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Luthman v. Minster Supply Co.

Court of Appeals of Ohio, Third Appellate District, Auglaize County

January 22, 2008, Date of Judgment Entry

CASE NUMBER 2-06-43

Opinion

PRESTON, J.

 [*P1]  Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

 [*P2]  Plaintiff-appellant, Edward Luthman, dba Luthman Concrete (hereinafter "Luthman"), appeals the decision of the Auglaize County Court of Common Pleas granting summary judgment to Minster Supply Company (hereinafter "MSC"). For the reasons that follow, we affirm the trial court's judgment.

 [*P3]  Luthman operated a business which poured and finished concrete. In 2003, Luthman went to MSC, a business that sells tools and accessories for masonry work, to look for products for decorative concrete. Luthman was shown a BonTool catalog by Ken Gigandet, the manager of MSC. Luthman then purchased a sealer called the Boss Gloss Clear Enhancer (hereinafter "Boss Gloss") from MSC.

 [*P4]  On June 5, 2005, Luthman filed a complaint against Minster Supply Company, BonTool Co., and Shore Corporation  [**2] 1 alleging that he applied Boss Gloss to decorative concrete at numerous residential homes and the Boss Gloss turned an "unattractive yellow color." Luthman's complaint alleged the following causes of action against MSC: 1.) product's liability; 2.) negligence; 3.) negligent misrepresentation; 4.) breach of express warranties; 5.) breach of contract; 6.) breach of implied warranty of merchantability; and 7.) breach of implied warranty of fitness for a particular purpose. 2 

 [*P5]  On July 24, 2006, MSC filed a motion for summary judgment on all the claims asserted by Luthman. On August 7, 2006, Luthman filed a memorandum in opposition to MSC's motion  [**3] for summary judgment, and a cross-motion for partial summary judgment against MSC on liability with respect to the following claims: 1.) breach of express warranties; 2.) breach of contract; 3.) breach of implied warranty of merchantability; and 4.) breach of implied warranty of fitness for a particular purpose.

 [*P6]  On November 28, 2006, the trial court granted MSC's motion for summary judgment.

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2008-Ohio-165 *; 2008 Ohio App. LEXIS 139 **; CCH Prod. Liab. Rep. P17,913

EDWARD LUTHMAN, dba LUTHMAN CONCRETE, PLAINTIFF-APPELLANT, v. MINSTER SUPPLY COMPANY, DEFENDANT-APPELLEE.

Prior History:  [**1] CHARACTER OF PROCEEDINGS: Appeal from Common Pleas Court.

Disposition: Judgment affirmed.

CORE TERMS

warranty, supplier, concrete, merchantability, misrepresentation, compensatory, abrogate, conform, sealer, catalogue, manufacture, common-law, decorative, deposition, partial

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, General Overview, Evidence, Inferences & Presumptions, Presumptions, Governments, Legislation, Interpretation, Torts, Products Liability, Types of Defects, Design Defects, Malpractice & Professional Liability, Professional Services, Types of Damages, Compensatory Damages, Marketing & Warning Defects, Manufacturing Defects, Theories of Liability, Misrepresentation, Negligence, Negligence, Elements, Fraud & Misrepresentation, Negligent Misrepresentation, Business & Corporate Compliance, Contract Conditions & Provisions, Implied Warranties, Fitness, Breach of Warranty, Merchantability