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Sproles v. Simpson Fence Co.12/12/1994
.1974), 43 Ohio Mise 14, 21, 72 O.O.2d 216, 219-220, 332 N.E.2d 380, 386; Pearson v. Tom Harrigan Oldsmobile-Nissan (Sept. 16, 1991), Montgomery App. No. 12411, unreported, 1991 WL 214228. Appellant argues that he repeatedly called appellee in order to attempt to obtain parts and service on the gate after installation by appellee, but to no avail.
However, appellant has not presented any evidence of the existence of a maintenance or service contract between the parties. To the contrary, an examination of the written proposal entered into by the parties on August 3, 1985 indicates that the contract between the parties contemplated only that appellee would furnish material and labor for the installation of the fence and gate. Therefore, since appellee was under no legal obligation to continue to service or repair the gate after installation, appellee's failure to respond to appellant's requests for service and maintenance do not constitute an unconscionable act or practice under the OCSPA.
We find that appellant has failed to meet his burden under Civ.R. 56 to create any genuine issues of material fact with regard to the existence of a deceptive, unfair, or unconscionable act or practice. Therefore, summary judgment for appellee on appellant's claim of a violation of the OCSPA was proper. Furthermore, even if appellant had met his burden by presenting evidence of the existence of a deceptive, unfair, or unconscionable act or practice, an action for violation of the OCSPA would be barred by the statute of limitations provided in R.C. 1345.10(C). This section provides that an action for violation of the OCSPA must be brought within two years "after the occurrence of the violation which is the subject of suit." Appellant's action is based upon his claims that appellee failed to adequately warn him of the safety hazards associated with the gate, ansthat the installation of the gate was defective. Thus, the trial court was correct in finding that the "occurrence of the violation," if there was one, was in 1985 when the gate was installed by appellee and not in April 1991 when appellant sustained his injury .
While the provisions of the OCSPA covering actions for rescission of consumer contracts are governed by the discovery exception to the two-year statute of limitations, claims for damages, such appellant's claim in this case, asserted under the OCSPA, do not fall within the discovery exception; R.C. 1345.10(C) sets forth an absolute two-year statute of limitations for such damage actions. Cypher v. Bill Swad Leasing Co. (1987), 36 Ohio App.3d 200, 202, 521 N.E.2d 1142, 1144. Appellant's claims under the OCSPA are thus clearly barred by the applicable statute of limitations. Appellant's third assignment of error is accordingly overruled.
Judgment affirmed.
FRED E. JONES, P.J., and WILLIAM W. YOUNG, J., concur.
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