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Grw Industries Ltd., D.B.A. Marvin Design Gallery v. Terry L. Bernstein

September 23, 2011

GRW INDUSTRIES LTD., D.B.A. MARVIN DESIGN GALLERY, PLAINTIFF-APPELLANT,
v.
TERRY L. BERNSTEIN, ET AL., DEFENDANTS-APPELLEES.



Civil Appeal from the Court of Common Pleas, Case No. 09 CV 000345.

The opinion of the court was delivered by: Timothy P. Cannon, P.J.

Cite as GRW Industries, Ltd. v. Bernstein,

OPINION

Judgment: Affirmed.

{¶1} Appellant, GRW Industries Ltd., d.b.a. Marvin Design Gallery ("GRW"), appeals the judgment of the Lake County Court of Common Pleas in favor of appellees, Terry L. Bernstein and Seth B. Stern. The trial court held that GRW breached its contract to install windows and doors in appellees' residence. Judgment was rendered in favor of appellees in the amount of $3,030.22. For the following reasons, we affirm the judgment of the trial court.

{¶2} A bench trial was held in this matter and the following testimony was elicited. In 2006, appellees determined the windows and doors of their Willoughby Hills home needed to be replaced. In March 2007, appellees contracted with GRW to provide 14 windows and two patio doors. The contract for the new windows and doors included all new interior and exterior trim-work. Appellees made a down payment of $20,000. The balance of $23,596.72 was due upon project completion.

{¶3} On Monday, July 2, 2007, work began at appellees' residence. Installation of the windows and doors continued longer than expected. This was because additional parts and materials had to be ordered and delivered from Warroad, Minnesota. Some of these materials had significant lead times. The project's completion was also slowed when unanticipated wood rot, which required additional carpentry work, was found under appellees' front windows. The wood rot was so bad that GRW recommended that the siding in the front of the house be replaced in its entirety. Appellees opted not to replace the home's siding.

{¶4} GRW installers also encountered problems with the specially-ordered white oak trim. First, the new trim was two and one-half inches wide, a quarter-inch narrower than the existing trim. The new trim was initially installed so appellees would not need to repaint; however, this left gaps around the windows, and the trim was removed and replaced to remove these gaps at Stern's request. Second, some of the trim had knots which appellees thought to be unsightly. Finally, a curved piece of trim intended to trim a round top window snapped while being repositioned. These issues slowed the project. Work continued throughout the summer until communications broke down in November 2007. Both parties acknowledged that the job was not complete at this time.

{¶5} In February 2008, Stern noticed that three of the windows installed by GRW were leaking. These leaks stained the woodwork and drywall within appellees' home. These windows were determined by the manufacturer, Marvin Windows and Doors, Inc., ("Marvin") to be defective. Marvin offered to repair, replace, or refund the windows. Appellees elected to have the windows replaced. The windows were then ordered and shipped to GRW's warehouse, arriving sometime in September. GRW then contacted Stern on October 24, 2008, about how to proceed. GRW did not hear back from either appellee nor were the windows ever delivered to appellees' residence.

{¶6} Appellees ordered three new round top windows from Colony Lumber to replace the three leaking windows. These windows cost $10,354.34. The newly- ordered windows were identical to those Stern had delivered to GRW in September 2008. Stern then contracted with Wood Images, Inc. to install the three windows purchased from Colony Lumber. Appellees paid Wood Images, Inc. carpenter Michael O'Neal $18,729. In addition to installing the windows, Wood Images, Inc. also repaired GRW's work and completed the window and door project. Work completed by Mr. O'Neal included replacing all the casings inside the house, providing two new arched casings, insulating around the windows, siding work, and drywall repair.

{¶7} On February 4, 2009, GRW filed a complaint against appellees seeking compensatory damages along with costs, interest, and attorney fees. GRW also sued for an action in quantum valebant, unjust enrichment, and breach of contract. Appellees counterclaimed for breach of contract, breach of implied warranty of fitness and workmanship, negligent workmanship, unjust enrichment, and violation of Ohio's Consumer Sales Practice Act. The trial court held that GRW breached its contract to install windows and doors in appellees' residence. Judgment was rendered in favor of appellees in the amount of $3,030.22.

{¶8} GRW filed a timely notice of appeal and raises the following assignments of error for our review:

{¶9} "[1.] The judgment amount of $3,030.22 was not sustained by the evidence and is against the manifest weight of the evidence.

{ΒΆ10} "[2.] The evidence was insufficient, as a matter of law, to enter a judgment against GRW ...


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