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1 of 92 DOCUMENTS
CSF INTERIOR FINISHES, LTD., Plaintiff-Appellant v. SCENIC HILLS
FINISHING, Defendant-Appellee
Case No. CA-477
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, HOLMES
COUNTY
1993 Ohio App. LEXIS 5497

November 1, 1993, Entered


PRIOR HISTORY:
[*1] CHARACTER OF
PROCEEDING: Civil Appeal from Common Pleas
Court, Case No. 92-C-47, 45-15250
DISPOSITION: JUDGMENT: Affirmed

COUNSEL: For Plaintiff-Appellant: EDWIN DAVILA,


P.O. Box 50443, Canton, Ohio 44708.
For Defendant-Appellee: MARK W. BASERMAN, 111
S. Clay St., Millersburg, Ohio 44654.
JUDGES: Hon. Irene B. Smart, P.J., Hon. W. Scott
Gwin, J., Hon. William B. Hoffman, J.
OPINION BY: IRENE B. SMART
OPINION
OPINION
SMART. P.J.
This is an appeal from a judgment of the Court of
Common Pleas of Holmes County, Ohio, entered in favor
of defendant-appellee, Scenic Hills Finishing (Scenic
Hills), and against plaintiff-appellant, CSF Interior
Finishes (CSF). The matter was tried to the bench.

The record indicates that CSF contracted with Scenic


Hills for wood finishing. CSF furnished materials to
Scenic Hills for staining. Scenic Hills stained it, and CSF
delivered it to various building projects in Canada. At
issue is several loads of material that Scenic Hills worked
on in 1990 and 1991, consisting of 200 sheets of 4' x 8'
oak veneer plywood and approximately 10,400 feet of
oak moldings. CSF's complaint alleges that Scenic Hills
incorrectly stained the material, and that it was not
acceptable [*2] to CSF's customers when it arrived at the
building projects. CSF alleges that the nature of the
defect would be readily apparent to any observer.
The trial court found that CSF could not recover
because it had failed to inspect the shipment for defects,
and for this reason, it had forfeited its right to revoke
acceptance of the material.
When CSF was notified by its customers that the
materials were unacceptable, CSF notified Scenic Hills
and demanded immediate refinishing of the material
within a five-day time limit, that limit set to meet CSF's
contractual duties to the contractors who had purchased
the materials. Scenic Hills declined to refinish the
materials within the five-day time limit, for the reason
that its chief executive officer was out of the state and
would not return in time to meet the deadline. CSF then
purchased replacement materials and contracted with
another company to rectify the allegedly defective

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1993 Ohio App. LEXIS 5497, *2

shipment. CSF claimed damages of $ 14,732.95. CSF did


not tender payment to Scenic Hills, and Scenic Hills'
counterclaim was for nearly $ 2,000 in final payment for
work done. The trial court found that CSF did not give
Scenic Hills a commercially reasonable amount [*3] of
time to remedy the defect, because five days was simply
unreasonable.
CSF assigns two errors to the trial court:

judgments, not rationales. CSF urges that the trial court


was incorrect as a matter of law in holding that it was
barred from revoking its acceptance of these goods
because it did not inspect the shipment upon receipt.
However, if CSF has not demonstrated to the trial court
that the shipment was in fact defective, then the trial
court's finding that it could not revoke, if error at all, is
not prejudicial.
The first assignment of error is overruled.

FIRST ASSIGNMENT OF ERROR


THE TRIAL COURT ERRED IN
HOLDING THAT CSF COULD NOT
RECOVER BECAUSE IT DID NOT
INSPECT THE SHIPMENT UPON
RECEIPT.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN
HOLDING
CSF
COULD
NOT
RECOVER BECAUSE IT DID NOT
GIVE
SCENIC
HILLS
A
COMMERCIALLY
REASONABLE
AMOUNT OF TIME TO REMEDY THE
DEFECT.
I
The trial court, acting as finder of fact, determined
that CSF had not proved by the preponderance of the
evidence that the entire shipment at issue was defective.
CSF had accepted the materials in Ohio and transported
them to Canada, then delivered them to its customers
before the alleged defect was discovered. When CSF
belatedly discovered the alleged defect, it then gave
Scenic Hills only five days to remedy this error.
The record indicates that no transcript of the trial
exists for us to review. Based upon the presumption of
regularity, and because CSF as the appellant here has not
sustained its burden of proving from the record that the
trial court committed error, this court cannot substitute its
judgment for [*4] that of the trial court when the trial
court found that CSF had failed to prove its damages.
It is axiomatic that appellate courts review

II
CSF urges that the five-day time limit it gave to
Scenic Hills to cure its breach was commercially
reasonable. Further, CSF urges that the trial court should
have treated this as a sale of staining services rather than
to a sale of goods.
Regardless of whether one treats this as a contract for
services or goods, when CSF fails to demonstrate that the
entire shipment was obviously defective, this renders
moot the issue of the commercially reasonable time to
remedy the alleged defect.
The second assignment of error is overruled.
For the foregoing reasons, the judgment of the Court
of Common Pleas [*5] of Holmes County, Ohio, is
affirmed.
by Smart, P.J.
Gwin, J. and
Hoffman, J. concur.
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion
on file, the judgment of the Court of Common Pleas of
Holmes County, Ohio, is affirmed.
Irene B. Smart
W. Scott Gwin
William B. Hoffman
JUDGES