Luthman v. Minster Supply Co., 2008 Ohio 165 (Ohio App. 1/22/2008)

• Decision Date: 22 January 2008
• Docket Number: No. 2-06-43.,2-06-43.
• Citation: 2008 Ohio 165
• Parties: Edward Luthman, dba Luthman Concrete, Plaintiff-Appellant, v. Minster Supply Company, Defendant-Appellee.
• Court: Ohio Court of Appeals

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2008 Ohio 165

Edward Luthman, dba Luthman Concrete, Plaintiff-Appellant, v. Minster Supply Company, Defendant-Appellee.

No. 2-06-43.

Court of Appeals of Ohio, Third District, Auglaize County.

Date of Judgment Entry: January 22, 2008.

Appeal from Common Pleas Court.

Judgment affirmed.

Nicole M. Lundrigan, Attorney at Law, Reg. #0075146, The Federal Reserve Building, 150 East Fourth Street, Cincinnati, OH 45202-4018, for Appellant.

Gordon D. Arnold, Attorney at Law, Reg. #0012195, One Dayton Centre, Suite 1800, 1 South Main Street, Dayton, OH 45402-2017, for Appellee.

OPINION

PRESTON, J.

{¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

{¶2} Plaintiff-appellant, Edward Luthman, dba Luthman Concrete (hereinafter "Luthman"), appeals the decision of the Auglaize County Court of Common Pleas granting summary judgment to Minster Supply Company (hereinafter "MSC"). For the reasons that follow, we affirm the trial court's judgment.

{¶3} Luthman operated a business which poured and finished concrete. In 2003, Luthman went to MSC, a business that sells tools and accessories for masonry work, to look for products for decorative concrete. Luthman was shown a BonTool catalog by Ken Gigandet, the manager of MSC. Luthman then purchased a sealer called the Boss Gloss Clear Enhancer (hereinafter "Boss Gloss") from MSC.

{¶4} On June 5, 2005, Luthman filed a complaint against Minster Supply Company, BonTool Co., and Shore Corporation¹ alleging that he applied Boss Gloss to decorative concrete at numerous residential homes and the Boss Gloss turned an "unattractive yellow color." Luthman's complaint alleged the following causes of action against MSC: 1.) product's liability; 2.) negligence; 3.) negligent misrepresentation; 4.) breach of express warranties; 5.) breach of contract; 6.) breach of implied warranty of merchantability; and 7.) breach of implied warranty of fitness for a particular purpose.²

{¶5} On July 24, 2006, MSC filed a motion for summary judgment on all the claims asserted by Luthman. On August 7, 2006, Luthman filed a memorandum in opposition to MSC's motion for summary judgment, and a cross-motion for partial summary judgment against MSC on liability with respect to the following claims: 1.) breach of express warranties; 2.) breach of contract; 3.) breach of implied warranty of merchantability; and 4.) breach of implied warranty of fitness for a particular purpose.

{¶6} On November 28, 2006, the trial court granted MSC's motion for summary judgment.

{¶7} It is from this judgment that Luthman appeals and asserts two assignments of error for our review. For clarity of analysis, we will combine Luthman's assignments of error.

ASSIGNMENT OF ERROR NO. I

The Trial Court Erred in Granting Summary Judgment in Favor of Defendant/Appellee Minster Supply Company and Dismissing the Claims Asserted by Plaintiff/Appellant Edward Luthman.

ASSIGNMENT OF ERROR NO. II

The Trial Court Erred in Denying Plaintiff/Appellant Edward Luthman dba Luthman Concrete's Motion for Partial Summary Judgment on Claims Asserted Against Defendant/Appellee Minster Supply Company

{¶8} In his first assignment of error, Luthman argues the trial court erred in granting MSC's motion for summary judgment. Luthman argues that his claims, other than the claims specifically brought under the Product Liability Statute, are not asserted pursuant to R.C. 2307.71 to R.C. 2307.80, and therefore, are not product liability claims. Luthman argues that the product liability act abrogates only common law product liability claims, and does not abrogate tort claims, contract claims, or statutory UCC claims. Luthman points to the Ohio Supreme Court's case of Carrell v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E. 2d 795, and argues that the Ohio Supreme Court found that causes of action can not be abrogated or superceded by implication. Luthman further argues that if the act abrogates all other causes of action then it is unconstitutional because it violates the contract clauses of the Ohio and United States Constitutions.

{¶9} Luthman argues, in his second assignment of error, that by granting MSC's motion for summary judgment and dismissing his complaint, the trial court implicitly denied his motion for partial summary judgment against MSC. Luthman argues that the trial court erred in implicitly denying Luthman's motion for partial summary judgment as no material facts remain on his breach of contract, express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose claims, and the trial court should enter summary judgment in his favor as to liability on those aforementioned claims.

{¶10} The trial court's grant of summary judgment is reviewed under a de novo standard. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 2000-Ohio-186, 738 N.E.2d 1243, citing Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is appropriate where: (1.) there is no genuine issue of material fact; (2.) the moving party is entitled to judgment as a matter of law; and (3.) reasonable minds could come to but one conclusion when viewing the evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Civ. R. 56(C); Grafton, 77 Ohio St.3d at 105, citing State ex. rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150.

{¶11} In Carrel, the Ohio Supreme Court held "the common-law action of negligent design survives the enactment of the Ohio Products Liability Act, R.C 2307.71 et. seq." 78 Ohio St.3d 284, at paragraph one of the syllabus. The Court stated, "[a]ccording to principles of statutory construction, the General Assembly will not be presumed to have intended to abrogate a common-law rule unless the language used in the statute clearly shows that intent." Id. at 287, citing State ex rel. Morris v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus.

{¶12} In that case, the Court examined the language found in R.C. 2307.71 and found that although the statutory definition of product liability claims used broad language, the "definition does not mention or otherwise discuss the common-law action of negligent design. More important, there is no explicit statement that this definition was meant to abolish common-law actions sounding in negligence." Id. at 287-88. The Court further stated, "`[t]here is no repeal of the common law by mere implication.'" Id. at 287, quoting Frantz v. Maher (1957), 106 Ohio App. 465, 472, 7 O.O.2d 209, 213, 155 N.E.2d 471, 476. Thus, the Court held "the common-law action of negligent design survives the enactment of the Ohio Products Liability Act, R.C. 2307.71 et. seq." Id., at paragraph one of the syllabus.

{¶13} R.C. 2307.71 has been amended since the Ohio Supreme Court's decision in Carrel was released. R.C. 2307.71 was amended by 2004 SB 80, effective 4-7-05 to include the following: "(B) Sections 2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability causes of action." (Emphasis added). Accordingly, this court must first determine whether the amendment to R.C. 2307.71 applies in this case.

{¶14} In the present case, Luthman first purchased the Boss Gloss Clear Enhancer in fall 2001 or spring 2002. (Luthman Depo. at 17). According to Luthman, he first found out about the problem with the Boss Gloss Clear Enhancer in the summer of 2003. (Luthman Depo., at 35). Luthman filed his complaint in the present action on June 6, 2005. Thus, Luthman's cause of action arose sometime in the summer of 2003.

{¶15} Since the amendment to R.C. 2307.71 occurred after Luthman's cause of action arose, we will not use the amendment effective 4-7-05, but rather, will apply the statute that was effective when Luthman's cause of action arose. See Aldridge v. Reckart Equipment Company, 4th Dist. No. 04CA17, 2006-Ohio-4964, FN2. Since the amendment to R.C. 2307.71 does not apply, Luthman's causes of action were not abrogated by the amendment to the Product's Liability Act.

{¶16} Product liability claims are subject to the provisions in R.C. 2307.71 to R.C. 2307.79. R.C. 2307.72(A). However,

[a]ny recovery of compensatory damages for economic loss based on a claim that is asserted in a civil action, other than a product liability claim, is not subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur under the common law of this state or other applicable sections of the Revised Code.

R.C. 2307.72(C), emphasis added.

{¶17} Product liability claims are defined as:

* * * a claim that is asserted in a civil action and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following:

(1) The design, formulation, production, construction, creation, assembly rebuilding, testing, or marketing of that product;

(2) Any warning or instruction or lack of warning or instruction, associated with that product;

(3) Any failure of that product to conform to any relevant representation or warranty.

R.C. 2307.71(M).

{¶18} In his complaint, Luthman's causes of action against MSC included the following: product liability, negligence, negligent misrepresentation, breach of contract, breach of express warranties, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose.

{¶19} MSC is a supplier under the Product's Liability Act, which provides the following regarding a supplier's liability:

(A) Subject to division (B) of this section, a supplier is subject to liability for compensatory damages based on a product liability claim only if the claimant...