WEIGHPAK SYSTEMS, INC. v. LIONI LATTICINI, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0166-05T10166-05T1

WEIGHPAK SYSTEMS, INC.,

Plaintiff-Respondent,

vs.

LIONI LATTICINI, INC.,

Defendant-Appellant.

__________________________________

 

Submitted: June 20, 2006 - Decided July 14, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-4248-05.

Butler Conti, attorneys for appellant (David V. Conti, Jr., of counsel and on the brief).

No brief was filed on behalf of respondent.

PER CURIAM

Plaintiff Weighpak Systems, Inc. (Weighpak) and defendant Lioni Latticini, Inc. (Latticini) entered a contract for a custom conveyor system to be installed on Latticini's premises. Weighpak filed a complaint for the balance due on the contract; Latticini contested the claim and asserted a counterclaim for negligent provision of services and goods. Latticini appeals from an order granting summary judgment to Weighpak. We affirm.

This court employs the same standard that governs the trial court in reviewing summary judgment orders. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "Thus, the movant must show that there does not exist a 'genuine issue' as to a material fact and not simply one 'of an insubstantial nature'; a non-movant will be unsuccessful 'merely by pointing to any fact in dispute." Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)). The facts must also be viewed in the light most favorable to Latticini, the non-moving party. R. 4:46-2(c).

Weighpak designs, manufactures and installs packaging equipment. Latticini is a manufacturer, wholesaler and retailer of cheese products, primarily mozzarella cheese. On April 18, 2002, Weighpak sold conveyor equipment to Latticini for use in its cheese processing business. Latticini expressly required that the equipment, particularly the motor that powered the conveyor system, must operate in wet conditions. The contract cost was $80,000 with $15,000 paid as a deposit. The contract provided a twelve-month warranty of the equipment for normal use and service, but disclaimed implied and express warranties of merchantability and fitness for a particular purpose.

The equipment was installed on December 5 and 6, 2002. Three service calls were made. The first, on January 16, 2003, concerned "transfer number two." The problem was resolved that day. On February 26, 2003, a service call was made to perform an adjustment. The last call, on June 11, 2003, required adjustments to various parts of the system. The technician reported that following the adjustments he "ran production with accuracy and speed." He also noted that Latticini "request[ed] a motor as spare parts with coupling." The technician checked a box on a form that the job was complete. A few days after the last service call, Latticini paid an additional $20,000.

In opposition to Weighpak's motion for summary judgment, Latticini submitted the certification of Ray Stevanovic, an employee familiar with the equipment. Stevanovic asserted that the equipment, particularly the motors used, were not of merchantable quality and not fit for their intended use. He stated that one of the repairs included parts for the motor, which should have been provided to defendant without cost. He also asserted that Latticini was required to incur expenses to repair or correct the material and design provided by Weighpak.

The contract required Latticini to return any part that it believed to be defective. If Weighpak agreed that the part was defective and it was covered by the one-year warranty, Latticini was to buy and receive credit for a replacement part. Latticini never expressly rejected the equipment supplied by Weighpak. It expressed its dissatisfaction by refusing to pay the balance due on the contract.

Weighpak filed a complaint dated April 12, 2005, seeking the balance due under the contract. Judge Fasciale granted Weighpak's motion for summary judgment on August 18, 2005. In his oral opinion, the judge observed that Latticini did not contest that the contract contained a disclaimer of the warranty of merchantability and fitness for a particular purpose. He also noted that Latticini recognized the need to return a defective part for replacement. He focused on the fact that the defective part was capable of being detached from the conveyor system. The judge also found that Latticini never rejected the goods or revoked acceptance of the goods.

On appeal, Latticini argues that its actions can be considered an implied rejection of the goods or an implied revocation of acceptance. That may be so, but there were no facts before the motion judge from which he could draw this inference. Other than Stevanovic's assertions that motor parts should have been provided to Latticini at no cost, Stevanovic provided no details of any loss or expenses incurred by Latticini. He did not specify the expenses incurred or append documents to his certification pertaining to these expenses. His statements were wholly conclusory and did not serve as a basis to establish a genuine issue of material fact.

We, therefore, affirm the August 18, 2005 order granting Weighpak's motion for summary judgment substantially for the reasons expressed by Judge Fasciale in his August 18, 2005 oral opinion.

 
Affirmed.

(continued)

(continued)

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A-0166-05T1

July 14, 2006