Cypress Properties, Ltd. v. Burton Lumber Corp.

5 Va. Cir. 101, 1983 Va. Cir. LEXIS 52

• Court: Virginia Beach County Circuit Court
• Decided: May 3, 1983
• Docket: Case No. (Law) 12,343
• Status: Published

Opinion

By JUDGE KENNETH N. WHITEHURST, JR.

This matter came to be heard on Motions for Summary Judgment on behalf of Builder Marts of America, Inc., and Lifetime Doors, Inc., and also on motion of Burton Lumber Corporation for entry of an order allowing it to deem timely filed its responses to the Request for Admissions propounded by Builder Marts of America, Inc., and Lifetime Doors, Inc. The motions were taken under advisement and support briefs were timely filed by counsel.

After consideration of the briefs and of the applicable sections of the Virginia Code, the Court is of the opinion that the Motions for Summary Judgment must be denied at this time.

While Burton Lumber Corporation may have admitted that it "did not revoke the acceptance of the fifty doors received from Lifetime Doors” as shown in the Request for Admissions, there is no evidence which would enable the court to find that Burton Lumber Corporation did not provide Lifetime Doors and Builder Marts with notice of breach pursuant to § 8.2-607(3)(a). The court could find no admission of Burton Lumber Corporation that it had failed to give notice to Lifetime Doors or Builder Marts pursuant to § 8.2-607(3)(a), and cannot accept the argument that failure to revoke acceptance as contained in the Request for Admissions would amount to the same thing as failure to notify the seller of breach as contained in the aforesaid code section.

As to the motion by Burton Lumber Corporation that its responses to Requests for Admission be deemed timely filed, the court is of the opinion that the motion should be granted for the reasons set forth in the Brief filed on behalf of Burton Lumber Corporation.