Thomas v. Countryside of Hastings, Inc.

• Decision Date: 01 March 1994
• Docket Number: A-92-649,Nos. A-92-647,s. A-92-647
• Parties: Kenneth L. THOMAS, Appellant, v. COUNTRYSIDE OF HASTINGS, INC., Appellee. Elaine R. THOMAS, Appellant, v. COUNTRYSIDE OF HASTINGS, INC., Appellee. Kenneth L. THOMAS and Elaine R. Thomas, Appellants, v. COUNTRYSIDE OF HASTINGS, INC., Appellee. to
• Court: Nebraska Court of Appeals

Page 660

512 N.W.2d 660

2 Neb.App. 590

Kenneth L. THOMAS, Appellant, v. COUNTRYSIDE OF HASTINGS, INC., Appellee.

Elaine R. THOMAS, Appellant, v. COUNTRYSIDE OF HASTINGS, INC., Appellee.

Kenneth L. THOMAS and Elaine R. Thomas, Appellants, v. COUNTRYSIDE OF HASTINGS, INC., Appellee.

Nos. A-92-647 to A-92-649.

Court of Appeals of Nebraska.

March 1, 1994.

Syllabus by the Court

1. Limitations of Actions: Appeal and Error. In reviewing the district court's judgment on the issue of the statute of limitations, the findings and decision of the district court will not be set aside unless clearly wrong.

2. 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.

3. Limitations of Actions: Sales. Neb.Rev.Stat. § 25-223 (Reissue 1989) does not apply to a retailer of modular or mobile homes.

4. Actions: Breach of Contract: Torts: Words and Phrases. Although the dividing line between breaches of contracts and torts is often dim and uncertain, it has been said that the character of an action as one in tort or on contract is determined by the nature of the grievance, not by the form of the pleadings, with consideration being given to the facts which constitute the cause of action.

5. Actions: Breach of Contract: Torts: Word and Phrases. Contract actions, which arise from a breach of a duty imposed on one by an agreement, protect a plaintiff's interest in or right to performance of another's promises, whereas tort actions, which arise from a breach of a duty imposed by law, protect a plaintiff's interest or right to be free from another's conduct which causes damage or loss to the plaintiff's person or property.

6. Actions: Breach of Contract. Where the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu.

7. Uniform Commercial Code: Words and Phrases. A mobile home or modular home is a good under the Nebraska Uniform Commercial Code.

8. Uniform Commercial Code: Contracts: Sales. The test for inclusion in or exclusion from the sales provisions of Neb.U.C.C. art. 2 (Reissues 1980 & 1992) is not whether the contracts are mixed but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved, or whether they are transactions of sale, with labor incidentally involved.

9. Uniform Commercial Code: Sales: Warranty: Vendor and Vendee. A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the agreement of sale, upon which it John S. Mingus, Mingus & Mingus, Ravenna, for appellants.

is intended that the buyer shall rely in making the purchase.

Roger G. Steele, Luebs, Beltzer, Leininger, Smith & Busick, Grand Island, for appellee.

SIEVERS, C.J., and IRWIN and MILLER-LERMAN, JJ.

SIEVERS, Chief Judge.

The district court dismissed the petitions of Kenneth L. Thomas and Elaine R. Thomas on the grounds that their causes of action against Countryside of Hastings, Inc., a mobile home dealership, are barred by the statute of limitations. The Thomases brought suit against Countryside alleging negligent installation of a furnace in their mobile home. The Thomases each sued individually for loss of consortium and for personal injuries, and both Elaine and Kenneth sued for physical damages to the mobile home. These three actions have been consolidated for purposes of this appeal. The district court found that the Thomases' petitions had to be filed within 4 years from the time of tendered delivery of the mobile home. We conclude that the sale of a mobile home is a sale of goods under the Nebraska Uniform Commercial Code, that the predominant purpose of the Thomas-Countryside agreement was the sale of goods, and that as a result, the code's statute of limitations controls. Therefore, we affirm the dismissals.

FACTUAL AND PROCEDURAL BACKGROUND

On May 3, 1979, the Thomases entered into a written purchase agreement with Countryside to buy a double-wide mobile home, sometimes called a modular home. The home was manufactured by Kit Manufacturing Company of McPherson, Kansas. The purchase agreement included a provision that the mobile home would be delivered and set up on a basement foundation and that it would include such extras as a "dishwasher-disposal," patio doors, and a septic tank, all of which would be installed. In addition, the agreement provided that Countryside would install an upflow furnace in the basement. The total price of the contract was $37,589.85, and no separate amount was assigned to the furnace installation. The mobile home, as manufactured, included a closet downflow furnace. The Thomases allege in their petitions that when Countryside installed the upflow furnace, the venting pipe was not properly connected to a chimney or otherwise vented to the outside, but instead, the venting pipe terminated between the ceiling of a closet and the roof sheeting. The Thomases claim that as a result of Countryside's alleged negligence, their mobile home sustained damages from the improperly vented furnace, and they both sustained personal injuries from inhalation of carbon monoxide.

Countryside's position is that the sale of a mobile home is the sale of a good and that the installation of the furnace, although a service, was merely an incidental part of the sale of the mobile home. Therefore, Countryside argues, the Thomases' causes of action are governed by the Nebraska Uniform Commercial Code and barred by the statute of limitations found therein. The district court bifurcated the actions and held a trial solely on the issue of the statute of limitations, as is allowed under Neb.Rev.Stat. § 25-221 (Reissue 1989). The district court held that the Thomases' petitions are barred by the statute of limitations found at Neb.U.C.C. § 2-725 (Reissue 1980).

STANDARD OF REVIEW

In reviewing the district court's judgment on the issue of the statute of limitations, the findings and decision of the district court will not be set aside unless clearly wrong. Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989); McCook Equity Exch. v. Cooperative Serv. Co., 230 Neb. 758, 433 N.W.2d 509 (1988).

ASSIGNMENTS OF ERROR

The Thomases make numerous assignments in their briefs which merely restate the same basic assignment of error: The district court erred in holding that the Thomases' actions were barred by the statute

of limitations found in § 2-725. The Thomases also allege that the district court ruling deprives them of various rights under the U.S. and Nebraska Constitutions. However, those assignments of error were not discussed, which [2 Neb.App. 593] is necessary before this court will consider such assignments of error. See State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991). Accordingly, we do not address those assignments.

ANALYSIS

A rule which we bear in mind throughout our analysis is that to determine the applicable statute of limitations, "[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." Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 278, 481 N.W.2d 422, 426 (1992).

We first deal with the Thomases' argument that the statute of limitations found in Neb.Rev.Stat. § 25-223 (Reissue 1989) concerning actions for breach of warranty on improvements to real estate should control. Under that statute, a suit can be brought within 4 years of the breach or deficiency or within 2 years after its discovery. However, § 25-223 has been construed to be a special statute of limitations applying to builders or contractors. Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988). The Supreme Court in Georgetowne Ltd. Part. relied upon the legislative history, which showed that Senator John J. Cavanaugh III testified that the purpose of the legislation was to secure a specific statute of limitations concerning home warranties and the construction of homes, separate and apart from the statute of limitations for professionals such as architects in Neb.Rev.Stat. § 25-222 (Reissue 1989). Thus, since Countryside is not a constructor or builder of homes, but is a retailer or seller of already constructed mobile or modular homes, it is clear that § 25-223 has no application whatsoever to these cases. See, also, Murphy v. Spelts-Schultz Lumber Co., supra.

Section 2-725(1) provides that actions for breach of contract for sale must be commenced within 4 years after the cause of action accrues, and under § 2-725(2), the cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. Section 2-725(2) further provides that a breach of warranty occurs when tender of delivery is made and that a tolling of such limitations occurs only if an express warranty is made which extends explicitly to future performance of the goods and if discovery of a breach must await the time of such performance, in which case the action accrues when the breach is or should have been discovered. The evidence shows that the furnace was installed in the Thomases' home no later than December 1979 and that these actions were not filed until January 3, 1986. Therefore, if the causes of action arise from the sale of goods, and if the evidence shows there is no express warranty regarding future performance, the Thomases' causes of action are barred by the statute of limitations found in § 2-725. If the general statute of limitations for tort actions, with tolling pending discovery, were applicable, the actions would not be barred.

Therefore, our decision turns on whether the...