STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MACOMB

PRODUCE PALACE INTERNATIONAL,

Plaintiffs,

vs-

TEC-AMERICA CORPORATION, a Foreign
Corporation, ALL AMERICAN CASH REGISTER
INC., a Michigan Corporation,
Jointly and Severally,

Defendants.

LAW OFFICES OF BRIAN P. PARKER
BRIAN P. PARKER (P 48617)
Attorney for Plaintiff
30800 Telegraph Rd., Suite 2985
Bingham Farms, MI 48025
(810) 642-6268

Case No. 97- -CK

HON.

COMPLAINT

DEMAND FOR JURY

NOW COMES Plaintiff, by and through its attorneys, The Law Offices of Brian P. Parker, P.C., and complains against the abovestated Defendants and states in support of said Complaint as follows:

GENERAL ALLEGATIONS

Plaintiff is a business residing in Macomb County, State of Michigan..

Defendant, TEC-America Corp. ("TEC"), is a foreign corporation authorized to do business in the State of Michigan and is engaged in the manufacture, sale, and distribution of the Plaintiff’s computer system and related equipment and services in Macomb County, Michigan.

At all times relevant hereto, Defendant All American Cash Register Inc. ("All American"), was and is a Michigan corporation located in Inkster, County of Wayne, State of Michigan and is engaged in the selling and servicing of the subject computer and related equipment manufactured by Defendant TEC.

On or about April 12, 1995, Plaintiff purchased a new TEC computer system for its business from the Defendant All American for an amount in excess of $10,000.00, which manufactured and distributed by the Defendant, TEC.

Plaintiff purchased the computer system with the opening of their produce market to immediately impact on their ability to take in money for their store, network all of their cash registers, monitor the entire store’s inventory, process credit cards at the cash register and expedite accounting.

That Plaintiffs were promised that the TEC system met their needs better than any of the other TEC competitors and that they would have a system that was free of problems and one that would increase profits and speed up the store’s ability to take in money.

Plaintiff’s purchase of the computer system was accompanied by express warranties offered by Defendant All American and Defendant TEC and was advanced to the Plaintiff.

Said warranties were part of the basis of the bargain of Plaintiff’s contract for the purchase of the computer system.

The Defendants’ warranties covered any repairs or replacements needed during the warranty period and/or due to defects in factory materials or workmanship.

In fact, when delivered, the subject system was defective in materials and workmanship, such defects being discovered within the warranty periods and repeated repairs were attempted.

That of the first five hundred days the system has been in place, it has been down over one hundred days, a good majority of the problems involve the failure of the computer to process credit cards during business hours.

That customers can not use their credit cards after shopping in the Plaintiff’s store and filling up their carts and this causes the customer to leave the store angry and without spending money in Plaintiff’s store.

That the computer system was installed in 1995 without the ability of the system to process credit cards that expire on or after the year 2000.

That the system fails or shuts down a majority of the time and causes delays in the Plaintiff’s ability to service customers, and further, causes a loss of income.

That not only has there been a delay or loss of income during the system failures, but also, Plaintiff is losing a valuable customer base and goodwill.

That the system needs to be "rebooted" at least once a day as it locks up intermittently causing expensive employee down time and also adds to the customer’s irritation.

That the system failures not only increase the employee man hours that my client must pay for, but the manager is also exposed to sensitive accounting information during the re-boot of the crashed system.

The defects experienced by Plaintiff with the system substantially impaired its use and value to the Plaintiff, and has shaken the Plaintiff’s faith in the computer system ever operating as promised by the Defendants.

Despite Plaintiff’s repeated efforts to allow Defendants the opportunity to repair the computer system, many nonconforming and defective conditions were not repaired and still exist.

This cause arises out of the Defendants’ breaches of warranty and contract and violations of the enclosed statutes, as set forth in this Complaint.

Plaintiff seeks judgement against the Defendants in whatever amount in excess of $10,000 that Plaintiff is entitled to, equitable relief, consequential damages and the costs and expenses of this action.

COUNT I

BREACH OF WARRANTY

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

Defendants are merchants with respect to the computer system under MCLA 440.2104.

The aforementioned computer system purchased by Plaintiff was subject to implied warranties of merchantability under MCLA 440.2314.

Defendants also made certain express warranties and representations to Plaintiff, both orally and in writing designed to encourage the Plaintiff to purchase the subject system.

Said express and implied warranties included, but were not limited to the vehicles’ reliability, merchantability, freedom from defects, that it was of sound quality and that any repairs or defects would be repaired within in a reasonable time.

The Defendants impliedly warranted that the subject system would be merchantable and at least fit for the purpose for which it is used.

The Defendants breached this implied warranty by not supplying a computer system which was merchantable and at least fit for the above enumerated purposes for which it is used.

As part of this transaction, Defendants also represented that certain express warranties were available to Plaintiff.

The express warranties have been breached by Defendants’ failure to deliver the subject system free from defects and by their failure to repair said defects within a reasonable time.

That the system is still subject to future repairs, crashes and loss of use as a result of Defendants’ failure to properly repair the computer system as warranted.

As a result of the system’s many defects, it cannot be reasonably relied on by Plaintiff for the very purposes Plaintiff purchased the system for.

As a direct and proximate result of Defendants’ various breaches of warranty, Plaintiff has suffered damages, including but not limited to: repair costs, loss of wages, interest and sales tax, loss of use of the system, loss of value, increased man hours, loss of credit card receipts and income, costs, incidental and consequential damages and inconvenience.

As a direct and proximate result of Defendants’ various breaches of warranty, Plaintiff faces future inconvenience associated with the future repair work and down time, loss of a use, loss of value, extensive repairs, incidental and consequential costs, together with costs and attorney fees necessary to secure relief from Defendant’s wrongful conduct.

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, in whatever amount above $10,000 Plaintiff is found to be entitled, equitable relief, plus interest, costs and reasonable attorney fees.

COUNT II

VIOLATION OF THE MAGNUSSON-MOSS WARRANTY ACT

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

Plaintiff is a "consumer" as defined in the Magnusson-Moss Warranty Act ("Warranty Act"), 15 U.S.C. 2301(3).

Defendants are "suppliers" and "warrantor" as defined in the Warranty Act, 15 U.S.C. 2310(4) and (5).

The aforedescribed computer system is a consumer product as defined in 15 USC 2301(1).

The express warranties more fully described hereinabove and pertaining to the vehicle is a "written warranty" as defined in the Warranty Act, 15 U.S.C. 2301(6).

The actions of Defendants as hereinabove described and in failing to tender the subject computer system to Plaintiff free of defects and refusing to repair or replace the defective system tendered to Plaintiff, constitute a breach of the written and implied warranties covering the vehicle and are a violation of the Magnusson-Moss Warranty Act.

Plaintiff has performed all things agreed to and required of it under the purchase agreement and warranty, except as may have been excused or prevented by the conduct of Defendants as herein alleged.

Defendants have had a reasonable opportunity to remedy the defects in the system but have failed to do so, thereby entitling Plaintiff to a refund of the purchase price pursuant to the Magnusson-Moss Warranty Act.

As a proximate result of the misconduct of Defendants as alleged herein, and in an effort to protect their rights and to enforce the terms of the agreement as more particularly set forth above, it has become necessary for Plaintiff to employ the legal services of The Law Offices of Brian P. Parker, and Plaintiff has incurred and continues to incur legal fees, costs and expenses in connection therewith.

As a direct and proximate result of the acts and omissions of Defendants and each of them as set forth hereinabove, Plaintiff has been damaged as mentioned in an amount in excess of $10,000.00.

Pursuant to the Magnusson-Moss Warranty Act, 15 U.S.C. 2310(d)(2), Plaintiff is entitled to recover as part of the judgment, costs and expenses of the suit including attorney’s fees based on actual time expended.

HEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, in whatever amount above $10,000 Plaintiff is found to be entitled, equitable relief, plus interest, costs and reasonable attorney fees.

COUNT III

BREACH OF WARRANTY OF FITNESS

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

At the time the parties executed their contract, Defendants had reason to know the particular purpose for which Plaintiff desired to use the subject system.

Plaintiff relied upon Defendant’s expertise in selecting the subject system to conform to the Plaintiff’s needs and requirements.

Defendants impliedly warranted that the system would be fit for the purpose Plaintiff intended according to MCLA 440.2315.

This warranty has been breached in that the computer system is not fit for the purpose Plaintiff intended as enumerated above.

Plaintiff has been damaged by this breach as enumerated above.

WHEREFORE, Plaintiff prays that this Honorable Court require Defendants to accept return of the subject and refund Plaintiff’s purchase price, together with consequential damages, interest, costs and reasonable attorney fees.

COUNT IV

REVOCATION

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

The non-conformities and repair history of the subject computer system resulting from the breaches of warranty describe above have substantially impaired the value of the computer system to the Plaintiff.

After numerous attempts by Defendants to cure the defects in the subject system, the Plaintiff now believes that said non-conformities cannot be seasonably or ever cured and she has lost confidence that the computer system can be operated properly and in conformity with the promised representations of Defendants.

Due to the system’s lengthy repair history and continuing defects, Plaintiff has previously sought to revoke acceptance pursuant to MCLA 440.2608 and the return of the purchase price of the subject computer system.

Defendants have refused to comply with the Plaintiff’s demand for revocation and a refund of Plaintiff’s purchase price.

With the filing of this Complaint, Plaintiff continues its demand of Defendants to allow it to return the system in exchange for the purchase price and any costs or expenses associated with the sale, repair and return of the system as allowed by law.

WHEREFORE, Plaintiff prays that this Honorable Court require Defendants to accept return of the subject computer system and refund Plaintiff’s purchase price, together with incidental and consequential expenses including repair costs, insurance and other expenses, interest, and reasonable attorney fees.

COUNT V

BREACH OF DUTY OF GOOD FAITH

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

Defendants have breached their duty of good faith in this transaction according to MCLA 440.1203 by:

a. breaching the express and implied warranties described herein;

b. selling the Plaintiff a computer system with the defects of which they knew or should have known;

c. failing to repair the above enumerated defects the first time during both warranty periods.

WHEREFORE, Plaintiff prays that this Honorable Court require Defendants to accept return of the subject system and refund Plaintiff’s purchase price, together with incidental and consequential expenses including repair costs, insurance and other expenses, interest, and reasonable attorney fees.

COUNT VI

NEGLIGENT REPAIR

Plaintiff realleges and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

On numerous occasions, Plaintiff has made the subject system available to Defendants for repairs of the defective conditions covered under the express and implied warranties set forth hereinabove.

On each occasion that Plaintiff made the subject system available for repair, Plaintiff is informed and believe, and thereupon alleges, that Defendants attempted repairs pursuant to their obligations under the express and implied warranties accompanying the vehicle’s sale.

Defendants owed a duty of care to Plaintiff to perform repairs in a good and workmanlike manner within a reasonable time.

These Defendants breached this duty in that, the attempted repairs of Plaintiff’s system were done negligently, carelessly, and recklessly as to substantially impair the system’s use and value in its operation and after each repair attempt, defendants represented to Plaintiff that the repairs were complete, and Plaintiff relied thereon.

That these Defendants’ representations that the system was repaired each time was false, one indication being that the system is still malfunctioning and has been down over one hundred days in the short time the system has been in use.

As a direct and proximate result of Defendants’ negligent failure to repair the Plaintiff’s system within a reasonable time or within a reasonable number of attempts, Plaintiff was forced to endure the use of a defective system that still exhibits the problems Plaintiff has complained of previously.

As a further direct and proximate result of Defendants’ failure to repair the system in a timely and workmanlike fashion, Plaintiff was forced repeatedly to take endure further repair attempts and to lose the system long periods of time at great inconvenience and further, Plaintiff lost time and related income due.

The damages Plaintiff has suffered as a direct and proximate result of Defendants’ negligence exceed $10,000 and include but are not limited, to costs of repair, expenses associated with repeated repairs for the same problem, loss of wages, loss of use, and damages to Plaintiff’s bottom line.

WHEREFORE, Plaintiff prays for judgment as follows:

(1) For actual damages in excess of $10,000.00 according to proof at trial;

(2) For damages resulting from Defendants’ negligent repair of the system as alleged above in a sum in excess of $10,000 according to proof at trial;

(3) For attorney’s fees and costs of suit incurred herein; and

(4) For such other and further relief as the court deems just and proper under the circumstances.

COUNT VII

MISREPRESENTATION

Plaintiff realleges and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

Defendants had a duty to perform repairs or cause repairs to be performed properly, professionally and in a reasonable time.

Defendants further duty was to disclose to Plaintiff if any defects or non-conformities were not repaired or could not be repaired within a reasonable time.

The above enumerated duties were heightened because the defects were related to the ability of Plaintiff to make money and keep his business growing.

Contrary to the aforementioned duties, Defendants represented and have continued to represent that the defects and/or nonconformities could be repaired, when they knew, or should have known that this was not the case or the truth.

Defendants falsely represented that they could repair the defects and non-conformities and that repairs were made to the Plaintiff’s computer system, when in fact they were not.

Defendants intended that the Plaintiff rely on the misrepresentations and the Plaintiff did rely on same.

Plaintiff reasonably relied on Defendants’ representations to its detriment, as herein before alleged.

Defendants have benefitted from Plaintiff’s reliance the Defendant’s misrepresentations.

As a direct and proximate result of Defendants’ negligent repair and misrepresentation, Plaintiff has suffered damages as enumerated above.

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, in whatever amount above $10,000 Plaintiff is found to be entitled, equitable relief, plus interest, costs and reasonable attorney fees.

COUNT VIII

BREACH OF CONTRACT

Plaintiff reallege and incorporate herein by reference each and every allegation contained above as though fully set forth and restated herein.

That the Plaintiff and the Defendants entered into an agreement for the purchase of the subject computer system.

That there was a viable offer, acceptance and consideration for the agreement.

That as enumerated above by the repair history of the Plaintiff’s computer system, Defendants have breached the conditions of the subject agreement and have failed and/or refused to make reasonable arrangements to rectify said breach.

That due to the Defendants’ breach of the contract as enumerated above, the Plaintiff was harmed and continues to suffer harm in that he did not receive what he bargained for.

Plaintiff now seeks money damages so as to place it in the position they should have been in if the breach did not occur.

WHEREFORE, Plaintiffs pray that this Honorable Court award Judgment in their favor and against the Defendant in an amount in excess of the $10,000 jurisdictional requirements of this Court, plus interest from and after the date hereof, costs and attorney fees so wrongfully sustained.

COUNT IX

VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT

Plaintiff reallege and incorporates by reference as though fully set forth herein each and every allegation set forth in the above paragraphs.

Plaintiff is a "person" as defined in the Michigan Consumer Protection Act, MCLA 445.902(b).

The transactions complained of constitute "trade or commerce" as defined in the Michigan Consumer Protection Act, MCLA 445.902.

In the course of the transactions which are the subject of this lawsuit, Defendants engaged in following conduct:

a. Represented the subject system to be of good, merchantable quality, free of defects, when in fact it was not, MCLA 445.903(1)(e);

b. Represented that the subject system had been properly repaired under the warranty, when in fact the Defendants knew or should have known that it had not, MCLA 445.903(1)(cc);

c. Represented that the repairs would be performed properly and within a reasonable time, when Defendants knew, or in the exercise of reasonable care, should have known that this was not the case, MCLA 445.903 (1)(s);

d. Failing to make proper repairs on a warranted item, MCLA 445.903(1)(t);

e. Failing to offer a refund or replacement of the subject system in accordance with the applicable law and rules on revocation, MCLA 445.903(1)(u);

f. Causing a probability of confusion or of misunderstanding as to the legal rights, obligations or remedies of a party to a transaction, MCLA 445.903(1)(n);

g. Failing to provide promised benefits both from the sale of the system and in the repair attempts, MCLA 445.903(1)(y);

h. Failing to reveal material facts including but not limited to the cause of the defects and non-conformities and Defendants’ inability to repair said non-conformities as enumerated above, MCLA 445.903(1)(s);

 

I. Entering into a consumer transaction in which the consumer waives or purports to waive a right, benefit, or immunity provided by law, unless the waiver is clearly stated and the consumer has specifically consented to it, MCLA 445.903(1)(t);

 

As a result of the Defendants actions the jurisdiction of this Count of Plaintiff’s Complaint is based on MCLA 445.911(2), providing that persons suffering loss as a result of a violation of the Michigan Consumer Protection Act may bring action to recover actual damages, together with reasonable attorneys fees.

WHEREFORE, Plaintiff prays for Judgment against Defendants, jointly and severally, in whatever amount above $10,000 he is found to be entitled, together with statutory damages, interest, costs and reasonable attorney fees as provided by statute.

DEMAND FOR JURY

NOW COMES Plaintiff, by and through his attorneys, The Law Offices of Brian P. Parker, and hereby makes demand for trial by jury in the within cause of action.

Respectfully submitted,

THE LAW OFFICES OF BRIAN P. PARKER
BRIAN P. PARKER (P 48617)
Attorney for Plaintiff
30800 Telegraph Rd., Suite 2985
Bingham Farms, MI 48025
(810) 642-6268

Date: June 12, 1997