or bulblet commonly recognized in this state as agricultural seed or as lawn or turf seed, and mixtures of any of such seeds, as may be determined by the Director of Agriculture.

"* * * * *

"(17) `Vegetable seed' means the seed of those crops usually grown in Oregon in gardens or on

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