Board of Educ. of Columbus City School Dist. v. Fry, Inc., 84AP-366

• Decision Date: 31 December 1984
• Docket Number: No. 84AP-366,84AP-366
• Citation: 22 Ohio App.3d 94,489 N.E.2d 294,22 OBR 281
• Parties: , 22 O.B.R. 281 BOARD OF EDUCATION OF COLUMBUS CITY SCHOOL DISTRICT, Appellee, v. FRY, INC. et al., Appellants; Lawrence Associates Architects et al., Appellees.
• Court: Ohio Court of Appeals

Page 94

22 Ohio App.3d 94

489 N.E.2d 294, 22 O.B.R. 281

BOARD OF EDUCATION OF COLUMBUS CITY SCHOOL DISTRICT, Appellee, v. FRY, INC. et al., Appellants Lawrence Associates Architects et al., Appellees.

No. 84AP-366.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 31, 1984.

Syllabus by the Court

The principle of Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St.2d 88, 326 N.E.2d 267 , that "[a]n action in tort, based on the properly pleaded theory of breach of implied warranty, may be maintained to recover for damage to property," is applicable not only to a claim of the ultimate user of defective materials, but also to the claim of a contractor found liable to the ultimate user because of defective materials, i.e., the contractor, having been found liable to the ultimate user for using defective materials, may bring an action for indemnification against the manufacturer of the defective materials, regardless of privity of contract.

Lawrence H. Braun and Jerry E. Nathan, Columbus, for plaintiff-appellee Bd. of Educ. of Columbus City School Dist.

George E. Lord, Columbus, for third-party plaintiffs-appellants Fry, Inc. and Ohio Cas. Ins. Co.

Evelyn J. Stratton, Columbus, for third-party defendant-appellee Lawrence Associates Architects.

Wiles, Doucher, Van Buren, Boyle & Casey Co., L.P.A., and David T. Patterson, Columbus, for third-party defendant-appellee W.R. Grace & Co.

Baker & Hostetler, Terence P. Kemp, Columbus, and Randall L. Solomon, Cleveland, for third-party defendant-appellee Gaf Corp.

Sanford, Fisher, Fahey & Schwarzwalder Co., L.P.A., and Richard P. Fahey, Columbus, for third-party defendant-appellee Hoge-Warren-Zimmerman.

WHITESIDE, Judge.

Defendants, Ohio Casualty Insurance Company and Fry, Inc., appeal from a judgment of the Franklin County Court of Common Pleas dismissing their third-party complaint against third-party defendants, Lawrence Associates Architects, GAF Corporation and W.R. Grace & Company. In support of the appeal, defendants raise a single assignment of error contending that the trial court erred in dismissing the third-party complaint for lack of privity between the parties.

Plaintiff, Board of Education of the Columbus City School District ("board"), brought this action against defendants, Ohio Casualty Insurance Company and Fry, Inc., for damages because of alleged defective roofs on two school buildings constructed by Fry, Inc., pursuant to a contract with the board for which Ohio Casualty Insurance Company ("Ohio Casualty") furnished the performance bond.

In its third-party complaint, Fry, Inc. alleges that third-party defendant Lawrence Associates Architects ("Lawrence") was the architect for one of the buildings, Linden Park, and designed the roofing system, and that third-party defendant W.R. Grace & Co. ("Grace") manufactured material known as Zonolite used by a subcontractor of Fry, Inc. to install the insulating concrete deck for the roof. Fry, Inc. further alleged that, with respect to the other building, known as "Douglas," Fry's subcontractor furnished and installed built-up roofing manufactured by third-party defendant GAF Corporation ("GAF") as required by the contract specifications. The third-party complaint further alleges:

"(5) If the roof on the Linden Park project has failed, that failure is the result of the negligence of Lawrence in failing to prepare plans and specifications to include an adequate roofing system and adequate roofing materials; * * * the negligence and breach of implied and express warranties by Grace in furnishing decking material; * * *.

"(6) In the event that Fry is liable to the Board of Education in respect to the Linden Park project, then third-party defendants are jointly and severally liable to Fry. * * *

" * * *

"(10) If the roof on the Douglas project has failed, that failure is the result of * * * the negligence and breach of implied and express warranties by GAF in furnishing such roofing materials.

"(11) In the event that Fry is liable to the Board of Education in respect to the Douglas project, then the third-party defendants are jointly and severally liable to Fry. * * * "

Each of the third-party defendants, Lawrence, Grace and GAF, filed motions to dismiss the third-party complaint as against them for failure to state a claim for relief predicated primarily upon lack of privity of contract. The trial court sustained these motions and, making an express finding of no just cause for delay, entered judgment in favor of third-party defendants, Lawrence, Grace and GAF, dismissing Fry's third-party complaint as against these defendants from which this appeal has ensued.

Since different issues are presented with respect to the third-party complaint as against each of the third-party defendants whose motions to dismiss the trial court sustained, we shall consider them separately.

First, Lawrence is alleged to be the architect who designed the Linden Park building and specified that Grace material be utilized. In resisting the motion to dismiss, Fry pointed out that necessarily it had to rely upon the plans and specifications prepared by the architect in performing the contract with the owner for construction of the building. Fry then makes a vague reference to Civ.R. 19(A)(1) indicating that the third-party complaint was filed "not so much because Fry, Inc. has a complaint against Lawrence Associates but because Lawrence Associates is a necessary party to the complete litigation of the issues." Apparently, this alludes to some type of indemnification to which Fry contends that it is entitled to if plaintiff recovers against it.

Presumably, Fry is proceeding upon a theory similar to that of Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St.2d 154, 436 N.E.2d 212 . However, assuming that the principle of Haddon View applies to engineers as well as accountants, the fact situation here differs substantially in that Fry does not seek an independent recovery against Lawrence, but, instead, seeks only indemnification from Lawrence for any liability that Fry may have to plaintiff board because of negligent design by Lawrence. No such liability can exist in this case. Plaintiff board, in contracting with Fry for the construction of the Linden Park building, adopted the specifications of the architect, Lawrence; hence, if Fry complied with the specifications so furnished, it cannot be found to be in breach of its contract with plaintiff board. In short, there are no set of circumstances under which the liability of Fry to plaintiff board could be predicated upon the negligence of Lawrence in designing the building. Accordingly, the trial court did not err in sustaining third-party defendant Lawrence's motion to dismiss.

The third-party claims, as against GAF and Grace, are predicated upon essentially the same theory--indemnification. GAF, however, contends that the issue was not raised in the trial court by defendants, Ohio Casualty and Fry, and therefore cannot be asserted upon appeal. However, the motion to dismiss was predicated upon no rights existing in Fry in the absence of privity of contract and the judgment of the trial court was predicated upon that theory. Furthermore, contrary to the assertion of GAF in the trial court, and, upon appeal, we find no indication in the record that Fry has conceded that it has no claim for indemnification against GAF. Rather, with respect to privity, Fry, in its memorandum in the trial court, stated simply: "While the arguments advanced in the motion to dismiss are cogent, they miss the point." Fry first relied upon Civ.R. 19(A)(1), asserting that relief could not be accorded among the existing parties in the absence of GAF. Fry then stated in its memorandum in the trial court:

"Accordingly, while the pleadings may have been differently framed, the issues before this court cannot be justly and completely adjudicated without the presence of GAF Corporation. The defense of Fry, Inc., * * * sounds in a one year guarantee and performance in a workmanlike manner. If both of those defenses are viable and the roof still leaks, then the composition of the roof comes into question. The...