CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-260728.
The opinion of the court was delivered by: David T. Matia, J.
JOURNAL ENTRY AND OPINION
Sam Scaravelli, defendant-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas in favor of Architectural Products Sales Company, plaintiff-appellee. Appellant raises one assignment of error concerning the application of Chapter 1301 of the Ohio Revised Code. This court, finding no error, affirms the decision of the trial court.
Sam Scaravelli, defendant-appellant, is the owner of a building located at 2095 Scranton Road, Cleveland, Ohio. Architectural Products Sales Company ("Architectural"), plaintiff-appellee, is a contractor primarily in the glass and glazing business. In September of 1988, the parties began talking about installing windows in defendant-appellant's building.
In an effort to cut costs, Sam Scaravelli, defendant-appellant, agreed to use glass that Architectural, plaintiff-appellee, had remaining from a previous job. The glass remained in its packaging until the time of installation (wooden crates lined with cardboard). Plaintiff-appellee completed the installation of the windows in August of 1989 and submitted a bill for the contract amount and additional work totaling $35,400. Defendant-appellant completed payment of the bill in November of 1989.
There is no dispute the windows are defective. Apparently, the cardboard became wet and permanently stained the glass. However, there is a dispute as to when the defect became apparent to the parties. Defendant-appellant claims he called to complain to plaintiff-appellee in the Spring of 1990. Architectural, plaintiff-appellee, claims Sam Scaravelli, defendant-appellant, called him in either August or September of 1989 complaining of the glass. Around that time, plaintiff-appellee claims the parties discussed options for the possible restoration of the glass and/or rectification of the situation. Plaintiff-appellee offered: 1) to give defendant-appellant credit for $2,000 or 2) return the $2,000 paid for the defective glass and install new glass charging only for the price of glass not the cost of installation. According to Architectural, plaintiff-appellee, the issue was "dropped" before defendant-appellant paid the contract price in November, 1989.
In December of 1989, the parties agreed to another contract whereby several of the windows previously installed would be replaced by sliding glass doors. The work was completed in August of 1990. Plaintiff-appellee submitted a bill for $13,991. Sam Scaravelli, defendant-appellant, initially paid $2,500 but refused further payments.
On November 5, 1993, plaintiff-appellee filed a complaint for breach of contract. Defendant-appellant answered and counterclaimed for breach of contract and failure to properly perform its duty in a workmanlike manner by installing defective windows. The trial court entered judgment in favor of Architectural, plaintiff-appellee, in the amount of $11,900 and found in favor of plaintiff-appellee as to Sam Scaravelli's, defendant-appellant's, counterclaim. Defendant-appellant timely filed this appeal.
Sam Scaravelli's, defendant-appellant's, sole assignment of error provides:
THE TRIAL COURT ERRED, AS A MATTER OF LAW AND TO THE PREJUDICE OF THE APPELLANT, IN FAILING TO CONSIDER AND AWARD APPELLANT DAMAGES ON HIS COUNTERCLAIM AGAINST THE APPELLEE.
A. ISSUE RAISED: WHETHER COMPETENT, CREDIBLE EVIDENCE WAS PRESENTED SUPPORTING THE TRIAL COURT'S FINDING FOR APPELLEE ON APPELLANT'S COUNTERCLAIM.
Defendant-appellant argues the trial court erred when it failed to consider and award judgment in favor of plaintiff-appellee on defendant-appellant's counterclaim. Specifically, appellant argues there is no dispute the glass installed by plaintiff-appellee was defective. Although defendant-appellant accepted the glass and tendered full payment, defendant-appellant is not precluded from seeking other remedies under R.C. 1302.65. Since the evidence establishes the notice ...