This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic 2nd Reporter
Appeal from: Superior Court, Chit. Civ. Division. DOCKET NO. S0426-12 Cnc. Trial Judge: Geoffrey W. Crawford.
Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Beth Robinson, Associate Justice.
[¶ 1] In the above-entitled cause, the Clerk will enter:
[¶ 2] In this contract dispute, plaintiff Walsh Electric Supply, LLC sued defendant All Seasons Excavating & Landscaping, Inc. for payment for outdoor lights sold by Walsh Electric to All Seasons, and All Seasons defended that it withheld partial payment because Walsh Electric was responsible for the costs incurred in replacing the defective lights. All Seasons sought to avoid the impact of a disclaimer of warranty, arguing that the disclaimer appeared in a contract between All Seasons and a different entity and was not assignable to Walsh Electric, and that the disclaimer was not, in any event, enforceable. The trial court granted Walsh Electric summary judgment. We affirm.
[¶ 3] The undisputed facts are as follows. All Seasons ordered fifteen Philips Lumec lights for $42,000 through Walsh Electric for a project in Colchester. Walsh Electric ordered the lights through Apex Lighting Solutions. On December 28, 2011, after receiving and installing the lights, All Seasons informed Walsh Electric that three lights were defective. Walsh Electric contacted Apex to initiate a warranty claim. Apex notified the manufacturer, Philips Lumec, which informed Apex that the claim should be filed with the parts vendor. Apex filed a claim with the parts vendor; that vendor initially shipped the wrong kind of generators, but ultimately delivered the correct generators to All Seasons on January 26, 2012.
[¶ 4] In February 2012, All Seasons submitted an invoice to Walsh Electric and Apex totaling $10,754.38. The invoice detailed expenses All Seasons incurred, mostly in the form of labor costs and equipment rental charges for All Seasons employees and equipment used to diagnose the problem and replace the defective lights. Apex forwarded the invoice to Lumec, and Lumec refused to pay for any labor costs associated, relying on its warranty, which states that [i]n no event will Lumec be responsible or liable for any labor costs at site for the removal or replacement of defective products or materials.
[¶ 5] All Seasons paid Walsh Electric $32,000 of the invoiced $42,000 for the lights. Along with another outstanding invoice for parts, Walsh Electric claimed All Seasons owed Walsh Electric $11,611.46.
[¶ 6] When All Seasons refused to pay, Walsh Electric filed this suit against All Seasons and its president Robby Mazza. With respect to All Seasons' withholding of monies to cover the costs it incurred as a result of the defective lights, Walsh Electric pointed to a contract specifically disclaiming any warranty on the merchandise sold, limiting a buyer's recovery to the manufacturer's warranty. Although that contract was between All Seasons and Walsh Electric Supply Co., Inc., Walsh Electric Supply, LLC argued that it was the successor to and assign of Walsh Electric Supply Co., Inc.
[¶ 7] Walsh Electric filed for summary judgment, and submitted a statement of undisputed facts. Walsh Electric claimed that it met all of its obligations under the parties' written agreement and was entitled to payment. In support of its motion, Walsh Electric included the following evidence in its statement of undisputed facts, and supported it with documents and affidavits. In October 1994, Robby Mazza, on behalf of All Seasons, signed a customer agreement with Walsh Electric Supply Co., Inc. Mazza also signed a personal guarantee, agreeing to pay any amount owed by All Seasons to the Walsh Electric corporation.
[¶ 8] Under the customer agreement, the Walsh Electric corporation agreed to extend credit to All Seasons for the purchase of electrical products, and All Seasons agreed to several Terms and Conditions located at the top of the reverse side of the agreement. These conditions included the following:
1. WALSH ELECTRIC SUPPLY CO., INC., HEREINAFTER REFERRED TO AS SELLER, OFFERS NO GUARANTEES OR WARRANTIES OF ANY KIND WHATSOVER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, EITHER EXPRESSED OR IMPLIED, ON MERCHANDISE SOLD BY IT, AND BUYER HEREIN ASSUMES ALL RISKS AND LIABILITY FOR THE RESULTS OBTAINED IN THE USE OF ANY MERCHANDISE SOLD BY SELLER AND BUYER AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM ...