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Tanoh v. Strawbridge5/18/2000
DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000
CHARACTER OF PROCEEDING:
JUDGMENT: Affirmed.
Appellants Alain and Karen Tanoh appeal a decision by the trial court granting summary judgment in favor of Appellees Star Bank, Rick Krupitzer, Ohio Farmers Insurance and Westfield Insurance Company on their claim for damages arising from the breach of a construction contract. The Tanohs assign the following three errors for our review:
I. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO STAR BANK SINCE IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER STAR BANK WAS GROSSLY NEGLIGENT IN DISBURSING ANY FUNDS FROM A CONSTRUCTION LOAN AGREEMENT WITHOUT FIRST OBTAINING THE REQUIRED AFFIDAVITS PER O.R.C. 1311.01. ALSO, IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER STAR BANK WAS NEGLIGENT IN HIRING KRUPITZER TO PERFORM THE INSPECTION WORK ON THE TANOH'S PROPERTY.
II. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO RICK KRUPITZER BECAUSE IT IS A QUESTION OF FACT FOR THE JURY TO DECIDE WHETHER THEY AGREE WITH THE TANOH'S ASSERTION THAT THEY WERE A THIRD PARTY BENEFICIARY TO THE CONTRACT BETWEEN STAR BANK AND KRUPITZER AND WHETHER KRUPITZER WAS NEGLIGENT WITH REGARD TO HIS DUTIES AS AN INSPECTOR.
III. OHIO FARMERS INSURANCE AND WESTFIELD INSURANCE COMPANY ARE NOT ENTITLED TO SUMMARY JUDGMENT SINCE THERE ARE QUESTIONS OF MATERIAL FACTS ABOUT WHETHER THE TANOH'S WERE THIRD PARTY BENEFICIARIES TO THE CONTRACT BETWEEN OHIO FARMERS INSURANCE CO. AND STRAWBRIDGE, WHETHER THERE WAS COVERAGE AT THE TIME OF THE OCCURRENCE, AND WHETHER THE DAMAGE IS COVERED UNDER THE POLICY.
Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.
On October 16, 1995, Alain and Karen Tanoh purchased a home located at 262 E. 150th Street. The sale price of the home was $54,900. The Tanohs decided to rehabilitate the home and obtained an estimate from appellee Rick Strawbridge dba Spirit Construction for renovation of the house. Strawbridge submitted a detailed estimate totaling $23,875. The Tanohs borrowed a total of $78,300 in the form of a construction loan from Star Bank to finance the purchase and renovation of the home. The loan documents provided that construction loan disbursements would be made in accordance with the following procedure:
Disbursements of the Loan shall be made upon the written request of the Borrower in the form attached hereto as Exhibit A and the submission of an affidavit of the general contractor under applicable mechanic's lien laws satisfactory to the Lender, at the time and in the amount set forth below:
1. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 25% complete; and
2. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 50% complete; and
3. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is 75% complete; and
4. One fourth (1/4) of the Loan when in the sole opinion of the Lender's inspector that the construction is totally complete.
A Construction Loan Disclosure form signed by the Tanohs provided that there were three essential components to each disbursement (1) a request from the Tanohs for disbursement of funds with an attached affidavit from the builder and supporting documentation listing the names of sub-contractors, material providers, and laborers and the amounts due to each; (2) an inspection of the work completed from the bank's appraiser whic
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