Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Central District Court, Case
No. 2017 CVI 00256.
P. Thomas, Delbene, LaPolla & Thomas, (For
Shirley J. Smith, The Law Offices of Shirley J. Smith, LLC,
CYNTHIA WESTCOTT RICE, J.
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
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
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.
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
Appellant assigns five errors for this court's review.
Its first assignment of error provides:
"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)."
R.C. 2305.10(A) provides:
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.
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.
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, ¶29 (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 ...