Kott v. Gleneagles Professional Builders & Remodelers, Inc.
968 N.E.2d 593
Ohio Ct. App.2012Background
- Kott purchased a Shadow Woods lot and contracted with Shadow Woods Builders and Gleneagles for a single-family home.
- Gary Grup was the principal of both contracting entities.
- Kott sued in 2009 for delays, defects, and removal of topsoil, asserting breach, unjust enrichment, fraud, and conversion.
- An amended complaint added Grup, a Consumer Sales Practices Act claim, and a request for a fence.
- Grup was dismissed; contract-based summary judgments were litigated; the court denied summary judgment to Kott on the contract claim.
- The court held occupancy before full payment constituted complete acceptance, rejected unjust enrichment, fraud, and conversion, rejected topsoil claim for lack of evidence, and denied CSPSA and fence claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach/CSPSA claims properly dismissed for pleading gaps | Kott contends the claims were adequately pled. | Shadow Woods argues pleading deficiencies and contract controls negate claims. | Yes; claims properly dismissed. |
| Contract interpretation of occupancy/acceptance precluding other claims | Kott seeks remedies for alleged substandard work notwithstanding occupancy. | Occupancy before payment equals acceptance; contract bars extra-contractual damages. | Yes; contract clauses bar further claims; affirm summary judgment. |
Key Cases Cited
- Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 572 N.E.2d 198 (1989) (summary-judgment standard for determining no genuine issue of material fact)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978) (summary-judgment standard and burden on movant to show no triable issue)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996) (Dresher mandate to specify basis and record supporting no genuine issue)
- Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 684 N.E.2d 1261 (1996) (extra-contract damages require contract/independent duty)
- Needham v. Provident Bank, 110 Ohio App.3d 817, 675 N.E.2d 514 (1996) (need for evidence of genuine issues of material fact)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (material facts viewed in light most favorable to non-movant)