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Protek11/7/2005
02.88(C) allows a buyer to recover incidental damages for a seller's breach.
{ } "79. "Incidental damages" are those resulting from the seller's breach [including] expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses, or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
{ } "80. The "essential purpose" of the warranty in LES' quotes was to provide LES with the opportunity to cure defective products. Additionally, the consequential damages exclusion pertained solely to any consequential damages arising from any defects in the screws provided by LES. Moreover, the warranty did not exclude the recovery for incidental damages.
{ } "81. With respect to some of the non-conforming or defective product, the warranty in LES's quotations did not fail of its essential purpose as LES and Protek were able to "cure" or "repair" the defects in the bolts through sorting.
{ } "82. With respect to other non-conforming bolts, Protek chose to reject the bolts and they were then replaced by LES.
{ } "83. As to non-conforming bolts, the Court finds that the limited remedies clause did not fail of its essential purpose.
{ } "84. To the extent the limited remedies clause in LES's quotation may have been intended to cover late delivery of product, however, the Court finds that it fails of its essential purpose and that Protek is entitled to recover damages from LES caused by the late delivery.
{ } Upon review, the trial court properly concluded the limited remedies clause failed of its essential purpose in covering the late delivery of product; therefore, Protek is entitled to recover damages from LES caused by late delivery. We agree with the trial court LES could not have cured or repaired the late delivery of product; therefore, the limited warranty clause necessarily failed of its essential purpose, and Protek was entitled to incidental damages arising out of LES' breach.
{ } The second assignment of error on cross-appeal is overruled.
CROSS-APPEAL III
{ } In the third assignment of error on cross-appeal, LES maintains the trial court's award of $155,941.18 to Protek was not supported by competent, credible evidence. Specifically, LES asserts Protek's evidence concerning charge backs and expedited freight costs was insufficient to support the award.
{ } Upon review of the record, we find the trial court had before it competent credible evidence to render its judgment. The trial court properly cited testimony in the record and trial exhibits 11 and 13 in calculating Protek's damages.
{ } LES' third assignment of error is overruled.
CROSS-APPEAL IV
{ } In the final assignment of error on cross-appeal, LES asserts the trial court erred as a matter of law in failing to award LES statutory pre-judgment interest on its counterclaim.
{ } As discussed in our disposition of appellant/cross-appellee Protek's first assignment of error, the trial court specifically found "LES failed to meet delivery dates" and "delivery was a material term of the parties' contract." The trial court awarded Protek $155,941.18 in damages representing back fees and expense incurred in expedited shipping and transportation resulting from LES' material breach. The trial court offset the award to Protek by the amount of LES' counterclaim for unpaid invoices in the amount of $112,670.23, resulting in a net judgment in the amount of $43,270.93 in favor of Protek.
{ } Based
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