[Cite as Canton-Stark Cty. Sewer Cleaning, Inc. v. Magee, 2026-Ohio-219.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CANTON-STARK COUNTY SEWER Case No. 2025CA00054 CLEANING, INC. dba ROTO- ROOTER Opinion And Judgment Entry
Plaintiff - Appellee/Cross- Appeal from the Stark County Court of Appellant Common Pleas, Case No. 2023 CV 01534
-vs- Judgment: Affirmed in part; Reversed in part
CASEY M. MAGEE, et al., Date of Judgment Entry: January 23, 2026
Defendants – Appellants/Cross- Appellees
BEFORE: Craig R. Baldwin; Robert G. Montgomery; Kevin W. Popham, Judges
APPEARANCES: ROBERT W. ECKINGER, STEPHEN A. ECKINGER, for Plaintiff- Appellee/Cross Appellant; ALEX J. MCCALLION, ZACHARY S. MOTTICE, for Defendants-Appellants/Cross Appellees.
Baldwin, P.J.
{¶1} The appellants, Casey M. and Sara M. Magee, appeal the May 2, 2025,
Judgment Entry of the Stark County Court of Common Pleas. The appellee is Canton-
Stark County Sewer Cleaning, Inc. dba Roto-Rooter.
STATEMENT OF FACTS AND THE CASE
{¶2} In August of 2023, the appellee filed a complaint in the Stark County Court
of Common Pleas alleging that the appellants failed to pay an invoice in the amount of $7,623.40 for work performed, and asserting claims for breach of contract, unjust
enrichment, and foreclosure of a mechanic’s lien.
{¶3} On October 17, 2023, the foreclosure of a mechanic’s lien was dismissed.
{¶4} The appellants answered and asserted counterclaims for breach of
contract, violation of the Ohio Home Solicitation Sales Act, violation of the Ohio Consumer
Sales Practices Act (“CSPA”), fraudulent inducement, and fraud.
{¶5} On September 20, 2024, the trial court granted summary judgment in favor
of the appellee on the appellants’ Home Solicitation Sales Act counterclaim.
{¶6} On October 23, 2024, the matter proceeded to a bench trial.
{¶7} At trial, evidence showed that on June 28, 2023, appellant Sarah Magee
contacted the appellee about a leak in their basement that occurred when a toilet was
flushed. The next day, the appellee sent an employee to the appellants’ residence to
inspect the plumbing. The appellee’s employee determined the vertical copper stack was
leaking near the toilet connection. The employee contacted his supervisor, K.R., as the
proposed work would require underground work.
{¶8} Upon arrival, K.R. observed deterioration of the copper stack and advised
replacement, which would require breaking concrete, excavating underground pipe,
replacing the floor drain, and re-pouring the concrete floor. The appellants described K.R.
as pushy. The trial court found that the leak and sewage exposure presented a concern
that needed prompt repair, and found no persuasive evidence that the statements about
urgency were untrue.
{¶9} K.R. provided a quote of $11,237.19. The quote was not itemized into labor
and materials, and the evidentiary basis for how the quote was calculated was described by the trial court as “nebulous,” as the person who allegedly provided pricing over the
phone did not testify and K.R. could not explain the calculation. The trial court found that
the appellants verbally agreed to the $11,237.19 quoted price; the estimate was emailed
on June 29, 2023 at 3:08 p.m., business records reflected a signature was captured
shortly after the email, and the appellants initiated a financing application for the quoted
price. However, the appellee could not produce a written document signed by the
appellants agreeing to the estimate.
{¶10} On June 30, 2023, the appellee performed the work, including breaking the
basement floor, removing old piping, re-piping approximately six feet of drain line
underground, redoing the floor drain, and installing a new laundry tub and water lines.
During excavation, K.R. used a camera and told the appellants he could not see most of
the pipe and recommended replacing the remainder of the line, quoting an additional
$24,131.36. The appellants did not authorize the additional work. T.W., another employee
of the appellee, signed his own name on the contract document rather than obtaining the
appellants’ signatures. The trial court found this was inappropriate but rejected the
characterization that he attempted to sign the appellants’ names.
{¶11} On July 3, 2023, the appellee’s representative reduced the total price to
$7,623.40 by modifying the invoice in the appellee’s system and explained this was due
to a “gross margin analysis,” but the appellants did not agree to the reduction.
{¶12} The appellee, concerned about the appearance of the work, returned to the
appellants’ house and determined the work needed to be redone. Appellant Casey Magee
signed authorization to complete the rework and signed an acknowledgment that the work was completed to his satisfaction. The appellee did not charge the appellants for the
rework.
{¶13} The appellants ultimately refused to pay for any of the work performed.
{¶14} Following trial, the magistrate issued a decision entering a judgment: (1) for
the appellants on the appellee’s breach of contract claim; (2) for the appellee on the
appellee’s unjust enrichment claim; (3) for the appellee on the appellants’ counterclaims
for breach of contract, fraudulent inducement, fraud, and all but one of the appellant’s
CSPA counterclaim; and for the appellants on one of their CSPA counterclaim.
{¶15} The appellants filed objections to the magistrate’s decision. On May 2,
2025, the trial court overruled the appellants’ objections and approved and adopted the
magistrate’s decision.
{¶16} The appellants filed a timely notice of appeal and herein raise the following
five assignments of error:
{¶17} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF ROTO-ROOTER ON THE MAGEES’ CLAIM FOR VIOLATIONS OF THE
OHIO HOME SOLICITATION SALES ACT (THE ‘HSSA’).”
{¶18} “II. THE TRIAL COURT ERRED BY ENTERING JUDGMENT IN FAVOR
OF ROTO-ROOTER ON ITS CLAIM FOR UNJUST ENRICHMENT.”
{¶19} “III. THE TRIAL COURT ERRED BY ENTERING JUDGMENT IN FAVOR
OF ROTO-ROOTER ON THE MAGEES’ CLAIM FOR BREACH OF ORAL CONTRACT.”
{¶20} “IV. THE TRIAL COURT ERRED IN FAILING TO FIND THAT ROTO-
ROOTER VIOLATED THE OHIO CONSUMER SALES PRACTICES ACT (THE ‘CSPA’)
UNDER ADMIN.CODE 109.4-3-05(D)(8) AND (D)(11).” {¶21} “V. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE
MAGEES’ REQUEST FOR REASONBLE ATTORNEY FEES FOR ROTO-ROOTER’S
VIOLATIONS OF THE CSPA.”
{¶22} The appellees filed a cross-appeal and raise two cross-assignments of
error:
{¶23} “I. IN THE EVENT THE COURT WERE TO FIND THAT NO CONTRACT
EXISTED, APPELLEE SUCCEED [sic] ON ITS UNJUST ENRICHMENT CAUSE OF
ACTION.”
{¶24} “II. THE TRIAL COURT ERRED IN FINDING ANY VIOLATION OF THE
CONSUMERS SALES PRACTICES ACT.”
ASSIGNMENTS OF ERROR
I.
{¶25} In their first assignment of error, the appellants argue that the trial court
erred in granting summary judgment in favor of the appellee on their HSSA claim. We
disagree.
STANDARD OF REVIEW
{¶26} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Accordingly, this Court reviews a
trial court’s award of summary judgment de novo. Grafton v. Ohio Edison Co., 1996-Ohio-
336.
{¶27} Civ.R. 56(C) states in pertinent part: Summary Judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. * * * A
summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party’s favor.
{¶28} Thus, summary judgment may be granted only after the trial court
determines that:
1) no genuine issue as to any material fact remains to be
litigated; 2) the moving party is entitled to judgment as a matter of law; and
3) it appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the party
against whom the motion for summary judgment is made, that conclusion is
adverse to that party. Temple v. Wean, Inc. (1977), 50 Ohio St.2d 317.
{¶29} As this Court recently observed in Infield v. Westfield Ins. Co., 2023-Ohio-
1199, ¶21 (5th Dist.):
It is well established that the party seeking summary judgment bears
the burden of demonstrating no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The standard for granting summary judgment is delineated in Dresher v.
Burt, 75 Ohio St.3d 280 at 293, 1996-Ohio 107, 662 N.E.2d 264 (1996): “*
* * a party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record
that demonstrate the absence of a genuine issue of material fact on the
essential element(s) of the nonmoving party’s claims. The moving party
cannot discharge its initial burden under Civ.R. 56 simply by making a
conclusory assertion the nonmoving party has no evidence to prove its
case. Rather, the moving party must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates
the nonmoving party has no evidence to support the nonmoving party’s
claims. If the moving party fails to satisfy its initial burden, the motion for
summary judgment must be denied. However, if the moving party has
satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine
issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The
record on summary judgment must be viewed in the light most favorable to
the opposing party. Williams v. First United Church of Christ, 37 Ohio St.2d
150, 309 N.E.2d 924 (1974). ANALYSIS
{¶30} The trial court found that the HSSA is not applicable due to R.C.
1345.21(A)(4). We agree.
{¶31} R.C. 1345.21(A) states, in pertinent part:
“Home solicitation sale” means a sale of consumer goods or services in
which the seller or a person acting for the seller engages in a personal solicitation
of the sale at a residence of the buyer, including solicitations in response to or
following an invitation by the buyer, and the buyer’s agreement or offer to purchase
is there given to the seller or a person acting for the seller, or in which the buyer’s
agreement or offer to purchase is made at a place other than the seller’s place of
business. It does not include a transaction or transactions in which:
***
(4) The buyer initiates the contact between the parties for the purpose of
negotiating a purchase and the seller has a business establishment at a fixed
location in this state where the goods or services involved in the transaction are
regularly offered or exhibited for sale.
Advertisements by such a seller in newspapers, magazines, catalogues,
radio, or television do not constitute the seller initiation of the contact.
{¶32} Therefore, R.C. 1345.21(A)(4) requires that “the seller must regularly offer
or exhibit the very goods or services involved in the transaction in question at a fixed
business location in the state.” New Phila, Inc. v. Sangrilla, 2002-Ohio-3485, ¶47 (5th
Dist.). {¶33} Upon review of the record, we find that the appellants initiated the contact
with the appellee by calling to request service for a leaking plumbing stack, satisfying the
buyer-initiation requirement of R.C. 1345.21(A)(4). The appellee has a fixed place of
business in Canton, Ohio. They have signage offering plumbing services and is open to
the public. At the location, customers often walked in to purchase products, buy parts,
discuss potential work, and discuss materials. The deposition of the general manager
showed that anyone could come in and purchase the goods and services involved in this
transaction satisfying the requirement that the goods or services involved in the
transaction are regularly offered for sale. Accordingly, the trial court did not err in granting
summary judgment to the appellee on the appellants’ HSSA counterclaim.
{¶34} The appellants’ first assignment of error is overruled.
II.
{¶35} In their second assignment of error, the appellants argue that the trial court
erred in granting the appellee’s claim of unjust enrichment. We agree.
{¶36} We review questions of law de novo. In re Estate of Quick, 2004-Ohio-4434,
¶25 (5th Dist.). De novo review requires an independent review of the trial court’s decision
without any deference to the trial court’s determination. Brown v. Scioto County Board of
Commissioners, 87 Ohio App.3d 704, 711 (4th Dist.1993).
ANALYSIS
{¶37} The elements of an unjust enrichment claim are: (1) a benefit conferred by
a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3)
retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183.
Under Ohio law, unjust enrichment is a claim under quasi-contract law that arises out of
the obligation cast by law upon a person in receipt of benefits that he is not justly entitled
to retain. See Beatley v. Beatley, 2005-Ohio-1846, ¶61 (10th Dist.). “Ohio law does not
permit recovery under the theory of unjust enrichment when an express contract covers
the same subject.” Zoar View Wilkshire, LLC v. Wilkshire Golf, Inc., 2023-Ohio-2848, ¶26
(5th Dist.), quoting Padula v. Wagner, 2015-Ohio-2374, ¶48 (9th Dist.).
{¶38} In the case sub judice, the trial court found the appellee could not recover
on an oral-contract theory because there was no meeting of the minds as to the price of
$7,623.40, but in addressing the appellants’ counterclaim for breach of contract, the trial
court found an oral contract existed between the parties for a price of $11,237.19.
Furthermore, the trial court ordered restitution to the appellee on a claim of unjust
enrichment of $7,623.40. These findings are not reconciled in the judgment and render
the appropriateness of the appellee’s equitable claim unclear.
{¶39} The trial court’s judgment contains unresolved and inconsistent findings
regarding the contract and whether an equitable remedy is available. Accordingly, the
appropriate remedy is to reverse the judgment on the findings for the appellants’ and
appellee’s claims for breach of contract and the appellee’s claim for unjust enrichment
and remand for the trial court to make appropriate findings of fact and apply the
corresponding legal framework to the remedies available.
{¶40} On remand, the trial court shall clarify and determine, consistent with its
factfinding role: (a) whether an enforceable contract existed between the parties
governing the work at issue, and if so, the essential terms; and (b) depending on that determination, whether restitution on unjust enrichment is available and, if so, the proper
measure of recovery.
{¶41} Accordingly, the appellants’ second assignment of error is sustained.
III.
{¶42} Based on our disposition of the appellants’ second assignment of error we
decline to address the appellants’ third assignment of error.
IV.
{¶43} In their fourth assignment of error, the appellants argue the trial court’s
finding that the appellee did not violate the CSPA was against the manifest weight of the
evidence. We disagree.
{¶44} “In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” State v. Butler, 2024-Ohio-4651, ¶75 (5th
Dist.). A judgment supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a reviewing court as against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279
(1978). As the trier of fact, the judge is in the best position to view the witnesses and their
demeanor in making a determination of the credibility of the testimony. “[A]n appellate
court may not simply substitute its judgment for that of the trial court so long as there is
some competent, credible evidence to support the lower court’s findings.” State ex rel.
Celebrezze v. Environmental Enterprises, Inc., 53 Ohio St.3d 147 (1990), 154. “The
power to reverse a judgment as against the manifest weight must be exercised with caution and only in the rare case where the evidence weighs heavily against” the fact
finder’s determination. State v. Blankenship, 2023-Ohio-2162, ¶25 (5th Dist.).
{¶45} Ohio Adm.Code 109:4-3-05(D)(8) & (11) prohibit a seller from representing
“that repairs or services are necessary when such is not the fact” and from materially
understating or misstating the estimated cost of the repair or service.
{¶46} With respect to Ohio Adm.Code 109:4-3-05(D)(8), the trial court found that
the appellants failed to prove this violation. Evidence showed that the appellee’s
employee communicated as soon as he saw the condition of the vertical copper stack
that it would have to be replaced and that underground work was likely to be needed. This
was confirmed by the employee’s supervisor. The trial court found the testimony credible
and that, at a minimum, the basement floor would need to be opened to inspect the pipe
beneath. The court concluded that the appellants failed to show that the work was
unnecessary. Similarly, we also conclude that it was the appellants’ burden to establish
that such work was unnecessary, and they failed to present credible evidence to support
this as their witness admitted he did not inspect any of the work underground.
{¶47} Regarding Ohio Adm.Code 109:4-3-05(D)(11), the trial court acknowledged
weaknesses in the evidentiary explanation of how the initial quoted price was calculated
as the individual who allegedly provided the pricing did not testify. However, the existence
of an imperfectly explained estimate does not, by itself establish a (D)(11) violation; the
rule requires proof of a material understatement or misstatement of the estimated cost.
The appellants did not meet this burden. Instead they relied on their own assertion and
the testimony of a witness who did not provide an estimate for all the work completed by the appellee. Keeping in mind our standard of review, we find the appellants have failed
to establish that the trial court erred in declining to find CSPA violations on Ohio
Adm.Code 109:4-3-05(D)(8) & (11).
{¶48} The appellants’ fourth assignment of error is overruled.
V.
{¶49} In their fifth assignment of error, the appellants argue that the trial court
abused its discretion by denying the appellants’ request for reasonable attorney fees. We
{¶50} In order to find an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
{¶51} R.C. 1345.09(F)(2) authorizes a trial court to award reasonable attorney
fees to a prevailing consumer when the supplier committed an act or practice that violates
the CSPA and the supplier “knowingly” committed the act or practice.
{¶52} The trial court found that the appellants established two CSPA violations by
the appellee and awarded statutory damages of $200 per violation and noneconomic
damages of $2,000, for a total award of $2,400. The trial court declined to award
attorney’s fees.
{¶53} The trial court awarded damages within the permissible range. The
appellants put forth a public policy argument as to the benefits of the trial court awarding
attorney’s fees. The appellants also argue that the trial court failed to explain why attorney’s fees were not awarded. However, the trial court plainly discusses this in its
judgment entry. “The violation in and of itself is not significantly egregious, nor does it
comprise a substantial enough component of this case, to warrant an award of attorney’s
fees.” Accordingly, the appellants have failed to show that the trial court’s decision was
unreasonable, arbitrary or unconscionable.
{¶54} The appellants’ fifth assignment of error is overruled.
CROSS-ASSIGNMENTS OF ERROR
{¶55} Based on our disposition of the appellants’ second assignment of error we
decline to address the appellee’s first cross-assignment of error.
{¶56} In the appellee’s second cross-assignment of error, the appellee argues the
trial court erred in finding any violation of the CSPA. We disagree.
{¶57} Again, “[i]n weighing the evidence, the court of appeals must always be
mindful of the presumption in favor of the finder of fact.” State v. Butler, 2024-Ohio-4651,
¶75 (5th Dist.). A judgment supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as against
the manifest weight of the evidence. C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d
279 (1978). As the trier of fact, the judge is in the best position to view the witnesses and
their demeanor in making a determination of the credibility of the testimony. “[A]n
appellate court may not simply substitute its judgment for that of the trial court so long as
there is some competent, credible evidence to support the lower court’s findings.” State ex rel. Celebrezze v. Environmental Enterprises, Inc., 53 Ohio St.3d 147 (1990), 154.
“The power to reverse a judgment as against the manifest weight must be exercised with
caution and only in the rare case where the evidence weighs heavily against” the fact
finder’s determination. State v. Blankenship, 2023-Ohio-2162, ¶25 (5th Dist.).
{¶58} With respect to Ohio Adm.Code 109:4-3-05(D)(12), the trial court found that
the appellees failed to provide a written itemized list of repairs and services including a
list of parts or materials and the cost of them. The appellee’s explanation of this failure
was vague and unpersuasive to the trial court. The individual who prepared the initial
estimate did not testify at trial, and no other witness provided a clear explanation of how
the estimate was calculated. The bill is not itemized as contemplated by Ohio Adm.Code
109:4-3-05(D)(12). The appellee’s failure to explain how the initial estimate and final
invoice was calculated appropriately raised concern with the trial court. Keeping in mind
our standard of review, we find that the trial court’s decision finding a violation of the
CSPA was not against the manifest weight of the evidence.
{¶59} The appellee’s second cross-assignment of error is overruled. CONCLUSION
{¶60} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed in part and reversed in part. The matter is remanded to
the Stark County Court of Common Pleas for further proceedings consistent with this
opinion.
{¶61} Costs to be split equally between the parties.
By: Baldwin, P.J.
Montgomery, J. and
Popham, J. concur.