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Francosky v. Customized Vinyl Sales

Court of Appeals of Ohio, Eleventh District, Trumbull

June 3, 2019

DANIEL FRANCOSKY, et al., Plaintiffs-Appellees,
CUSTOMIZED VINYL SALES, Defendant-Appellant.

          Civil Appeal from the Trumbull County Central District Court, Case No. 2017 CVI 00256.

          Daniel P. Thomas, Delbene, LaPolla & Thomas, (For Plaintiffs-Appellees).

          Shirley J. Smith, The Law Offices of Shirley J. Smith, LLC, (For Defendant-Appellant).



         {¶1} Appellant, Customized Vinyl Sales, appeals from the judgment of the Trumbull County Central District Court, ruling in favor of appellees, Daniel Francosky, et al., on their small claims cause of action for "shoddy workmanship." We affirm.

         {¶2} On November 11, 2014, the parties entered into an agreement for the reinstallation of a vinyl fence for the purpose of securing appellees' horses. The price for the labor and supplies totaled $3, 800, which appellees paid. The agreement provided, inter alia, appellant would install 981 feet of fencing; and all posts re-installed will have bottom holes drilled and be set in 80 pounds of concrete. Appellee, Joyce Francosky, asserted that, in lieu of 80 pounds of concrete, appellant only used 40 pounds when it re-installed the fence posts. She and her husband, Daniel Francosky, additionally stated they took issue with this point during the re-installation, but appellant did not add the additional concrete.

         {¶3} Approximately one year after the agreement was entered, the record indicates that appellee, Mr. Francosky, noticed "a lot of posts start heaving up out of the ground." And in May 2017, he and his wife contacted appellant in an attempt to remediate the situation. According to Mr. Francosky, they were ignored; he and his wife subsequently fixed the fence on their own and filed the instant action. Attached to their complaint, appellees submitted photographs of the posts, including what appears to be images of the posts unsecured and "heaving" upward due to appellant's alleged unworkmanlike efforts, as well as a photo of the fence after appellees independently remedied the issues leading to the suit. Appellant filed an answer denying the allegation of unsatisfactory work.

         {¶4} After a hearing, the trial court issued its judgment, finding in appellees' favor. The court determined that even though appellees did not offer any expert testimony to rebut appellant's position that the re-installation was performed properly, it could not "ignore the fact that the installation of a secure and operational livestock fence was the very purpose of [the] agreement; that the Plaintiffs paid a substantial amount of money to accomplish such installation; and that within a relatively short period of time the fence was essentially useless as a result of the posts heaving from the ground." The court therefore concluded appellant did not perform the re-installation in a workmanlike fashion and punctuated its judgment by emphasizing "The thing speaks for itself.'" Appellees were thus awarded $3, 800 in damages. This appeal follows.

         {¶5} Appellant assigns five errors for this court's review. Its first assignment of error provides:

         {¶6} "The trial court erred in granting judgment in favor of plaintiffs-appellees, despite plaintiff-appellee's complaint having been filed outside the statute of limitations as prescribed in O.R.C. 2305.10(A)."

         {¶7} R.C. 2305.10(A) provides:

         {¶8} Except as provided in division (C) or (E) of this section, an action based on a product liability claim and an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and (5) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs.

         {¶9} The underlying complaint did not allege a product liability claim. And, although it arguably alleged damage to personal property, i.e., the fence, the damage arose from appellant's alleged negligence, not a defective fence. Under the doctrine of ejusdem generis, "where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified". George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 245 (1921). Here, R.C. 2305.10(A) specifies it applies to "an action based on a product liability claim." Hence, it follows the bodily or property injuries the statute covers would relate to or arise from the allegedly defective product. We therefore conclude R.C. 2305.10(A) is inapplicable.

         {¶10} Here, the allegation in the complaint was "shoddy workmanship." The trial court properly interpreted the claim, in light of the alleged facts, as a claim for a failure to re-install the fence in a workmanlike fashion. An action against a builder for failure to construct in a workmanlike manner is an action in tort to which the four-year statute of limitations in R.C. 2305.09(D) applies. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, paragraph one of the syllabus (1982); see also Rosenow v. Shutrump & Assoc,163 Ohio App.3d 500, 2005-Ohio-5313, ΒΆ29 (7th Dist.). "[T]he four-year statute of limitations * * * commences * * * when it is first discovered, or through the exercise of reasonable diligence it should have been discovered, that there is damage ...

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