Ohio Appellate Reports
Unpublished
RUSCHAU v. MONOGRAM PROPERTIES, Unpublished Decision
(12-12-2005) 2005-Ohio-6560 James Ruschau, et al.,
Plaintiffs-Appellants, v. Monogram Properties,
Defendant-Appellee. No. CA2004-10-121. Court of Appeals of
Ohio, Twelfth District, Warren County. December 12, 2005.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from Warren County Court of
Common Pleas, Case No. 03CV61341.
Charles M. Rowland II, 2190 Gateway Drive, Fairborn, OH
45324, for plaintiffs-appellants
Barron, Peck, Bennie & Schlemmer, Steven C. Davis, 3074
Madison Road, Cincinnati, OH 45209, for defendant-appellee
OPINION
POWELL, P.J.
{¶ 1} Plaintiffs-appellants, James and Cynthia
Ruschau, appeal the Warren County Court of Common Pleas
grant of summary judgment in favor of defendant-appellee,
Monogram Properties. We affirm the decision of the trial
court.
{¶ 2} In December 1996, appellee sold land to
Oberer Development Company. The sales contract included a
“Dirt Clause.” The Dirt Clause states in pertinent part the
following:
{¶ 3} “If Purchaser, in the process of excavating
for a house on any of the aforesaid developed lots,
discovers earth fill or natural organic material that, in
Buyer’s opinion, will not provide adequate bearing capacity
for a single family house, the following procedures shall
be followed:
{¶ 4} “(a) After completing the excavation and prior
to installing piers for the foundation of the house,
Purchaser shall notify Seller that, in Purchaser’s opinion,
a bearing capacity problem exists on said developed lot.
{¶ 5} “(b) Upon the aforementioned notification,
Seller shall inspect the excavation and, if Seller agrees
that piers are necessary, Purchaser shall continue
construction and Seller shall reimburse Purchaser for the
cost of installing piers on the developed lot in question.
{¶ 6} “(c) If Seller inspects the excavation and
does not agree that piers are necessary on said developed
lot, a qualified geotechnical engineer shall be selected to
decide if, in fact, piers are necessary to provide proper
support for a single family house. If in the geotechnical
engineer’s opinion, piers are necessary, Seller shall
reimburse the Purchaser for the cost of installing piers on
said developed lot or purchase the lot back at the sales
price.”
{¶ 7} In November 2001, appellants bought the
subject parcel of land from Oberer. The purchase agreement
contained a provision in which Oberer assigned the Dirt
Clause rights to appellants. The purchase agreement stated
that appellants, having been assigned Oberer’s Dirt Clause
rights, were to remedy all issues concerning fill or
natural organic material with appellee.
{¶ 8} In May 2002, appellants believed there was a
problem with the soil bearing capacity. Appellants notified
appellee and obtained a geotechnical inspection of the land
performed by Thelen and Associates. The report stated that
the existing fill was unsuitable for direct support of
conventional foundations and included the following
analysis:
{¶ 9} “This writer recommended that the Contractor
either support the residence on series of drilled piers and
grade beams or provide a continuously trenched subfooting
to support the residence as designed. Typically, a
continuously trenched subfooting whose depths do not
average deeper than 7 feet can be installed at less expense
than drilled piers and grade beams due to the decreased
time in which they can be designed and installed. * * *
Based on the soft site conditions and the aforementioned
information, it was our recommendation that a continuously
trenched subfooting be installed.”
{¶ 10} Appellants insisted that appellee should be
responsible for the appropriate remedy, but appellee
maintained that appellants should seek relief from Oberer.
Appellants, not wanting to delay construction any further,
followed the geotechnical engineer’s recommendation and
opted to use the trenched subfooting to support the
residence.
{¶ 11} In August 2003, appellants brought suit
alleging breach of contract, breach of warranty, and
violations of the Ohio Consumer Sales Practices Act
(“CSPA”). They sought recovery of damages totaling over
$28,000. Appellee moved for summary judgment, and the trial
granted the motion. Appellants appeal this decision raising
three assignments of error.
{¶ 12} Assignment of Error No. 1:
{¶ 13} “THE TRIAL COURT ERRED IN FINDING THAT NO
GENUINE ISSUE OF MATERIAL FACT EXISTED AS THE DEFENDANT
BREACHED THE CONTRACT AND ISSUES OF AMBIGUITY EXIST IN THE
LANGUAGE OF THE CONTRACT.”
{? 14} Appellants argue that the summary judgment
was improper, alleging the geotechnical engineer’s report
indicated that piering was necessary. Appellants also claim
that the subfooting option they pursued constitutes piering
under a broad definition.
{¶ 15} Civ.R. 56(C) provides in part that summary
judgment shall be rendered where 1) there is no genuine
issue as to any material fact; 2) the moving party is
entitled to judgment as a matter of law; 3) reasonable
minds can come to only one conclusion, and that conclusion
is adverse to the party against whom the motion is made,
who is entitled to have the evidence construed most
strongly in his favor. Harless v. Willis Day Warehousing
Co. (1978), 54 Ohio St.2d 64, 66. An appellate court’s
standard of review on appeal from a summary judgment is de
novo. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296.
An appellate court reviews a trial court’s disposition of a
summary judgment independently and without deference to the
trial court’s judgment. Id. In reviewing a summary judgment
disposition, an appellate court applies the same standard
as that applied by the trial court. Midwest Ford, Inc. v.
C.T. Taylor Co. (1997), 118 Ohio App.3d 798, 800.
{¶ 16} In this case, the trial court found that
there was no breach in the contract. The court pointed
specifically to the terms of Subsection C of the Dirt
Clause that “Seller shall reimburse Purchaser for the cost
of installing piers * * *.” (Emphasis in original.) Because
no piers were installed, the court found that appellee was
under no obligation to pay for appellants’ decision to
pursue the subfooting option.
{¶ 17} We find the grant of summary judgment in
favor of appellee is proper albeit for a different reason
than that cited by the trial court. Specifically, the
contract in clear and unambiguous language states appellee
shall reimburse the cost of pier installation only “[i]f in
the geotechnical engineer’s opinion, piers are necessary.”
Webster’s Third New International Dictionary defines
“necessary” as “that cannot be done without; that must be
done or had; absolutely required; essential,
indispensable.” Webster’s Third New International
Dictionary (1993) 1511. The engineer’s report did not state
that piers were necessary. He recommended that the
residence be supported “on series of drilled piers and
grade beams or a continuously trenched subfooting to
support the residence as designed.” Because the use of
piers was not essential or absolutely required, appellee
was under no obligation to pay for pier installation under
the contract terms.
{¶ 18} Appellants’ argument that the subfooting
option constitutes the use of piers under the Construction
Dictionary is unpersuasive. The geotechnical engineer’s
report presented two distinguishable options of either
installing piers or using a subfooting trench system. We
find no evidence that supports appellants’ contention that
the trench system fits within a broad definition of piers.
{¶ 19} The trial court did not err when it granted
summary judgment. It reached the right result for a
slightly different reason. See Perry v. Gen. Motors Corp.
(1996), 113 Ohio App.3d 318, 324-25. We find that
reasonable minds could only come to the conclusion that
there was no breach of contract because the use of piers
was not necessary. Appellee was entitled to judgment as a
matter of law. The first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} “THE TRIAL COURT ERRED IN NOT FINDING THAT
THE `DIRT CLAUSE’ WARRANTED SOIL OF SUFFICIENT CAPACITY TO
CONSTRUCT A RESIDENTIAL BUILDING.”
{¶ 22} Appellants argue that the trial court erred
when it found Chapter 1302 of the Revised Code was
inapplicable to the case. Appellants claim that appellee
breached a warranty on the soil, alleging that appellee was
under an obligation to make the soil suitable for
construction.
{¶ 23} The trial court cited the definition section
of R.C. Chapter 1302 and stated that real estate is not a
“good,” and thus not covered by any Uniform Commercial Code
(“UCC”) warranty. R.C. 1302.01(A)(8) states the following:
{¶ 24} “`Goods’ means all things (including
specially manufactured goods) which are movable at the time
of identification to the contract for sale other than the
money in which the price is to be paid, investment
securities, and things in action.”
{¶ 25} R.C. 1302.02 limits the scope of Ohio’s UCC
provisions to transactions in goods. Section 1302.01 to
1302.98 are inapplicable to realty. Appellants’ claim that
appellee breached an implied warranty of merchantability
rests on the erroneous premise that real estate constitutes
a good and therefore appellee is a merchant of such good.
The trial court did not err when it found appellee was
entitled to judgment as a matter of law with respect to
this warranty argument. The second assignment of error is
overruled.
{¶ 26} Assignment of Error No. 3:
{¶ 27} “THE TRIAL COURT ERRED IN NOT APPLYING THE
OHIO CONSUMER SALES PRACTIVE ACT AGAINST THE DEFENDANT
BASED UPON THE FACTS OF THE CASE.”
{¶ 28} Appellants argue that the trial court erred
when it found the CSPA inapplicable to the dispute.
Appellants maintain that appellee’s alleged failure to
honor an implied warranty of merchantability was a
deceptive practice in violation of R.C. 1345.02(B)(10).
{¶ 29} The trial court granted appellee’s summary
judgment motion with respect to the inapplicability of
CSPA, finding that the law is inapplicable to pure real
estate transactions. The CSPA defines “consumer
transaction” as “a sale, lease, assignment, award by
chance, or other transfer of an item of goods, a service, a
franchise, or an intangible, to an individual for purposes
that are primarily personal, family, or household, or
solicitation to supply any of these things.” R.C.
1345.01(A). The Ohio Supreme Court held that this
definition evidences the General Assembly’s desire to
exclude real estate from the scope of the act. See Shore W.
Constr. Co. v. Skora (1991), 61 Ohio St.3d 45, 48.
{¶ 30} Appellants’ reliance on Keiber v. Spicer
(1993), 85 Ohio App.3d 391, is misplaced. In that case, the
Second District Court of Appeals found the CSPA was
applicable to a transaction that included a contract to
construct a residence. The transaction between appellee and
appellants in this case, however, was a pure real estate
transaction; there was no transfer or assignment of a good
or service. Thus the trial court did not err when it found
the CSPA inapplicable. Appellants’ third assignment of
error is overruled.
{¶ 31} Judgment affirmed.
Young and Bressler, JJ., concur.