Hanscome v. Perry

• Decision Date: 01 September 1987
• Docket Number: No. 1621,1621
• Parties: , 7 UCC Rep.Serv.2d 1516 Bebe HANSCOME t/a Bebe Hanscome Interiors v. Marvin J. PERRY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 605

75 Md.App. 605

542 A.2d 421, 7 UCC Rep.Serv.2d 1516

Bebe HANSCOME t/a Bebe Hanscome Interiors v. Marvin J. PERRY, et al.

No. 1621, Sept. Term, 1987.

Court of Special Appeals of Maryland.

June 14, 1988.

David Townes Dawson, Temple Hills, for appellant.

Michael P. Chervenak (Ford & O'Neill, on the brief), Rockville, for appellee, Marvin J. Perry and Associates, Inc.

No brief or appearance by appellee Qubic.

Argued before GILBERT, C.J., WILNER, J., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired) Specially Assigned.

WILNER, Judge.

Appellant is an interior decorator. On July 20, 1979, she and one of her customers, Peggy Holmes, went to the showroom of Marvin J. Perry, Inc., where they saw a plexiglass console that Mrs. Holmes liked. Because Mrs Holmes was planning to move to Utah shortly, she wanted to purchase the floor sample rather than order a new console from the manufacturer.

At appellant's urging, Perry agreed to sell the floor sample. An invoice was prepared showing a sale to appellant for a net price of $720 ($1,200 list price less a $480 discount); appellant gave Perry a deposit of $240 and paid the balance of $480 three days later. Appellant immediately resold the piece to Mrs. Holmes for $1,000.

Perry was reluctant to sell the floor sample and agreed to do so only upon the assurance that Mrs. Holmes would remove the item promptly. Mrs. Holmes agreed to that condition, intending at the time to transport it herself, in a trailer, to Utah. She apparently changed her mind, however, and asked that the item be shipped to Utah. Just how this was arranged is not altogether clear. At one point, appellant testified that Mrs. Holmes made the arrangement directly with Perry, that she (appellant) knew nothing about it until the item was in fact delivered in Utah, and that she had no further agreement with Perry regarding delivery. At another point in her testimony, appellant said something quite different--that Mr. and Mrs. Holmes informed her on the day of their departure that they would be unable to take the item with them, that they had already informed Perry that they would not be taking it, and that appellant would have to make arrangements with Perry to have it shipped. In this second version, appellant said that she asked Perry to "have it crated and shipped, and they sent me a bill for the crating of it." Whatever may have been her role in the arrangement, Perry did send appellant a bill for $35 for the crating and she paid that bill.

Other evidence indicates that the manufacturer, Qubic, Inc., actually crated the item and employed Consolidated Freightways, Inc. to ship it to Utah. Consolidated delivered the piece to the Holmeses on August 17, 1979; when it was uncrated, the Holmeses discovered that it was damaged.

Mr. and Mrs. Holmes made a claim against everyone--appellant, Perry, Qubic, and Consolidated--all of whom eventually denied responsibility. At some point--exactly when is not clear--the Holmeses sued appellant in the Circuit Court of Fairfax County, Virginia, seeking recovery not only for the damage done to the console but for damage done to two other pieces of furniture as well. On February 11, 1983, following a jury trial, the Virginia court entered judgment against appellant in the amount of $11,046, of which $2,272 was for the console ($1,600 in compensatory damage and $672 in pre-judgment interest). Appellant paid the $2,272 part of the judgment in March, 1983.

On April 26, 1983--a month after payment of the Virginia judgment and three years and eight months after the console was delivered to the Holmeses in Utah--appellant filed suit in the Circuit Court for Montgomery County against Perry and two of its employees, Qubic and one of its agents, and Consolidated. In that action, appellant alleged that (1) on July 20, 1979, she contracted with Perry for the sale of the console, (2) Perry contracted with Qubic who, in turn, contracted with Consolidated to ship the item to the Holmeses, (3) the item was delivered to the Holmeses in damaged condition on August 17, 1979, (4) the Holmeses recovered a judgment against appellant for $2,272, which she paid, (5) Perry, Qubic, and Consolidated "were responsible for the shipment of the console and were negligent in delivering it," and (6) "because of the Defendants [sic] negligence in handling the console the Plaintiff has suffered damage."

The court disposed of that action on summary judgment, finding no basis for liability against the individual defendants and concluding that the action against the corporate defendants, sounding in negligence, was time-barred by the three-year statute of limitations set forth in Md. Code Ann.Cts. & Jud.Proc. art., § 5-101. Appellant acquiesced in the judgment as to the individual defendants but appealed the summary judgments in favor of Perry, Qubic, and Consolidated. Her claim on appeal was that the action pled by her was for breach of contract or breach of warranty and was thus subject to the four-year statute of limitations set forth in Comm.Law art., § 2-725.

On March 7, 1984, while her appeal was pending in this Court, appellant filed this action against the same defendants sued in the first action. Most of the allegations in the earlier complaint were repeated in this new one but were supplemented by averments that Perry and its employee were "duly appointed as authorized as agents [sic] for the purpose of shipping the said console," that they were authorized to appoint a sub-agent, that Qubic and its employee were "appointed agent to act as the shipper for the console," that they, in turn, appointed Consolidated to act as the carrier, and that all of these defendants had "the duties of bailees in dealing with the console." Reciting then that the console was damaged in transit and was properly rejected by the Holmeses, appellant charged the defendants with (1) negligence (p 27), (2) converting the console (p 29), (3) breach of contract with appellant "by delivering damaged and non-conforming goods" (p 30), and (4) breach of expressed and implied warranties (p 31). As concluding averments, appellant stated:

"33. That because of the Defendants [sic] breach of their contract and their negligence in delivering the console the Plaintiff has suffered damages and is entitled to indemnification from the Defendants for said damage.

34. That the Plaintiff did not know the extent of her damages until the judgment was entered against her and payment was made on or about August 1983 [sic]." ¹

On these allegations, appellant asked for $50,000 in damages.

The defendants responded with a variety of defenses, but the court put the case on hold pending the outcome of the appeal. That outcome was announced October 29, 1984.

In a per curiam unreported opinion filed that day, we rejected appellant's contentions and affirmed the judgments. We concluded that the action pled in that case was one of negligence arising from a contract, to which Cts. & Jud.Proc. art., § 5-101 applied, and not one of breach of contract or breach of warranty. See Hanscome v. Perry, S.T.1984, No. 119 (unreported).

Upon the filing of our opinion and mandate, the Circuit Court lifted its stay and a flurry of motions ensued. Eventually, the case came to trial, on October 22, 1987. At the outset, however, the court, on motion, dismissed Consolidated and the individual defendants, and at the close of appellant's case, it entered judgment for Perry and Qubic. The latter action was based on findings by the court that (1) appellant failed to prove a contract subsequent to the purchase of the console on July 20, 1979, and (2) even if there were such a contract, the action would be barred by limitations.

We now have a second appeal in which appellant claims that:

"1. The Court erred in ruling that the cause of action for indemnification was subject to the same statute of limitations as the underlying cause of action in negligence.

2. The Court erred in not applying Maryland Uniform Commercial Code Section 2-504(c) requiring the seller of goods to properly notify the buyer of the shipment of the goods.

3. The Court erred by not applying Maryland U.C.C. Section 2-722 with its four (4) year statute of limitations instead of Code Section 5-101.

4. The Court erred in that it determined that the four (4) year statute of limitations of U.C.C. Section 2-725 did not apply and that Appellant[']s claim was time barred.

5. The Court erred in not allowing the conflicting testimony on and about evidence or the credibility of the witnesses to go to the trier of fact, the jury.

6. The Court erred in finding that the Appellant failed to prove any contract subsequent to the purchase and delivery of the console by Ms. Hanscome to her client."

Once again, we find no error and shall therefore affirm.

The legal theories posited to us by appellant are every bit as confusing as was her testimony concerning her role in arranging the shipment. On the one hand, she characterizes this second action as strictly one "for indemnification," thus seeking to commence the applicable period of limitations with her payment of the Virginia judgment, which she contends was in August, 1983, but which her testimony and exhibits clearly show was in April, 1983. On the other hand, she continues to seek recovery for the negligence, breach of contract, and conversion by Perry and Qubic. ²

As a preliminary matter, it seems clear to us that any direct action for negligence against Perry or Qubic is barred both by the three-year statute of limitations in Cts. & Jud.Proc. art., § 5-101 and by the direct holding to that effect in the earlier proceeding. Because that first action was strictly in negligence and did not encompass a claim for breach of contract, it is evident that any breach of contract claim now asserted by appellant was first filed on March 7, 1984, which was more than four years after the item was delivered and the breach...