Grus v. Patton, 57451

• Decision Date: 05 June 1990
• Docket Number: No. 57451,57451
• Parties: 14 UCC Rep.Serv.2d 135 Donald GRUS, Plaintiff-Appellant, v. Donald PATTON, d/b/a Patton Bros. Tractor and Nursery, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 936

790 S.W.2d 936

14 UCC Rep.Serv.2d 135

Donald GRUS, Plaintiff-Appellant, v. Donald PATTON, d/b/a Patton Bros. Tractor and Nursery Defendant-Respondent.

No. 57451.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 5, 1990.

David L. Baylard, Union, for plaintiff-appellant.

Nicholas G. Gasaway, Jr., Union, for defendant-respondent.

JOSEPH J. SIMEONE, Senior Judge.

This is an appeal from an order and judgment entered on September 5, 1989 by the Circuit Court of Franklin County dismissing the plaintiff-appellant's four count amended petition to recover damages for an allegedly defective tractor which was purchased for $27,800 from respondent, Donald Patton, d/b/a Patton Brothers Tractor & Nursery Co. Two counts of the petition were dismissed because appellant's action was not filed within the applicable statute of limitations and two counts were dismissed for failure to state a claim upon which relief can be granted. We affirm.

On January 22, 1980, appellant, Donald Grus, entered into a written contract with Patton Tractor and Implement Company for the purchase of a Deutz farm tractor for $27,800. After a "limited" use of the tractor, Grus started to experience "numerous problems." His petition alleged that the air conditioner did not work, the tractor did not start, the "heads" leaked, and the steering did not work. After experiencing these problems, Grus notified Patton of the problems and Patton "attempted to correct said problems during each calendar year following the purchase through 1988, but was unable to do so...." As a result of these defects, Grus alleged he suffered damages. On February 22, 1988, an attorney for Grus wrote to Patton, stating that numerous problems were encountered with the tractor, and that Mr. Grus elected to revoke his acceptance of the tractor pursuant to § 400.2-608 of the Uniform Commercial Code.

Grus then filed an original petition for $37,800 damages on August 23, 1988, over eight years after the purchase. The petition was in two counts: (1) revocation of acceptance of goods pursuant to the UCC, § 400.2-608, R.S.Mo., 1986, and (2) breach of implied warranty of merchantability pursuant to the UCC, § 400.2-314. After a motion to dismiss and an answer was filed, Grus was given leave to file an amended petition. On August 1, 1989, Grus' amended petition was filed. The amended petition is in four counts. Count I pleaded the theory of revocation of acceptance, pursuant to § 400.2-608, R.S.Mo.; Count II pleaded a tort theory of "negligent repair" alleging that Patton "negligently performed" repairs and did not use that "degree of care which an ordinarily careful and prudent person should have used;" Count III pleaded the theory of res ipsa loquitur alleging that Patton "had control of the tractor during the time the repairs were performed"; and Count IV alleged breach of implied warranty of merchantability, rendering the tractor unfit for general farm use.

On August 24, 1989, Patton moved to dismiss pursuant to Rule 55.27, contending that Counts I and IV were barred by the four-year statute of limitations embodied in § 400.2-725, ¹ that Count II does not state a claim because Grus has "no cause of action" for "negligent repair," in that Patton's liability, if any, for defective repair is based either on breach of contract or warranty, not tort, or because plaintiff pleaded generally, not specifically; and that Count III fails to state a claim because all the elements of res ipsa are not satisfied under the facts, and the doctrine is "simply not applicable."

On September 5, 1989, the court sustained the respondent's motion to dismiss the first amended petition. The appellant elected to stand on his amended petition, and in due time, Mr. Grus appealed.

On appeal, appellant contends that the trial court erred in sustaining the motion to dismiss Count I because § 400.2-725 applies only to actions for breach of a contract for sale and not to a revocation of acceptance under § 400.2-608, which allows revocation of acceptance "within a reasonable time" after the buyer discovers or should have discovered the ground for revocation, and for the reason that Patton's acts and representations estop it from asserting the statute of limitations. He also contends that the court erred in dismissing Count II because the allegations are sufficient to state a claim, and erred as to Count III because Count III states a claim under the res ipsa doctrine. As to Count IV, appellant contends the court erred in dismissing Count IV because Patton's acts and representations estop it from asserting the four-year statute of limitations as a defense.

As to Count II, appellant argues that his petition states a claim in "negligent repair," a tort, not contract, and he relies on Sharp Bros. v. American Hoist and Derrick Co., 714 S.W.2d 919 (Mo.App.1986), wherein the Western District held that where defendant pleaded negligent design and the manufacturer "undertook to devise, recommend and direct modifications" of a crane and did so negligently, the petition pleaded a claim in negligent repair which was not barred by § 400.2-725.

Respondent, inter alia contends that the court did not err in denying Grus leave to file any further amended petitions because no request to do so was made and Grus elected to stand on the allegations of the first amended petition.

Since this appeal emanates from a judgment of the trial court dismissing plaintiff's petition because of the statute of limitations and for failure to state a claim upon which relief may be granted, we must view the petition liberally and favorably to the plaintiff, giving him the benefit of all inferences fairly deducible from the facts stated, and assume that all the facts alleged are true. Further, the petition is to be liberally construed so as to obtain substantial justice. If the alleged facts and inferences, viewed most favorable to the plaintiff, show any grounds for relief, the petition is not to be dismissed. Sharp Bros. v. American Hoist & Derrick Co., supra, 714 S.W.2d at 921; Burckhardt v. General Am. Life Ins. Co., 534 S.W.2d 57, 63 (Mo.App.1976); Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985); Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978).

Initially, appellant contends that the trial court should have treated the motion to dismiss as one for summary judgment under Rule 74.04, since matters outside the pleadings--statute of limitations--were presented to and not excluded by the trial court. Hence, appellant argues, there were genuine issues of fact--e.g., the determination of "reasonable time" for his revocation of acceptance--to be determined so that the court erred in sustaining the motion to dismiss. Cf., Black Leaf Products Co. v. Chemisco, Inc., 678 S.W.2d 827, 829 (Mo.App.1984). But, contrary to appellant's contention, this is not a proceeding in summary judgment. It has long been held that a motion to dismiss is a proper motion to attack the petition on the ground that the action is barred by the statute of limitations, especially when the expiration of the limitation appears on the face of the petition. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 646 (Mo.App.1947); Follmer's Market, Inc. v. Comprehensive Accounting Service Co., 608 S.W.2d 457, 458 (Mo.App.1980); Zero Mfg. Co. v. Husch, 743 S.W.2d 439, 441 (Mo.App.1987). Under the circumstances, the trial court properly ruled on the motion to dismiss and was not in error in failing to treat the motion as one for summary judgment.

We turn to the merits. As to Counts I and IV, it is clear that these counts are time barred. A revocation of acceptance under § 400.2-608 must be made within a "reasonable time" after the buyer discovers the ground for revocation. An action for breach of any contract of sale alleged in Count IV is barred upon the expiration of the four year limitation period. Section 400.2-725. Although the relationship between § 400.2-608 and § 400.2-725 is not entirely clear, our decisions are uniform in holding that a revocation of acceptance or recission must be made long before the expiration of four years. No decision has held that a revocation of acceptance may be made after such period. Recently, we reviewed the decisions construing § 400.2-608 in Ford Motor Credit Co. v. Mellor, 748 S.W.2d 410 (Mo.App.1988). There, the purchaser of an automobile sought to revoke acceptance after seventeen months from the date of purchase and after numerous problems were found with a vehicle. We held, as a matter of law, that the use of a vehicle for seventeen months deprived the purchaser of the right to revoke acceptance. We also reviewed previous decisions. Fitzgerald v. Donn Darr Ford, Inc., 729 S.W.2d 256 (Mo.App.1987)--purchaser not entitled to rescind after little more than a year; Bryant v. Prenger, 717 S.W.2d 242 (Mo.App.1986)--use of automobile for six months and 12,000 miles after buyer discovered the automobile's nonconformity with representation made at time of sale held to nullify buyer's right of revocation; General Motors Acceptance Corp. v. Dieckmann, 675 S.W.2d 469 (Mo.App.1984)--trial court's finding that nineteen months after purchase, attempted revocation not seasonable. In Fitzgerald, supra, while we recognized that the determination of whether a rescission is reasonable is a question of fact, situations can exist where reasonable persons cannot disagree that rescission is untimely. A little more than a year was held to be not timely, as a matter of law.

Count IV is clearly an action based upon the contract of sale for breach of the implied warranty of merchantability and is time barred by the operation of § 400.2-725. 1. J. White & R. Summers, Uniform Commercial Code, § 11-9 (3rd ed. 1988); annot., 20 A.L.R. 4th 915 (1983). Appellant admits as much but contends that the allegation in the petition that respondent attempted to correct the problems during "each calendar...