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Diamond Surface Inc. v. State Cement Plant Comm.8/19/1998
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[ ] In dismissing Diamond Surfaces original punitive damages claim, the trial court found that the cement at issue passed the ASTM C-451 tests and that the ASTM C-359 method "does not contain a pass/fail or minimum acceptable figure for cement." The trial court concluded there was no evidence of "willful, wanton or malicious conduct" on the part of SDCP. Diamond Surface did not object to these findings of fact and Conclusions of law.
[ ] Furthermore, Diamond Surface did not appeal the jury verdict against it on the breach of implied warranty of merchantability claim. SDCL 57A-2-314 is the source for an implied warranty of merchantability claim and states in part that goods are merchantable if they " ass without objection in the trade under the contract description[.]" Cement that exhibits false setting behaviors such as described by Diamond Surface would not pass without objection in the trade. Diamond Surface has failed to rationalize how an action for fraud or deceit, based upon the claim that the cement was to be fit for a particular purpose when SDCP was not aware of such a purpose, can survive based upon this record.
[ ] 5. Whether the trial court erred in directing a verdict in favor of SDCP on the claim for violation of industry standards.
[ ] The trial court was unsure whether a violation of industry standards claim is a separate cause of action. It decided that even if there was a separate cause of action
there is no evidence to show that there has been a violation of industry standards. There has been evidence that they have not used all the tests available, but not that those tests are required under the standards of the industry. There's no expert opinion on this matter regarding a violation[.]
[ ] Diamond Surface concedes that the industry standards claim is a negligence claim. Therefore, our decision under issue one is controlling.
[ ] We find Diamond Surface's additional arguments to be without merit and affirm the trial court. As a result, we need not consider the issues raised by SDCP through notice of review.
[ ] AMUNDSON and KONENKAMP, Justices, concur.
[ ] MILLER, Chief Justice, and SABERS, Justice, concur in part and dissent in part.
MILLER, Chief Justice (concurring in part and Dissenting in part).
[ ] I Dissent as to issues 2 (involving a claimed warranty of fitness for a particular purpose) and 3 (relating to an implied warranty of good faith and fair dealing).
[ ] 1. Fitness for a particular purpose.
[ ] I would hold that in accepting the evidence which is most favorable to Diamond Surface, as we must, the trial court incorrectly granted a directed verdict on the issue of fitness for a particular purpose.
[ ] Under our standard of review for a directed verdict, " he evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate." Bland v. Davison County, 1997 SD 92, ยง 26, 566 NW2d 452, 460 (emphasis added).
[ ] As the majority opinion recognizes, three elements must be met for a claim of breach of the implied warranty of fitness for a particular purpose:
1. The seller must have reason to know the buyer's particular purpose.
2. The seller must have reason to know that the buyer is relying on the seller's skill or judgment to furnish appropriate goods.
3. The buyer must, in fact, rely upon the seller's skill or judgment.
[ ] The m
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