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Ressallat v. Burglar & Fire Alarms3/26/1992
EVANS, Judge.
This is an appeal by the plaintiffs, Medhi M. and Judith Ressallat, and a cross-appeal by defendant Burglar & Fire Alarms, Inc. ("BFA" or "appellee"), from judgments rendered by the Crawford County Court of Common Pleas on the parties' motions for summary judgment.
On October 7, 1974, the Ressallats ("appellants") entered into an agreement with BFA for the purchase of a burglar alarm system for their home. The system was designed to alert the Ressallats, both via warning lights and the sounding of a horn, when an unauthorized person had entered the house. The burglar alarm system was linked with the telephone system so that, simultaneous with the sounding of the alarm, a call was placed through the telephone lines to BFA's "central monitoring station." The Ressallats paid a monthly fee for these services.
On the advice of BFA's salesperson, the Ressallats arranged with the telephone company to have the phone cable, from the pole to the house, buried. However, in 1985 the Ressallats began having problems with the telephone lines. Although General Telephone Company ("GTE") resolved the difficulties with the phone lines, the cable was not reburied. Instead, it was strung directly from the pole to the Ressallats' house, suspended just a few feet above the ground. Although Dr. Ressallat contacted GTE several times about reburying the phone cable, the company took no action until after the burglary.
In September 1986, the Ressallats' home was burglarized. The burglar apparently obtained unimpeded access to the house by cutting the exposed telephone wires so as to prevent transmission of the alarm. Inside the house, wires to the burglar alarm horn were severed at the electric service box. Jewelry and coins worth over $100,000 were stolen from the house. The Ressallats' insurance company, Physicians' Insurance Company of Ohio ("PICO"), reimbursed the Ressallats in the amount of $17,125.37, the maximum payable on their homeowners' policy.
In September 1988, the Ressallats filed suit against BFA and others. However, on November 17, 1988, that suit was voluntarily dismissed, pursuant to Civ. R. 41(A). This suit was timely re-filed on November 13, 1989. See R.C. 2305.19 ("savings statute" allowing suit voluntarily dismissed to be refiled within one year). The complaint sounded in contract and tort, alleging that BFA had breached its express warranty on the burglar alarm system, had negligently sold, installed, and maintained the system, and had breached the implied warranties of merchantability and fitness. In addition, the Ressallats sued GTE, and BFA's parent company, Connecticut Consolidated Industries, Inc. Although appellants stated in their brief that they were also suing BFA for misrepresentation, the complaint does not allege facts supporting that claim. Appellant PICO was joined in this action as a subrogee to the rights of the Ressallats.
On November 7, 1990, appellee BFA filed a motion for summary judgment on the following bases: (1) that the Ressallats, claims were barred by the applicable statutes of limitations; (2) that BFA had effectively disclaimed all warranties under its contract with appellants, thus barring them from any related causes of action; and (3) that there were no genuine issues of material fact to be litigated. Along with their response to appellee's motion, the Ressallats filed a motion for "partial summary judgment," requesting a declaration from the trial court that the disclaimers of warranty relied on by BFA were "inconspicuous as a matter of law," and thus invalid.
The trial court denied the Ressallats, motion, ruling that BFA's warranty disclaimer was, as
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