2014 Ohio 2718
Ohio Ct. App.2014Background
- Stan and Shirley Mueller hired All-Temp in 2006 to supply and install a geothermal heating system; the written proposal identified a 4-ton Carrier packaged geothermal unit and listed loop installation by Buckeye Loop Masters.
- After installation the system intermittently failed to heat the home (auxiliary heat engaging at mild temperatures); the Muellers repeatedly contacted All-Temp and third-party contractors between 2006–2009.
- Independent contractor Starks (and its technician Bowen) later concluded the 4-ton system was undersized for the house and recommended a 6-ton replacement; the Muellers had Starks install a new system in ~2010.
- The Muellers sued All-Temp in 2012 asserting breach of warranty, breach of contract, Consumer Sales Practices Act violations, and emotional damages.
- The trial court granted All-Temp’s Civ.R. 41(B)(2) dismissal: counts 2–4 were dismissed at trial; count 1 (breach of warranty) was dismissed as time-barred under the four-year UCC statute of limitations because accrual occurred on tender/delivery in April 2006.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract was for sale of goods or services (thus invoking four-year UCC limitations) | Mueller: contract was for installation/services (not sale of goods) so different limitations apply | All-Temp: contract predominantly a sale of goods (unit identified; installation incidental) | Court: contract predominantly for sale of goods; UCC four-year limitations applies |
| Whether an express warranty of future performance under R.C. 1302.26 was created (delaying accrual under R.C. 1302.98) | Mueller: relied on All-Temp’s expertise and assumed All-Temp promised an appropriate system; discovery of breach occurred when Starks diagnosed undersizing in 2009 | All-Temp: no evidence of any express promise of future performance beyond written warranties; accrual on delivery | Court: no express warranty for future performance shown; statute accrued at tender in 2006 |
| Whether statements/actions by All-Temp created an express warranty (contractual or oral) | Mueller: oral representations/All-Temp conduct created express warranties and inconsistent promises (blower-door test, assistance) | All-Temp: any warranties were manufacturer warranties and no actionable express oral warranty was proved | Court: plaintiff failed to identify particular affirmative promises that were part of the bargain; no express warranty proved |
| Whether Consumer Sales Practices Act (R.C. 1345.02) claim survived dismissal | Mueller: All-Temp lied about blower door test and interfered with repairs, constituting deceptive practice | All-Temp: no deceptive act proven; plaintiff’s testimony was insufficient | Court: no admissible evidence of the alleged deception or interference; CSPI claim dismissed |
Key Cases Cited
- Allied Indus. Serv. Corp. v. Kasle Iron & Metals, Inc., 62 Ohio App.2d 144 (6th Dist.) (articulates predominant-factor test for contracts involving goods and services)
- Urban Indus. of Ohio, Inc. v. Tectum, Inc., 81 Ohio App.3d 768 (3d Dist.) (sales of services not covered by UCC; use predominant-factor test when mixed)
- Mecanique C.N.C., Inc. v. Durr Envtl., Inc., 304 F. Supp. 2d 971 (S.D. Ohio) (characterizing buyer’s ultimate goal — product v. service — for UCC application)
- Barksdale v. Van’s Auto Sales, Inc., 62 Ohio App.3d 724 (8th Dist.) (basis-of-the-bargain test for express warranties under UCC)
- Bobb Forest Prods., Inc. v. Morbark Indus., Inc., 151 Ohio App.3d 63 (7th Dist.) (seller’s awareness of buyer’s needs and affirmation may create express warranty)
- Jacobs v. Bd. of Cty. Com’rs of Auglaize Cty., 27 Ohio App.2d 63 (3d Dist.) (standard for involuntary dismissal in bench trials under Civ.R. 41(B)(2))