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Case Information
Filed
2022-12-14
Status
CLOSED
Type
Civil Boardman
Docket
26 entries
Disposition
judgment
Parties
Plaintiff
Ocasio, Katie L
Defendant
Valentino, John|J & V Roofing & Siding
Lawyers
Docket Entries
- $0.00
- ADDITIONAL DEFENDANTS Receipt: 296138 Date: 12/14/2022
- Issue Date: 12/16/2022 Service: SUMMONS ISSUED Method: (B) CERTIFIED MAIL Cost Per: $ VALENTINO, JOHN 5407 S SARATOGA AVE AUSTINTOWN, OH 44515 Tracking No: 9414726699042203609412 J & V ROOFING & SIDING 5407 S SARATOGA AVENUE AUSTINTOWN, OH 44515 Tracking No: 9414726699042203609429
- SUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 12/16/2022 Service : SUMMONS ISSUED Served : Return : 12/22/2022 On : VALENTINO, JOHN Signed By : L COLUCCI Reason : (B) SUCCESSFUL Comment : Tracking # : 9414726699042203609412
- SUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 12/16/2022 Service : SUMMONS ISSUED Served : Return : 12/22/2022 On : J & V ROOFING & SIDING Signed By : L COLUCCI Reason : (B) SUCCESSFUL Comment : Tracking # : 9414726699042203609429
- ANSWER FILED
- HEARING SCHEDULED Event: CIVIL PRE TRIAL (B) Date: 04/10/2023 Time: 9:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- MOTION FOR JUDGMENT ON THE PLEADINGS FILED Attorney: ESSAD, SCOTT (67352)
- HEARING SCHEDULED Event: NON ORAL HEARING (B) Date: 02/27/2023 Time: 12:00 pm Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- RESPONSE OF PLAINTIFF TO DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY Attorney: ZOMOIDA JR, JOHN N (72742). MKD
- MAGISTRATES DECISION: THE PROCEEDINGS This matter came on for non-oral hearing on February 27, 2023 on the Defendants' Motion for Judgment on the Pleadings filed January 23, 2023 and the Plaintiff's Response in opposition to same filed February 7, 2023. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing with no oral arguments. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Plaintiff filed her complaint on December 14, 2022 requesting judgment in the amount of $15,000.00. Plaintiff alleges that on or about January, 2017 the defendants and one, Jenny M. Kennedy, entered into a contract for installation of a new roof and four skylights at 829 Squirrel Hill Dr., Youngstown, OH 44512 which contract provided for a warranty for 5 years. Plaintiff alleges that such real property was subsequently transferred by Jenny M. Kennedy to her on or about February 22, 2017. Plaintiff further alleges that such prior owner, Jenny M. Kennedy, also assigned to her the interest in the referenced roofing contract. Plaintiff further alleges that subsequent to acquiring occupancy of the subject premises she noticed water leakage from the roof and/or skylights. In count one of the complaint plaintiff argues breach of contract and in count two argues breach of an express warranty. 2. The defendants filed a joint answer on January 12, 2023 admitting and denying the allegations of the plaintiff's complaint and asserting various affirmative defenses. Such affirmative defenses included, but are not limited to, failure to state a claim upon which relief can be granted, lack of privity of contract, statute of frauds and statute of limitations. 3. Defendants filed their motion for judgment on the pleadings on January 23, 2023. The motion asserts four arguments: (1) plaintiff has no standing as there is no privity of contract between plaintiff and the defendants; (2) the warranty mentioned in the subject contract of January, 2017 was not transferable to plaintiff; (3) the assignment of the contract referenced in plaintiff's complaint violates the statute of frauds; and (4) the statute of limitations for warranty of workmanship has expired. 4. In her response in opposition plaintiff argues that in the absence of a contractual limitation on the right to transfer, a party may assign any rights under a contract unless the assignment materially changes the duty of the other party, increases materially the burden of risk imposed on the other party, or impairs materially the other party's chance of obtaining return performance. Plaintiff further argues that a review of the warranty, attached to her complaint, reveals that same does not specifically preclude its transfer or assignment. Plaintiff also argues that the defendant's reliance upon the statute of frauds is misplaced. Plaintiff maintains that the assignment of the warranty was not an assignment of an interest in real estate as the warranty does not constitute real estate. Plaintiff lastly asserts that the defendant's argument regarding the statute of limitations is also misplaced. Plaintiff argues that the complaint merely states that subsequent to taking possession of the subject premises in 2017 the plaintiff noticed water leakage. Plaintiff asserts that there is nothing within the complaint to indicate the commencement date for the running of the statute of limitations and hence plaintiff's cause of action is not barred by the statute of limitations. 5. The parties have proffered relevant case law regarding the various issues raised in the defendants' motion for judgment on the pleadings pursuant to Civil Rule 12(C). Relevant to the determination of the defendant's motion is the following language from the Ohio Supreme Court in State ex. rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 570 (1996): . . [t]he standards for Civ.R. 12(B)(6) and (C) motions are similar, but Civ.R. 12(C) motions are specifically for resolving questions of law, Peterson v. Teodosio (1973), 34 Ohio St. 2d 161,166, 63 O.O. 2d 262,264, 297 N.E.2d 113,117. Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the non - moving party as true, and (2) finds beyond doubt that the plaintiff could prove no set of facts in support of a claim that would entitle him to relief. (citation omitted) Thus Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. (citation omitted). 6. In reviewing the plaintiff's complaint, within the restrictions applicable to Civ.R. 12(C), and in accordance with Midwest Pride IV, Inc. above, the magistrate finds that there are material factual issues that exist. Specifically, although the defendants would argue otherwise, the complaint alleges an assignment of the benefits within, and warranty of, the January 2017 roofing contract. There is nothing presently before the court which would refute plaintiff's assertion as set forth in the complaint. Additionally, there is nothing presently before the court to refute the plaintiff's assertion that the warranty referenced in plaintiff's complaint was nontransferable. The Court finds that such warranty, whether it is transferable or not, does not constitute an interest in land. Simply because the warranty applies to an interest in real estate does not transform the warranty from a contractual entitlement to an interest in land. Lastly, whether plaintiffs claim is outside any applicable statute of limitations cannot be gleaned from the terms of the complaint. Based upon the foregoing the Court does not find that the plaintiff could prove no set of facts entitling her to relief. DECISION 1. Defendants' motion for judgment on the pleadings is denied. 2. Pre-trial to remain set for April 10, 2023 and 9:45 AM.
- COUNSEL PRESENT FOR PLAINTIFF:JOHN N ZOMOIDA JR COUNSEL PRESENT FOR DEFENDANT:SCOTT ESSAD DISCOVERY TO BE COMPLETED IN:90 DAYS DISPOSITIVE MOTIONS, IF ANY, IN:120 DAYS TRIAL TO:BENCH SET FOR BENCH TRIAL IN:150 DAYS OTHER: /S/ DONALD J DESANTO/MKD
- HEARING SCHEDULED Event: CIVIL TRIAL (B) Date: 09/11/2023 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2 Result: CONTINUED
- MOTION TO EXTEND DISCOVERY DEADLINE AND CONTINUANCE ON TRIAL FOR 45 DAYS FILED BY Attorney: ESSAD, SCOTT (67352). MKD
- *DISCOVERY DEADLINE IS EXTENDED TO OCTOBER 23, 2023. TRIAL NOW RESCHEDULED FOR NOVEMBER 20, 2023./S/JMH/DJD
- HEARING SCHEDULED The following event: CIVIL TRIAL (B) scheduled for 09/11/2023 at 10:00 am has been rescheduled as follows: Event: CIVIL TRIAL (B) Date: 11/20/2023 Time: 10:15 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2 Result: DISMISSED
- NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE FILED BY Attorney: ZOMOIDA JR, JOHN N (72742). MKD
- DISMISSAL ENTRY - CASE DISMISSED WITHOUT PREJUDICE AT PLAINTIFF'S COSTS. /S/JMH/MKD
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