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City of Cleveland v. North Pacific Group6/20/2002
JUDGMENT Case Nos. 78706 and 7887l affirmed; Case No. 79595 dismissed.
. The City of Cleveland filed three separate lawsuits in connection with its claim for damages arising out of the failure of utility poles installed as part of its electrical System Expansion Program: the first, the Thomasson litigation; the second, the Norpac litigation; and the third, the OMG litigation.
. Further, the city has filed three separate notices of appeal, which we have consolidated for hearing and review, arising from these lawsuits: the first appeal, Case No. 78706, arises from the court's entry of a directed verdict journalized on October 2, 2000 and its previous orders granting summary judgment to several defendants, which effectively terminated the Norpac litigation; the second appeal, Case No. 78871, arises from eight nunc pro tunc journal entries filed by the court in the Norpac litigation, which supplemented its entry of directed verdict with additional analysis; and the third appeal, Case No. 79595, arises from the court's order journalized on April 25, 2001, which dismissed with prejudice all of the city's claims filed in the OMG litigation on the basis of res judicata.
. Our review of the assignments of error presented by the city shows that none of them relates to the OMG appeal in Case No. 79595; accordingly, we are unable to conduct a review of that case, and we therefore dismiss that appeal. See App.R. 12(A)(1)(b).
. The two remaining appeals, Cases No. 78706 and 78871, both arise from Common Pleas Case No. 39l217, the Norpac litigation. After reviewing the several causes of action presented by the city in that case, we have determined that all are barred by the respective statutes of limitations except for the city's UCC claims for seventy-one poles shipped after September 10, 1995 and for its fraud claim against OMG Americas, Inc. and OM Group, Inc. Our review, moreover, reveals that the city failed to establish the essential elements of its fraud claim and, on these grounds, we affirm the judgment of the trial court, which granted a directed verdict in favor of all defendants on all of the city's claims.
THE FACTS
. These cases stem from the failure of utility poles purchased by the city and by its contractors for use as part of what is referred to as the "C-5" and "C-9" phases of the city's System Expansion Program. In connection with these failures, the city sued, inter alia, The Leader Electric Supply Co. and Wesco Distribution, Inc., which are local utility pole brokers; North Pacific Group, Inc. ("Norpac") and Thomasson Lumber Co., which are national utility pole suppliers; Cahaba Pressure Treated Forest Products, Inc. and Olon Belcher Lumber Co., which are treaters of utility poles; and OMG Americas, Inc. ("OMGA"), which manufactures copper naphthenate, a chemical used to treat the poles, and OM Group, Inc. ("OMG"), a holding company which owns one hundred percent of the shares of OMGA.
. On February 14, 1992, the city entered into what is referred to as the C-5 contract with a general contractor, L.E. Myers Co., to institute the C-5 phase of its System Expansion Program; on December 18, 1992, the city contracted with F.A. Tucker Corp., another general contractor, for the C-9 phrase of the program. Both the C-5 and the C-9 contracts required the contractors to purchase poles treated with copper naphthenate. In addition, these contracts specified that the utility poles retain an average of at least 0.06 pounds of copper naphthenate per cubic foot and that the chemical penetrate at least two and one-half inches into the wood.
. Moreover, the record reflects that the C-5 and C-9 contracts co
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