Landis v. William Fannin Builders, Inc.

951 N.E.2d 1078 (2011)


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.