COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA
August 3, 1995
ARCHITECTURAL PRODUCTS SALES CO. PLAINTIFF-APPELLEE
SAM SCARAVELLI DEFENDANT-APPELLANT
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.
I. STATEMENT OF FACTS
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.
ASSIGNMENT OF ERROR
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 requirements of R.C. 1302.65(C)(1) have been satisfied, defendant-appellant argues he is entitled to reasonable damages.
Defendant-appellant's sole assignment of error is not well taken.
B. STANDARD OF REVIEW: REVISED CODE 1302.65
Ohio Revised Code 1302.65 provides:
(A) The buyer must pay at the contract rate for any goods accepted.
(B) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by sections 1302.01 to 1302.98, inclusive, of the Revised Code for non-conformity.
(C) Where tender has been accepted:
(1) the buyer must within a reasonable period of time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy ***.
There is a well established rule that the "determination of a reasonable time and the adequacy of notice to the seller are ordinarily questions of fact." Kabco Equip. Specialists v. Budgetel, Inc. (1981), 2 Ohio App.3d 58, 61; Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co. (1989), 42 Ohio St.3d 40.
Equally well established is the principle that with regard to factual determinations, a reviewing court must give deference to the trier of fact and presume that its findings were correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. Therefore, if the record contains competent, credible evidence going to all the essential elements of the case, the judgment will not be reversed. See C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. With these principles in mind, we turn toward defendant-appellant's sole assignment of error.
C. THE TRIAL COURT DID NOT ERR IN FINDING IN FAVOR OF APPELLEE ON APPELLANT'S COUNTERCLAIM.
In the case sub judice, the testimony of Gregory Sheldon, president of Architectural, plaintiff-appellee, established the parties entered into two separate contracts. The first was for the installation of windows which turned out to be defective windows. After the completion of this contract, Sam Scaravelli, defendant-appellant, notified plaintiff-appellee of the defect in the glass. After proposing several options to rectify the situation, defendant-appellant "dropped" the issue. Plaintiff-appellant subsequently billed defendant-appellant for the work and received full payment.
The second and/or subsequent contract called for the replacement of some of the defective windows with glass sliding doors. The work was completed and plaintiff-appellant billed defendant-appellant for the work. Defendant-appellant paid a portion of the amount due and refused to pay the rest based upon the defective windows installed under the first contract.
Thus there is no dispute defendant-appellant accepted the defective goods. Evidence was presented which would establish defendant-appellant put plaintiff-appellee on notice of the defect but then "dropped" the issue and paid in full for the work completed. We find the circumstances in this case analogous to the facts in MSA Industrial Corp. v. J.M. Products, Inc (March 1, 1991), Lake County App. No. 90-L-14-057, unreported. There a purchaser put the seller on notice of a defect in the purchased product. However, the purchaser then sent a letter acknowledging the debt stating it will pay the monies due. The court found these actions negated any notice of defect pursuant to R.C. 1302.65.
Similarly, we find defendant-appellant's subsequent acknowledgement and payment of monies due negated any notice of defendant-appellant's refusal to accept the defective windows. Therefore, competent, credible evidence was presented to the trial court supporting its determination that defendant-appellant's payment of the first contract in full barred defendant-appellant from seeking any remedy under R.C. 1302. Accordingly, we affirm the decision of the trial court. Sam Scaravelli's, defendant-appellant's, sole assignment of error is not well taken.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
BLACKMON, P.J. and PORTER, J., CONCUR.
DAVID T. MATIA JUDGE
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