{¶ 2} The Bales advance four assignments of error on appeal. First, they contend that at least a portion of their CSPA claim fоr treble damages was timely filed under the applicable statute of limitation. Second, they argue that the trial court erred in not applying a "discovery" rule to their claims seeking recission under the CSPA and the HSSA. Third, they assert that the trial court erred in not "overruling" the Tenth District's decision inCypher v. Bill Swad Leasing Co. (1987),
{¶ 3} Although Isaac moved to dismiss the Bales' claims for failure to state a claim based on statute-of-limitation grounds, we note that he made his motion after filing an answer. As a result, we construe his motion as a motion for judgment on the pleadings under Civ.R. 12(C) rather than as a Civ.R. 12(B)(6) motion, which must be filed before a responsive pleading. As a practical matter, however, this distinction will make no difference in our analysis. "A Civ.R. 12(C) motion for judgment on the pleadings has been chаracterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief may be granted, and the same standard of review is applied to both motions." Minear v. Feeman, Summit App. No. 20650,
{¶ 4} With the foregoing standards in mind, we turn now to the factual allegations in the Bales' complaint. The Bales allege that in April, 1994, Isaac quotеd them a price for obtaining stucco and applying it to their home. Before Isaac began the job, the Bales inquired about a warranty on the work. In response, Isaac told them that the job was "guaranteed" and that they should contact him "if they ever had any problems." Isaac subsequently obtained the stucco, completed the job, and received payment from the Bales in June, 1994. Approximately seven years later, in June 2001, the Bales discovеred problems with the stucco as applied by Isaac. In particular, they found that water had gone behind the stucco, causing rotted wood. The Bales attributed this damage to poor workmanship by Isaac, and they made numerous attempts in June, July, and August, 2001, to have him repair the project. Although Isaac made several promises to repair the damage, he never did so. After failing to obtain relief from Isaac, the Bales paid another company to repair the stucco and water damage. They then commenced the present action on December 19, 2001, by filing a four-count complaint.
{¶ 5} After filing an answer, Isaac moved to dismiss the Bales' complaint for failure
{¶ 6} to state a claim upon which relief may be granted. In support of his motion, Isaac argued that each of the claims against him was barred by the applicable statute of limitation. In a June 30, 2003, decision and entry, the trial сourt agreed that count two (alleging violations of the CSPA), count three (alleging violations of the HSSA), and count four (alleging a breach of warranty) were time barred. As a result, the trial court sustained Isaac's motion as to those counts. The trial court reached a different conclusion, however, with regard to count one, which it construed as alleging a negligence claim. The trial court found that the statute of limitation had not expired on count one. Nevertheless, in order to pursue an immediate appeal of the trial court's dismissal of the other counts, the Bales moved to voluntarily dismiss count one without prejudice. The trial court sustained the motion, thereby making its June 30, 2003, decision and entry an appealable order. This timely appeal followed.
{¶ 7} In their first assignment of error, the Bales contend at least a portion of their CSPA claim for treble damages was timely filed under the applicablе statute of limitation. In particular, they argue that the CSPA's two-year limitation period does not bar a claim that Isaac violated the act by repeatedly promising to "live up to his life-time warranty" and then failing to do so. In response, Isaac insists that the Bales' references to a life-time warranty are "unsubstantiated allegations" without evidentiary support. Isaac characterizes the Bales' allegations about the existence of a life-time warranty as nothing more than "a self-serving version of certain facts surrounding the event." In light of the Bales' failure to provide the trial court with evidentiary support for this claim, Isaac insists that it must be disregarded.
{¶ 8} Upon review, we find the Bales' argument to be persuasive. Despite Isaac's assertions to the contrary, the Bales' failure to provide evidentiary support for their claim is immaterial. "The determination of a motion under Civ. R. 12(C) is restricted solely to the allegations in the pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in her favor. Evidence in any form cannot be considered. In considering such a motion, one must look only to the face of the complaint."Carroll v. Apperson (Feb. 8, 2000), Morgan App. No. CA-99-07 (citations omitted). The crucial questions, then, are (1) whether the Bales' complaint can be read as alleging a violation of the CSPA based on Isaac's unfulfilled promises to repair the stucco damage and (2) if the Bales did plead such a claim, whether it was timely filed under the applicable statute of limitation.2
{¶ 9} Construing the complaint most strongly in favor of the Bales, we answer both questions in the affirmative. In paragraph five, the Bales allege that they asked about a warranty before the stucco work was performed. In response, Isaac аssured them that the job was "guaranteed" and that "if they ever had anyproblems" they should contact him. (Emphasis added). Accepting this factual allegation as true, it supports a conclusion that Isaac expressly warranted his work for as long as the Bales owned the house. Thus, their allegations of a "life-time warranty" are consistent with paragraph five of their complaint.
{¶ 10} In addition, paragraph nine of the complaint alleges that in 2001 Isaac promised several times to return and repair the damaged stucco but failed to do so. In paragraph seventeen, the Bales then allege that "[t]he actions of [Isaac] constitute violations of the Ohio Consumer Sales Protection Act." The "actions" referred to in paragraph seventeen reasonably may be read as including Isaac's failure to return to repair the damaged stucco. Consequently, the complaint alleges a violation of the CSPA basеd on Isaac's failure to fulfil his promise to make the repair.3
{¶ 11} Finally, we note that the applicable statute of limitation does not bar a claim for treble damages based on Isaac's unfulfilled promises to repair the stucco. We have interpreted the CSPA as setting forth "an absolute two-year statute of limitations in which to file a suit for damages from the time of the occurrence of the violation." Nations Credit v.Pheanis (1995),
{¶ 12} In their second assignment of error, the Bales appear to argue that the trial court erred in not applying a "discovery" rule to their claims seeking recissiоn under the CSPA and the HSSA. This argument concerns their allegations that Isaac violated both acts in 1994 when he failed to install the stucco in a workmanlike manner. Although the Bales acknowledge that the CSPA and the HSSA have been interpreted as containing an absolute two-year time limit for filing suits for damages, they allege that a "discovery" rule extends the time for seeking recission.4
{¶ 13} In response, Isaac does not dispute that a discovery rule applies to the rеmedy of recission under the CSPA and the HSSA. He interprets the Bales' second assignment of error, however, as seeking to apply the recission-related discovery rule to claims for money damages.5 Isaac insists that the absolute two-year time limit for seeking damages does not include a "discovery" exception. As a result, he argues that "[t]he only way the discovery rule then applies is if recission is chosen."
{¶ 14} Upon review, we discern no substantive dispute between the parties with regard to the second assignment of error. The Bales and Isaac agree that under existing law a discovery rule may extend the time for seeking recission. See Nations Credit,
supra, citing Cypher v. Bill Swad Leasing Co. (1987),
{¶ 15} The essence of the Bales' argument, as we perceive it, is that the trial court erred by completеly dismissing their CSPA and HSSA claims involving Isaac's 1994 stucco installation because their complaint sought damages and, alternatively, recission. (See Complaint, Doc. #1 at Prayer for Relief following ¶ 21). In other words, the Bales argue that even if the two-year statute of limitation bars a damages claim for faulty workmanship in 1994, it does not necessarily preclude the remedy of recission because the discovery rule applies.
{¶ 16} We agree with the Bales' argument. Both Isaac and the trial court appear to have overlooked the fact that the Bales' complaint seeks the remedy of recission as an alternative to damages.6 Thus, even if the trial court properly dismissed the CSPA and HSSA claims insofar as they sought damages for the alleged 1994 violations (an issue that is raised in the Bales' third assignment of error), neither Isaac nor the trial court addressed the recission aspect of the Bales' complaint. The discovery rule set forth in R.C. §
{¶ 17} Having reviewed the Bales' complaint, however, we are convinced that the trial court's failure to address the recissiоn aspect of the claims was harmless error. As R.C. §
{¶ 18} In their third assignment of error, the Bales assert that the trial court erred in not overruling the Tenth District's decision in Cypher, supra, and in finding that a CSPA claim fоr treble damages must be brought within two years of the violation. The Bales urge us to hold that a claim for damages may be filed more than two years after a CSPA violation "where the discovery of the defect could not be known to a diligent Plaintiff." In other words, the Bales seek extension of the discovery rule discussed above from claims for recission to claims for money damages.
{¶ 19} Upon review, we decline the Bales' unusual invitation to "overrule" the Tenth District's Cypher decision and to extend the discovery rule to claims for damages. In NationsCredit, supra, we reviewed the CSPA and found, as did the Tenth District in Cypher, that it included "an absolute two-year statute of limitations in which to file a suit for damages from the time of the occurrence of the violation." Nations Credit, supra, at 76. The Bales have not persuaded us to depart from this established interpretation of the statute. Accordingly, we overrule their third assignment of error.
{¶ 20} In their fourth assignment of error, the Bales contend the trial court failed to apply a discovery rule to their claim for breach of warranty. This claim stems from Isaac's alleged statement to the Bales, in response to a question about the existence of a warranty and before installing the stucco, that his work was "guaranteed" and that they should contact him "if they ever had any problems." (See Complaint at ¶ 5). The trial court held that any breach-of-warranty claim based on this statement was time barred by R.C. §
{¶ 21} Upon review, we find that the trial court erred in holding the Bales' breach-of-warranty claim to be untimely filed under either of the foregoing statutes. The former provision states, in relevant part:
{¶ 22} "(A) An action for breach of any contract for sale must be commenced within four years after the cause of action accrued. * * *
{¶ 23} "(B) A cause of action accrues when the breach occurs, regardless of the aggrieved party's laсk of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to futureperformance of the goods and discovery of the breach must awaitthe time of such performance, the cause of action accrues whenthe breach is or should have been discovered." R.C. §
{¶ 24} In its ruling, the trial court concluded that any breach-of-warranty claim accrued when Isaac completed his work in June, 1994, without regard to when the Bales discovered the alleged defects. In reaching this conclusion, trial court found no evidence of a "lifetime" warranty and, thus, declined to apply the discovery rule set forth in the italicized portion of the statute above.
{¶ 25} Assuming that R.C. §
{¶ 26} In our view, the claim that Isaac "guaranteed" his work and instructed the Bales to contact him if they "ever" had "any problems" alleges a triable issue regarding applicability of the discovery rule found in R.C. §
{¶ 27} As an alternative basis for dismissing the Bales' breach-of-warranty claim, the trial court also cited R.C. §
{¶ 28} Based on the reasoning set forth above, the judgment of trial court is affirmed in part and reversed in part, and this cause is remanded for further procеedings on the Bales' complaint. In particular, we affirm the trial court's judgment insofar as it dismissed the Bales' CSPA and HSSA claims for alleged violations occurring in 1994. We reverse the trial court's judgment, however, insofar as it dismissed the Bales' CSPA and HSSA claims for alleged violations occurring in 2001.10 Finally, we reverse the trial court's dismissal of the Bales' breach-of-warranty claim on the basis that it is time barred.
Judgment affirmed in part, reversed in part, and cause remanded.
Fain, P.J. and Grady, J., concur.