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Hahn v. Jennings9/9/2004
. Plaintiffs-appellants, Michael and Marie Hahn, appeal from separate decisions granting summary judgment in favor of defendants-appellees, Laura Peterman ("Peterman"), Douglas R. Jennings ("Jennings"), and Phillip M. Collins & Associates, in this attorney malpractice action. For the reasons stated below, we affirm.
. The underlying facts of this matter go back to 1991, and have been partially outlined in this court's previous decisions in Hahn v. Doe d/b/a 84 Lumber & Home Ctr. (Mar. 23, 1995), Franklin App. No. 94APE07-1024; and Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1507. Briefly, the Hahns were acting as their own general contractor in building a home when they purchased Gold Bond brand drywall from 84 Lumber only to have it substituted with Domtar brand at the time of delivery. The error was not discovered until the drywall had been installed, at which time the Hahns noticed that the quality of the product did not meet their expectations. Various attempts were made to remedy the situation, but the Hahns remained dissatisfied and initiated litigation against 84 Lumber based upon alleged violations of the Consumer Sales Practices Act and breach of warranty. They were successful in obtaining a judgment sufficient to cover the purchase and installation of new drywall; however, the Hahns chose not to have the drywall removed and replaced with the brand they had originally selected. Instead, they attempted to address the defects in the Domtar drywall by "skim coating" it, but were dissatisfied with the result. In addition, they complained that, beginning in August 1994 during the interim between having obtained a judgment and their actual collection of amounts due under the judgment, the Domtar drywall began to pull away from the framing, which damaged the structural integrity of the house, and resulted in financial loss exceeding the amount recovered in the lawsuit.
. In the fall of 1995, the Hahns retained attorney Tobias Elsass to advise them on various legal matters connected with the drywall purchase and consequent litigation. Shortly thereafter, Elsass was suspended from the practice of law, and another attorney in his firm, Laura M. Peterman, took over the Hahns' case. In January 1996, with Peterman acting on their behalf, the Hahns filed a complaint against Domtar based upon various breach of warranty theories. Significantly, although the complaint referenced Ohio products liability law, it did not specifically raise a products liability or tort claim. Domtar removed that case to federal court and, in September 1996, the federal district court granted Domtar's motion to dismiss based upon Domtar's assertion of a lack of privity between the parties.
. In so holding, the court stated, in pertinent part:
A. Lack of Privity
Plaintiffs bring their first three warranty claims under Ohio Revised Code Chapter 1302, Ohio's Uniform Commercial Code ("UCC"). * * * Defendant first argues that plaintiffs cannot maintain these three warranty claims because plaintiffs lack privity with defendant.
Ohio law provides: " o support an implied warranty there must be privity between the buyer and the seller." Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 238 (1966). Likewise:
In order to maintain an action in contract for injury to personal property based upon a contract of sale, which injury is alleged to be caused by a "breach of an implied warranty of merchantability" under the provisions of the Ohio Uniform Commercial Code covering contracts for sale, the plaintiff must establish a contractual relationship with the defendant.
U.S. Fidelity & Guaranty Co. v. Truck & Concrete Equi
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