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Triplex Co. v. R.L. Pomante Contractor

December 4, 2008

TRIPLEX COMPANY, PLAINTIFF-APPELLANT,
v.
R.L. POMANTE CONTRACTOR, INC. ET AL., DEFENDANTS-APPELLEES,
v.
BALL ENTERPRISES, INC. ET AL., THIRD-PARTY DEFENDANTS- APPELLEES.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 03 CVH-06-6704)

The opinion of the court was delivered by: Brown, J.

(REGULAR CALENDAR)

OPINION

{¶1} This is an appeal by plaintiff-appellant, Triplex Company, from a judgment of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, Alcoa Building Products ("Alcoa"), to enforce a purported settlement.

{¶2} In December 1987, appellant and defendant-appellee, R.L. Pomante Contractor, Inc. ("Pomante"), entered into a contract whereby Pomante would install "Mastic vinyl siding," a product made by Alcoa, on appellant's building located at 6631 Commerce Parkway, Dublin, Ohio. In March 1990, appellant and Pomante entered into a second contract for siding installation at another building owned by appellant and located at 6543 Commerce Parkway.

{¶3} On June 18, 2003, appellant filed a complaint against Pomante and Alcoa, alleging causes of action for breach of contract, breach of warranty, and breach of implied warranty of fitness. The complaint alleged that, subsequent to the installation of the siding under both contracts, pieces of the siding repeatedly detached from the building. Appellant further alleged that Pomante and Alcoa had refused to remedy the situation or honor the express warranty, thereby breaching the original contract.

{¶4} On September 9, 2003, Alcoa filed an answer and cross-claim against Pomante for indemnification or contribution. On December 10, 2003, Pomante filed an answer and cross-claim against Alcoa. Alcoa subsequently filed a third-party complaint against Ball Enterprises, Inc. ("Ball"). On December 30, 2004, Ball filed a motion for summary judgment as to Alcoa's third-party complaint. On January 14, 2005, appellant and Alcoa both filed cross-motions for summary judgment.

{¶5} On September 29, 2005, the trial court filed an entry denying appellant's motion for summary judgment, granting Alcoa's motion for summary judgment, and granting Ball's motion for summary judgment. Appellant filed an appeal from the trial court's decision, and, in Triplex Co. v. R.L. Pomante Contr., Inc., Franklin App. No. 05AP-1257, 2006-Ohio-5942, this court reversed and remanded the matter for further proceedings. Specifically, this court held that the trial court erred in granting Alcoa's motion for summary judgment as "there exists a genuine issue of material fact as to whether problems with the vinyl siding, at least in the areas in which Mr. Ball and his crew worked, were caused by a manufacturing defect, even in the absence of expert testimony that the product was defective." Id., at ¶27.

{¶6} Following this court's remand, the trial court set a trial date for April 25, 2007. The court subsequently rescheduled the trial date for June 18, 2007, and also entered a pre-trial order for mediation. On May 9, 2007, representatives for appellant and Alcoa met with a mediator. On May 15, 2007, the trial court filed an entry stating in part that counsel had notified the court that "the within cause of action has been settled." The entry further provided for counsel to prepare the appropriate entry for its approval.

{¶7} On June 5, 2007, appellant filed a notice of the parties' failure to reach a settlement; specifically, appellant asserted the parties had met with a mediator (on May 9, 2007) and entered into a memorandum of agreement, but that the parties had not reached an agreement as to certain elements. Also on June 5, 2007, Alcoa filed a motion to enforce settlement, and a motion to dismiss appellant's claims with prejudice. Appellant filed a memorandum contra Alcoa's motion to enforce settlement.

{¶8} On August 24, 2007, the trial court conducted a hearing on Alcoa's motion to enforce settlement. On August 30, 2007, the trial court issued a decision and entry finding that the parties' settlement agreement of May 9, 2007, "is legally enforceable, and that Triplex has breached the settlement agreement." As part of its judgment entry, the court held: "Once Triplex and Mr. Klein sign and deliver the releases and cancellation of warranties in a form acceptable to Alcoa, Alcoa shall then be obligated to deliver full payment on the settlement to Triplex within a reasonable period of time." The court's decision further noted that, in the event such conditions were not met, "Alcoa need not pay the settlement money and this case can nevertheless be dismissed with prejudice."

{¶9} On appeal, appellant sets forth the following assignment of error for this court's review:

THE TRIAL COURT ERRED AS A MATTER OF LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE ABUSING ITS DISCRETION BY ENTERING A FINAL JUDGMENT ORDERING PETER M. KLEIN, A NON-PARTY TO THE ACTION TO EXECUTE A PERSONAL RELEASE AND CANCELLATION OF THE WARRANTIES AT ISSUE IN A FORM ACCEPTABLE TO THE APPELLEE.

{ΒΆ10} Under its single assignment of error, appellant asserts the trial court abused its discretion by ordering a non-party to a lawsuit to execute a personal release. Specifically, appellant maintains the trial court erred in approving a settlement that required the release of ...


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