DocketNumber: No. CA85-07-013
Citation Numbers: 501 N.E.2d 1245, 28 Ohio App. 3d 55
Judges: <italic>Per Curiam.</italic>
Filed Date: 4/14/1986
Status: Precedential
Modified Date: 1/13/2023
This cause came on to be heard upon an appeal from the Wilmington Municipal Court.
This case concerns the purchase of a supplemental home solar heating system by plaintiffs-appellees, Bobby and Shirley Lanham, from defendant-appellant, Solar America of Cincinnati, Inc. ("Solar America"). Our review of this case has been hampered by errors made in using the recording device at the trial proceedings. We, therefore, have only a partial transcript of the actual proceedings and no statement of the evidence (see App. R. 9) has been forthcoming.
From the partial transcript it appears that after the installation of a supplemental solar heating unit, appellees began to have problems. The first two units were replaced. The third unit had a problem with paint peeling.
It appears that appellees became so displeased with the overall performance of all three units that they demanded that appellant remove the unit from their house; and, when appellant failed to do so and appellant's sales manager failed or refused to return their calls, they filed an action pro se in which they demanded that their contract with Solar America be terminated. The trial court, to whom the case was tried without a jury, decided in favor of appellees. In its judgment entry the court indicated that Solar America breached its oral and written warranties to appellees. However, the relief awarded was revocation of acceptance of the goods and return of the status quo ante. The central focus of this suit is upon the propriety of the court's action in declaring the contract terminated.
Appellant raises two assignments of error. The first assignment of error reads as follows:
"The trial court erred to the prejudice of the defendant in holding that the defendant breached its warranty with respect to the solar energy unit."
A review of the trial court's judgment entry reveals the trial court found the buyers were entitled to cancel the contract, have a refund of monies paid to date, and be compensated to restore their roof to its pre-contract appearance. The apparent basis for the trial court's decision and grant of relief was a breach of warranty by the appellant. While appellant contends that there was no "objective" evidence of a defect in its product on which the court could make a determination that it breached its warranty to the Lanhams, appellees' counsel argues that "[h]owever inartistically worded, the requested remedy and the remedy actually granted [was] that of cancellation for material misrepresentation by defendant." We agree. For the reasons which follow we find appellant's first argument unpersuasive.
Whatever else the trial court's decision said or did, it permitted the Lanhams to revoke acceptance of goods sold to them by Solar America. R.C.
"(A) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it:
"(1) on the reasonable assumption its non-conformity would be cured and it has not been seasonably cured; or
"(2) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
"(B) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
"(C) A buyer who so revokes has *Page 57 the same rights and duties with regard to the goods involved as if he had rejected them."
The transcript of proceedings here contains two warranty forms given the Lanhams. One warranty is in the form of a pledge that the purchaser of a solar unit will enjoy a twenty-five percent energy savings over his previous year's heating bill based on fuel consumption and that if such savings are not realized, Solar America will pay the homeowner up to $500 towards savings that he should have had. The second warranty is a standard warranty of the unit's materials and workmanship under normal use for five years.
Recently, the Ohio Supreme Court stressed the importance of statements made in warranties and even television commercials as providing a basis for consumer expectations of a product's performance in the context of strict liability in tort for personal injuries under the Restatement of the Law 2d, Torts (1965) 347, Section 402A. See Leichtamer v. American MotorsCorp., (1981),
Notwithstanding appellant's argument that no objective proof of a warranty breach existed, R.C.
The record reveals that two units were removed from the appellees' roof for unstated reasons and the paint on the outer skin of the third unit began to peel and chip. When this started, appellees called appellant for assurances of satisfaction but there was no answer. We believe that the first two units' poor performance, combined with the third unit's unprecedented (if one believes Solar America's "expert") chipping and peeling paint, together with appellant's sales manager's refusal to assure appellees immediately that he would stand behind his product, was justification for appellees to consider their solar unit's value to them to be substantially impaired irrespective of whether any warranty was actually breached. Thus, appellees were justified in concluding that the value of their solar unit to them was substantially impaired as contemplated by R.C.
R.C.
We therefore overrule the first assignment of error because we find from the evidence that the solar heating unit's performance history and its twice previous replacement, although all properly handled under Solar America's warranty with the Lanhams, nevertheless justified the Lanhams' belief that the value of their system was substantially impaired due to its non-conformity with that performance which they were led to expect by the product's warranties. The trial court was correct in holding the Lanhams were entitled to revocation of acceptance in this case although its judgment entry is less than textbook form.
Appellant's second assignment of error is:
"The trial court erred to the prejudice of the defendant in holding that the plaintiffs were entitled to damages based upon rescission of the contract based upon plaintiffs' claim of breach of warranty."
Since our disposition of the first assignment of error affirms the revocation of the acceptance of the equipment, we consider this assignment of error to be a contention that the trial court granted appellees more relief than they were entitled to. Therefore, appellant's reliance on Eckstein v. Cummins (1975),
R.C.
R.C.
We therefore overrule the second assignment of error.
The assignments of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.
Judgment affirmed.
KOEHLER, P.J., and HENDRICKSON, J., concur.
JONES, J., dissents.