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Gladhart v. Gladhart12/22/1999
Before Edmonds, Presiding Judge, and Deits, Chief Judge,* and Armstrong, Judge.
Reversed and remanded as to products liability claim; otherwise affirmed.
*Deits, C. J., vice Warren, S. J.
EDMONDS, P. J. Plaintiffs appeal from an ORCP 67 B judgment dismissing their claims against defendants Benoit and Oregon Vineyard Supply Company. This case is about which statutes of limitations apply to plaintiffs' claims arising out of the purchase of grape plants from defendants. We reverse, in part, and otherwise affirm.
In describing the parties' underlying dispute, we state the facts as alleged in plaintiffs' amended complaint: Plaintiffs allege that, in February 1991, they purchased 3,200 grape plants from defendants that they then planted in their existing vineyard. The plants were "guaranteed" to be free of phylloxera, a "microscopic aphid" that lives on grape vine roots. "Phylloxera infestations cause substantial damage to a vineyard including decreased grape production in early years and the death of the grape vines as the infestation progresses." In September 1997, plaintiffs filed their original complaint in which they alleged that the plants that they had purchased from defendants were infested with phylloxera. This appeal is from the dismissal of plaintiffs' claims against defendants in their amended complaint under ORCP 21. That complaint alleges separate claims based on the following theories of recovery: (1) negligence per se; (2) negligence; (3) breach of contract; (4) products liability; (5) breach of express warranty; (6) breach of the implied warranty of fitness for a particular purpose; (7) breach of the implied warranty of merchantability; (8) negligent misrepresentation; and (9) breach of an express warranty under ORS chapter 72.
Defendants moved to dismiss each of plaintiffs' claims pursuant to ORCP 21 A(9) on the ground that they were filed after the four-year statute of limitations in ORS 72.7250 had run, or, in the alternative, that they were filed after the six-year statute of limitations in ORS 12.080 had run. Defendants also moved to dismiss several claims under ORCP 21 A(8) on the ground that they failed to allege facts sufficient to constitute a claim. In its letter opinion, the trial court ruled on the motions:
"I have reviewed defendants' motions under ORCP 21. The transaction described in plaintiffs' complaint is governed by ORS 72.1010 et seq. (Uniform Commercial Code-Sales). Under ORS 72.7250, a disappointed buyer of goods must commence an action within 4 years from the date the breach occurs. Plaintiffs allege that they were sold defective grape plants. Consequently the breach occurred upon sale of the plants. ORS 72.7250(2) provides that the aggrieved party's lack of knowledge of the breach does not toll the running of the statute of limitations. The purported warranty i.e. 'phylloxera free grape plants' does not explicitly extend to future performance of the goods. ORS 72.7250(2). Plaintiffs' claims are time-barred. Defendants' first motion is granted. The balance are moot." (Emphasis in original.)
Accordingly, the trial court entered a judgment dismissing plaintiffs' claims against defendants.
On appeal, plaintiffs make two assignments of error. First, they contend that " he court erred in ruling that ' he transaction described in plaintiffs' complaint is governed by ORS 72.1010 et seq.'" Specifically, plaintiffs argue:
"The [Uniform Commercial Code's] UCC's statute of limitations found in ORS 72.7250 does not bar Plaintiffs' negligence per se, negligence, negligent misrepresentation, product liability, nor breach of warranty claims. The UCC specifically limits its sc
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