Murphy v. Spelts-Schultz Lumber Co. of Grand Island
| Decision Date | 20 March 1992 |
| Docket Number | SPELTS-SCHULTZ,No. S-89-721,S-89-721 |
| Citation | 481 N.W.2d 422,240 Neb. 275 |
| Court | Nebraska Supreme Court |
| Parties | , 17 UCC Rep.Serv.2d 467 Gerald MURPHY and Pamela S. Murphy, Appellants, v.LUMBER CO. OF GRAND ISLAND, a Corporation, Appellee. |
Syllabus by the Court
1. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.
2. Limitations of Actions: Damages. A cause of action accrues and the statute of limitations begins to run when the aggrieved party has the right to institute and maintain suit, although the nature and extent of damages may not be known.
3. Limitations of Actions. A special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative will concerning a particular subject.
4. Limitations of Actions: Negligence. A cause of action accrues for negligence in professional services when the alleged act or omission in rendering or failure to render professional services takes place.
5. Limitations of Actions: Negligence. Neb.Rev.Stat. § 25-223 (Reissue 1989), as a special statute of limitations concerning negligent construction of an improvement on real estate, applies only to actions, whether based on negligence or breach of warranty, brought against contractors and builders.
6. Uniform Commercial Code: Sales: Words and Phrases. Whether a transaction involving both a transfer of goods and the performance of labor is the sale of "goods" as contemplated by Neb.U.C.C. § 2-102 (Reissue 1980) (and thus within the purview of the code) or the sale of "services" (and thus not within the purview of the code) depends upon the predominant purpose of the transaction.
7. Uniform Commercial Code: Warranty. The "future performance" exception of Neb.U.C.C. § 2-725(2) (Reissue 1980) applies only to an express warranty and not to an implied warranty.
8. Uniform Commercial Code: Warranty: Vendor and Vendee. For existence of an express warranty, a seller must have made a particularized representation constituting a warranty to a buyer.
John A. Wagoner, Grand Island, for appellants.
Robert T. Grimit and Michael A. England, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.
Gerald Murphy and Pamela S. Murphy, designated herein as "Murphy," appeal from the decision of the district court for Hall County, which granted summary judgment to Spelts-Schultz Lumber Co. of Grand Island, in Murphy's suit for damages on account of negligence and breach of warranties pertaining to roof trusses that failed at Murphy's home. We affirm.
The factual foundation for the summary judgment in question is supplied by the pleadings, depositions, and affidavits submitted to the district court. See Neb.Rev.Stat. § 25-1330 et seq. (Reissue 1989).
On January 4, 1977, Gerald and Pamela Murphy contracted with Albright Construction for construction of a house in Grand Island. On Murphy's behalf, Albright arranged for Spelts-Schultz Lumber Co. to provide custom design services for the new home. In exchange for the services by the lumber company, Murphy purchased from Spelts-Schultz all the building materials necessary for constructing the house. Pursuant to this arrangement, Spelts-Schultz designed, manufactured, and sold Murphy a number of roof trusses, which were delivered to the construction site on March 9, 1977. Gerald and Pamela Murphy moved into their new home in October 1977.
On July 7, 1978, after a heavy rainstorm, Gerald Murphy noticed that the garage's "drywall [was] starting to crack," and the roof over Murphy's attached garage suddenly sagged and collapsed as he backed his car out of the garage. Subsequent inspection of the damage revealed that metal fasteners on joints of the trusses had apparently pulled away, resulting in failure of the trusses and eventual collapse of the garage roof.
On September 6 and October 25, 1978, Murphy's lawyer wrote two letters to Spelts-Schultz and demanded that the lumber company pay for the damage to the Murphy house; otherwise, suit would be filed. When Spelts-Schultz denied liability and declined to pay, Murphy sued on May 21, 1981.
Murphy's petition, as amended, asserted two bases for recovery: first, Spelts-Schultz' negligence in the design and construction of the house and inspection of the failed trusses, and, second, breach of an implied warranty that the "trusses were reasonably fit and proper for the use intended" in the Murphy house. In its amended answer, Spelts-Schultz alleged that Murphy's action was "barred by the applicable statute of limitations," but did not specify which statute of limitations applied to any aspect of Murphy's action. Although the matter lay in abeyance for some time, in March 1989 the district court heard the summary judgment motion, and in June 1989 concluded that Murphy's action was barred by the "applicable statute of limitations," without designation of a particular statute of limitations, and, therefore, granted summary judgment to Spelts-Schultz, disposing of Murphy's action for damages.
In this appeal, Murphy contends that the court erred by granting summary judgment for Spelts-Schultz.
A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. [Citation omitted.]
N.W.2d 872, 875 (1988). Accord, DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989); Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988).
"On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists." Newman v. Hinky Dinky, 229 Neb. 382, 385, 427 N.W.2d 50, 53 (1988).
The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. [Citations omitted.] After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.
Wilson v. F & H Constr. Co., 229 Neb. at 819, 428 N.W.2d at 917. Accord Wiles v. Metzger, 238 Neb. 943, 473 N.W.2d 113 (1991).
" 'A cause of action accrues and the statute of limitations begins to run when the aggrieved party has the right to institute and maintain suit, although the nature and extent of damages may not be known.' " L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb. 241, 246, 440 N.W.2d 664, 666-67 (1989) (quoting from Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186 (1984)).
In view of the lack of specification at the district court level concerning the statute of limitations which is actually the basis for the summary judgment questioned on appeal, our review necessarily follows a process of elimination to determine whether any statute of limitation invalidates the district court's summary judgment.
The first rule for ascertaining the applicable statute of limitations in this case is: A special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative will concerning a particular subject. See, Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976); Nebraska Mil-Nic, Inc. v. Hall County, 188 Neb. 345, 196 N.W.2d 522 (1972); Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).
Negligence Actions.
Neb.Rev.Stat. § 25-222 (Reissue 1989), and an action based on "deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years...
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