Landis v. William Fannin Builders Inc.

• Citation: 193 Ohio App.3d 318,951 N.E.2d 1078
• Decision Date: 29 March 2011
• Docket Number: No. 10AP–568.,10AP–568.
• Parties: LANDIS et al., Appellees,v.WILLIAM FANNIN BUILDERS, INC., Appellant;84 Lumber Company, Appellee.
• Court: United States Court of Appeals (Ohio)

193 Ohio App.3d 318
951 N.E.2d 1078
2011 -Ohio- 1489

LANDIS et al., Appellees,
v.
WILLIAM FANNIN BUILDERS, INC., Appellant;84 Lumber Company, Appellee.

No. 10AP–568.

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

Decided March 29, 2011.

[951 N.E.2d 1081]

Scherner & Sybert, L.L.C., and Dave Lackey, for appellees Landis et al.MacMurray, Petersen & Shuster, L.L.P., Helen MacMurray, Columbus, Shaun K. Petersen, New Albany, and Erica Sherrick, for appellant.Gillett Law Office, L.L.C., and Gary A. Gillett, for appellee 84 Lumber Company.KLATT, Judge.

[Ohio App.3d 321] {¶ 1} Defendant-appellant, William Fannin Builders, Inc. (“Fannin Builders”), appeals from a judgment of the Franklin County Court of Common Pleas in favor of plaintiffs-appellees, Steve Landis and Nancy Weidman, and third-party defendant-appellee, 84 Lumber Company (“84 Lumber”). For the following reasons, we affirm.

[Ohio App.3d 322] {¶ 2} In 2004, Landis and his wife, Weidman, decided to build a custom home on land that Landis owned in Pleasantville, Ohio. After interviewing three builders, they chose Fannin Builders to construct their home. On May 4, 2004, appellees signed a contract with Fannin Builders, in which Fannin Builders agreed to construct appellees' home in accordance with the plans and specifications attached to the contract for $356,750.

{¶ 3} The specifications for appellees' home called for T1–11 exterior siding covered with two coats of stain in a color of appellees' choice. T1–11 siding is a plywood siding with one-inch-deep vertical grooves spaced 11 inches apart. Appellees chose T1–11 siding for their home because it provided a more natural, rustic look than other types of siding. Before signing the construction contract, appellees sought, and received, assurances from Fannin Builders that it had experience with installing and staining T1–11 siding.

{¶ 4} For the most part, the contract specifications indicated certain types of materials appellees wanted (i.e., ceramic tile floors or marble countertops), but did not list specific brands, designs, or colors of the materials. Throughout construction, Fannin Builders would request that appellees choose the brands, designs, or colors as the home progressed to the point where Fannin Builders needed to install the materials. When the time came to apply the stain to the exterior siding, Fannin Builders provided appellees with a brochure entitled “Semi–Transparent & Semi–Solid Color Palettes for all Cabot Colors.” The brochure depicted stains in over 30 colors, each available in two different pigment levels: semitransparent (lightly pigmented) or semisolid (extra pigment). Appellees chose a semitransparent stain in a green color, which Cabot, the stain manufacturer, named “allagash.” Landis communicated his and his wife's choice to Fannin Builders in a September 2, 2004 e-mail.

{¶ 5} Fannin Builders subcontracted with 84 Lumber for the procurement and installation of the T1–11 siding. Unfortunately, 84 Lumber underestimated the amount of siding needed to completely clad

[951 N.E.2d 1082]

appellees' home. Consequently, the company 84 Lumber hired to stain the T1–11 siding, Precision Applied Coating Enterprises (“PACE”), stained the 19 additional sheets separately from the majority of the siding. Although PACE stained both batches of siding with Cabot semitransparent allagash stain, one batch of siding turned out a noticeably darker hue than the other batch.

{¶ 6} Weidman visited the construction site after 84 Lumber delivered the siding, and she saw that one stack of siding appeared darker in shade than the other stack. Weidman asked Jeff Klinger, Fannin Builder's field superintendent, if the different color would be a problem. According to Weidman, Klinger answered “no” and assured her that a second coat of stain, applied after the siding was in place, would blend the two shades so that they would match.

[Ohio App.3d 323] {¶ 7} When installing the siding, 84 Lumber did not attempt to group same-colored siding together. Instead, 84 Lumber placed darker and lighter siding at random intervals around the perimeter of the house and unattached garage. As a result, appellees' home acquired a striped or patchwork appearance.

{¶ 8} The closing on appellees' home was scheduled for January 4, 2005. While Fannin Builders had substantially completed construction by that date, certain tasks remained undone. One of these tasks was the application of the second coat of stain on the siding. Fannin Builders told appellees that the stain should not be applied in temperatures below 50 degrees Fahrenheit, so appellees consented to delay application of the second coat of stain until spring 2005.

{¶ 9} At the closing, appellees paid Fannin Builders almost the entire contract price, withholding only $2,000 in escrow to be paid out once Fannin Builders finished all work on the house. During the closing, appellees received from Fannin Builders a number of documents, including a homeowner's manual, a 20–year limited warranty on the home's structural components, and a one-year limited warranty on various aspects of the home's materials and construction.

{¶ 10} Shortly after they moved into their new house, appellees observed workers applying a second coat of stain to the exterior siding outside their dining room. Appellees contend that eventually, the whole house and the garage received a second coat of stain. Although appellees did not see the entire staining process, they base their contention on the fact that green stain appears on all the grey trim that edges the siding. Because PACE stained the trim at its facility, the green stain on the trim could have come only from the sloppy application of a second coat of stain after both the siding and trim were installed.

{¶ 11} Contrary to Klinger's earlier assurances, the second coat of stain did not improve the patchwork appearance of the siding.¹ Appellees and Fannin Builders discussed various ways in which to fix the patchwork appearance. In spring 2005, appellees allowed Fannin Builders to remove siding from the back of the garage in order to try stain matching. The attempt was unsuccessful in producing a uniform color.

{¶ 12} On June 14, 2005, representatives from Fannin Builders, 84 Lumber, and

[951 N.E.2d 1083]

PACE met at appellees' home to confer about the siding problem. At that meeting, 84 Lumber agreed to provide and install new siding, and PACE agreed to stain the new siding. In a letter to Fannin Builders dated August 2, 2005, [Ohio App.3d 324] Sean Horton, manager of the Westerville 84 Lumber store, set forth the terms of the agreement:

2. After completion all liability in the color related to this type of application be given unto the builder.

* * *

4. Builder agrees that they understand there is no warrantee [sic] for the color stability, variance in the shades due to the nature of real wood and the semi-trans [sic] coating.

* * *

6. 84 Lumber Company has gone through extensive means to ensure the product that will be supplied is made from the same mill within minutes of each other but we do not under any circumstances issue any statement that would lead anyone to believe that we have any control over the absorption rate and or the shades the t111 product will end up with.

* * *

Per our discussions on the job site and on the phone with the Cabot Company you the builder should now understand the way a semi-trans [sic] stain is when it comes to variances in shade and color in a natural product such as t111 siding. 84 Lumber Company and Precision Applied Coatings are fixing this issue in good faith to the very best of our abilities but we cant [sic] accept another complaint of this nature with all the knowledge we have now imparted to you and the homeowner. This is the final and only fix we will be part of in this siding color matter.

{¶ 13} Both Horton and William Fannin Sr., the president of Fannin Builders, executed the letter agreement. Fannin faxed the letter agreement to Landis and asked him to sign it to acknowledge that he had read it and understood its terms. Landis did so.

{¶ 14} 84 Lumber delivered the replacement siding to appellees' home in early September 2005. When appellees examined the siding, they discovered that it was yellow, not green. Appellees contacted Fannin Builders immediately, explained that the siding was the wrong color, and stated that they did not want the siding installed without discussion of the problem.

{¶ 15} When subsequent communication with PACE revealed that PACE had, indeed, stained the replacement siding with the correct stain, appellees and Fannin Builders disagreed about the appropriate next course of action. Fannin Builders wanted to restain the siding on the house, while appellees advocated restaining the replacement siding. Landis told Fannin to delay any additional staining until they could arrive at a mutually agreeable solution. Despite Landis's instruction, a Fannin Builders' subcontractor attempted to blend the two [Ohio App.3d 325] stain colors on the siding on the front of the garage. Both appellees and Fannin Builders agree that the result looked horrible.

{¶ 16} The same day that the subcontractor tried to fix the siding with additional stain, Fannin Builders had 84 Lumber remove the replacement siding from appellees' property. As Fannin later explained, he had 84 Lumber remove the replacement siding because appellees “rejected the color of the new siding [and] it makes no sense to put a siding on [the] home with a color [appellees] do not like and hope we can re-stain it to something acceptable.” However, Fannin Builders did not inform appellees of its decision to recall the replacement

[951 N.E.2d 1084]

siding or the reasoning behind that decision before implementing it.

{¶ 17} After discovering the botched fix and the absence of the siding, Landis e-mailed Fannin Builders instructing it not to do any additional work relative to the siding problem without appellees' prior...