A contractor's right to cure will extinguish
In Deborah Pavlescak. v. Ohio Concrete Resurfacing, Inc., the parties executed an agreement for the resurfacing of the garage floor owned by Ms. Pavlescak with natural stone flooring. After Ohio Concrete Resurfacing, Inc. (Resurfacing) completed the resurfacing of the garage floor, Ms. Pavlescak contacted Resurfacing complaining of bubbling, tackiness and other alleged defects in the floor. Resurfacing returned to the home multiple times to correct the defects, which included washing, resealing and removing the flooring. None of the attempted corrections by Resurfacing resolved the defects.
Resurfacing then offered to remove and replace the flooring at no cost to Ms. Pavlescak. Ms. Pavlescak refused to allow Resurfacing to replace the floor because it would not guarantee that the flooring would be free from defects. She then filed a complaint alleging a breach of contract. Both parties agreed that there were defects in the resurfaced garage floor. However, they disputed whether those defects constituted a breach of contract – Resurfacing alleged it had a right to cure.
The key issue of this case is whether Resurfacing’s right to cure was revoked after the failed attempts to fix the defect and its unwillingness to guarantee that removing and replacing the floor would remedy the defects. The magistrate and trial court held that Resurfacing had no right to cure, only a potential right to cure under the “Unconditional Labor Warranty” under which the defects did not fall. Further, both the magistrate and trial court held that even if Resurfacing did have a right to remedy, such right would have been exhausted after its prior attempts to remedy failed, and after it failed to guarantee that a further attempt would remedy the defects. Resurfacing appealed the decision, and the Ninth District Court of Appeals affirmed the trial court.
In sum, construction contracts may include “right to cure” provisions. However, those rights will extinguish after prior attempts to cure fail, and if the contractor is unwilling to guarantee that further attempts will fix the defect.
 Deborah Pavlescak. v. Ohio Concrete Resurfacing, Inc., 2023-Ohio-2.