Kishmarton v. William Bailey Const. Inc., Unpublished Decision (3-23-2000) ( 2000 )

Journal Entry SUA SPONTE, THE JUDGES OF THE COURT OF APPEALS OF THE EIGHTH DISTRICT OF THE STATE OF OHIO HEREBY FIND THAT THE JUDGMENT ENTERED IN THIS CASE IS IN CONFLICT WITH THE JUDGMENT PRONOUNCED UPON THE SAME QUESTION BY OTHER COURTS OF APPEALS. SEE ENTRY DATED MARCH 23, 2000.

CERTIFICATE OF CONFLICT (Ohio Const. Art. IV, Sec. 3 (B) (4); Sup.Ct. Rule III)

Sua sponte, the judges of the Court of Appeals of the Eighth District of the State of Ohio hereby find that the judgment entered in this case is in conflict with the judgment pronounced upon the same question by other Courts of Appeals, the same being the Court of Appeals for Franklin County in the cases of Lloyd v.William Fannin Bldrs. (1973), 40 Ohio App. 2d 507 and Barton v.Ellis (1986), 34 Ohio App. 3d 251; the Court of Appeals for Warren County in Tibbs v. National Homes Construction Corp. (1977),52 Ohio App. 2d 281; the Court of Appeals for Lake County in Visteinv. Keeney (1990), 71 Ohio App. 3d 92.

Wherefore, the record in this cause, Kishmarton v. WilliamBailey Construction Co., is hereby certified to the Ohio Supreme Court for review and final determination. The issues for certification are:

(1) Where the vendee and builder-vendor enter into an agreement for the future construction of a residence, does the vendee's claim for breach of an implied duty to construct the house in a workmanlike manner arise ex contractu or ex delicto?

(2) Regardless of whether the claim is in contract or tort, in such a case, can the plaintiff recover emotional distress damages for loss of enjoyment, annoyance or discomfort?

SO ORDERED.

_____________________________________ JAMES M. PORTER, ADMINISTRATIVE JUDGE

ANN DYKE, JUDGE and TERRENCE O'DONNELL, JUDGE.