COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60082 PLOCIAK, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION TRANSCO CONSTRUCTION CO., : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 129548 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: I. BERNARD TROMBETTA, ESQ. DAVID B. HOCHMAN, ESQ. 33595 Bainbridge Road STEVEN P. POTTER, ESQ. Solon, Ohio 44139 for Transco Construction Co. 5885 Landerbrook Dr., #205 Mayfield Heights, Ohio 44124 For Defendants-Appellees: GERALD GRAHAM, ESQ. Attorney for Stamm Contracting Corp. P.O. Box 148 Ravenna, Ohio 44266 JEFFREY L. BRAMLEY, ESQ. Attorney for Appellees Maat Cement Contractors 105 W. Liberty Street Medina, Ohio 44256 - 1 - DYKE, J.: This appeal is taken from the trial court's decision to grant summary judgment motions for the three appellees, defendant construction contractors and subcontractors in the case below. The appellants also appeal from the decision of the trial court to overrule their motion for relief from judgment. The appellants are homeowners who contracted with the appellee, Transco Construction Co. ("Transco"), for the construction of a custom designed home in Shaker Heights, Ohio. Shortly after the home was completed the appellants complained of water problems in their basement and assorted problems with the cement in their driveway. The trial court bifurcated the two sets of complaints. The issues on appeal deal only with the driveway portion of the lawsuit. Appellee Stamm Contracting Co. ("Stamm"), the cement supplier, filed a motion for summary judgment on August 22, 1988. The appellants filed for an extension of time to respond which was granted until October 12. When they failed to respond, the trial court granted Stamm's summary judgment motion in its favor on October 24, 1988. Appellants filed a motion for relief from that judgment on December 8, 1988. This motion was overruled by the trial court without a hearing and without specifying its grounds for overruling the motion. Appellants appeal from the grant of - 2 - summary judgment to Stamm and the denial of their motion for relief from judgment. After a trial on the basement portion of the lawsuit, Transco and Maat Cement Contractors Co. ("Maat") filed motions for summary judgment on the issues involving the driveway. Maat laid the cement for the driveway. The appellants did reply to these motions. The trial court granted the motions for summary judgment in favor of both of the appellees on June 8, 1990. The appellants appeal from the granting of the motions for summary judgment as to these two appellees as well. The appellants make four assignments of error. I GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT, STAMM CONTRACTING COMPANY, INC. WAS CONTRARY TO LAW. The appellants complaint against Stamm alleged that they had delivered substandard or defective concrete material for the driveway. Stamm's motion for summary judgment had attached affidavits and evidence in the form of reports that the quality of the concrete was within the standards set by the industry. The independent tests done on the concrete found that the cement content was acceptable and that the concrete was air-entrained. These two qualities of the concrete led the reports to conclude that other parts of the cement laying process could have - 3 - contributed to the problems, but they were not due to any defect in the concrete tested. The appellants failed to respond to the evidence produced by Stamm in its motion for summary judgment. It was appellants' duty to file a response. "A party may not, on summary judgment, rely on the bare assertions in the pleadings but must file counter-affidavits." Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus, Inc. (1984), 16 Ohio App. 3d 167, 167. The trial court correctly granted the motion for summary judgment in Stamm's favor. The appellants' first assignment of error is overruled. II OVERRULING THE MOTION FOR RELIEF FROM FINAL JUDGMENT WAS CONTRARY TO LAW. The appellants filed a motion for relief from the trial court's judgment in Stamm's favor under Civil R. 60(B)(1) or (5). The trial court overruled their motion. Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus, Inc. (1984), 16 Ohio App. 3d 167 (syllabus) sets forth the appellants' burden on appeal from the trial court's denial of their motion: In order to prevail on an appeal from the denial of a motion for relief from judgment where the appellant neglected to respond to the appellee's motion for summary judgment, but did file affidavits with his motion for relief from judgment, which affidavits should have been filed in opposition to the motion for summary judgment, the appellant must prove that the evidence meets the requirements of Civ. R. 60(B) - 4 - and GTE Automatic Electric v. ARC Industries [(1976)], 47 Ohio St. 2d 146, and that the trial court abused its discretion in denying the motion for relief from judgment; otherwise, the appellant could circumvent the purpose of the summary judgment procedure. The requirements laid out in GTE must all be met for the appellants to succeed. GTE at 151. The appellant must "demonstrate that (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time." GTE at paragraph 2 of the syllabus. The appellants have met the reasonable time requirement, having filed their motion for relief within two months of the grant of Stamm's motion for summary judgment. Appellants also met their burden of showing that they are entitled to relief under Civil R. 60(B)(1). However, appellants have not met the first requirement of demonstrating that they have a meritorious claim. The appellants cited operative facts to demonstrate that they are entitled to relief under 60(B)(1) through (5). Appellants complain that they should have been relieved from the judgment because they were under the impression that they were near a settlement with Stamm. The appellants were aware of their responsibility to reply to Stamm's motion for summary judgment because appellants had asked the court for more time to file - 5 - their reply, which the court granted. Appellants claim that they had sent a Covenant Not to Sue to Stamm's attorney for approval and were waiting to hear from him, and therefore, their negligence in not filing a reply should be excused. However, appellants sent this document to Stamm's attorney subsequent to the date the court had given them as a filing deadline. Under similar facts, where the appellant wanted relief from judgment because the parties were negotiating a settlement and had tentatively reached a compromise, this court found that "plaintiff's affidavit and his counsel's brief recite facts which justify relief for `mistake, inadvertence, surprise or excusable neglect,' if they justify relief at all." Hornyak v. Brooks (1984), 16 Ohio App. 3d 105, 106. This court did not reach the issue of which of these applied because the appellant in that case had not filed a timely motion for relief from judgment. In this case the appellants' action in failing to file could not qualify as mistake, surprise or inadvertence under Civil R. 60(B)(1) because appellants were well aware of the pending motion for summary judgment. The standard for excusable neglect was set by the Ohio Supreme Court in Griffey v. Rajan (1987), 33 Ohio St. 3d 75: A trial court does not abuse its discretion in overruling a Civ. R. 60(B)(1) motion for relief from a default judgment on the grounds of excusable neglect, if it is evident from all of the facts and circumstances in the case that the conduct of the defendant, combined with the conduct of - 6 - those persons whose conduct is imputable to the defendant, exhibited a disregard for the judicial system and the rights of the plaintiff. In Colley v. Bazell (1980), 64 Ohio St. 2d 243, the Court found excusable neglect where there was less than a week between the missed filing deadline and the default judgment. In this case twelve days passed between the appellants' failure to file on time and the grant of Stamm's motion for summary judgment. Such a short period of time does not characterize appellants' neglect in filing as "a disregard for the judicial system and the rights of the plaintiff." Excusable neglect has been demonstrated by appellants to be the grounds upon which relief from judgment under Civil R. 60(B)(1) is justified. As to the first requirement of GTE, there is nothing in appellants' motion for relief to indicate that they had a meritorious claim against Stamm, the concrete supplier. The affidavits attached to the appellants' motion for relief are relevant only to the ongoing negotiations that the appellants were engaged in with Stamm. In appellants' appellate brief they cite a report which was not part of the record until it was submitted to the trial court as part of the appellants' "Answer Brief" to Maat's motion for summary judgment, filed May 9, 1990. This report not being part of the record at the time the lower court considered Stamm's motion for summary judgment nor at the time the court was considering appellants' motion for relief from - 7 - judgment, the report can not be considered by this court on appeal from either of those trial court decisions. Even if the appellants met the two requirements for timeliness and demonstrating grounds under which they would be entitled to relief from judgment, they still failed to meet the third requirement of presenting facts and supporting affidavits to demonstrate that they would have had a meritorious claim. Because all three requirements must be met, the trial court did not abuse its discretion in overruling the appellants' Civil R. 60(B) motion. The appellants' second assignment of error is overruled. III GRANTING SUMMARY JUDGMENT IN FAVOR OF TRANSCO CONSTRUCTION CO. WAS CONTRARY TO LAW. IV GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS, LAWRENCE MAAT AND MAAT CEMENT CONTRACTORS, INC. WAS CONTRARY TO LAW. The appellants' complaint against Transco and Maat alleged that they had breached their implied warranties of fitness and merchantability with respect to the driveway and that they were negligent in their respective duties. Transco may have been negligent in overseeing the subcontractor, Maat, in charge of laying the driveway. Maat may have been negligent in laying the driveway. Appellant claims that these theories of liability were - 8 - not addressed by the summary judgment and therefore remain as genuine issues of material fact yet to be agreed upon. Transco and the appellants were parties to a construction contract which specifically excluded the concrete work from the express warranty: "concrete work is not warranted against cracking, peeling or spalling." These were the exact conditions of which the appellants complained. Because the appellants can not recover against Transco or Maat on an express warranty, they are asserting that implied warranties apply and Transco and Maat are also liable on a theory of negligence. Appellants argue that the implied warranties of merchantability and fitness for use are applicable under Ohio's Uniform Commercial Code R.C. 1302.27 and 1302.28. This argument is not well taken because the Ohio UCC is inapplicable to improvements to real estate. Improvements and the materials provided for improvements to real estate are not "goods" under the definition of R.C. 1302.01(A)(8) and 1302.03, therefore, the appellate court in Hamilton county found that "the implied warranty of fitness as created by R.C. 1302.28 has no application in the case of defective materials incorporated into the construction of improvements to real estate." Elizabeth Gamble Deaconess Home Assn. v. Turner Constr. Co. (1984), 14 Ohio App. 3d 281, (paragraph 1 of the syllabus.) - 9 - The entire UCC as codified in Ohio under R.C. 1302.01 et seq. "is inapplicable to `mixed contracts' when the service aspect predominates over the sales aspect." Langhals v. Holt Roofing Co. (1988), 47 Ohio App. 3d 114 (paragraph 1 of the syllabus.) Because the UCC is not available on contracts where service predominates and the laying of the driveway does not fit the definition of a "good," the implied warranties of fitness and merchantability are not available to the appellants as possible theories of liability. The appellants also fail on the negligence claims against Transco and Maat. In Patete v. Benko (1986), 29 Ohio App. 3d 325, 327, this court cited Keister v. Park Centre Lanes (1981), 3 Ohio App. 3d 19: [T]he Stark County Court of Appeals set forth the necessary requisites to defeat a motion for summary judgment in a negligence action: `To defeat a motion for summary judgment filed by defendant in a negligence action, plaintiff must identify a duty, or duties, owed him by the defendant, and the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that the breach of duty was the proximate cause of plaintiff's injury, and that plaintiff was injured.' As Keister illustrates the elements to be proved, the appellants were responsible for the burden of showing a duty, breach of - 10 - duty, proximate cause and injury, in order to defeat Transco and Maat's motions for summary judgment. The duty owed to appellants by these two remaining appellees can be inferred to be a duty to apply the concrete in a good workmanlike manner. The injury was the resultant spalling and chipping of the concrete driveway. Where appellants fail in their motion to defeat the summary judgments is in the lack of any evidence that the appellees failed to apply the concrete as they should have, thereby breaching their duties. The reports and affidavits attached to appellants' own answer brief in response to the motions for summary judgment, indicate inconclusive results as to the causes of the concrete problems. The preliminary conclusions made by Triggs & Associates were that "the concrete spalling was most likely due to finishing related problems." But Triggs went on to recommend that further tests be run and proceeded to send concrete samples to Twin City Testing. The report provided by appellants from Twin City Testing stated that "[t]he concrete in general appeared to be in good overall condition, fairly well finished with adequate air entrainment." The trial court stated in its journal entry that: In consideration of... motions for summary judgment, evidence, reports, and information clearly indicate that spalling (scaling) is present; that the unrefuted expert report (core samples) show proper installation; condition of spalling specifically excluded in contract. - 11 - Neither the trial court nor this court has been able to find a genuine issue of material fact which is in dispute. The reports and affidavits do not cite any specific facts from which one could infer that the appellees breached a duty owed to the appellants. To defeat summary judgment the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that defendant did breach his duty, or that there is a genuine dispute over a material fact. Keister v. Park Centre Lanes (1981), 3 Ohio App. 3d 19, 22-23. Appellant failed to defeat the motions for summary judgment on the issue of negligence. The implied warranties cited by the appellants are not applicable. Therefore, the third and fourth assignments of error are overruled. The trial court's decision to overrule appellants' motion for relief from judgment and its summary judgment decisions are affirmed. - 12 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., AND *WEAVER, J., CONCUR PRESIDING JUDGE ANN DYKE *Sitting By Assignment: Judge Margaret K. Weaver, Sandusky County Common Pleas Court. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .