COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68957 MICHAEL CHARNA, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION CROWN CARPET CORPORATION, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-263549. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Steven M. Weiss, Esq., Weiss, Kwait & Associates, 1250 Illuminating Building, 55 Public Square, Cleveland, Ohio, 44113. For Defendants-appellees: John K. Lind, Esq., Reminger & Reminger, 113 St. Clair Building, Cleveland, Ohio, 44114-1273. For A. Drost Company: Nancy F. Zavelson, Reminger & Reminger, 113 St. Clair Building, Cleveland, Ohio, 44114-1273; Mark S. Frank, Esq., 28001 Chagrin Boulevard, Suite 300, Woodmere Village, Ohio, 44122 and John Paul Oreh, Esq., 833 Leader Building, Cleveland, Ohio, 44114-1463. - 3 - SWEENEY, JAMES D., J.: Plaintiffs-appellants Michael Charna and Wendy Charna appeal a decision of the trial court granting summary judgment in favor of defendants-appellees A. Drost Company (Drost) and Crown Carpet Corporation (Crown). The appellants also appeal the trial court's order granting the appellees' motion to preserve evidence. On June 3, 1988, Drost and the appellants entered a building contract for the construction of a new home. The contract made an allowance for a new floor, and the appellants chose to separately contract with Crown for the flooring. Construction on the appellants' new home began at the end of June 1988, and the appellants moved in on February 6, 1989. Subject to an oral agreement with the appellants, Crown installed the ceramic tile flooring during January and February 1989. The tiles began to crack almost immediately and in late February a representative of Crown inspected the floor. The Charnas were told that the cracking was a result of the natural settling which occurs in all newly constructed homes and that these problems should be resolved within a few seasons. Over the next two years, Crown made occasional repairs to the floor. When the cracking began, Wendy Charna inquired of her neighbors and friends as to their experiences with such tile and learned that no one had similar problems. In August 1992, the president of Crown, Herman Frank, inspected the Charnas' floor. On September 24, 1994, he wrote to - 4 - the appellants and indicated that the squeaking floor was caused by faulty construction and that Crown would install a "floor squeak stopper." He stated that the only better solution would be a new subfloor. The "floor squeak stopper" was never installed. On February 1, 1994, the appellants' expert, Daniel Whitacre, inspected the floor. After inspection and testing, Mr. Whitacre concluded that to a reasonable degree of certainty the failure of the ceramic floor was a result of the tile being installed on a subfloor which was not sufficiently rigid. Mr. Whitacre stated that both the builder and the tile installer were at fault for failing to ensure that the subfloor was rigid enough to support ceramic tile. Whitacre also opined that absent any effort to improve the subfloor, the appellees should have warned he appellants of the increased risk that the installation would fail. The appellants set forth three assignments of error. The appellants first and second assignments of error: I THE TRIAL COURT ERRED IN GRANTING APPELLEE A. DROST CO.'S MOTION FOR SUMMARY JUDGMENT. II THE TRIAL COURT ERRED IN GRANTING APPELLEE CROWN CARPET CORP.'S MOTION FOR SUMMARY JUDGMENT. Although the appellants divide the assignments of error into various sub-parts, essentially they argue that the trial court erred when it granted the appellees' motions for summary judgment because the complaint timely set forth allegations of negligence - 5 - and breach of contract within the respective statutes of limitations. The appellants also argue that the trial court erred in granting the appellees' motions for summary judgment when the appellees failed to support their motions with evidentiary quality materials. The appellants point out that their briefs were supported with sworn testimony directly refuting the appellees' arguments. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108 citing to Celotex Corp. v. Catrett (1978), 477 U.S. 317, 322-323. Finally, it is worthy of note that an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. - 6 - Turning first to the contractual claims of the appellants against Drost, the following two clauses are in the construction contract which was signed on June 3, 1988: 1. Builder agrees to construct a single family residence together with attached garage and driveway on the Sublot, in a good and workmanlike manner using new and good quality materials throughout and in accordance with certain plans ("Plans") designated as "Residence for Mr. and Mrs. Michael L. Charna, Sublot 775 Bernwood Road, Beachwood, Ohio", prepared by Lee J. Pozek ("Architect"), and certain itemized specifications attached hereto, initialed by the parties, marked Exhibit A and made a part hereof, (the "Specifications"). Any items shown on the Plans only or on the Specifications only shall be deemed a part of the Plans and Specifications as though it appeared in both. Where the Specifications differ from any specifications noted on the Plans, the Specifications shall prevail. Any work not called for on the Plans, or not included in the Specifications, but which is reasonably implied or is necessary to make the work complete shall, nevertheless, be performed by Builder under this Building Contract for the Contract Price hereinafter stipulated and without any additional cost to Owners. To the extent that the quality of any material may not be specified in either the Plans or Specifications, the Builder shall use materials comparable in quality to the materials used in homes of equal value in the Beachwood, Ohio area. * * * 10. Builder agrees to transfer to Owners all manufacturers' and sub-contractors' warranties or guarantees relating to any fixtures, equipment, work or material incorporated in the Residence. Further, Builder agrees to promptly replace or repair, at its expense, in a good and workmanlike - 7 - manner using good quality materials, any defects in workmanship or materials which may appear in the residence of a period of one (1) year from and after the date of the substantial completion of the construction by Builder. Further, Builder agrees to guarantee the foundation against leakage for a period of one (1) year from and after the date of substantial completion of the construction by Builder. Notwithstanding anything to the contrary contained in this paragraph, it is expressly understood and agreed that concrete is not guaranteed against so-called "hairline" cracks, or peeling. There is no guarantee on asphalt work. In addition to, but in no way limiting the warranties set forth in this Paragraph 10, the attached Exhibit "C" sets forth other warranties by Builder. Neither the occupancy of the constructed building by Owners, nor any payment to Builder shall be construed to be acceptance of defective or improper materials or work. Appellee Drost argues that the appellants failed to meet their burden of production when they failed to attach evidence that Drost failed to perform in a workmanlike manner. Drost asserts that merely showing that a defect exists is not sufficient without a showing that the defect resulted from the contractor's failure to use ordinary care. It is clear that the clause requiring appellee Drost to repair or replace any defects in workmanship or material for a period of one year is not an exclusive remedy. Ohio Historical Soc. v. General Maintenance (1989), 65 Ohio App.3d 139. Therefore, the appellants may bring an action for failure to perform in a workmanlike manner based upon the first paragraph in the contract. What Drost fails to consider in its argument is that Daniel C. - 8 - Whitacre, the appellants' expert, affirmed at paragraph 14 of his affidavit that "The building contractor and tile contractor failed in their duty to make the subfloor and joists more rigid prior to the installation of the ceramic tile." And in paragraph 15 of the affidavit, Mr. Whitacre affirmed: "It is my opinion, to a reasonable degree of certainty that the tile and building contractors' failure to assure sufficient rigidity of the subfloor assembly (plywood layers and joists) resulted in the failure of the tile installation at the residence of Mr. and Mrs. Charna." Through this affidavit the appellants have produced evidence that Drost failed to perform in a workmanlike manner as required under the contract and that this failure resulted in the damage to the appellants' floor. Since the contract was signed on June 3, 1988 and the complaint was filed on August 12, 1994, the appellants have filed their contract claim against Drost within the fifteen year statute of limitations set forth by the legislature in R.C. 2305.06. See Point East Condominium Owners' Assoc., Inc. v. Cedar House Associates Co., et al. (May 25, 1995), Cuyahoga App. No. 67408, unreported. The appellants' complaint also alleges that Drost negligently failed to construct the home in a workmanlike manner. Both Drost and Crown assert that the statute of limitations began to run at the time the ceramic floor began to exhibit cracks in February 1989, almost immediately after installation. The appellees assert that since the suit was not filed until 1994, the trial court - 9 - properly granted summary judgment because the statute of limitations had already run. The appellants argue that the statute did not begin to run until the floor exhibited signs of structural weakness and that the initial cracking was not such a sign. The appellants maintain that the problem did not manifest itself as something more than normal settling of the new home until a few years had passed. This cause of action is governed by a four year statute of limitations pursuant to R.C. 2305.09(D). Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376. The Supreme Court also held in Velotta that the cause of action for damages arising from negligent construction does not accrue until actual injury or damage ensues. The Supreme Court expanded on Velotta in Sedar v. Knowlton Contsr. Co. (1990), 49 Ohio St.3d 193, 198, overruled on other grounds, Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460. The court explained that in construction cases breach of duty and injury may be separated by several years and that where wrongful conduct is not presently harmful, the cause of action does not accrue until the actual damage occurs. The court pointed out that this is not a "discovery rule" where the cause of action accrues where damage which has already occurred is discovered. The issue in construction cases is the delayed occurrence of damages, not the discovery of the injury. In Gardens of Bay Landing Condominiums v. Flair Builders, Inc. (1994), 96 Ohio App.3d 353, this court applied this principle when - 10 - it reviewed a case where a crack in cement flooring underlayment was discovered in one condominium unit in 1985, and an identical problem was repaired in two other units in 1986. More damage was discovered in 1989 and 1990. In 1990, two engineering firms were hired to inspect the buildings and one discovered the structural deficiencies. Suit was filed in 1991. This court determined that the appellant knew it had been damaged after the third failure in 1986 and that the statute began to run at that point. Also instructive is Point East Condominium, supra, where construction on the condominiums began in 1977, and in 1980 leaks in the sprinkler heads were discovered. After investigation, it was determined that the problem arose from excessive flux in soldering the new piping. These sprinkler heads were replaced and it was thought that the problem had been corrected. In 1987, a systemic pattern of leaks developed in piping installed subsequent to 1980. An action was commenced in 1988. This court held that the statute of limitations did not begin to run until 1987 when the leaks caused actual damage. Both Gardens of Bay Landing and Point East cite to Cincinnati Ins. Co. v. Alcorn (1993), 91 Ohio [App.]3d 165. A marble tile floor began to crack a short time after its installation in 1984. The contractor attempted to remedy the problem in 1985, but the flooring continued to crack over the next five years. Another contractor attempted unsuccessfully to remedy the floor, and in 1990 the second contractor removed the marble tiles and discovered - 11 - an improperly installed underlayment. Suit was filed in 1992, and the appellate court held that there was no actual damage until the floor was removed to find out whether the underlayment was properly installed. The court stated that the cracking of the marble tiles in and of itself was evidence of poor workmanship, but there was no damage until the floor actually had to be removed. In the case sub judice, the facts fall within the parameters outlined in the above cases. Although cracking in the appellants' ceramic tile floor was apparent in 1989, there was no reason to believe it was other than a natural settling. Indeed, the appellants had been so informed by appellee Crown who continued to repair the floor for two years. The appellants' expert, Mr. Whitacre, affirmed that during the first and second years after instillation it is not uncommon to observe areas in the grout which require repair. The appellant produced evidence that they first learned the subfloor might be the problem in 1993, after the visit of Crown's president Herman Frank. This suspicion was confirmed in 1994 when Mr. Whitacre concluded his tests. Based upon this evidence it must be concluded that the appellants' allegations of negligence were filed within a four- year period of the time actual damages occurred and that the trial court erred in granting the motions for summary judgment of appellees. In the second assignment of error the appellants argue that the trial court erred in granting the motion for summary judgment - 12 - filed by appellee Crown. The appellants state that there is a question of fact as to whether or not Crown advised the appellants that the subfloor was weak and that a "mud job" method of installing ceramic tile should be used; that although the expert's opinion states that neither faulty materials nor improper methodology caused the tile floor to fail, the expert did state that Crown was at fault for improperly installing the tile on an inadequate subfloor; that the action against Crown was timely filed; that Crown made oral promises to the appellant to properly install the tile floor and to "do a good job" and that Crown breached its oral promise to remedy or replace the floor. Crown argues that the appellants were present at a meeting between Crown and Drost to discuss problems with the subfloor and that the appellants chose to proceed despite the warnings of Crown; that the appellants presented no evidence that the floor was negligently installed; that the cause of action arose at the time the cracking first began; that any verbal assurances by Crown to "do a good job" was a vague statement and cannot be construed as an oral contract; and that the appellants presented no evidence that Crown promised to replace or repair the floor. The appellants have admitted that a conference between themselves and both appellees occurred prior to the installation of the ceramic tile floor. However, the deposition testimony reveals that the problems discussed at this meeting were regarding leveling the subfloor. Mr. Charna testified that a "mud floor job" was - 13 - never discussed (T. 103, 104). Mrs. Charna also testified that there was no discussion about a "mud job" (T. 75). Appellee Crown submitted no evidence to the contrary. It is equally clear that the appellants presented sufficient evidence regarding the failure of Crown to properly install the flooring. The appellants' expert stated that neither faulty materials nor improper methodology caused the tile floor to fail, but that Crown was at fault for improperly installing the tile on an inadequate subfloor. This statement by the appellants' expert is sufficient basis upon which to deny the appellees' motion for summary judgment. As stated previously in this opinion, the appellants' complaint was timely filed and any discussion as to whether or not Crown's statement that they would "do a good job" is not required since the requirement to perform in a workmanlike manner is required at law. See Velotta, supra. Finally, Mrs. Charna testified that Mr. Frank, president of Crown, stated that he would take out the floor if that was what the Charnas wished (T. 74). This evidence is sufficient to permit the appellants to maintain an action for breach of promise to repair the tile floor. The appellants' first and second assignments of error are well taken. The appellants' third assignment of error: - 14 - III THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION TO PRESERVE EVIDENCE. App.R. 16(A)(7) requires the appellants to support their arguments with citations to authorities, statutes and portions of the record upon which they rely. Glover v. Toys-R-Us (May 19, 1994), Cuyahoga App. No. 64787, unreported. The appellants failed to support their two-paragraph argument, and this court declines to rule on this alleged error. The appellants' third assignment of error is overruled. Judgment is reversed and remanded. - 15 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .