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Prenger v. Boat Store, Inc.

Court of Appeals of Missouri, Southern District, First Division

January 27, 2015

KEVIN PRENGER, Plaintiff/Appellant,
v.
THE BOAT STORE, INC., d/b/a KELLY'S PORT, and REGAL MARINE INDUSTRIES, INC., Defendants/Respondents

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable G. Stanley Moore, Circuit Judge.

For Appellant: Clark L. Jones, of Columbia, Missouri.

For Respondents: Michael L. McDorman of Lake Ozark, Missouri and Andrew J. Hardwick, of Versailles, Missour.

WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concurs. DANIEL E. SCOTT, J. - Concurs in Part and Dissents in Part, in Separate Opinion.

OPINION

WILLIAM W. FRANCIS, JR., C.J./P.J.

Page 382

Kevin Prenger (" Prenger" ) appeals the judgment of the trial court sustaining respective motions to dismiss filed by The Boat Store, Inc. d/b/a Kelly's Port (" Kelly's Port " ), and Regal Marine Industries, Inc. (" Regal" ),[1] and dismissing Prenger's Second Amended Petition. We reverse and remand this matter to the trial court for further proceedings.

Page 383

Factual and Procedural Background

On March 1, 2013, Prenger filed this action against Kelly's Port and Regal seeking damages for alleged defects in a boat manufactured by Regal, sold by Kelly's Port, and purchased by Prenger. Prenger seeks relief in different counts on different theories of breach of warranty and negligence. After Prenger filed a Second Amended Petition, Kelly's Port and Regal filed separate motions to dismiss asserting Prenger's petition failed to state a cause of action, was barred by the statute of limitations, and that the theories alleged did not plead sufficient causes of action against Kelly's Port. In a judgment entered on April 16, 2014, the trial court sustained both motions to dismiss. Prenger appeals. This Court agrees with Prenger that the trial court erred in sustaining the motions to dismiss filed by Kelly's Port and Regal for the reasons set forth below.

Allegations in Prenger's Second Amended Petition

The Second Amended Petition sets forth five counts by which Prenger seeks relief. Counts I and III seek relief against Regal on breach of warranty claims. Counts II, IV and V seek relief against Kelly's Port alleging breach of express warranty, negligence, and negligent misrepresentation, respectively.

Prenger alleges he purchased this boat " on or about July 26, 2008," from Kelly's Port and that it contained a one-year written warranty to repair all parts found to be defective in materials or workmanship. He then alleges that " shortly after" he bought the boat, he discovered bad parts, and Regal sent him to Kelly's Port for repairs. Repairs were performed and Prenger alleges " at sometime subsequent to March 2, 2009," the boat had " the same ...


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