Karr-Bick Kitchens & Bath, Inc. v. Gemini Coatings, Inc.

• Decision Date: 29 October 1996
• Docket Number: No. 69764,KARR-BICK,69764
• Citation: 932 S.W.2d 877
• Parties: 31 UCC Rep.Serv.2d 88 KITCHENS & BATH, INC., Plaintiff/Appellant, v. GEMINI COATINGS, INC. Defendant/Respondent, and HPI Paints, Inc., Defendant.
• Court: Missouri Court of Appeals

Page 877

932 S.W.2d 877

31 UCC Rep.Serv.2d 88

KARR-BICK KITCHENS & BATH, INC., Plaintiff/Appellant, v.GEMINI COATINGS, INC.Defendant/Respondent and HPI Paints, Inc., Defendant.

No. 69764.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 29, 1996.

James P. Bick, Jr., LaTourette, Schlueter & Byrne, P.C., St. Louis, for Plaintiff/Appellant.

Martin J. Buckley, Evans & Dixon, St. Louis, for Defendant/Respondent.

CRANDALL, Judge.

Plaintiff, Karr-Bick Kitchens & Baths, Inc., appeals from the trial court's grant of summary judgment in favor of defendant, Gemini Coatings, Inc.(Gemini), in plaintiff's action for breach of warranties related to the sale to plaintiff of products manufactured by Gemini.We affirm.

When considering an appeal from a summary judgment, this court reviews the record in the light most favorable to the non-moving party, giving the non-movant the benefit of all reasonable inferences from the record.ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376(Mo.banc 1993).Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion.Id.Our review is essentially de novo.Because the propriety of summary judgment is purely an issue of law, an appellate court need not defer to the trial court's grant of summary judgment.Id.

To be entitled to summary judgment, the movant must establish that there are no issues of material fact and that he is entitled to judgment as a matter of law.Rule 74.04.Once the movant has established that he is entitled to judgment as a matter of law, the non-moving party must show that there is a genuine issue as to the facts underlying the movant's right to judgment.ITT Commercial, 854 S.W.2d at 382.For purposes of Rule 74.04, a "genuine issue" exists where the record contains competent materials that demonstrate two plausible, but contradictory, accounts of the essential facts.

The record in the instant action consists of affidavits and exhibits.The record establishes that plaintiff was a contractor who designed, built, and remodeled residential kitchens.Gemini was an Oklahoma-based manufacturer of paints and varnishes.

Plaintiff purchased paints, primers, and varnishes manufactured by Gemini from H.P.I. Paints, Inc., a St. Louis paint and varnish distributor (distributor).The labels on these products contained the following disclaimer:

LIMITATION OF LIABILITY: You must be delighted with this product or we will replace the material or refund the purchase price.WE MAKE NO OTHER WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.Liability, if any, is limited to replacement of the product or refund of the purchase price.LABOR OR COST OF LABOR AND OTHER CONSEQUENTIAL DAMAGES ARE HEREBY EXCLUDED.

Plaintiff applied Gemini's products to kitchen cabinets it constructed and installed for a customer.The varnish separated from the kitchen cabinets, resulting in peeling and cracking.

Plaintiff filed a petition against Gemini and the distributor, claiming damages caused by the failure of the varnish to adhere to the wood cabinets.The two-count petition alleged that Gemini and the distributor breached not only express warranties but also implied warranties of merchantability and of fitness for a particular purpose.

Following discovery, Gemini filed a motion for summary judgment.In an affidavit submitted with plaintiff's memorandum in support of its response to Gemini's motion, plaintiff's president stated that he had met with an employee of the distributor who assured him that Gemini was a manufacturer that would totally back plaintiff in the event a failure of its product necessitated a rework.In response, Gemini produced the affidavit of its president stating that since 1986 all items leaving its manufacturing facilities had labels affixed to them containing a limitation of liability.The trial court granted summary judgment in favor of Gemini on both counts of plaintiff's petition.

On appeal, plaintiff's sole claim of error is that the trial court erred in granting summary judgment in favor of Gemini.¹It argues there existed a genuine issue of fact whether the agreement of the parties included language constituting an effective disclaimer of warranties.In addition, plaintiff contends the trial court misapplied the law because a disclaimer of warranties delivered with the varnish cannot disclaim previously made express and implied warranties; and also in view of the fact that the varnish provided by Gemini was not a consumer good, the disclaimer was invalid.

As to express warranties, the affidavit submitted in support of plaintiff's response to Gemini's motion for summary judgment stated that the distributor, not Gemini, sold the products to plaintiff and made express warranties to plaintiff concerning Gemini's products.There was no evidence either that there was a contract between plaintiff and Gemini or that Gemini made representations directly to plaintiff regarding its products.Unless the distributor acted as an agent of Gemini when it made the express warranties to plaintiff, Gemini cannot be bound by the representations of the distributor.

"Agency is a legal concept consisting of three elements: (1) the agent's power to alter legal relationships between the principal and third persons and between the principal and himself, (2) a fiduciary relationship with respect to matters within the scope of the agency, and (3) the principal's right to control the conduct of the agent."River's Bend Red-E-Mix, Inc. v. Parade Park Homes, Inc., 919 S.W.2d 1, 4(Mo.App. W.D.1996)."A party who relies upon the authority of an agent has the burden of proof regarding both the fact of the agency relationship and the scope of the agent's authority."Air Evac EMS, Inc. v. Goodman, 883 S.W.2d 71, 74(Mo.App. S.D.1994).Agency will not be inferred merely because a party assumed it existed.Id.Here, plaintiff failed to allege or to offer any evidence that the distributor acted as Gemini's agent when it made representations to plaintiff about Gemini's products.Therefore,...