By Joe Pinchot
Herald Staff Writer
HERMITAGE
December 13, 2008 08:11 pm
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A Mercer County judge has ruled that a home builder owes the Hermitage treasurer and tax collector and her husband more than $34,000 because of defects in their home.
Home builder Mill Creek Homes LLC, Boardman, Ohio, has asked Mercer County Common Pleas Judge Christopher J. St. John to reverse his decision or grant a new trial.
Bernie Telega Harry and her husband, Raymond W., signed a $212,921 contract with Mill Creek on Oct. 15, 1999, to buy their lot at 3857 Amhurst Drive and build a home on it.
The Harrys, represented by Stephen J. Mirizio, filed suit Feb. 20, 2002, alleging that Mill Creek failed to and/or neglected to finish the job. Among the Harrys’ complaints: Windows were defective or improperly installed, toilets were unlevel, drywall seams were unfinished, door locks and baseboards were improperly installed, and a sump pump was defective.
The Harrys said they paid First General Services of Pennsylvania $48,638 to fix the defects. They sued to try to recover First General’s cost plus court costs and interest.
Mill Creek responded that the Harrys refused to allow the company to complete or fix the home unless the builder performed tasks not required by the contract. Mill Creek argued that it had completed its obligations except for a few punch list items the Harrys did not let it perform.
Mill Creek sued American Architectural Products Inc., Wexford, which built and sold the windows.
St. John presided over several, nonconsecutive days of trial over the last three months and visited the home on Nov. 6. He rendered his verdict Nov. 18.
St. John said the contract required Mill Creek to buy and install Pella windows, but Mill Creek instead installed 27 American Weatherseal windows, which are less expensive.
The judge said he tried to operate each window and found it “patently obvious” they were defective, basing his ruling on his own observation and other testimony presented at trial.
Several cracks appeared in the drywall of the living room, foyer, dining room and loft that require patching, sealing and repainting, and four porch columns were substandard and rotted prematurely, he said.
St. John ruled that Mill Creek owes the Harrys $30,377 for window replacement and installation, $1,936 for drywall crack fixing and painting, $1,469 for column replacement and $450 to reimburse the Harrys for painting Mill Creek had agreed to pay for, but never did. The total is $34,232 plus court costs.
St. John ruled that Mill Creek breached its warranty and the warranty of habitability on those items, but did not grant the Harrys’ claim of negligent misrepresentation.
Mrs. Harry declined to comment on the verdict.
In a postverdict motion for reversal or a new trial, Mill Creek’s attorney, William G. McConnell Jr., said Mill Creek could only be found liable for the windows if the defect rendered the home uninhabitable.
McConnell said the judge’s visit to the house eight years later is insufficient proof that the windows are defective. Mill Creek argued that the Harrys needed to provide expert testimony, which they did not do.
He also said the Harrys would get a “windfall” if Mill Creek has to pay for Pella windows.
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