Koperski v. Husker Dodge, Inc.

• Decision Date: 13 February 1981
• Docket Number: No. 43093,43093
• Citation: 208 Neb. 29,302 N.W.2d 655
• Parties: , 31 UCC Rep.Serv. 113 Virginia L. KOPERSKI, Appellant, v. HUSKER DODGE, INC., a corporation et al., Appellees.
• Court: Nebraska Supreme Court

Page 655

302 N.W.2d 655

208 Neb. 29, 31 UCC Rep.Serv. 113

Virginia L. KOPERSKI, Appellant, v. HUSKER DODGE, INC., a corporation et al., Appellees.

No. 43093.

Supreme Court of Nebraska.

Feb. 13, 1981.

Syllabus by the Court

1. Uniform Commercial Code: Words and Phrases. The Nebraska Uniform Commercial Code does not use the term "rescission," but refers to that remedy under its statutory provisions as "revocation of acceptance."

2. Statutes: Jurisdiction. Where a statute provides an adequate remedy at law, equity will not entertain jurisdiction, and the statutory remedy must be exhausted before equity may be resorted to.

3. Trial: Judgments: Appeal and Error. In a trial to the court in a law action, the findings and judgment of the trial court on the facts have the same force as a jury verdict and will not be set aside if there is sufficient competent evidence to support them, and the findings of the court will not be disturbed on appeal unless clearly wrong.

4. Uniform Commercial Code: Revocation: Time. Under Neb.U.C.C. § 2-608 (Reissue 1971), the buyer may revoke his acceptance of a lot or commercial unit where nonconformity substantially impairs its value to him if he has accepted it on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured. Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it.

5. Uniform Commercial Code: Revocation: Time. Under the Uniform Commercial Code, the questions of whether goods are substantially impaired by nonconformity or whether revocation of acceptance is given within a reasonable time are questions of fact to be determined by the jury or trier of facts.

6. Uniform Commercial Code: Words and Phrases. Under Neb.U.C.C. § 1-201(10) (Reissue 1971), the term "conspicuous" is defined to mean a term or clause so written that a reasonable person against whom it is to operate ought to have noticed it.

7. Uniform Commercial Code: Sales: Warranty. Under Neb.U.C.C. § 2-316(3) (Reissue 1971), all implied warranties are excluded by expressions like "as is," "with all faults," or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.

8. Sales: Warranty. Where an action is based upon defendant's express representation made to the particular plaintiff in advertising or otherwise, courts generally hold that the plaintiff need not be in privity with the defendant to recover under breach of express warranty. The only limitation is that the plaintiff must be a party whom the defendant could expect to act upon the representation.

9. Uniform Commercial Code: Sales: Warranty. Under Neb.U.C.C. § 2-719 (Reissue 1971), a warranty agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.

10. Sales: Warranty. Language of a warranty limiting the buyer's remedies to repair and replacement of defective parts is not, on its face, unconscionable.

James A. Hogan, Omaha, for appellant.

Harold L. Hadland of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Chrysler Corp.

Hansen & Engles, Omaha, for appellee U. S. Nat. Bank.

James R. Sacoman of Seminara, Caniglia, Turco, McCarthy & Sacoman, Omaha, for appellee Husker Dodge.

Heard before BOSLAUGH, BRODKEY and WHITE, JJ., and CASE and GARDEN, District Judges.

BRODKEY, Justice.

Virginia L. Koperski (Virginia), plaintiff below, appeals to this court from a decree entered by the District Court of Douglas County on October 3, 1979, dismissing her petition in an action filed by her against the defendants, Husker Dodge, Inc., Chrysler Corporation, and United States National Bank, seeking revocation of a contract entered into between her and the defendant Husker Dodge, Inc., and also for a judgment against the defendants and each of them for both direct and consequential damages suffered by her as a result of alleged defects in the automobile purchased by her. We affirm.

In her second amended petition, filed on August 7, 1979, plaintiff sets out five causes of action against the defendants Husker Dodge, and Chrysler, setting forth her claims against those defendants arising out of the sale to her of a 1978 Dodge Diplomat automobile, and based on allegations of breach of warranty, rescission of contract and revocation of acceptance of the automobile, and a violation of the Consumer Product Warranties Act (Magnuson-Moss Act), 15 U.S.C. §§ 2301 et seq. The defendants each filed separate answers to the second amended petition. In its separate answer, Husker Dodge, Inc., alleged as a defense that the contract for the sale of the automobile referred to provided that it was sold "as is" by said defendant and that the contract excluded any implied warranty of merchantability, any implied warranty of fitness, and, further, denied that it had breached any warranty in connection with the sale of the vehicle. It also alleged that the plaintiff had not sustained damages as prayed and, further, denied that plaintiff's petition stated a cause of action against them under the terms of the Magnuson-Moss Act. In its separate answer, defendant Chrysler Corporation alleged that the 1978 Dodge Diplomat automobile purchased by plaintiff was accompanied by an express limited warranty from Chrysler Corporation, under the terms of which limited warranty the exclusive obligation of Chrysler Corporation was to repair or replace any part or parts of the vehicle which proved defective in normal use, and that it had seasonably fulfilled all obligations in connection with such warranty. It also denied that the plaintiff had sustained direct and consequential damages as a result of any act or omission on the part of that defendant. Defendant U. S. National Bank was made a party to the action by virtue of a loan made by it to the plaintiff to finance the balance of the purchase price of the automobile. In its answer, the bank generally denied each of the allegations against it contained in plaintiff's second amended petition.

The case was tried in the District Court of Douglas County on August 20, 1979, and the court entered its decree in said case on October 3, 1979. In its decree the trial court found generally in favor of the defendants and against the plaintiff, and specifically found with regard to plaintiff's first cause of action based upon revocation of acceptance that the plaintiff had failed to prove by the evidence that there was a substantial impairment of value of the motor vehicle in question, and further failed to show that repairs were not seasonably performed by the defendants, but, on the contrary, that repairs were made within a reasonable length of time after notice to the defendants. The court specifically found with reference to plaintiff's second cause of action based upon an alleged breach of an express warranty by the defendant Husker Dodge that said defendant had expressly excluded all express and implied warranties under the provisions of Neb.U.C.C. § 2-316 (Reissue 1971), and that defendant Chrysler Corporation had expressly limited its warranty to repairs and/or replacement of defective parts, and determined that under the evidence adduced the defendant had fully complied with the obligations of its limited warranty. In its decree the court specifically found with regard to plaintiff's third cause of action based upon a violation of the Magnuson-Moss Act that Husker Dodge had offered no warranty in its contract; that the manufacturer, Chrysler Corporation, had complied with the requirements of the Magnuson-Moss Act and had conspicuously designated its warranty as a limited warranty; and that therefore the Magnuson-Moss Act was not in question in the lawsuit. The court also specifically found with regard to plaintiff's fourth and fifth causes of action that the plaintiff had failed to prove any breach of warranty. The court therefore decreed that plaintiff's petition should be dismissed at plaintiff's cost. Following the overruling of a motion for a new trial, plaintiff perfected her appeal to this court.

In her brief on appeal, the plaintiff assigns as error: (1) That contrary to the finding of the court, the evidence was sufficient to establish a substantial impairment of value of the motor vehicle; (2) That the court erred in finding that the repairs were properly performed; (3) That the court erred in finding that the disclaimer of warranty on the part of Husker Dodge, Inc., was "conspicuous" and constituted an effective disclaimer of warranty; (4) That the court erred in finding that the defendants Husker Dodge, Inc., and Chrysler Corporation had not breached certain express warranties running in favor of plaintiff; (5) That the court erred in finding that defendant Chrysler Corporation had not breached its express warranties by failing to make proper repairs and/or replacement of defective parts on the automobile purchased by plaintiff; and (6) That the court erred in failing to grant plaintiff the remedy of revocation of acceptance.

The evidence in this case reveals that Virginia was a recent college graduate, and was 25 years of age at the time of the transaction in question. On June 12, 1978, Virginia entered into a purchase contract for a 1978 Dodge Diplomat with Husker Dodge, Inc., a Chrysler dealership in Omaha, Nebraska. The vehicle buyer's order recited a purchase price of $6,000. On that date, she also requested permission to take the car for a test drive, but the salesman informed her that she could only drive a demonstrator vehicle, and not the car she purchased. On June 15, 1978, she took delivery of the vehicle; and on that date...