Crystal Dental Prosthetics, Inc. v. Dagostino

2012 Ohio 3823

• Court: Ohio Court of Appeals
• Decided: August 23, 2012
• Docket: 98200
• Status: Published

Opinion

[Cite as Crystal Dental Prosthetics, Inc. v. Dagostino, 2012-Ohio-3823.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98200

CRYSTAL DENTAL PROSTHETICS, INC. PLAINTIFF-APPELLANT

vs.

MICHAEL DAGOSTINO DDS DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Parma Municipal Court Case No. 11CVI-03389

BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: August 23, 2012 ATTORNEY FOR APPELLANT

Fadi G. Boumitri 1797 Pearl Road Brunswick, Ohio 44212

ATTORNEY FOR APPELLEE

Bradley P. Toman Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA 24755 Chagrin Blvd., Suite 200 Cleveland, Ohio 44122 KENNETH A. ROCCO, J.:

{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R.11.1 and

Loc.App.R. 11.1, plaintiff-appellant Crystal Dental Prosthetics, Inc. (“CDP”) appeals

from the order of the Parma Municipal Court that adopted the magistrate’s decision to

award $1,311.84 to defendant-appellee Michael Dagostino, D.D.S. in this

breach-of-contract action.

{¶2} The purpose of an accelerated appeal is to allow this court to render a brief

and conclusory opinion. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d

158, 463 N.E.2d 655 (1st Dist.1983); App.R. 11.1(E).

{¶3} CDP presents seven assignments of error. In essence, CDP asserts that the

magistrate misapplied the law to the facts presented at the hearing, therefore, the

municipal court acted improperly in adopting the magistrate’s decision. This court

disagrees. Consequently, CDP’s assignments of error are overruled, and the municipal

court’s order is affirmed.

{¶4} CDP filed a complaint in the municipal court against Dagostino for breach of

contract and unjust enrichment, claiming CDP had provided goods to Dagostino but he

had failed to pay $1,688.16 he owed to CDP on his account. CDP attached no statement

of the account to its complaint. {¶5} Dagostino filed an answer and a counterclaim, alleging that the goods CDP

provided were substandard and unusable, and that he had been required to incur

additional costs to replace them. Dagostino requested judgment on his counterclaim in

the amount of $3,000.00.

{¶6} The matter proceeded to trial before a magistrate. After hearing the

testimony and considering the evidence, the magistrate found that Dagostino had accepted

seven dental pieces from CDP but refused to pay for them, so CDP deserved judgment on

its complaint.

{¶7} The magistrate further determined, however, that CDP supplied five dental

crowns to Dagostino for which he submitted payment to CDP that were substandard.

Because Dagostino had communicated his dissatisfaction to CDP but problems persisted,

and because Dagostino had been required to replace the items and to incur additional

labor, he deserved judgment on his counterclaim. Judgment was rendered for Dagostino

in the amount of the difference, viz., $1,311.84.

{¶8} The municipal court subsequently overruled CDP’s objections to the

magistrate’s decision and issued an order adopting it. CDP appeals from that order with

seven assignments of error.

{¶9} CDP argues in its first assignment of error that, in granting Dagostino

judgment on his counterclaim, the magistrate failed to impose a duty on Dagostino to

mitigate his damages. This argument is rejected. {¶10} Dagostino presented evidence to prove that, in supplying the goods at issue,

CDP breached R.C. 1302.27 and 1302.28, the implied warranties of merchantability and

fitness. Dagostino further provided evidence that he notified CDP of the problems he

was experiencing with the dental pieces CDP supplied, but the problems remained.

Therefore, pursuant to R.C. 1302.65(B) and (D), Dagostino was not barred from seeking

the remedy provided by R.C. 1302.88. Bldrs. Kitchens of Stark Cty., Inc. v. Sibel, 189

Ohio App.3d 41, 2010-Ohio-890, 937 N.E.2d 570 (1st Dist.), ¶ 36-37; AFG, Inc. v.

Great Lakes Heat Treating Co., 51 Ohio St.3d 177, 179–180, 555 N.E.2d 634 (1990).

{¶11} In contravention of App.R. 16(A)(7), CDP argues its second and third

assignments of error together. Consequently, this court declines to address them.

Patino v. Faust, 8th Dist. No. 90475, 2008-Ohio-6280, ¶ 7; App.R. 12(A)(2).

{¶12} Similarly, CDP’s fourth, fifth, and sixth assignments of error are

unsupported by citations to authority as required by App.R. 16(A)(7). Consequently, this

court also declines to address them. App.R. 12(A)(1)(b) and (A)(2).

{¶13} In its seventh assignment of error, CDP argues that, in granting Dagostino

judgment on his counterclaim, the magistrate failed to apply the “customs and industry

standards” that applied to the parties. CDP asserts the industry required Dagostino to

absorb the cost of the work involved in replacing and fitting “bad” dental pieces for his

patients. The evidence presented at the hearing, however, does not support such an

assertion. See, e.g., Parsell v. Bielser, 3d Dist. No. 7-01-06, 2001-Ohio-2176; Bldrs. Kitchens of Stark Cty., Inc., 189 Ohio App.3d 41, 2010-Ohio-890, 937 N.E.2d 570 (2d

Dist.).

{¶14} Accordingly, CDP’s seventh assignment of error is overruled.

{¶15} The municipal court’s order is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_________________________________ KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR