ABV Corp. v. Cantor

2023 Ohio 3363, 224 N.E.3d 1178

• Court: Ohio Court of Appeals
• Decided: September 21, 2023
• Docket: 112237
• Status: Published

Opinion

[Cite as ABV Corp. v. Cantor, 2023-Ohio-3363.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ABV CORPORATION, DBA, ABV : CONTRACTORS CO., : Plaintiff-Appellee, No. 112237 : v. : NEIL CANTOR, ET AL., : Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 21, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-954180

Appearances:

Diemert & Associates Co., L.P.A., Joseph W. Diemert, Jr., and Richard S. LaPilusa, for appellee.

Meyers, Roman, Friedberg & Lewis; Ronald P. Friedberg; and Amily A. Imbrogno, for appellants.

MICHELLE J. SHEEHAN, P.J.:

Defendants-appellants Neil and Dolores Cantor appeal from a

judgment of the trial court in favor of plaintiff-appellee ABV Corporation d.b.a. ABV Contractors Co. (“ABV”) after a jury trial. The Cantors argue that the jury’s finding

that they breached their contract with ABV is against the manifest weight of the

evidence. They also claim they should have been awarded damages equal to the

amount of the balance they owed under the final invoice as well as attorney fees

based on the jury’s finding that ABV violated the Ohio Consumer Sales Practices Act

(“CSPA”). Having reviewed the record and applicable law, we find no merit to the

appeal and affirm the trial court’s judgment.

In 2019, the Cuyahoga County mandated all houses utilizing septic

tanks to connect to the county’s sewer lines. In July 2020, ABV provided a proposal

to the Cantors for the sewer conversion work, which included the scope, terms, costs,

and specifications of the project and estimated the cost to be $8,500. ABV

performed the work over a three-day period in May 2021. On the first day of the

project, a county inspector visited the site and determined the sewer project

required additional work not included in the proposal. ABV alleges that the Cantors

approved the additional work, and it is undisputed the cost of the additional work

was not discussed by the parties. The final cost for the sewer conversion work

totaled $20,195. While satisfied with ABV’s work, the Cantors would only pay

$10,000, leaving a balance of $10,195.

ABV filed the instant complaint to recover the balance of $10,195,

raising claims of breach of contract and unjust enrichment. The Cantors filed an

answer and a four-count counterclaim alleging breach of contract (Count 1), a

violation of CSPA (Count 2), fraudulent misrepresentation and inducement (Count 3), and negligent misrepresentation and inducement (Count 4). During the

trial, the trial court dismissed the Cantors’ counterclaim for breach of contract and

the Cantors withdrew Counts 3 and 4.

The matter proceeded to a jury trial. The jury found the Cantors

breached the contract and awarded ABV $10,195. The jury, however, found ABV

violated the CSPA, but only awarded the statutory damages of $200.

On appeal, the Cantors raise the following assignments of error:

I. The trial court erred in disallowing, as recoverable actual damages under Appellants’ Ohio Consumer Sales Practices Act (“CSPA”) claim against appellee, any amount(s) found to be due and owing from appellants to Appellee with respect to Appellee’s invoice.

II. The trial court erred in failing to treble, pursuant to R.C. 1345.09(B), Appellant’s actual CSPA damages encompassing the amount(s) found to be due and owing from Appellants to Appellee with respect to Appellee’s invoice.

III. The jury’s determination that Appellee’s violation of the CSPA resulted from a “bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error” pursuant to R.C. 1345.11(A) was against the manifest weight of the evidence.

IV. The trial court erred in failing to award Appellants their reasonable attorney[] fees pursuant to R.C. 1345.09(F)(2).

V. The jury’s determination that the appellants breached their contract with Appellee was against the manifest weight of the evidence.

For ease of discussion, we address first the fifth assignment of error

regarding ABV’s breach-of-contract claim against ABV. Breach-of-Contract Claim: Manifest Weight of the Evidence

Under the fifth assignment of error, the Cantors argue there was no

evidence presented to suggest the contract was modified to include the additional

work for a final price of $20,195 and, therefore, the jury’s finding that the Cantors

breached the contract in failing to pay that amount is against the manifest weight of

the evidence.

A. Standard of Review

When reviewing a claim that a jury verdict in a civil trial is against the

weight of the evidence, an appellate court weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,

¶ 20. In determining whether the judgment is against the manifest weight of the

evidence, “‘“every reasonable intendment and every reasonable presumption must

be made in favor of the judgment and the finding of facts.”’” Id., quoting Seasons

Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3,

quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

Furthermore, in a civil case, the burden of proof is by a

preponderance of the evidence, rather than beyond a reasonable doubt. Eastley at

¶ 19. Preponderance of the evidence means “the greater weight of the evidence, or

evidence that leads the trier of fact to find that the existence of a contested fact is more probable than its nonexistence.” Croone v. Arif, 8th Dist. Cuyahoga No.

101103, 2014-Ohio-5546, ¶ 18, citing State v. Stumpf, 32 Ohio St.3d 95, 102, 512

N.E.2d 598 (1987).

B. Trial Evidence

ABV’s July 2020 proposal provides the scope of the sewer conversion

work in the first sentence: ABV was to “install new 6” SDR-35 PVC pipe from

sanitary sewer cleanout to edge of asphalt driveway.” The proposal states the quote

was based on “connecting [the sewer line] to edge of driveway” and that the extent

of the pipe work is “[t]o be determined on site by Cuyahoga County Inspector, [who

is to] verify [that] existing pipes under driveway to foundation are clean and working

properly.” Another sentence in the proposal states, “Note: Proposal price does not

include: rock excavation, concrete and/or asphalt work, unknown underground

obstacles, landscaping and/or seeding.” A clause regarding modification states that

“[a]ny deviations from the above specifications shall be executed only upon written

instructions as and become extra charge.”

The proposal estimates the cost of the sewer connection to the edge

of the driveway to be $8,500 and it contains a statement that the estimate “does not

include material price increases or additional labor and materials which may be

required should unforeseen problems arise after the work has started.”

ABV acknowledges there was no written estimate for the additional

work of connecting the sewer to the foundation of the house as determined by the

county inspector, who visited the site on the first day of the project, but alleges that the Cantors were aware of the necessity of the additional work and authorized it.

Cesare Frabotta and Bruno Frabotta testified on ABV’s behalf.

a. Cesare Frabotta

Cesare Frabotta testified that the company was founded by his

brothers in 1974. The company’s work includes sewer connections, concrete work,

excavating, and septic systems. He testified he has been in this line of work for 32

years and the company has an “A plus” Better Business Bureau rating and “100

percent Recommended” from “HomeAdvisor.”

Cesare described the work involved in converting a septic tank to a

sewer line as follows: after the county installs a new sewer line for a residence to

connect to, his company would excavate and find the connection to the new sewer,

extend a new sewer pipe from that location to the line coming out of the residence,

either outside the foundation or by the driveway, and then “abandon” the septic tank

by removing any connections, demolish the components, and fill the space in with

on-site materials.

Cesare testified that during a sewer project, underneath gas, electric,

and water lines between the residence and the road could be discovered and

therefore he would always insert a clause in the work proposal that the company

would not be responsible for underground lines or obstacles. He testified this is a

standard practice for the industry.

The final invoice of $20,195 itemizes the work and charges as follows:

“pump out existing septic, multiflow & lift tank” ($680); “additional sewer from drive edge to foundation (remove asphalt, all excavation, premium fill in drive area

& cross storm sewer” ($7,480); “cleanout near foundation” ($650); fill tanks with

premium stone rather than demo and damage extremely large tree” ($2,650);

“replant large very old ornamental tree” ($485).

The most substantial charge in the final invoice involves connecting

the sewer pipe to the foundation of the house rather than to the edge of the driveway

as originally proposed. Cesare testified as follows:

I proposed to install the proper piping and bedding as per county specs from the connection out at the road to the edge of his horseshoe driveway, on the city side of the edge, because we had done other projects in other cities in the years past where the section underneath a driveway or a patio or an addition was considered a financial hardship for the homeowners. So in individual cases, they would allow those pipes to stay in place to keep the cost to the homeowners less. So that’s what I quoted, going up to the edge of the driveway, but I put a specific note in my proposal saying that when we started the work, it would be reevaluated by the county and whether or not additional work needed to be done. I didn’t put a number on it, because at that time I didn’t know what it was going to be or how much it would cost.

Cesare testified that was why the proposal contained the provision

that the quote was based on a connection to the edge of driveway only, which was to

be approved by the county inspector. He testified that he and the Cantors spoke

many times before and after the proposal was made. The possibility that the county

may require additional work came up several times in their conversations; the

Cantors never asked about the price for the additional work, and he never specified

it. On day one of the project, the county inspector came to the site to

inspect the condition of the clay pipe underneath the Cantors’ yard and informed

ABV that the clay pipe must be replaced and the new sewer pipe was to be connected

all the way to the foundation of the house rather than the edge of the driveway. The

requirement doubled the length of the job. Cesare also explained that the Cantors’

driveway is a horseshoe-shaped driveway, which created additional work because it

involved extra excavated materials to be hauled off the property. Cesare testified the

work was labor-intensive and involved a large area underneath the yard, causing a

significant increase in the price.

Cesare immediately informed Neil of the city’s requirement of the

additional connection. Neil’s reaction was “do whatever you’ve got to do to get the

job done.” Cesare took it as an authorization to proceed with the additional work.

Cesare testified that the sewer conversion for the Cantors’ residence

was the very first one they did on this section of the street in Pepper Pike and that

he used the same estimating method for the Cantors’ property as similar projects in

the past. He testified that ABV performed 12 to 15 sewer conversion projects

between 2020 and 2021 in Pepper Pike. He was asked if he received complaints

from any other customers but did not answer due to the objection from the Cantors’

counsel.

Regarding the remaining itemized charges in the final invoice, Cesare

testified that Neil wished to use ABV’s contractor for the work of pumping out the

septic tank and Cesare added the contractor’s bill to the invoice. Furthermore, the septic tank to be demolished was located near a large old oak tree, five feet in

diameter, which surrounded the entire tank. Because the only way to access the

septic tank and demolish it properly would be to cut the oak tree down at a high cost,

Cesare suggested to Neil that ABV would obtain permission from the county to fill

the tank with premium stones instead of demolishing and excavating the tank. The

county approved of the plan. Finally, a large lilac tree was in the path of the new

sewer pipe and it had to be excavated and replanted.

The sewer conversion project was completed in three days. The

Cantors were home when ABV performed the work. Neil came out of the house to

watch the work often, interacting with Cesare and his brother Bruno and asking

questions. Neil watched the excavation and installation of the pipe up to the

foundation of the house and never indicated any hesitation over the work. The

Cantors were satisfied with the work, except for the sprinklers, which were dug up

during the excavation.

A week later, ABV sent the Cantors the final invoice of $20,195.

Cesare testified that the invoice was “very fair” because the connection of the sewer

pipe to the foundation of the house through the front yard involved significantly

more work than the connection to the driveway and he charged on a time-and-

materials basis. Neil wanted ABV to lower the price because he felt the price was

unfair and unreasonable. He also claimed ABV damaged certain items which

required repairment. The Cantors paid a total of $10,000 and refused to pay the

remaining balance of $10,195. When asked why he did not put the additional work and charges in

writing after the county inspector determined that the sewer pipe must be connected

to the foundation of the house, Cesare testified as follows:

Well, like I stated before, we are a small company. I was on the job all three days. We started in the morning and worked throughout the day and it just — there wasn’t any time to go back and sit at my computer and do a proper cost analysis and come up with a price, because basically it was a time-and-material basis for the extra work. That’s why I never — I don’t have anything in writing for the additional work, but I was never told to stop. I was never told [“]give me numbers before you proceed[”]. It was just an unspoken — I said, hey, we have got to do extra work; and when he told me, don’t kill me and I trust you, I assumed that we had authorization to proceed to complete the work as required.

Cesare testified he advised the Cantors that the additional work would

be charged on a time-and-material basis, and he did not provide them with specific

numbers ahead of time because the Cantors never asked him to put in writing the

cost for the additional work.

Under cross-examination, the defense counsel showed Cesare four

proposals he submitted to other homeowners in Pepper Pike, in which the

homeowners were quoted the price for the connection of the sewer pipe to the

foundation of the house. On redirect, Cesare explained that, in one of these

proposals, he was asked by the homeowner to connect the sewer to the house; in the

other proposals, the pipe was entirely underneath the grass, and in such cases, the

sewer pipe is required to connect to the foundation of the house, regardless of

whether it is a clay pipe. The Cantors’ house was different in that it had a circular

driveway and he had been unaware that it was mandatory for clay pipes to be replaced because in his experience, replacement of clay pipes was not always

mandatory. Regarding his testimony that the county inspector determined that the

existing clay pipe must be replaced, Cesare testified that he had not been aware that

it was mandatory to replace clay pipes in all instances and acknowledged that he did

not make any inquiry before the bidding.

b. Bruno Frabotta

Bruno Frabotta, Cesare’s brother and founder and president of ABV,

testified he started the company in 1974. He was also personally involved in the

Cantors’ sewer conversion project, being on the site during the entire project. He

interacted with the Cantors throughout the project, they never stopped or

complained about the work ABV was performing, and they seemed pleased with the

result.1

c. Neil Cantor

The defense presented one witness. Neil, a retired dentist who has

lived in the subject house for 45 years, testified that when Cesare came to his house

to discuss the sewer conversion project, Cesare told his wife that “he was going to

have to go to the foundation of the house.” When ABV submitted its proposal, he

understood he would pay $8,500 “plus contingencies” for the work. He did not

recall ABV informing him that additional work would need to be performed but

1 At the end of the testimony presented by ABV, the Cantors moved for directed verdict

on the breach-of-contract and unjust-enrichment claims. The court denied the motion. added that “it might have been said informally, but it was never said formally to me.”

When he received the final invoice, “it was like someone punching [him] in the solar

plexus.” He told Cesare that Cesare should have known before the project began

that the piping must be connected to the foundation of the house. Regarding the

charge for filling the septic tank with premium stone, he knew the county approved

of it but did not understand why premium stone was necessary. He testified that he

decided to pay $10,000 on the final invoice, $1,500 more than the original estimate.

Neil testified that after the project was completed, the Pepper Pike

mayor’s secretary told him the mandate for replacing clay pipes went into effect in

January 2020. He also testified that when he received the proposal, he did not

question the scope of the proposal because he did not know what the requirements

were and he “had confidence that ABV was going to comply.”

Neil acknowledged that he did not have a problem with the work

performed by ABV. Asked if he could dispute the charges for the work, Neil stated

“I can’t dispute it because I have no idea.” He also acknowledged the city of Pepper

Pike provided $5,000 for reimbursement to residents for repairs to the yard,

driveway, and shrubs, and he received $5,000 from the city. He admitted he

authorized and approved of the additional work beyond the scope of the original

proposal. He did not ask for written estimates for the additional work because it was

not his responsibility to ask for them. He believed it was Cesare’s responsibility to

“broach that subject.” When asked about the charge of replanting the large lilac tree, Neil testified he did authorize the work but Cesare gave him the impression that he

was doing them a favor.

C. Manifest Weight of the Evidence

The Cantors claim the jury’s determination that they breached their

contract with ABV in failing to pay the remaining balance of $10,195 for the sewer

work is against the manifest weight of the evidence. While ABV argues the parties’

contract had been modified by their conduct, the Cantors claim that they never

assented to the scope of work or the price.

“‘Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or

detriment), a manifestation of mutual assent and legality of object and of

consideration.’” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d

58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414

(N.D.Ohio 1976). To establish a breach-of-contract claim, a party must demonstrate

the nonbreaching party performed the contractual obligations, the other party failed

to fulfill its contractual obligations without legal excuse, and the nonbreaching party

suffered damages from the breach. Carbone v. Nueva Constr. Group, L.L.C., 2017-

Ohio-382, 83 N.E.3d 375, ¶ 14 (8th Dist.).

Furthermore, “[p]arties may implicitly modify an agreement by their

actions.” St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387,

2007-Ohio-5026, 875 N.E.2d 561, ¶ 39. A modification of the original agreement

may be manifested by a continued, different course of performance. Id. Moreover, while there is a no-oral-modification clause in the July

2020 proposal, “no-oral-modification and written waiver provisions, like any other

contractual provision, can be waived by the parties.” 3637 Green Rd. Co. v.

Specialized Component Sales Co., 2016-Ohio-5324, 69 N.E.3d 1083, ¶ 22 (8th

Dist.), citing e.g., Snowville Subdivision Joint Venture Phase I v. Home S & L of

Youngstown, 8th Dist. Cuyahoga No. 96675, 2012-Ohio-1342, ¶ 15-17; Home S & L

of Youngstown v. Snowville Subdivision Joint Venture, 8th Dist. Cuyahoga No.

97985, 2012-Ohio-4594, ¶ 29-31; and Vivi Retail, Inc. v. E & A Northeast Ltd.

Partnership, 8th Dist. Cuyahoga No. 90527, 2008-Ohio-4705, ¶ 30 (“waiver of a

contract term can occur when a party conducts itself in a manner inconsistent with

an intention to insist on that term”). See also Star Leasing Co. v. G&S Metal

Consultants, Inc., 10th Dist. Franklin No. 08AP-713, 2009-Ohio-1269, ¶ 25 (noting

the disfavor that courts have traditionally afforded no-oral-modification clauses in

written contracts and the resulting principle that a no-oral-modification clause can

be waived by oral agreement like any other term in a contract). Moreover, “the issue

of whether a no-oral-modification clause is waived is a question of fact.” Kwikcolor

Sand v. Fairmount Minerals Ltd., 8th Dist. Cuyahoga No. 96717, 2011-Ohio-6646,

¶ 19.

The issue in this breach-of-contract case is whether the contract was

modified to include the additional work required by the county. Regarding contract

modification, the trial court instructed the jury as follows: The terms of a contract may be changed upon the mutual agreement of the parties and may occur through words or conduct, expressly or by implication.

You may find that the parties intended to modify their contract when the County determined that more work would be required to make the sanitary sewer conversion project comply with County requirements.

In order to prove its claim, ABV must prove by the greater weight of the evidence that the parties agreed to modify their contract.

The Cantors claim that any modification of the contract’s specifications had to be in writing. You may find, however, — you may find, however, that the Cantors waived that right by their own acts or or actions.

By waiver, we mean a voluntary relinquishment of a known right.

The Cantors do not challenge the jury instructions regarding contract

modification and waiver, but only that the jury’s finding in favor of ABV is against

the manifest weight of the evidence. ABV contends that the trial testimony

establishes that the parties’ contract was modified orally when Cesare Frabotta

communicated to the Cantors that the county required the additional work beyond

the scope of the original proposal and advised them of the time and materials basis

for the additional cost.

Having reviewed the trial transcript thoroughly, we agree that ABV

introduced sufficient evidence to demonstrate that the parties’ conduct implicitly

modified their original contract and that the Cantors, by their conduct, waived the

no-oral-modification clause. Neil was present at the site during the three-day period

ABV performed the sewer conversion work. Cesare conversed with him throughout the project and consulted with him regarding the necessity of additional work as the

project progressed. Neil never challenged the additional work being performed.

The Cantors also argue they did not agree to the increased price for

the extended work. While the price is an essential element of a contract, when a

contract for services does not specify the price to be paid, “‘the law invokes the

standard of reasonableness, and the fair value of the services is recoverable.’” A N

Bros. Corp. v. Total Quality, LLC, 2016-Ohio-549, 59 N.E.3d 758, ¶ 27 (12th Dist.),

quoting Dixon v. Kittle, 109 Ohio App. 257, 259, 164 N.E.2d 806 (4th Dist.1959)

(where labor or materials are furnished upon request and no price is agreed upon,

the law will imply an agreement to pay what they are reasonably worth), and Dayton

White Trucks, Inc. v. Fed. Pacific Elec. Co., 2d Dist. Montgomery No. 4885, 1975

Ohio App. LEXIS 6158, 3 (Sept. 30, 1975) (where a contract for services does not

specify the price to be paid therefor, there is an implied promise to pay a reasonable

price for such services). See also Oglebay Norton Co. v. Armco, Inc., 8th Dist.

Cuyahoga No. 54917, 1989 Ohio App. LEXIS 1365, 19 (Apr. 13, 1989) (“Generally,

when a contract fails to mention price, the law implies that the parties intended a

reasonable price.”).

Here, Cesare testified he advised Neil that the cost for the additional

work would be based on a labor-and-materials basis. Cesare also testified at great

length regarding each additional task itemized in the final invoice. The Cantors

claim they did not consent to the total price of the work performed. They, however,

presented no evidence to challenge the reasonableness of the cost calculated by ABV on a labor-and-materials basis. Having reviewed the evidence presented at trial, we

cannot say that the jury’s finding in favor of ABV on its breach-of-contract claim is

against the manifest weight of the evidence warranting a reversal of the jury verdict

and a remand for a new trial. The fifth assignment of error is without merit.

CSPA Claims and Damages for Violations

In their counterclaim, the Cantors alleged ABV violated the CSPA.

The CSPA is codified in R.C. 1345.01, et seq. R.C. 1345.02(A) states that “[n]o

supplier shall commit an unfair or deceptive act or practice in connection with a

consumer transaction. Such an unfair or deceptive act or practice by a supplier

violates this section whether it occurs before, during, or after the transaction.” The

CSPA “prohibits unfair or deceptive acts or practices and unconscionable acts or

practices by suppliers in consumer transactions.” Einhorn v. Ford Motor Co., 48

Ohio St.3d 27, 29, 548 N.E.2d 933 (1990).

“‘A violation of the CSPA does not depend on any contractual or

quasi-contractual claims; rather, it is a separate cause of action and legal claim.’”

Nelson v. Pieratt, 12th Dist. Clermont No. CA2011-02-011, 2012-Ohio-2568, ¶ 12,

quoting Hudson-Wobbecke Ents., Inc. v. Burwell, 5th Dist. Richland Nos. 06-CA-

58 and 06-CA-50, 2007-Ohio-1728, ¶ 38.

The Cantors alleged, and the jury found, that ABV engaged in

deceptive practices in violation of Ohio Adm.Code 109:4-3-05(D)(3). The rule

addresses when the supplier must obtain authorization from the consumer for price

increases regarding any additional, unforeseen, but necessary repairs when the cost of those repairs amounts to ten percent or more (excluding tax) of the original

estimate. It states:

(D) In any consumer transaction involving the performance of any repair or service it shall be a deceptive act or practice for a supplier to:

***

(3) Fail, in those cases where an estimate has been requested by a consumer, and the anticipated cost of the repair or service exceeds fifty dollars, to obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs when the cost of those repairs amounts to ten per cent or more (excluding tax) of the original estimate[.]

Under the CSPA, a consumer claiming unfair or deceptive acts or

practices may rescind the transaction or recover “actual economic damages.”

R.C. 1345.09(A). Furthermore, the award of damages may be trebled.

R.C. 1345.09(B) provides that in certain cases, a consumer may recover “three times

the amount of the consumer’s actual economic damages or two hundred dollars,

whichever is greater.”2

2 Treble damages may be awarded where

the violation was an act or practice to be declared deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code[.]

R.C. 1345.09(B). The trial court, based on its determination that the Cantors did not

suffer any actual economic damages, instructed the jury that if it was to find ABV to

have violated the ten percent rule in Adm.Code 109:4-3-05(D)(3), it should award

the statutory damages of $200 for the violation. ABV does not challenge the jury’s

finding that its conduct violated the rule.3 The only CSPA issue on appeal is the

amount of damages for ABV’s violation.

As the Supreme Court of Ohio explained, “statutory damages in the

amount of $200 are an alternative to actual damages, and, thus, $200 is the

minimum award for a CSPA violation under R.C. 1345.09(B). In other words, if

actual damages are not proven or if three times the consumer’s damages is less than

$200, then $200 will be awarded.” Whitaker v. M.T. Automotive, Inc., 111 Ohio

St.3d 177, 2006-Ohio-5481, 855 N.E.2d 825, ¶ 17. Accordingly, if the Cantors cannot

prove actual economic damages, they will be awarded the statutory award of $200

for ABV’s violation of the CSPA.

3 We note that the first sentence of the July 2020 proposal provides the specific scope of

the contract as connecting the sewer to the edge of the driveway and provides an estimated contract price of $8,500 for the work. While the final invoice price is $20,195, substantially exceeding ten percent of the original estimate, there was no estimate given for the pipe from the edge of the driveway to the foundation of the house. The Cantors never requested an estimate for the additional work, and therefore, it would be impossible to apply Adm.Code 109:4-3-05 to determine if the cost exceeds the original estimate. See Sterling Constr., Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, ¶ 10 (the homeowner never requested an estimate from the contractor and therefore, it is impossible to apply Ohio Adm.Code 109:4-3-05(D)(3) to the case at bar; “there is insufficient evidence to establish that more than a 10% increase occurred when no original estimate was provided”). ABV, however, does not challenge the jury’s finding. While the Cantors argue their actual economic damages is $10,195,

the remaining balance of the invoice, the trial court determined that the Cantors

failed to prove that they suffered actual economic damages and instructed the jury

that, if it found ABV to have violated the CSPA, it should award $200 for the

violation. Under the first and second assignments of error, the Cantors argue the

trial court erred in not allowing them to recover the remaining balance of the invoice

as the actual economic damages and in failing to award treble damages ($30,585)

pursuant to R.C. 1345.09(B).

A. Whether Appellants Proved Actual Economic Damages

Under both assignments of error, the issue is whether the Cantors

proved they suffered actual economic damages in the amount of $10,195. If they

failed to prove it, the statutory award of $200 would be appropriate as damages for

ABV’s violation of the CSPA.

The trial court’s application of a measure of damages presents a legal

question subject to a de novo review. Younker v. Hayes, 2018-Ohio-835, 108 N.E.3d

258, ¶ 13 (9th Dist.). See also Fleischer v. George, 9th Dist. Medina

No. 09CA0057-M, 2010-Ohio-3941, ¶ 18 (whether treble damages under the CSPA

are appropriate is a question of law and is reviewed de novo).

Pursuant to R.C. 1345.09(G), “actual economic damages” for purpose

of the CSPA means “damages for direct, incidental, or consequential pecuniary

losses resulting from a violation of Chapter 1345 of the Revised Code * * *.” The Cantors contend that $10,195 was their actual economic damages

resulting from ABV’s violation of the CSPA. The Cantors effectively claim that they

are damaged to the extent of the amount they still owed under the invoice after

paying $10,000 toward the sewer conversion work, without presenting evidence to

show that the price of the work performed by ABV should be $1o,000 and therefore

any excess amount would be considered their loss.

Our research does not reveal any case law supporting the Cantors’

claim that the actual economic damages for ABV’s violation of the ten percent rule

under the circumstances of this case is the remaining balance they owed, where the

work had been performed to their satisfaction. The Cantors cite Fleischer, supra, to

support their claim. In that case, however, plaintiff homeowner presented evidence

of expenditures he undertook due to the defendant contractor’s violation of the

CSPA. The expenditures included hiring a new general contractor to complete the

defective construction, payments to the unpaid subcontractors, and payments for

architect reports to evaluate the condition of the construction project. As such,

Fleischer is not applicable. Accordingly, we agree with the trial court’s

determination that the Cantors failed to prove that they suffered actual economic

damages of $10,195 for purposes of R.C. 1345.09(A).

“In order to award treble damages, there must be a finding of actual

damages.” Williams v. Kia of Bedford, 2018-Ohio-283, 104 N.E.3d 924, ¶ 24 (8th

Dist.). Because the Cantors failed to prove actual economic damages resulting from

ABV’s CSPA violation, the trial court appropriately determined that the jury should award $200 in statutory damages should it find ABV to have violated the CSPA. The

first and second assignments of error are without merit.

B. Attorney Fees: Whether Appellee’s Violation of the CSPA Is a “Bona Fide Error”

The third and fourth assignments concern attorney fees. After the

trial, the Cantors moved for an award of attorney fees pursuant to

R.C. 1345.09(F)(2) and the trial court denied it.

Under the CSPA, the court may award a prevailing consumer a

reasonable attorney fee if the supplier “has knowingly committed an act or practice

that violates [the CSPA].” (Emphasis added.) R.C. 1345.09(F)(2).

However, R.C. 1345.11(A) provides for a defense for the supplier.

[I]f a supplier shows by a preponderance of the evidence that a violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error, * * * no party shall be awarded attorney’s fees, and monetary recovery shall not exceed the amount of actual damages resulting from the violation. (Emphasis added.) R.C. 1345.11(A).

Here, the jury, through its answer to the interrogatories, found in

favor of the Cantors on the CSPA claim, finding that ABV failed to provide an

estimate to the Cantors for the anticipated cost of additional work exceeding ten

percent of the original estimate, in violation of R.C. 1345.02(A). The jury also found

ABV violated the CSPA “knowingly.” However, it found the violation to be a “bona

fide error notwithstanding the maintenance of procedures reasonably adopted to

avoid the error.” The Cantors argue that the jury’s finding that ABV’s violation

“resulted from a bona fide error notwithstanding the maintenance of procedures

reasonably adopted to avoid the error,” which precluded attorney fees, is against the

manifest weight of the evidence. They argue there was no evidence presented to

indicate that ABV had any procedures in place to avoid the

Adm.Code 109:4-3-05(D)(3) violation or that the violation was a result of deviations

from the procedure. The Cantors also argue the jury’s finding that ABV knowingly

violated the CSPA is irreconcilable with the finding that the violation was a bona fide

error. They contend that, because the violation did not result from a bona fide error,

they should be awarded attorney fees pursuant to R.C. 1345.09(F)(2).

“A bona fide error is one made in good faith, despite procedures to

avoid the error.” Anousheh v. Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960

and 21967, 2007-Ohio-4543, ¶ 26. ABV contends they showed by a preponderance

of the evidence that the violation resulted from a bona fide error. The original

proposal contemplates a procedure where any work in deviation from the specifics

provided in the proposal to be performed only upon written instructions. ABV

admitted there was no written instruction for any additional work, but it points to

Cesare’s testimony that ABV verbally appraised Neil Cantor immediately of the

necessity of any additional task whenever it arose before proceeding to perform the

work. Cesare also testified that the excavation work was performed within a three-

day period of time and he was on the site the entire time without the ability to return

to the office to prepare a written proposal for each additional unforeseen deviation from the original proposal. The jury found ABV, while violating Adm.Code 109:4-3-

05(D)(3), acted in good faith despite the procedure in place to avoid the CSPA

violation. Applying the manifest-weight standard, we cannot say that the jury

“clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.”

The Cantors also argue the jury’s finding that ABV violated the CSPA

“knowingly” is irreconcilable with its finding that the violation was a bona fide error.

The jury found ABV knowingly proceeded to perform the additional work without a

written estimate in violation of Ohio Adm.Code 109.4-3-05(D)(3), but it did so in

good faith.

For purposes of R.C. 1345.09(F), “knowingly” means that the

“‘supplier need only intentionally do the act that violates the Consumer Sales

Practices Act. The supplier does not have to know that his conduct violates the law

* * *.’” Parks v. Aburahma, 2022-Ohio-4253, 202 N.E.3d 92, ¶ 15 (11th Dist.),

quoting Einhorn, 48 Ohio St.3d at 30, 548 N.E.2d 933.

To award attorney fees to a consumer under the CSPA, the trial court

must find that the supplier knowingly committed an act or practice that violated the

CSPA and that no bona fide error defense in R.C. 1345.11(A) applies. Shumaker v.

Hamilton Chevrolet, Inc., 184 Ohio App.3d 326, 2009-Ohio-5263, 920 N.E.2d 1023,

¶ 16 (4th Dist.). The “knowingly” finding and the “bona fide error” finding are

separate and distinct. Accordingly, we find no merit to the Cantors’ argument that

once the jury found that ABV knowingly performed additional work without providing an estimate, it must also find the act was not committed in good faith.4

The third and fourth assignments of error are overruled.

For all the foregoing reasons, we affirm the judgment of the trial

court.

Judgment affirmed.

It is ordered that appellee recover of appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

4 The Cantors cite Swift v. Allied Pest Control, Inc., 2d Dist. Montgomery No. 18311, 2001-

Ohio-1462, to support their claim. Our review, however, indicates Swift is distinguishable. In that case, while defendant pest control company applied the pesticide outside the house, the chemical leaked into the basement. The company’s employees may have been aware of it but did nothing to remedy the problem and told the homeowners it was safe to stay in the house. A few days later, an employee came to clean the areas with a bleach mixture but failed to follow the instructions for its proper application. The homeowners subsequently suffered significant health problems. The jury was asked in interrogatory regarding the following allegedly unfair/deceptive acts: (1) representation to the homeowners that the work would be performed in accordance with all regulations; (2) a failure to inform the homeowners of the spill immediately; and (3) misinforming them of the safety of the home. The jury was also asked regarding the following unconscionable acts: specifically informing the homeowners that (1) it was safe to remain in their home after the spill and that (2) the chemical had been cleaned up. The jury found that “an unconscionable act was knowingly committed,” and that “an unfair/deceptive act was committed, and that ‘the’ violation was the result of a bona fide error.” After reviewing several cases involving findings of “knowingly” and “bona fide error,” the court in Swift concluded that “under the facts of this case, the interrogatories are contradictory and insufficient to reach a conclusion on the issue of treble damages and attorney fees.” (Emphasis added.) Id. at 14. Swift is not applicable here. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

__________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE

LISA B. FORBES, J., and MICHAEL JOHN RYAN, J., CONCUR