GUS'CATERING, INC. v. Menusoft Systems, No. 99-283.

• Docket Nº: No. 99-283.
• Citation: 762 A.2d 804
• Case Date: July 25, 2000
• Court: United States State Supreme Court of Vermont

762 A.2d 804

GUS' CATERING, INC.
v.
MENUSOFT SYSTEMS

No. 99-283.

Supreme Court of Vermont.

July 25, 2000.

Motion for Reargument Denied August 31, 2000.

762 A.2d 805

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ

ENTRY ORDER

Plaintiff Gus' Catering appeals from a Washington Superior Court grant of summary judgment to defendant Menusoft Systems. Plaintiff contends that the court erroneously dismissed its alleged claims of breach of warranty, breach of contract, and negligence. We affirm.

The material facts, alleged in plaintiff's original and amended complaints, are not in dispute. On or about April 1994, plaintiff purchased a "Digital Dining" computer software program, manufactured by defendant, and computer hardware from Point of Sale Systems, Inc., an authorized distributor for defendant. A Point of Sale Systems employee set up, installed, and configured the computer at plaintiff's restaurant, assisted by a technical representative of defendant. The computer system did not perform properly, however, frequently shutting down during the restaurant's busiest times. Plaintiff immediately contacted defendant and Point of Sale Systems about the computer problems. Despite several service calls over the next two years by the same Point of Sale Systems employee who had installed the computer, as well as advice from defendant, the problems persisted.

Eventually, defendant terminated its distributorship with Point of Sale Systems and referred plaintiff to a technical representative from another authorized distributor. The new technical representative identified and solved all of plaintiff's computer problems during a single two-hour service call on July 22, 1996. Plaintiff has had no problems with the program since.

Plaintiff filed a complaint against defendant on July 20, 1998, alleging that the computer system had not been installed properly in 1994, causing the problems that had plagued the program over the next two years.¹ Plaintiff claimed that defendant had failed to properly instruct Point of Sale Systems in the appropriate installation and maintenance of the system: "The Defendant Menusoft Systems Corporation at all times has failed to provide the appropriate technical assistance and expertise in this matter, and, therefore, breached its express and implied warranties in this matter." Plaintiff claimed that it suffered a "great amount of loss of time in attempting to correct the difficulties caused by the improper installation of the system, to include loss of business profits and other costs, as well as attorney's fees."

After plaintiff admitted, in response to defendant's request, that tender of delivery of the computer system had occurred prior to July 19, 1994, defendant moved for summary judgment on the ground that plaintiffs warranty claim was time barred by 9A V.S.A. § 2-725's four-year statute of limitations. Plaintiff then moved to amend its original complaint. This amended complaint alleged that defendant's technical representative negligently assisted in the installation of the computer system and negligently advised plaintiff and Point of Sales Systems regarding the persistent program problems. Plaintiff claimed that "[a]s a direct result of the negligence of the [d]efendant, the [p]laintiff suffered damages by virtue of loss of business profits

762 A.2d 806

and loss of customers, as well as loss of time in trying to correct the myriad of difficulties caused by the improper installation of the digital dining system."

On April 27, 1999, the court granted defendant's summary judgment on plaintiff's first complaint, ruling that it lacked jurisdiction because the four-year statute of limitations had run. The court also denied plaintiff's motion to amend its complaint because the amendment was futile, as plaintiff had claimed only economic losses which are not recoverable on a negligence theory. This appeal followed.

We review a motion for summary judgment using the same standard as the trial court. See O'Donnell v. Bank of Vermont, 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997). Summary judgment is granted only when the moving party has demonstrated that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See id.

We first address plaintiff's argument that its first complaint alleged facts sufficient to constitute claims of breach of warranties, breach of contract, and negligence, and that the court erred in granting defendant summary judgment on this complaint under 9A V.S.A. § 2-725. Plaintiff's argument lacks merit. V.R.C.P....