LANDIS V. WILLIIAM FANNIN BUILDERS, INC.
951 N.E.2d 1078 (2011)
NATURE OF THE CASE: Fannin (D) appealed a judgment in favor of Landis (Ps) and
third-party defendant subcontractor, on claims arising from the construction of a home.
FACTS: P contracted with D to construct their home in accordance with the plans and
specifications attached to the contract for $356,750. When the time came to apply the stain
to the exterior siding, D provided Ps with a brochure entitled 'Semi-Transparent &
Semi-Solid Color Palettes for all Cabot Colors.' Ps chose a semi-transparent stain in a
green color, which Cabot, the stain manufacturer, named 'allagash.' D subcontracted with 84
Lumber for the procurement and installation of the T1-11 siding. 84 Lumber underestimated
the amount of siding needed to completely clad the home. They were short by 19 sheets.
Consequently, the company 84 Lumber hired to stain the T1-11 siding, Precision Applied
Coating Enterprises ('PACE'), stained the 19 additional sheets separately from the majority
of the siding. Although PACE stained both batches of siding with Cabot semi-transparent,
allagash stain, one batch of siding turned out a noticeably darker hue than the other batch.
D said the difference in color would be no problem once a second coat of stain was applied.
When installing the siding, 84 Lumber placed darker and lighter siding at random intervals
around the perimeter of the house and unattached garage. The home acquired a striped or
patchwork appearance. Closing was scheduled for January 4, 2005. D had substantially
completed construction by that date, but certain tasks remained undone. One of these tasks
was the application of the second coat of stain on the siding. D told Ps that the stain
should not be applied in temperatures below 50 degrees Fahrenheit. Ps consented to delay
application of the second coat of stain until spring 2005. At closing Ps withheld $2,000 to
be paid out once D finished all work on the house. The second coat of stain did not fix the
presentation problems. D, 84 Lumber, and PACE met at P's home to confer about the siding
problem. 84 Lumber agreed to provide and install new siding, and PACE agreed to stain the
new siding. A letter to D dated August 2, 2005, set forth the terms of the agreement. 84
disclaimed color variance issues related to the simple fact that wood is different and will
react differently to stains but they would try to get all the lumber from one mill and the
same batch. 84 Lumber delivered the replacement siding to and it was yellow, not green.
Communication with PACE revealed that PACE had, indeed, stained the replacement siding with
the correct stain. D wanted to restain the siding on the house, while Ps advocated
restaining the replacement siding. The same day that the subcontractor tried to fix the
siding with additional stain, D had 84 Lumber remove the replacement siding from Ps'
property. PACE, suggested that a solid stain in the allagash color would cover the patchwork
appearance of the siding. Ps were reluctant to use a solid stain because it could not render
the natural, rustic look that Ps wanted. Ps wanted the grain and natural imperfections of
the T1-11 siding to show through. P filed a complaint against D with the Professional
Standards Committee of the Building Industry Association of Central Ohio ('BIA'). BIA opined
that the color variance did not comply with professional standards in the residential
construction industry. The BIA also concluded that application of a solid stain would
constitute a commercially reasonable repair of the siding. P sued D for breach of the
express limited warranty, and violation of the Ohio Consumer Sales Practices Act ('OCSPA').
D filed a third-party complaint against 84 Lumber, alleging claims for breach of contract
and indemnification. The trial court found in Ps' favor on their breach of contract claim
and against Ps on their claims for breach of the express limited warranty and violation of
the OCSPA. The trial court found in D's favor on its counterclaim for breach of contract and
against D on its third-party claims for breach of contract and indemnity. The trial court
awarded Ps $62,997.26 net. D appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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