Vetovitz Bros., Inc. v. Kenny Const. Co.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: VICTOR; MAHONEY, P. J., and BELL
• Citation: 397 N.E.2d 412,60 Ohio App.2d 331
• Decision Date: 22 March 1978
• Parties: , 14 O.O.3d 292 VETOVITZ BROS., INC. v. KENNY CONSTRUCTION COMPANY et al., Appellants, Akron Brick & Block, Appellee. *

Page 331

60 Ohio App.2d 331 397 N.E.2d 412, 14 O.O.3d 292 VETOVITZ BROS., INC.
v.
KENNY CONSTRUCTION COMPANY et al., Appellants,
Akron Brick & Block, Appellee. ^* Court of Appeals of Ohio, Ninth District, Medina County. March 22, 1978. [397 N.E.2d 413]
Syllabus by the Court

A mere awareness on the part of the manufacturer as to where and how his product will eventually be used does not by itself create an express warranty for the product.

Kahn, Kleinman, Yanowitz & Arnson, Cleveland, and David N. Brown, Medina, for appellants.

David W. Hilkert, Akron, for appellee.

VICTOR, Judge.

This is an appeal from a summary judgment for defendant-appellee, Akron Brick & Block Co. (AB&B), on the cross-claim of defendants-appellants, Kenny Construction Co. (Kenny) and Hickory Hill, Ltd. (Hickory).

AB&B, a manufacturer of concrete block, sold its block to a builder's supplier, Valley City, which then sold the block to Vetovitz Bros. Inc. (Vetovitz) a masonry subcontractor. Pursuant to a contract with Kenny, a general contractor, Vetovitz used the block in an apartment project owned by Hickory. Vetovitz filed a mechanic's lien when Kenny[397 N.E.2d 414] and Hickory allegedly failed to pay off Vetovitz for its masonry work on the apartment project. Vetovitz then brought suit for a money judgment and to foreclose on the lien.

In addition to Kenny and Hickory, Vetovitz named AB&B, Keith Haag & Assoc. (Haag), architect for the apartment project, and Peerless Insurance Co., the bonding company, as parties to the action. Kenny and Hickory filed a joint cross-claim against AB&B,

Page 331

alleging that AB&B was obligated to them for breach of contracts and express and implied warranties, and that AB&B had negligently manufactured the block, causing damages to Kenny and Hickory.

Page 332

Claimed damages were for additional construction expenses, diminution in the overall value of the apartment project, and consequential commercial losses attributable thereto. AB&B denied the allegations of the cross-claim and later moved for summary judgment.

The trial court granted AB&B's motion on September 27, 1976. Kenny and Hickory appealed to this court, but the appeal was dismissed because the order appealed was not a final order in accordance with Civ.R. 54(B). Thereafter, Kenny and Hickory moved the trial court for relief from judgment. The trial court denied the motion but expressly determined that there was no just reason to delay entry of a final order. Kenny and Hickory now appeal, claiming the trial court erred by granting AB&B's motion for summary judgment.

Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), Ohio Com.Pl., 165 N.E.2d 840, 82 Ohio Law Abs. 433; Horvath v. Fisher Foods, Inc. (1963), Ohio App., 194 N.E.2d 452, 93 Ohio Law Abs. 182; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App.2d 41, 218 N.E.2d 480; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25, 254 N.E.2d 683. A successful motion for...