Aluminum Line Products Co. v. Brad Smith Roofing Co., Inc.

• Decision Date: 12 February 1996
• Docket Number: No. 68703,68703
• Citation: 671 N.E.2d 1343,109 Ohio App.3d 246
• Parties: ALUMINUM LINE PRODUCTS CO. Appellants, v. BRAD SMITH ROOFING CO., INC. Appellees.
• Court: Ohio Court of Appeals

Page 246

109 Ohio App.3d 246

671 N.E.2d 1343

ALUMINUM LINE PRODUCTS CO. Appellants, v. BRAD SMITH ROOFING CO., INC. Appellees.

No. 68703.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Feb. 12, 1996.

William J. Day, Brocksville, for appellants.

Buckley King & Bluso, William E. Armstrong and Barbara L. Armstrong, for appellees, James Bradley Smith & Brad Smith Roofing Co., Inc.

Smith, Marshall & Weaver and Phillip J. Weaver, Jr., Cleveland, for appellee ERA Corp. HARPER, Judge.

Plaintiff-appellants, Aluminum Line Products, Inc. ("Aluminum") and West 160th Street Realty Company ("West Realty"), appeal from the summary judgments entered in favor of defendants-appellees, James Bradley Smith and ERA Corporation ("ERA"), by the Court of Common Pleas of Cuyahoga County. Appellants submit that genuine issues of material fact remain for litigation regarding their claims against Smith for negligent construction, breach of an oral contract, and fraudulent concealment, and against ERA for breach of warranty and fraudulent concealment under the theory of successor liability. A careful review of the record compels an affirmance of the trial court's rulings.

I

Aluminum leases the Sperry Building, located at 24460 Sperry Circle, Westlake, Ohio, from West Realty. On behalf of Aluminum and West Realty, Aluminum's president, Kenneth Wessel, sought a quotation from Smith in the spring of 1984 for the reroofing of the building.

Smith orally proposed a $75,713 quote to reroof the building, including both materials and installation. This proposal was premised on the use of the "Button-On Syenergy Single-Ply" or "BOSS" rubber roof system, which was manufactured and marketed by Syenergy Methods, Inc. ("SMI"). SMI's product literature described the BOSS system as the application of a rubber membrane to a flat roof by a series of "button and clamp" fasteners which served to snap the membrane on to the roof. Appellants were provided this literature prior to their decision to proceed with the installation of the system.

Wessel subsequently asked Smith to install the BOSS system on the Sperry Building. Aluminum paid Smith $70,000 on June 29, 1984, and thereafter the remaining balance of the quoted price. The installation of the BOSS system was complete by mid-July 1984.

The $75,713 purchase price included the cost of a written twelve-year warranty issued by SMI. A portion of the warranty reads as follows:

"SMI's obligations hereunder shall be limited to the repair of the System or installation of a new System by an authorized applicator, or at the option of SMI, the reimbursement of the original purchase price of this system, and there shall be no liability for damage to other components of the roof or of the building. In no event shall SMI be liable for any indirect or consequential damages of the Owner or any third party.

" * * * "EXCEPT AS STATED, SMI MAKES NO WARRANTIES--EXPRESS OR IMPLIED--OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE. This warranty constitutes the final, complete and exclusive agreement between the parties and shall apply to and bind the parties, their respective successors and assigns."

The roof of the Sperry Building began to leak almost immediately after the July 1984 installation, and Wessel informed Smith of the leakage sometime during July or August 1984. Smith and Joseph J. Vuono, a SMI representative, inspected the roof in the presence of Wessel shortly after receipt of his complaint.

The inspection revealed that a design or manufacturing defect of a component used in the BOSS system caused perforations in the rubber sheeting. Leaks occurred when it rained due to the expansion and contraction of the rubber sheeting with changes in temperature. Since SMI's twelve-year warranty covered the BOSS system, SMI had the option to either replace the roof, repair it, or reimburse Aluminum for the original purchase price.

Though Smith performed temporary repairs following the inspection, SMI retained him to perform extensive warranty work. Smith replaced the BOSS system with another SMI system, which used adhesives. The repair work commenced on August 13, 1984, and was completed by September 13, 1984. SMI, in turn, inspected and approved the replacement installation on October 16, 1984.

The replacement system, however, still resulted in leaking at Aluminum's premises during 1984, 1985, 1986, 1987 and 1988. Wessel continually complained about the leakage to Smith, and Smith continued to make repairs at SMI's direction. Aluminum never paid Smith for the repairs, since payment was made directly to Smith by SMI under the twelve-year warranty.

Notwithstanding Smith's repairs to the building's roof, and SMI's direction thereof, appellants decided to replace it. On June 9, 1989, the Beck Company ("Beck") submitted a written quotation to appellant in the amount of $94,752. Aluminum issued a purchase order on that date which contained the terms and conditions of its agreement with Beck.

Appellants filed their original complaint in the trial court on April 10, 1991, naming Brad Smith Roofing Co. ("Smith Roofing"), SMI, and ERA, SMI's alleged successor in interest, as defendants. An amended complaint was filed on April 29, 1993, in which Smith, individually, was named a defendant.

ERA, Smith and Smith Roofing filed motions for summary judgment in response to the complaint and amended complaints. The trial court granted summary judgment in favor of ERA and Smith on June 28, 1994, and partial summary judgment in favor of Smith Roofing on July 24, 1994. In a journal entry dated February 28, 1995, the trial court amended its partial summary judgment in favor of Smith Roofing to be a complete grant of summary judgment. ¹

II

Appellants appeal from the grant of summary judgment in favor of ERA and Smith only, assigning the following as error ²:

"1. The court of common pleas erred in granting defendant James Bradley Smith's motion for summary judgment because plaintiffs-appellants filed the original complaint within four years of when the causes of action accrued.

"2. The court of common pleas erred in granting defendant ERA Corporation's motion for summary judgment because ERA Corporation of Minnesota is the successor corporation of Syenergy Methods, Inc. of Connecticut.

The granting of summary judgment is appropriate only if there is no genuine issue of material fact, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Toledo's Great E. Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201, 24 OBR 426, 428-429, 494 N.E.2d 1101, 1103-1104; Civ.R. 56(C). An order granting summary judgment will, therefore, be upheld only where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the non-moving party. Wooster v. Graines (1990), 52 Ohio St.3d 180, 184-185, 556 N.E.2d 1163, 1167-1168; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333, 587 N.E.2d 825, 831; see, also, Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359, 604 N.E.2d 138, 140-141. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265.

A

Appellants, in their first assignment of error, submit that a genuine issue of material fact exists with regard to when their cause of action for negligent construction arose under R.C. 2305.09(D). They maintain that the applicable four-year statute of limitations is triggered when a plaintiff discovers or should have discovered an injury related to a defendant's act or failure to act and the plaintiff is put on notice to investigate, or when the relationship between the parties is terminated for the relevant transaction, whichever occurs later. Appellants argue that since they terminated their relationship with Smith on February 17, 1988, the last date of his attempted roof repairs, their negligent construction claim was timely filed on April 10, 1991.

In Point E. Condominium Owners' Assn., Inc. v. Cedar House Assoc. Co. (1995), 104 Ohio App.3d 704, 663 N.E.2d 343, this court discussed the four-year statute of limitations which governs tort actions for damage to real property, R.C. 2305.09(D). We cited Gardens of Bay Landing Condominiums v. Flair Builders, Inc. (1994), 96 Ohio App.3d 353, 645 N.E.2d 82, which we found to summarize the applicable law:

"An action for the failure of a builder to perform in a workmanlike manner is a tort sounding in negligence and is governed by the four-year statute of limitations found in R.C. 2305.09. Benson v. Dorger (1972), 33 Ohio App.2d 110, 115, 62 O.O.2d 176, 179, 292 N.E.2d 919, 922. Unless damage is immediate, the cause of action does not accrue until actual injury occurs or damage ensues. Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23 O.O.3d 346, 433 N.E.2d 147, paragraph two of the syllabus. The judiciary will determine when a cause of action arose for purposes of statutes of limitations unless the triggering event is defined by the legislature. O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, paragraph one of the syllabus." Id. at 358, 645 N.E.2d at 85.

In Gardens of Bay Landing, damage to concrete floors was discovered in 1985 and two identical instances were discovered in 1986. The condominium association hired engineers in 1990, who advised it...