Nebraska Popcorn, Inc. v. Wing
| Decision Date | 05 November 1999 |
| Docket Number | No. S-98-450.,S-98-450. |
| Citation | 258 Neb. 60,602 N.W.2d 18 |
| Court | Nebraska Supreme Court |
| Parties | NEBRASKA POPCORN, INC., appellant, v. Dennis WING, doing business as Wing Scale Service, and Cardinal Scale Manufacturing Company, appellees. |
Steven M. Curry, of Sampson, Curry & Hummel, P.C., Central City, for appellant.
Roger G. Steele, of Luebs, Leininger, Smith, Busick, Johnson, Baack, Placzek & Steele, Grand Island, for appellee Cardinal Scale Manufacturing Company.
Nebraska Popcorn, Inc., appellant, sued Dennis Wing, doing business as Wing Scale Service (Wing), and Cardinal Scale Manufacturing Company (Cardinal), for breach of warranty on a motor truck scale manufactured by Cardinal and sold by Wing to Nebraska Popcorn. Nebraska Popcorn appeals from the decision of the district court for Hall County which granted summary judgment in favor of Cardinal and dismissed the "Corrected Amended Petition" as to Cardinal. The trial court concluded that Nebraska Popcorn's claim against Cardinal was time barred by Neb. U.C.C. § 2-725 (Reissue 1992), the Uniform Commercial Code's 4-year statute of limitations. We affirm.
On October 16, 1992, Nebraska Popcorn, then operating under the name "Morrison Farms, Inc.," purchased a "Model 13570PRC-1 Low Profile Motor Truck Scale" from Wing. The scale was manufactured by Cardinal, and the sale price was $29,460. The scale was installed at Nebraska Popcorn's place of business on October 19.
The scale was certified for commercial use by the State of Nebraska's Department of Agriculture (State) on October 27, 1992. Beginning in September 1993, the scale began exhibiting errors. The State tested the scale on September 14 and found it unsuitable for commercial weighing.
Nebraska Popcorn contacted Wing which dispatched service technicians to repair the scale. The scale functioned properly for some time but began to exhibit errors again. The State rejected the scale for commercial use on October 3, 1994. A series of repairs by Wing and rejections by the State stretched over the next year.
After the State rejected the scale on January 11, 1996, Cardinal sent a service technician from its factory to repair the scale. The scale worked on and off until July 11, when the State rejected the scale and ordered it placed out of service.
On August 1, 1996, Nebraska Popcorn notified Wing and Cardinal that Nebraska Popcorn was revoking its acceptance of the scale and demanded return of the purchase price. Cardinal's technicians attempted repairs in late August. The scale weighed accurately for some time, but by November, it was again giving erroneous readings and was shut down.
Nebraska Popcorn filed suit against Wing and Cardinal on February 18, 1997. Nebraska Popcorn filed an amended petition on March 19 and a corrected amended petition (petition) on April 17, in which it alleged that "Cardinal warranted the scale for a period of two years to be free of defects." Cardinal filed an answer denying the allegation of a 2-year warranty. Cardinal further alleged, inter alia, that Nebraska Popcorn's action was barred by the statute of limitations. Cardinal's answer prayed that Nebraska Popcorn's petition be dismissed.
Cardinal filed a motion for summary judgment on January 21, 1998, based on the claim that Nebraska Popcorn's action was time barred. In support of its motion for summary judgment, Cardinal offered and the court received the affidavit of Craig Fisher, a customer service manager for Cardinal. In his affidavit, Fisher states: In his affidavit, Fisher further states that "the only warranty that Cardinal offers for the Model 13570PRC-1 Low Profile Motor Scale" is found in exhibit A attached to his affidavit. Exhibit A is entitled "Statement of Limited Warranty." In the statement of limited warranty, Cardinal warranted that "it will repair or replace, at its option, any part of a Cardinal product which, in Cardinal's judgment, is defective in material or workmanship for a period of one (1) year from date of shipment." The statement of limited warranty also provides:
In response to Cardinal's motion for summary judgment, Nebraska Popcorn offered, and the court received, the affidavit of Frank Morrison, president of Nebraska Popcorn. In it, Morrison states, inter alia, that he was provided "written information" regarding the motor truck scale. The information was attached as exhibit A. Morrison further states that he was "informed that the scale was warranted for a period of two years including damage from lightening [sic]." Nebraska Popcorn's exhibit A is in part an advertising bulletin in which the features of a load cell are described and states: "That's why we offer a two year warranty*." The asterisk portion of the bulletin continues: "Statement of Limited Warranty available on request."
The district court granted Cardinal's motion for summary judgment on February 23, 1998, and dismissed Cardinal. The trial court found that the evidence was undisputed that Nebraska Popcorn's action, filed February 18, 1997, was not brought within 4 years after tender of delivery on October 19, 1992, and that the warranty given by Cardinal on the motor truck scale did not extend the 4-year statute of limitations set forth in Neb. U.C.C. art. 2 (Reissue 1992).
Nebraska Popcorn appealed. Prior to the July 15, 1998, effective date of Neb. Rev.Stat. 25-705(6) (Cum.Supp.1998), the dismissal of one of multiple defendants is a final, appealable order. Bargmann v. State, 257 Neb. 766, 600 N.W.2d 797 (1999); Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997); Green v. Village of Terrytown, 188 Neb. 840, 199 N.W.2d 610 (1972).
Nebraska Popcorn claims that the trial court erred in granting Cardinal's motion for summary judgment.
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record demonstrate that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999).
In reviewing an order of summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong. Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).
Shifting Burden in Summary Judgment.
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. Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875 (1999). A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial. Id. After the movant makes a prima facie case for summary judgment, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
Statute of Limitations Under Neb. U.C.C. art. 2.
The parties agree that the underlying transaction in this case is a contract for the sale of goods subject to Neb. U.C.C. art. 2. Nebraska Popcorn's petition asserts a breach of warranty claim in connection with that transaction.
The statute of limitations applicable to contract claims under the Nebraska Uniform Commercial Code is set forth in § 2-725. Section 2-725(1) and (2) provides as follows:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
The foregoing statute by its terms provides that an action for breach of contract must be brought within 4 years after the cause of action has accrued and that the cause of action accrues when the breach occurs § 2-725(1) and (2). It further provides that a breach of warranty generally occurs when tender of delivery is made § 2-725(2). The statute makes an exception to the commencement of the 4-year period at the time...
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