COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68852 BRONZE BUSHING COMPANY, INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION NORTH AMERICAN MANUFACTURING : COMPANY : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 4, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 254640 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Robert W. McIntyre, Esq. Robert S. Walker, Esq. The Galleria & Towers at Samuel J. Najim, Esq. Erieview Mary E. Sweeney, Esq. 1301 East Ninth Street Jones, Day, Reavis & Pogue Cleveland, Ohio 44114-1824 901 Lakeside Avenue Cleveland, Ohio 44114 Of Counsel: McIntyre, Kahn, Kruse & Gillombardo Co., L.P.A. -2- HARPER, P.J.: Plaintiff-appellant, Bronze Bushing Company ("BBC"), appeals from the granting of summary judgment in favor of defendants- appellees, North American Manufacturing Company and Neil McConnell ("Namco" and "McConnell" individually, and "appellees" collectively), by the Court of Common Pleas of Cuyahoga County. BBC submits that genuine issues of material fact remain for litigation regarding its claim that appellees negligently, and in breach of contract, engineered and sold a purportedly defective foundry furnace combustion system. A careful review of the record compels affirmance. I. Michael Endress and David Carter, with the financial assistance of Dennis Gehrisch, formed BBC, an Ohio corporation, in 1989 as a start-up foundry and machine shop. Endress acted as BBC's President and Sales Manager, and Carter, a metallurgist with more than twenty years of experience in foundry work, was the corporations's Vice President and Foundry Manager. Carter purchased four used crucible furnaces in 1990 for use in the foundry. Three of the furnaces were described on the sales contract as "aluminum tilt furnaces with blowers." The combustion system of these furnaces were disassembled and in need of repair. Carter, therefore, contacted Namco, a manufacturer of combustion system parts, and was referred to Neil McConnell, a Namco salesman. McConnell visited BBC on January 23, 1990 for an inspection of the type of burner on the recently purchased furnaces, and their -3- condition. He noted the type of burners that were presently used, and determined from that information, what missing or broken combustion system parts required replacement. According to McConnell's deposition testimony, Carter did not identify the substance to be melted in the furnaces or the desired melt time at their initial meeting. Carter recalled that he instructed McConnell to design a system that would allow the fastest melting time for bronze and brass, but he could not remember exactly when he communicated this information to McConnell. Additionally, even though Carter requested the fastest melting time at some point during BBC's relationship with appellees, he never specified an exact time until a year or so after the installation of the system. McConnell sent Carter a proposal dated January 26, 1990 in which he quoted line item prices for parts that he suggested BBC purchase to repair the furnaces ("the 1990 proposal"). These parts included a burner with the same capacity as a broken burner on the purchased furnaces. McConnell did not suggest that the old burners were inadequate, but, instead, listed the parts necessary to supply the appropriate amount of air and gas to the existing type of burner. McConnell followed up the proposal with a diagram that illustrated the assembly of the combustion system parts ("the piping diagram"). Carter telephoned his order into Namco on February 8, 1990. McConnell forwarded a sales order to Carter on the same day. The sales order, which detailed the terms and conditions of the sale, -4- disclaimed the warranty of fitness for a particular purpose, and 1 limited BBC's remedies to repair or replacement. Carter accepted and paid for the parts. Carter and a couple of BBC maintenance 1 Paragraph three of the "TERMS AND CONDITIONS OF SALE," imprinted on the back of the sales order, partially provides: 3. WARRANTY. Products manufactured by the Company are warranted to be free from defects in workmanship and material for a period of one (1) year from the date of shipment, and any products which are defective in workmanship or material will be repaired or replaced by the Company upon return by the Buyer to the Company, at no charge to the Buyer for the cost of such repair or replacement. The obligation of the Company hereunder shall be limited solely to such repair or replacement, *** and shall be conditioned upon receipt by the Company of written notice of any alleged defects promptly after discovery thereof within the warranty period. The foregoing is the exclusive remedy of the Buyer, and is in lieu of any and all warranties, expressed or implied, and may be modified only in writing by an officer of the Company. No other representative nor any other person is authorized to represent or assume for the Company any warranty except as set forth hereinbefore. *** THE COMPANY MAKES NO WARRANTY AS TO FITNESS OF ITS PRODUCTS FOR SPECIFIC APPLICATIONS BY THE BUYER OR ITS CUSTOMERS, NOR AS TO THE PERIOD OF SERVICE OF ITS PRODUCTS EXCEPT AS MAY BE EXPRESSLY PROVIDED IN WRITING BY AN OFFICER OF THE COMPANY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF, THE FURNISHING, SERVICING, OR USE OF ANY PRODUCT MANUFACTURED OR SOLD BY IT TO THE BUYER. THIS WARRANTY SHALL NOT BE APPLICABLE IF THE DEFECT IS THE RESULT OF MISUSE, ABUSE, OPERATOR ERROR, OR LACK OF PROPER MAINTENANCE ON THE PART OF THE BUYER. -5- employees installed the parts on the furnaces by using the piping diagram as a guideline. BBC used one of the four furnaces to melt brass and bronze commencing in March 1990. The remaining furnaces were utilized in ensuing months. McConnell periodically inspected the furnaces for air to gas ratio, finding the ratio to be in balance. Carter subsequently learned that another foundry, United Bronze of Pittsburgh ("United Bronze"), used different furnaces to melt brass and bronze. Since the melting time was approximately double in the furnaces used by BBC, Carter requested that McConnell prepare a proposal to upgrade BBC's furnaces' combustion system. McConnell consulted with Namco's technical support staff regarding Carter's request. He thereafter advised Carter that BBC's furnaces could not use additional heat efficiently. Therefore, simply increasing the capacity of the combustion system would not produce the desired melt time. McConnell drafted a proposal for Carter on May 28, 1991 ("the 1991 proposal") to coincide with his advice. McConnell specified the parts that were needed to increase the capacity of the combustion system, but cautioned that the furnaces required replacement or reconfiguration in order to use the new parts effectively. Without responding to the 1991 proposal, BBC purchased two furnaces from United Bronze in December 1991. Carter cited insufficient funds as the reason why BBC did not accept McConnell's 1991 proposal. -6- BBC closed the foundry in June 1992 following a series of events. BBC eventually sold its assets to United Bronze in December 1992 without ever earning a profit. Meanwhile, in a letter dated June 19, 1992, BBC, through its attorney, charged Namco and McConnell with "misengineering" the combustion system for the furnaces. BBC based the complaint on the furnaces' allegedly inordinate melting time. II. BBC instituted this action in the trial court on July 1, 1993. The corporation submitted that it retained the services of Namco and McConnell, who purportedly held himself out as a "combustion and process control engineer," to design and implement a combustion system to melt bronze. BBC basically alleged that appellees breached a verbal agreement by negligently designing the system because the furnace burners were substantially undersized, and consequently could not efficiently melt the bronze. BBC also claimed the negligent design breached the implied warranties of merchantability and fitness for a particular purpose. Appellees filed a motion for summary judgment on January 11, 1995. After BBC filed a brief in opposition, and appellees a reply, the trial court granted summary judgment in favor of Namco and McConnell on March 24, 1995. III. This appeal followed with BBC claiming that the trial court's grant of summary judgment was erroneous. BBC suggests that the trial court improperly determined the credibility of McConnell and -7- Carter from their respective deposition testimony. BBC advances that the credibility determination is the only way to explain the trial court's ruling because, otherwise, the record establishes that "if Carter is correct, then NA [Namco] and McC[onnell] are unquestionably liable under any one of the several applications of law ***." The granting of summary judgment is only appropriate if there is no genuine issue as to any material fact, and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201; Civ.R. 56(C). An order granting summary judgment will, therefore, only be upheld where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the nonmoving party. Johnson v. New London (1988), 36 Ohio St.3d 60, 61; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The factual dispute must be "material," i.e., the facts involved must have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202. Moreover, the issue to be tried must be "genuine," and one that allows reasonable minds to return a verdict in favor of the nonmoving party. Id., 477 U.S. at 248-252, 106 S.Ct. at 2510-2512. See Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 664. -8- Summary judgment is a procedural device that is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333; see Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. A. In the present case, Namco and McConnell first attacked BBC's negligence claim in their motion for summary judgment. They referred to BBC's complaint wherein BBC requested $691,500 in damages as a result of the negligence, said damages consisting of: 1. $156,000 for labor overages caused by "idle foundrymen waiting for the bronze to melt"; 2. $150,000 for excessive gas usage caused by inefficient combustion; 3. $208,000 for additional machining costs with a specified cause; 4. $47,500 for unspecified foundry and machining expenses; and 5. $130,000 for lost profits caused by lost sales and inability to deliver. Namco and McConnell argued that when a party only requests economic damages in a negligent design action, the proper remedy is through contract and the relevant sections of the Uniform Commercial Code ("UCC"). Consequently, BBC's claim fails as a -9- matter of law. Appellees cited a multitude of cases in support of their position, including Chemtrol Adhesives v. American Manufacturers (1989), 42 Ohio St.3d 40. In Chemtrol, Chemtrol retained Midland-Ross Corporation ("Midland") to design and build a new arch dryer, a dryer that evaporates excess moisture from a solvent. The parties agreed that the design should contain a "heat recovery system" in order to be fuel efficient. This system allowed waste heat from the system's exhaust to be transferred into the "make-up air." The final agreed to design was a hot-water based system that used water- filled heat exchanger coils. Chemtrol, 40. The system, including the furnace, almost completely shut down eight months after its installation due to a malfunction in another piece of equipment. The system's intake fan, designed not to automatically shut off, continued to draw cold outside air across the hot-water coils. Since the furnace was shut down, the cold air froze the coils and led to their rupture. The coils were repaired by Jacco Service, Inc. ("Jacco"), but froze for a second time thereafter. After the second repairs, Midland was able to return the system to operational status seven months after the first freezing incident. Id., 40-41. In response to Chemtrol's complaint against its insurers, the insurers filed a third-party complaint and a separate indemnifi- cation action against Midland and Jacco. The claims against Midland consisted of negligence, strict liability, breach of express and implied warranties, and breach of contract. Summary -10- judgment was subsequently granted by the trial court in Midland's favor, a ruling that was affirmed on appeal. Id., 41. Three issues were presented on appeal to the Supreme Court of Ohio, one being whether a subrogee (the insurer) of a commercial consumer, may maintain negligence or strict liability actions for economic damages alone. Noting that subrogees can only possess those rights and remedies available to their insureds, the court focused on Chemtrol's claimed damages and whether Chemtrol would be able to recover from Midland based upon the claims asserted by the insurers. Id., 42. A majority of Chemtrol's claimed damages related to additional production costs. The Chemtrol court characterized these damages as "indirect economic loss," i.e., "consequential losses sustained by the purchaser of the defective product, which may include the value of production time lost and the resulting lost profits." Id., 43-44. The court then acknowledged the general rule that a plaintiff who suffered economic loss alone due to another's negligence, cannot maintain an action against the other based upon that theory. Id., 44, citing Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp. (Iowa 1984), 345 N.W.2d 124; Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union, Local No. 226 v. Stern (1982), 98 Nev. 409, 651 P.2d 637; and Note, Economic Loss in Products Liability Jurisprudence (1966), 66 Colum. L. Rev. 917. It proceeded to find that the state of Ohio is in accord with this majority view. Chemtrol, 45. -11- The Chemtrol court explained the motivation behind this general rule as follows: The reason for denying recovery in negligence for purely economic loss lies not in a failure to find "negligent" conduct by the manufacturer, nor in a lack of proximate relationship between that conduct and the consumer's injury. Rather, the key factor is the extent, and more important, the source, of the duty owed by the manufacturer to the consumer. In negligence, the law imposes upon the manufacturer of a product the duty of reasonable care. That duty protects the consumer from physical injury, whether to person or property. However, the law of negligence does not extend the manufacturer's duty so far as to protect the consumer's economic expectations, for such protection would arise not under the law but rather solely by agreement between the parties. "[W]hen the promisee's injury consists merely of the loss of his bargain, no tort claim arises because the duty of the promisor to fulfill the term of the bargain arises only from the contract." Battista v. Lebanon Trotting Assn. (C.A.6, 1976), 538 F.2d 111, 117, quoted in Cincinnati Gas & Elec. Co. [v. General Elec. Co. (S.D. Ohio 1986), 656 F.Supp. 49], supra, at 61. [Citation omitted.] Id. Based upon the foregoing, the Chemtrol court recognized that if the arch dryer system provided by Midland caused personal injury or damage to other property, Chemtrol could sustain an action in negligence because Midland would have breached its duty of care imposed by law. Id. However, since Midland was obligated under the contract to provide a "working arch dryer" which "did not perform as expected," and Chemtrol incurred additional expenses as a consequence thereof, Midland's duty arose under contract, not the law of negligence. Id. Therefore, in the absence of injury to persons or damage to other property, Chemtrol's and the subrogated insurers' sole remedies were limited to those available under the -12- contract between Chemtrol and Midland; the commercial buyer is thus precluded from recovery of economic losses premised upon theories of strict liability or negligence. Id., 51; see Sun Refining & Marketing Co. v. Crosby Valve & Gage Co. (1994), 68 Ohio St.3d 397; Vistein v. Keeney (1990), 71 Ohio App.3d 92. In the present case, BBC responded that Chemtrol was distinguishable insofar as it involved negligent design of a product. BBC clarified its position that it was seeking to recover for negligent "engineering," and not defective "product" design. In other words, the parts used in the furnace combustion system worked to their capacities, but the system failed because of its negligent engineering. However, rather than citing case law in support of its position, BBC respectively outlined the measure of damages for negligence, breach of contract, and UCC causes of action, and then proposed that appellees' argument would deny full compensation for its loss(es). Any doubt left by Chemtrol as to whether the "pure economic loss" rule applies to BBC's claims against appellees was dispelled by the Supreme Court of Ohio's decisions in Sun Refining and Queen City Terminals, Inc. v. Gen. Am. Transp. Corp. (1995), 73 Ohio St.3d 609. The court's opinion in the former reads, in pertinent part: [T]he underlying purpose of the UCC is, in part, to clarify and make uniform commercial law. R.C. 1301.02(B)(1) and (3). That is, the UCC lends predictability to commercial transactions. It governs the bargain. If the product is faulty, inefficient, or breaks, resulting in diminished economic returns, the proper remedy is through contract and the relevant UCC -13- provisions. When the benefit of the bargain is diminished or lost, the contract and the UCC control the parties' rights. (Emphasis added.) Sun Refining, 399. In Queen City Terminals, the court was quite specific in stating: [W]e hold that in order to recover indirect economic damages in a negligence action, the plaintiff must prove that the indirect economic damages arose from tangible physical injury to persons or from tangible property damage. Indirect economic damages that do not arise from tangible physical injury to persons or from tangible property may only be recovered in contract. (Emphasis added.) Queen City Terminals, 615. See Floor Craft Floor Covering, Inc. v. Parma Community Gen. Hosp. Assn. (1990), 54 Ohio St.3d 1, 8 ("recovery for economic loss is strictly a subject for contract negotiation and assignment"); Jurgens Real Estate Co. v. R.E.D. Constr. Corp. (1995), 103 Ohio App.3d 292 (negligence instructions not warranted where defendant's duty based upon contract, evidence centered around breach of contract, and finding of negligence not indispensable to complete recovery). BBC never claimed that the furnace combustion system designed by appellees failed to melt the brass and bronze. It was only after BBC learned that United Bronze's system melted the metals faster that BBC complained to appellees about the "defect" in their design--the usage of inadequate burners--and the consequential inefficiency. BBC's dissatisfaction with the efficiency of the system is apparent from a perusal of BBC's complaint and the supplemental filings. This court finds no reason to interpret -14- Chemtrol and Sun Refining to mean anything other than BBC's claim for purely economic damages, i.e., damages that are consequential losses, including the value of lost production time and lost profits resulting from inefficiency, could not be maintained as an action grounded in negligence. The hollow distinction between "defective product" and "defectively engineered product" does not alter our conclusion. It is the "character of the loss," here the economic losses incurred as a result of the inefficiency of the system, which determines that BBC's causes of action lie only in contract and the UCC. Queen City Terminals; Sun Refining; Chemtrol. Accordingly, the trial court's grant in favor of appellees on BBC's negligence claim was appropriate. Johnson; Temple. B. With regard to BBC's contractual claims against appellees, appellees presented two arguments in support of their position that they were entitled to summary judgment. First, Namco and McConnell asserted that the claims were time-barred under Ohio law and the parties' written agreement. Second, appellees submitted that BBC's exclusive remedy under the written agreement was repair and replacement. As to the first argument, appellees cited R.C. 1302.65(C)(1) which provides: [Section] 1302.65 (UCC 2-607) Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over. -15- *** (C) Where a tender has been accepted: (1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; *** Namco and McConnell argued that this statute barred BBC's contract claims since BBC gave them notice of the alleged breach on June 19, 1992 through Namco's counsel's letter, more than two years after BBC began to use the "re-engineered" combustion furnaces. BBC countered that "formal" notice, e.g., through a "you are in breach" statement, was not required under R.C. 1302.65. Rather, the corporation relied on its interaction with McConnell through the two year period. BBC specifically submitted that McConnell and Namco were inferentially notified of a breach each time Carter complained to McConnell about the system. In Chemtrol, Midland moved for summary judgment on Chemtrol's insurer's third-party contract claims, arguing that notice of breach was untimely under R.C. 1302.65(C). The trial court and appellate court agreed with this argument. The insurers, on the other hand, submitted that Midland knew of the damages because it inspected Chemtrol's facilities shortly after the freezing incidents. The issue before the Supreme Court of Ohio, therefore, was whether Chemtrol satisfied the notice requirements of the statute, including the reasonable time element. Chemtrol, 51. The Chemtrol court first acknowledged that determinations concerning timeliness and the adequacy of notice are ordinarily those of a trier of fact. Id., 51-52, citing Kabco Equip. -16- Specialists v. Budgetel, Inc. (1981), 2 Ohio App.3d 58; Allen Food Products, Inc. v. Block Bros., Inc. (S.D. Ohio 1980), 507 F.Supp. 392; and Agway, Inc. v. Teitscheid (1984), 144 Vt. 76. Consequently, "[a] trial court should be reluctant to grant summary judgment on the grounds that notice of breach was untimely as a matter of law." Id., 52. Next, the court recognized that two points of view emerged from the Official Comment to R.C. 1302.65(C). The first point of view was a "lenient" interpretation, meaning that notice did not require threats of lawsuits or claims for damages. Notice was also sufficient if the commercial buyer stated that the transaction must be "watched" because of prior "troubles." Id., 52, citing Computer Strategies, Inc. v. Commodore Business Machines, Inc. (1984), 105 App.Div.2d 167, 483 N.Y.Supp.2d 716; Paulson v. Olson Implement Co. (1982), 107 Wis.2d 510, 319 N.W.2d 855; Prutch v. Ford Motor Co. (Colo.1980), 618 P.2d 657. A "strict" standard constituted the second point of view, and required an actual claim of breach. Id., citing Eastern Air Lines, Inc. v. McDonnell Douglas Corp. (C.A.5, 1976), 532 F.2d 957, 976; and Hammond, Notification of Breach Under Uniform Commercial Code Section 2-607(3)(a): A Conflict, A Resolution (1985), 70 Cornell L.Rev. 525. The Chemtrol court conceded that cases which interpreted Ohio law seemed to adopt the strict standard. Id., citing Standard Alliance Industries, Inc. v. Black Clawson Co. (C.A.6, 1978), 587 F.2d 813, certiorari denied (1979), 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396; Roth Steel Products v. Sharon Steel Corp. (C.A.6, 1983), 705 F.2d 134; K & M -17- Joint Venture v. Smith Internatl., Inc. (C.A.6, 1982), 669 F.2d 1106. In rejecting the "strict" standard point of view despite its apparent adoption, the Chemtrol court explained: [W]e recognize that written notice is not required under R.C. 1302.65(C)(1), and in many circumstances oral notice of breach has been found sufficient. [Citations omitted.] While Chemtrol admits in effect that no formal notice was given, reviewing the Wise and Crowley affidavits a reasonable person could conclude that Midland-Ross had knowledge of the damage sustained by Chemtrol shortly after the damage occurred. A reasonable person could infer that this knowledge was provided by Chemtrol notwithstanding the lack of direct evidence that notice of the damages was so provided. *** [W]e believe that notice may be sufficient under the statute despite the fact that the notice does not specifically allege a breach of the contract. Moreover, in our view, the statute was not meant to exclude the possibility that notice may be inferred. [Citation omitted.] Id., 54. Applying the foregoing interpretation of R.C. 1302.65(C) to the facts before it, the Chemtrol court concluded that Midland was not entitled to summary judgment on the insurers' contract claims. The court clarified its position by stating that a remand of the action would require the trier of fact to determine if Midland was timely notified of the damages after their occurrence. The court stressed that the filing of the insurers' third-party complaint against Midland was not "timely notice" as a matter of law because it was filed two years after the damages were sustained by Chemtrol. Id. In the present case, BBC pointed to portions of Carter's and McConnell's deposition testimony to establish appellees' knowledge -18- about the breach prior to Namco's receipt of the June 1992 letter. BBC suggests to this court that the deposition testimony, "clearly states that NA [Namco] was repeatedly informed of the unsatisfactory operation of the furnaces (Carter Depo. at 200-203) and inspected the furnaces several times (McConnell Depo. at 77- 79)." (Emphasis sic.) Moreover, the testimony demonstrates that appellees "were clearly and repeatedly noticed by BB[C] of the inability of the furnaces to perform the task for which NA [Namco] and McC[onnell] supposedly engineered the gas system." This court finds that the deposition testimony highlighted by BBC would not allow reasonable minds to come to more than one conclusion as to whether BBC notified appellees of a purported breach. In Chemtrol, Midland's inspection of the physical damage constituted notice whereas here, no physical damage resulted from faulty or defective equipment. There is no dispute that McConnell visited BBC to take readings of air to gas ratios, but the quoted testimony offers no evidence that BBC repeatedly complained during these visits about the melting time as a result of some fault of appellees. In other words, in Chemtrol, there was direct evidence that Midland was notified of the damage caused by the freezing coils, and that Midland visited Chemtrol's facilities as an immediate result of the particular damage. Herein, there is no evidence that BBC directly notified appellees that the melting time of the combustion furnace system was inadequate, or that McConnell visited BBC to investigate a melting time problem. -19- Additionally, Carter admitted that he realized the slow melting time when speaking with a representative from United Bronze sometime in mid-1991. Carter, therefore, never notified appellees about a problem with the melting time prior to mid-1991. Nor did he ever attribute the slow melting time to McConnell's design as deposition testimony is lacking with regard to BBC's claim that the combustion furnace system "designed" by appellees was defective. Instead deposition testimony only allows for a conclusion that BBC's system lacked the capability to melt materials as quickly as the system at United Bronze because of the size of the furnaces. The 1991 proposal prepared by McConnell reinforces this conclusion since McConnell recommended that the furnaces be replaced or reconfigured when Carter specifically requested a two hour melting time for the first time. As further support for its notice to appellees about the breach, BBC presents another portion of Carter's deposition testimony and an exhibit, a letter to Carter from McConnell dated January 21, 1992. BBC contends that the testimony and letter amounted to the following evidence: Ironically, after all of this notice of breach, NA [Namco] confirmed the obvious inferiority of its initial design by proposing to cure the problem by the complete removal of the original system designed by McC[onnell] and its replacement at BB[C]'s cost with an entirely new system (Carter Depo. at 213)(Exhibit "C"). This was unquestionably the opportunity for NA to cure and its unconscionable "day-late, dollar-short cure" was to require BB[C] to buy a new, properly engineered system at BB[C]'s expense, a proposal that was not acceptable to BB[C] since it was neither timely nor practical (Carter Depo. at 212-213). (Emphasis sic.) -20- Carter's testimony totally fails to substantiate BBC's claim that appellees acknowledged a defective system and recommended a total replacement at BBC's cost. We note that the 1991 proposal mentioned by Carter is not the proposal which stemmed from McConnell's inspection of BBC's facilities in January 1992. Moreover, a review of McConnell's January 1992 letter reveals his concern about certain unsafe conditions relating to the combustion system. McConnell specifically stated that the letter and accompanying proposal were a suggestion as to how BBC could upgrade the system "to bring it up to N.F.P.A. guidelines for gas fired combustion systems." McConnell mentioned neither a defect in the system as designed, nor a total overhaul as claimed by BBC. McConnell's January 1992 letter and proposal, therefore, bear no relationship to the furnace system's melting capacity. Under the above mentioned circumstances, this court finds that BBC did not notify appellees of an alleged breach until Namco's 2 receipt of the letter in June 1992. The issue thus becomes whether the June 1992 letter to Namco from BBC's counsel was timely under R.C. 1302.65(C). This court respects the general rule that the timeliness of notice under the statute is ordinarily a determination left to the trier of fact. Chemtrol, 51-52. However, the Chemtrol court itself resisted the application of this general rule when it found that the filing of the complaint by the insurers two years after 2 Gehrisch, in fact, testified at deposition that he believed the June 1992 letter served to notify Namco of BBC's claims. -21- Chemtrol sustained damages, was untimely under R.C. 1302.65(C) as a matter of law. Chemtrol, 54. This court likewise finds that BBC's notification to appellees in June 1992 that they negligently designed the furnace system in 1990, was untimely, especially in light of BBC's appreciation of the alleged negligence in mid-1991. The trial court thus properly granted summary judgment in favor of appellees on BBC's contract claims if it did so based upon non- compliance with the timeliness of notice requirement contained in R.C. 1302.65(C)(1). Assuming arguendo that BBC timely notified appellees of its contract claims, appellees submitted in their motion that they were still entitled to summary judgment since BBC's exclusive remedy was repair or replacement. Namco and McConnell cited the limiting 3 language set forth on the February 1990 sales order , and R.C. 4 5 1302.29(D) and 1302.93(A) in support of this position. 3 See footnote 1. 4 R.C. 1302.29(D) (Section 2-316 of the UCC) provides: Remedies for breach of warranty can be limited in accordance with the provisions of section 1302.92 and 1302.93 of the Revised Code on liquidation or limitation of damages and on contractual modification of remedy. 5 R.C. 1302.93(A) (Section 2-719 of the UCC) reads as follows: (A)(1) The agreement may provide for remedies in addition to or in substitution for those provided in section 1302.01 to 1302.98 of the Revised Code and may limit or alter the measure of damages recoverable under those sections, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and -22- BBC did not dispute that the sales order listed the terms and conditions of sale, including the warranty provisions. The corporation claimed that the system was not designed to perform as requested, not that the component parts used to make up the system were defective. BBC argued, therefore, that the warranty provisions did not limit its rights concerning the design of the system, just the component parts. Assuming the provisions applied, BBC argued that appellees failed to repair or replace the system to conform to the corporation's standards. This court, keeping in mind the standard to be applied to motions for summary judgment, finds that a genuine issue of material fact existed with regard to whether Namco's warranty provisions covered the furnace combustion system designed by McConnell. The 1990 sales order that included the "TERMS AND CONDITIONS OF SALE" only listed the parts bought by BBC. Since the piping diagram, i.e., the design, was a separate document and did not include any warranty language, a reasonable trier of fact could find that the warranty language only applied to the component parts. However, in light of our conclusion that BBC did not timely notify appellees about the alleged breach, this issue of fact does not warrant a reversal of the summary judgment. Anderson. BBC's assignment of error is overruled. replacement of nonconforming goods or parts. (2) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case itis the sole remedy. -23- Judgment affirmed. -24- It is ordered that appellees recover of appellant 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 Cuyahoga County 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. TIMOTHY McMONAGLE, J., AND JOSEPH J., NAHRA, J. CONCUR PRESIDING JUDGE SARA J. HARPER 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 journaliza-tion, .