Not Reported in N.W.2d Page 1
2003 WL 22976523 (Mich.App.), 52 UCC Rep.Serv.2d 390
(Cite as: 2003 WL 22976523 (Mich.App.))
UNPUBLISHED OPINION. CHECK COURT RULES
BEFORE CITING.
Court of Appeals of Michigan.
PORTABLE SPAS PLUS, INC., Plaintiff-Appellant,
v.
INTEGRATED SOFTWARE SYSTEMS, INC.,
Defendant-Appellee.
No. 242300.
Dec. 18, 2003.
Before: SAAD, P.J., and MARKEY and METER, JJ.
[UNPUBLISHED]
PER CURIAM.
*1 Plaintiff appeals by right an order of dismissal. Plaintiff
contends the trial court erred (1) in refusing to consider
plaintiff’s claim for breach of an implied warranty of fitness
for a particular purpose, (2) by granting summary
disposition in favor of defendant on plaintiff’s breach of
contract claim, and (3) by refusing plaintiff permission to
amend its complaint to include a specific count of breach
implied warranty of fitness for a particular purpose. We
agree.
MCL 440.2315 provides:
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are
required and that the buyer is relying on the seller’s skill
or judgment to select or furnish suitable goods, there is
unless excluded or modified under the next section an
implied warranty that the goods shall be fit for such
purpose.
“Thus, to establish a valid warranty of fitness for a
particular purpose, ‘the seller must know, at the time of sale,
the particular purpose for which the goods are required and
also that the buyer is relying on the seller to select or furnish
suitable goods.” ‘ Leavitt v. Monaco Coach Corp, 241
Mich.App 288, 293; 616 NW2d 175 (2000), quoting
Ambassador Steel Co v. Ewald Steel Co, 33 Mich.App 495,
501; 190 NW2d 275 (1971).
In this case, plaintiff has consistently averred that it was not
sophisticated about computer systems and relied upon
defendant’s expertise to select the appropriate software and
equipment to meet its business needs. Plaintiff provided
defendant with a written list that explained its business
functions, needs and what it wanted to accomplish with new
software. Plaintiff stated it provided defendant with a “blank
check” to select the appropriate hardware and software for
its business and that it purchased all programs
recommended by defendant.
In Leavitt, supra, the plaintiff sought to purchase a motor
home sufficient to endure excursions in the mountains. The
plaintiff specifically informed the motor coach dealer of his
travel intentions, the problems he had encountered in the
past with vehicles, and admitted his own lack of knowledge
regarding diesel engines. The Leavitt Court determined that
“plaintiff’s testimony about having communicated his
problems with brakes in the past while seeking defendant’s
advice in the matter, along with having described the
mountainous areas in which he wished to drive the coach,
was sufficient to support a finding that plaintiff articulated
to defendant his particular braking needs.” Leavitt, supra,
241 Mich.App 294. Further, “plaintiff’s insistence that he
relied mainly on defendant for the choice of engine, and for
deciding against upgrading the brakes, is sufficient to
support a finding that plaintiff relied on defendant’s
expertise in selecting a coach that suited his needs.” Id.
In Leavitt, supra, the plaintiff sought to purchase a motor
home sufficient to endure excursions in the mountains. The
plaintiff specifically informed the motor coach dealer of his
travel intentions, the problems he had encountered in the
past with vehicles, and admitted his own lack of knowledge
regarding diesel engines. The Leavitt Court determined that
“plaintiff’s testimony about having communicated his
problems with brakes in the past while seeking defendant’s
advice in the matter, along with having described the
mountainous areas in which he wished to drive the coach,
was sufficient to support a finding that plaintiff articulated
to defendant his particular braking needs.” Leavitt, supra,
241 Mich.App 294. Further, “plaintiff’s insistence that he
relied mainly on defendant for the choice of engine, and for
deciding against upgrading the brakes, is sufficient to
support a finding that plaintiff relied on defendant’s
expertise in selecting a coach that suited his needs.” Id.