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D''Angelo v. Miller Yacht Sales and

Decided: February 5, 1993.

GENNARO D'ANGELO, PLAINTIFF-APPELLANT,
v.
MILLER YACHT SALES AND T/A MARINE TRADING INTERNATIONAL, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Ocean County.

King, Brody and Thomas. The opinion of the court was delivered by Brody, J.A.D.

Brody

Plaintiff appeals from a summary judgment dismissing this action by a consumer buyer for direct economic loss attributable to alleged breaches of express and implied warranties. The trial Judge ruled that the action is barred by the four-year limitations period of the Uniform Commercial Code (Code). N.J.S.A. 12A:2-725. The complaint was filed more than four years after accrual of a Code claim, but within six years after accrual of a tort claim for economic loss. Plaintiff's various claims arise from alleged defects in a yacht that he purchased from defendant for $160,000. He contends that because he purchased the yacht as a consumer, and not as a merchant, his claims are not based on the Code, but on strict liability in tort, and therefore are subject to the general six-year limitations period. N.J.S.A. 2A:14-1. We affirm with respect to the claims based on defendant's alleged breach of contract, and reverse with respect to two claims based on fraud.

The record contains no evidence of facts. We must therefore Judge the character of plaintiff's claims solely from the seven counts in his complaint. None of the counts expressly refers to the Code or to strict liability in tort.

The first count recites that defendant breached an agreement to sell plaintiff "a new 1983 marine trader, 44 Sun Deck Troller Yacht," because the yacht defendant delivered was not new, but a repaired used yacht. Plaintiff alleges that the yacht "was in fact crushed and substantially rebuilt and repaired prior to delivery . . . ." In effect, the claim is that defendant breached an express warranty that the yacht was new. N.J.S.A. 12A:2-313(1)(a). Plaintiff alleges in the second count that he could not use the yacht for its ordinary purpose because it was damaged when sold. In effect, the claim is that defendant breached an implied warranty of fitness. N.J.S.A. 12A:2-314(2)(c). The third count specifically alleges that defendant breached an "express warranty" because the yacht was not new. The fourth count specifically alleges that defendant

breached an implied "warranty of fitness." The fifth count specifically alleges that defendant breached an implied "warranty of merchantability," a more comprehensive Code warranty that includes the implied warranty of fitness. N.J.S.A. 12A:2-314.

The sixth and seventh counts of the complaint are not referable to the Code. Plaintiff alleges in the sixth count that defendant "willfully and with malice" misrepresented the yacht as new. He seeks compensatory and punitive damages for alleged "material omissions." The claim is based on the common-law tort of fraud. In the seventh count plaintiff seeks treble damages and attorney's fees under the Consumer Fraud Act. N.J.S.A. 56:8-1 to -60. The trial Judge dismissed these claims erroneously because they are subject to the general six-year limitations period. The Code preserves non-Code claims for fraud. N.J.S.A. 12A:1-103. Cf. Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200, 208-12, 543 A.2d 1020 (App.Div.1988), aff'd o.b., 118 N.J. 249, 571 A.2d 294 (1990).

Plaintiff argues that Chapter 2 of the Code, the Sales Chapter, applies only to sales between merchants and therefore he is not subject to the Code's four-year limitations period. He is plainly wrong. N.J.S.A. 12A:2-103(1)(a) defines buyer to mean "a person who buys or contracts to buy goods." A buyer may be a merchant or a consumer. Sprague & Henwood v. Johnson, 606 F. Supp. 1564, 1565 (W.D.Va.1985). The Code not only implicitly recognizes consumers as buyers but contains provisions that expressly afford consumers more protection than merchants. For instance, a provision in a sales contract that excludes modification or rescission except by a signed writing is valid against a merchant. However, such a provision when contained in a form supplied by a merchant is not valid against a consumer unless the consumer has signed the form. N.J.S.A . 12A:2-209(2).

Our Supreme Court has used N.J.S.A. 12A:2-302, the "unconscionable contract or clause" provision of the Code, to give special protection to consumer buyers in actions brought under the Code. For instance, the Court used the provision to invalidate attempts by sellers to limit warranties in consumer contracts. See Gladden v. Cadillac Motor Car Div., 83 N.J. 320, 331-34, 416 A.2d 394 (1980).

Plaintiff relies on two New Jersey Supreme Court cases to support his claim that a consumer sales contract is not governed by the Code. In Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), a pre-Code case, the Court permitted a consumer to recover damages from a manufacturer for defective carpeting after the seller had gone out of business. At the time, a consumer could not recover against a manufacturer on a breach of contract theory because there was no privity of contract under the Uniform Sale of Goods Law between the consumer and the manufacturer. In the absence of a contract theory of recovery, the Court permitted the consumer to proceed on a tort theory of strict liability. The case is distinguishable because here there is no lack of privity that arguably could prevent application of the Code.

The other case is Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985). There the Court held that a merchant buyer must proceed against a merchant seller under the Code and not on a theory of strict liability in tort that would have enabled the buyer to avoid the Code's four-year time bar. The Court also held that lack of privity of contract would ...


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