Hoague v. Cottrill Servs., L.L.C.

2024 Ohio 531

• Court: Ohio Court of Appeals
• Decided: February 13, 2024
• Docket: 23 CAE 05 0030
• Status: Published

Opinion

[Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

MICHAEL C. HOAGUE : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 23 CAE 05 0030 : COTTRILL SERVICES, LLC, ET AL. : : : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Civil Division, Case No. 22 CV C 07 0341

JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

DATE OF JUDGMENT ENTRY: February 13, 2024

APPEARANCES:

For Plaintiff-Appellant: For Defendants-Appellees:

GEOFFREY A. SPALL LISA C. HAASE 43 S. Franklin St. ROBERT S. ROBY Delaware, OH 43015 30 Northwoods Blvd., Suite 300 Columbus, OH 43235

BRIAN T. WINCHESTER JESSE M. SCHMIDT 4608 St. Clair Ave. Cleveland, OH 44103 [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

Delaney, J.

{¶1} Plaintiff-Appellant Michael C. Hoague appeals the April 6, 2023 judgment

entry of the Delaware County Court of Common Pleas, Civil Division.

FACTS AND PROCEDURAL HISTORY1

Storm Damage

{¶2} Plaintiff-Appellant Michael C. Hoague, an attorney and former municipal

court judge, is the owner of a residential home located in the City of Delaware, Ohio. On

or about June 4, 2020, Hoague was out of state when a significant storm came through

the City of Delaware. Hoague returned to his home on June 6, 2020 and discovered the

interior of the home was damaged due to the storm. Upon Hoague’s inspection, the

majority of the damage appeared to be water-related, with resulting mold and mildew.

{¶3} Hoague contacted Defendant-Appellee Cottrill Services, LLC d/b/a Servpro

of Delaware, OH (hereinafter “Cottrill Services”) and scheduled an in-home inspection to

assess the damages and provide an estimate for repair. Defendant-Appellee Xact

Drafting, LLC and its sole owner and statutory agent, Keith Richard Cottrill, were

associated with Cottrill Services.

Servpro Inspection of Home

{¶4} On June 26, 2020, Keith Richard Cottrill met with Hoague at Hoague’s

home for an inspection and estimate. Xact Drafting emailed Hoague a preliminary

estimate for the repair and renovation of the storm damage. Hoague contacted Cottrill

1 Because this matter is before the Court upon an appeal of the trial court’s judgment granting a Civ.R. 12(C) motion, we consider only the facts from the pleadings. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

Services on June 29, 2020 and accepted the estimate. The work was scheduled to

commence on July 11, 2020.

Contractual Agreements

{¶5} Prior to the commencement of the work, Cottrill Services did not provide

Hoague with a contractual agreement. Cottrill Services and its employees commenced

work on July 11, 2020. On that same day, Hoague met with a Cottrill Services

representative on the front porch of the home. The Cottrill Services representative told

Hoague that due to the COVID-19 restrictions, the usual contract paperwork and related

documents would not be provided at that time. In lieu of exchanging a paper copy of the

contractual agreement, the Cottrill Services representative gave Hoague an oral summary

of the paperwork and said he would email Hoague a copy of the contractual agreement.

According to Hoague, the representative did not explain the entirety of the contractual

agreement, including the Terms and Conditions of Service.

{¶6} The Cottrill Services representative had Hoague provide his digital

signature to the contractual agreement on an electronic device.

{¶7} At 6:19 p.m. on July 11, 2020, Cottrill Services emailed the contractual

agreement to Hoague. The contractual agreement included the following provisions

relevant to this appeal (Exhibits A and B of the Amended Complaint):

Customer Agreement: Mold Remediation and Related Services

***

Note: This contract contains a limitation of liability.

*** [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

LIMITATION OF LIABILITY: IN NO EVENT SHALL PROVIDER, ITS

OWNERS, ANY OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS,

FRANCHISOR, OR AFFILIATES BE RESPONSIBLE FOR INDIRECT,

SPECIAL, NOMINAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL

LOSSES OR DAMAGES, OR FOR ANY PENALTIES, REGARDLESS OF

THE LEGAL OR EQUITABLE THEORY ASSERTED, INCLUDING

CONTRACT, NEGLIGENCE, WARRANT, STRICT LIABILITY, STATUTE

OR OTHERWISE, EVEN IF IT HAD BEEN AWARE OF THE POSSIBILITY

OF SUCH DAMAGES OR THEY ARE FORESEEABLE; OR FOR CLAIMS

BY A THIRD PARTY. THE MAXIMUM AGGREGATE LIABILITY SHALL

NOT EXCEED THREE TIMES THE AMOUNT PAID BY CUSTOMER FOR

THE SERVICES OR ACTUAL PROVEN DAMAGES, WHICHEVER IS

LESS. IT IS EXPRESSLY AGREED THAT CUSTOMER’S REMEDY

EXPRESSED HEREIN IS CUSTOMER’S EXCLUSIVE REMEDY. THE

LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF ANY OTHER

REMEDIES FAIL OR THEIR ESSENTIAL PURPOSE. SOME

STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR

LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO

THE ABOVE MAY NOT APPLY TO YOU.

[Signed by Michael Hoague]

*** [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

AUTHORIZATION TO PERFORM SERVICES AND DIRECTION OF

PAYMENT

I have read this Authorization to Perform Services and Direction of

Payment, including Terms and Conditions of Service on the reverse side

hereof, and agree to same.

TERMS AND CONDITIONS OF SERVICE

READ CAREFULLY

Note: This Contract includes a limitation of liability and limitation of

remedies.

1. SERVPRO is one of the largest nationwide cleaning and restoration

franchise systems in the United States. The SERVPRO franchise owner

identified on the front of this Contract (the “Provider”) is an independent

contractor who agrees to perform the services identified on the front of this

Contract (the “Services”). * * *

4. Limitation of Liability: IN NO EVENT SHALL PROVIDER, ITS OWNERS,

ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, FRANCHISOR,

OR AFFILIATES BE RESPONSIBLE FOR INDIRECT, SPECIAL,

NOMINAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

DAMAGES, OR FOR ANY PENALTIES, REGARDLESS OF THE LEGAL

OR EQUITABLE THEORY ASSERTED, INCLUDING CONTRACT,

NEGLIGENCE, WARRANTY, STRICT LIABILITY, STATUTE OR

OTHERWISE, EVEN IF IT HAD BEEN AWARE OF THE POSSIBILITY OF

SUCH DAMAGES OR THEY ARE FORESEEABLE; OR FOR CLAIMS BY

A THIRD PARTY. THE MAXIMUM AGGREGATE LIABILITY SHALL NOT

EXCEED THREE TIMES THE AMOUNT PAID BY CUSTOMER FOR THE

SERVICES OR ACTUAL PROVEN DAMAGES, WHICHEVER IS LESS. IT

IS EXPRESSLY AGREED THAT CUSTOMER’S REMEDY EXPRESSED

HEREIN IS CUSTOMER’S EXCLUSIVE REMEDY. THE LIMITATIONS

SET FORTH HEREIN SHALL APPLY EVEN IF ANY OTHER REMEDIES

FAIL THEIR ESSENTIAL PURPOSE. Some states/countries do not allow

the exclusion or limitation of incidental or consequential damages, so the

above may not apply to you.

7. Any claim by customer for faulty performance, for nonperformance or

breach under this Contract shall be made in writing to Provider no later than

sixty (60) days before instituting any suit or filing any complaint in a court of

law. Failure to make such a written claim for any matter which could have

been corrected by Provider shall be deemed a waiver by Customer. NO

ACTION, REGARDLESS OF FORM, RELATING TO THE SUBJECT

MATTER OF THIS CONTRACT MAY BE BROUGHT MORE THAN ONE

(1) YEAR AFTER THE COMPLETION OF SERVICES. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

8. CUSTOMER AND PROVIDER EACH WAIVE THEIR RESPECTIVE

RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL

CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS)

RELATED TO OR ARISING OUT OF OR IN ANY WAY CONNECTED TO

THIS CONTRACT AND AGREE THAT ANY CLAIM OR CAUSE OF

ACTION WILL BE TRIED BY A COURT WITHOUT A JURY.

Customer’s Initials: [initials]

{¶8} Hoague does not dispute the five digital documents emailed to him bore his

digital signature. The preliminary reconstruction estimate was $9,069.99.

Cottrill Services Completes the Work

{¶9} Cottrill Services completed the restoration work on July 11, 2020.

Approximately 72 hours after the Cottrill Services crew left, Hoague examined the work.

It appeared to Hoague that during its restoration work, Cottrill Services caused damage

to his basement, property in the basement, and his heating and air conditioning system.

Hoague consulted with other construction experts who agreed that Cottrill Services

caused damage to the home during the restoration.

Hoague Contacts Cottrill Services About Dissatisfaction with Work

{¶10} On or about December 31, 2020, Hoague mailed a letter to Richard Cottrill,

the owner of Cottrill Services, to complain about the destruction of Hoague’s property and

dissatisfaction with the restoration work. Richard Cottrill responded by email on January

7, 2021 and advised Hoague that he would contact his technicians to look into the matter.

Cottrill sent Hoague an email on January 11, 2021 with a final report and fifty-six [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

photographs attached. Hoague responded that he had received the email but would

review the final report at a later date due to health reasons related to COVID-19.

{¶11} On July 1, 2022, approximately two years after the date of the contract,

Hoague mailed Richard Cottrill a settlement demand letter with a deadline for a response.

Richard Cottrill responded and requested an extension to respond until July 15, 2022.

Hoague responded on July 3, 2022, stating he would grant an extension until July 10,

2022. Hoague alleged his potential civil claims would be time barred after July 11, 2022.

{¶12} As Hoague was preparing to file his breach of contract claim with the

Delaware County Court of Common Pleas, he reviewed the contractual agreements to be

attached to his pleading. He noticed for the first time that the contractual agreement

incorporated “Terms and Conditions of Service” provisions, which included a limitation of

liability and limitation of remedies. The “Terms and Conditions of Service” page was not

signed by Hoague but was allegedly initialed by Hoague. Hoague stated the initials do

not resemble his subscribed initials and were not authentic.

{¶13} Cottrill Services did not timely respond to Hoague’s settlement demand.

Hoague filed his initial complaint with the Delaware County Court of Common Pleas on

July 11, 2022.

Original Complaint

{¶14} Hoague filed his initial complaint, with a jury demand, on July 11, 2022 with

the Delaware County Court of Common Pleas. He named Cottrill Services, Xact Drafting,

Richard Cottrill, John Doe, and Wade Doe as defendants. In his complaint, he alleged

five causes of action: breach of contract, violation of Consumer Sales Practices Act,

intentional/negligent misrepresentation, negligence, and attorney fees. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

{¶15} On August 10, 2022, Cottrill Services answered the complaint with a jury

demand. Cottrill Services raised affirmative defenses, which included that Hoague’s

claims were barred because he failed to comply with the terms and conditions of the

contract.

{¶16} Also on August 10, 2022, Cottrill Services filed a Motion to Dismiss

Hoague’s complaint. The Civ.R. 12(B)(6) motion alleged the claims raised in Hoague’s

complaint were time-barred by the one-year statute of limitations stated in the “Terms and

Conditions of Service.” Hoague’s complaint alleged that Cottrill Services removed its

equipment from the home on July 13, 2020. Hoague filed his complaint on July 11, 2022,

raising five causes of action relating to the subject matter of Hoague’s contract with Cottrill

Services. Cottrill Services argued that Hoague’s complaint should be dismissed as being

time-barred under the one-year contracted statute of limitations.

{¶17} Richard Cottrill filed an answer to the complaint on August 10, 2022. Xact

Drafting filed a notice of appearance and motion for extension to respond to Hoague’s

original complaint.

{¶18} Hoague did not file a response to Cottrill Services’ motion to dismiss. On

August 31, 2022, the trial court granted the motion to dismiss.

Amended Complaint

{¶19} On August 31, 2022, Hoague filed an amended complaint naming Cottrill

Services, Richard Cottrill, Xact Drafting, and John Doe as defendants. He alleged seven

causes of action: civil conspiracy, intentional/negligent misrepresentation, fraud, violation

of the Consumer Sales Protection Act, negligence, breach of contract, and reasonable

attorney’s fees. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

{¶20} On September 1, 2022, the trial court filed a nunc pro tunc judgment entry

granting Cottrill Services’ motion to dismiss. It clarified that the matter remained pending

against Defendants Cottrill, Xact Drafting, John Doe, and Wade Doe.

{¶21} Also on September 1, 2022, Hoague filed a motion for reconsideration of

the trial court’s August 31, 2022 and September 1, 2022 judgment entries. He argued the

trial court prematurely dismissed his complaint because pursuant to Civ.R. 15(A), he was

permitted to amend his complaint. The trial court granted Hoague’s motion for

reconsideration on September 6, 2022. Cottrill Services was reinstated as a party-

defendant and the amended complaint controlled the proceedings.

{¶22} On September 6, 2022, Xact Drafting filed a suggestion of death that its

single member, Keith Richard Cottrill had died on June 9, 2022. Hoague filed a motion

for appointment of a statutory agent for Xact Drafting. The trial court found the motion to

be moot because Hoague failed to follow statutory procedures if Xact Drafting failed to

maintain a statutory agent.

{¶23} Cottrill Services and Richard Cottrill filed a joint answer to the amended

complaint.

{¶24} Hoague filed a notice of voluntary dismissal, without prejudice, of Richard

Cottrill as a party defendant.

Motion to Dismiss Amended Complaint

{¶25} On January 17, 2023, Cottrill Services filed a motion to dismiss the amended

complaint. Xact Drafting did not join the motion to dismiss the amended complaint.

Cottrill Services again raised the argument that pursuant to the reasonable and

unambiguous one-year statute of limitations provision in the contractual agreement, [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

Hoague’s claims were time-barred. Cottrill Services then addressed the new claims raised

in Hoague’s amended complaint, arguing Hoague raised the new claims of fraud and

intentional misrepresentation to avoid the application of the one-year statute of limitations,

but the claims were improperly plead.

{¶26} Hoague filed a memorandum contra on January 31, 2023. Hoague first

claimed he did not knowingly enter into the one-year statute of limitations as stated in the

“Terms and Conditions of Service.” He next argued the two-year statute of limitations

period under the Consumer Sales Practices Act and R.C. 1345.10(C) was applicable to

his claims, not the one-year statute of limitations. He finally contended that the additional

claims for civil conspiracy, intentional misrepresentation, and fraud raised in his amended

complaint provided sufficient grounds to rescind the one-year statute of limitations in the

contractual agreement.

{¶27} Cottrill Services replied that there was no dispute that Hoague filed his

original complaint beyond the one-year statute of limitations stated in the contractual

agreement. There was also no factual dispute that Hoague voluntarily signed the

contractual agreement on the electronic device and that he received an electronic copy

of the contractual agreement the same day he signed the agreement. Cottrill Services

concluded by arguing that Hoague failed to address in his response why his additional

claims for fraud and intentional misrepresentation as pleaded stated a claim for relief.

{¶28} On April 6, 2023, the trial court granted Cottrill Services’ motion to dismiss

the amended complaint. The trial court considered the motion to dismiss to be a Civ.R.

12(C) motion for judgment on the pleadings. Upon its review of the contractual agreement

attached to the amended complaint, the trial court found that Hoague’s signature [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

appeared on a statement that read, “I have read this Authorization to Perform Services

and Direction of Payment, including the Terms and Conditions of Service on the reverse

side hereof, and agree to the same.” Hoague admitted in his amended complaint that he

signed the contractual agreement, albeit on an electronic device; however, he also

received electronic copies of the contractual agreement on the same day he signed the

agreement. Based on his experience as an attorney and judge, the trial court found

Hoague could not credibly claim that he was not aware of the importance of reading a

document before signing it. The trial court found the one-year statute of limitations to be

enforceable as a matter of law.

{¶29} As to Hoague’s remaining claims, the trial court found that his claims of

fraud and intentional misrepresentation did not sound in fraud, but rather in breach of

{¶30} The trial court granted the judgment on the pleadings in favor of Cottrill

Services. Because the trial court found Hoague’s remaining claims against Xact Drafting

and John Does were subject to the same contractual limitations period, the trial court

dismissed the action against those defendants.

{¶31} On June 2, 2023, Hoague notified the trial court that he had obtained service

of process on the Secretary of State as the agent for Xact Drafting on April 11, 2023.

{¶32} It is from the April 6, 2023 judgment entry that Hoague now appeals. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

ASSIGNMENTS OF ERROR

{¶33} Hoague raises two Assignments of Error:

I. THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT RULED THAT

PLAINTIFF-APPELLANT’S CLAIMS WERE TIME BARRED AND

DISMISSED THE AMENDED COMPLAINT IN ITS ENTIRETY.

II. THE TRIAL COURT PREJUDICIALLY ERRED AND VIOLATED

PLAINTIFF-APPELLANT’S RIGHTS UNDER ARTICLE I, SECTION 16 OF

THE OHIO CONSTITUTION BY ERRONEOUSLY DISMISSING

PLAINTIFF-APPELLANT’S COMPLAINT IN ITS ENTIRETY.

ANALYSIS

Standard of Review

{¶34} The trial court considered Cottrill Services’ motion to dismiss as a Civ.R.

12(C) motion for judgment on the pleadings. Civil Rule 12(C) provides, “after the

pleadings are closed but within such time as not to delay the trial, any party may move

for judgment on the pleadings.” The standard of review of the grant of a motion for

judgment on the pleadings is the same as the standard of review for a Civ.R. 12(B)(6)

motion, which requires the appellate court to independently review the complaint to

determine if the dismissal was appropriate. Ferreri v. The Plain Dealer Publishing Co.,

142 Ohio App.3d 629, 639, 756 N.E.2d 712 (8th Dist.2001). A motion for judgment on the

pleadings pursuant to Civ.R. 12(C) presents only questions of law. Peterson v. Teodosio,

34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973). The determination of a motion under

Civil Rule 12(C) is restricted solely to the allegations in the pleadings and the nonmoving

party is entitled to have all material allegations in the complaint, with all reasonable [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

inferences to be drawn therefrom, construed in its favor. Id. In considering such a motion,

one must look only to the face of the complaint. State ex rel. Osborne v. City of North

Canton, 5th Dist., 2019-Ohio-1744, 135 N.E.3d 1155, ¶ 10. The court is permitted, under

Civ.R. 10, to consider written instruments if they are attached to the complaint. (Citations

omitted.) State ex rel. Gormley v. Jordan, 5th Dist. Delaware No. 20 CAD 07 0029, 2020-

Ohio-4759, ¶ 9 citing Natl. City Mtge. Co. v. Wellman, 174 Ohio App.3d 622, 2008-Ohio-

207, 883 N.E.2d 1122, ¶ 17 (4th Dist.).

I. Cottrill Services

{¶35} In his first Assignment of Error, Hoague argues the trial court erred when it

granted the motion for judgment on the pleadings in favor of Cottrill Services. His first

Assignment of Error raises multiple issues, and we examine each in turn.

One-Year Contractual Limitation

{¶36} Hoague does not dispute the existence of a contract between him and

Cottrill Services for the restoration of Hoague’s home (he raises breach of contract as

one of his causes of action). The main issue in this case is whether the one-year limitation

provision found in the “Terms and Conditions of Service” section of the contract bars all

of Hoague’s causes of action. The time limit provision states in pertinent part:

7. * * * NO ACTION, REGARDLESS OF FORM, RELATING TO THE

SUBJECT MATTER OF THIS CONTRACT MAY BE BROUGHT MORE

THAN ONE (1) YEAR AFTER THE COMPLETION OF SERVICES.

Cottrill Services argued, and the trial court agreed, that the one-year limitations period

barred Hoague’s causes of action for civil conspiracy, intentional/negligent

misrepresentation, fraud, violation of the Consumer Sales Protection Act, negligence, [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

breach of contract, and reasonable attorney fees. Hoague does not specifically dispute

that the parties to a contract may agree to limit the time for bringing an action to a period

less than provided by relevant statute of limitations. So long as the shortened period is

reasonable and the contract language is clear and unambiguous, the provision may be

enforceable. Monreal Funeral Home, Inc. v. Farmers Ins. Co., 189 Ohio App.3d 1, 2010-

Ohio-3805, 937 N.E.2d 159, ¶ 33 (11th Dist.) citing Kraly v. Vannewkirk (1994), 69 Ohio

St.3d 627, 632, 635 N.E.2d 357.

{¶37} Hoague contends the claims raised in his amended complaint are not

barred by the one-year limitation provision. His amended complaint brings causes of

action that, without an alleged contractual time limitation, provide different statutes of

limitations, such as a violation of the Consumer Sales Protection Act. Hoague also raises

claims that could arguably be unrelated to the subject matter of the contract, such as

fraud or intentional/negligent misrepresentation. Like the water in the basement, we wade

through these issues under the guidelines of Civ.R. 12(C).

Reading and Bargaining

{¶38} We first examine Hoague’s argument that the time limit is not applicable

because under the circumstances in which he signed the contract, he did not bargain for

the provisions in the “Terms and Conditions of Service” including the one-year time

limitation. His amended complaint described the circumstances under which he signed

the contract with Cottrill Services. On July 11, 2020 at 9:00 a.m., Cottrill Services came

to the home to start the restoration work. Due to the COVID-19 pandemic, Hoague met

with the Cottrill Services representative on the front porch of the home, maintaining social

distancing. Hoague states the Cottrill Services representative informed him that due to [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

the COVID-19 restrictions, the usual contract paperwork and related documents

describing the scope of services to be performed and authorizing the work would not be

provided at that time. In lieu of exchanging paper copies of the contract, the Cottrill

Services representative would give Hoague an oral summary of what the paperwork

provides. The representative promised to email Hoague a copy of the contract. The

representative, however, provided an iPad or other electronic device, to which Hoague

could provide his digital signature to the contract at that time.

{¶39} After verbally explaining the provisions of the contract, the representative

provided Hoague an iPad or other electronic device to provide his digital signature to the

provision. Hoague believed he provided his digital signature five times. Hoague stated in

his amended complaint that at no time during the representative’s verbal summary of the

contract, did he advise Hoague of the provisions in the “Terms and Conditions of Service.”

Hoague stated he would have refused to sign or excised the provisions in the “Terms and

Conditions of Service” that limited his right to a jury trial or the one-year time limitation.

{¶40} Hoague attached the contract to the amended complaint as Exhibit A. The

second page of Exhibit A is an “Authorization to Perform Services and Direction of

Payment.” It contains the statement, “I have read this Authorization to Perform Services

and Direction of Payment, including the Terms and Conditions of Service on the reverse

side hereof, and agree to the same.” It identifies Hoague and includes a signature line

containing his signature. Hoague admitted in his amended complaint that he digitally

signed that provision of the contract. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

{¶41} At 6:19 p.m. on July 11, 2020, Cottrill Services emailed Hoague a copy of

the contract that Hoague signed in the morning prior to the commencement of the

restoration work. The email included the “Terms and Conditions of Service” provision.

{¶42} On July 14, 2020, Hoague viewed the restoration work and saw that it was

not properly done. On December 1, 2020, Hoague reached out to Cottrill Services to

express his dissatisfaction with its performance. No agreement was reached between the

parties.

{¶43} Pursuant to the one-year limitations period in the contract, Hoague had until

July 11, 2021 to commence legal action against Cottrill Services. In July 2022, Hoague

prepared to file his complaint against Cottrill Services that contained a breach of contract

claim. He was required to attach a copy of the contract to the complaint. In doing so,

Hoague saw for the first time that the contract documents included the “Terms and

Conditions of Service” provision.

{¶44} Hoague argues that because Cottrill Services did not make him aware of

the “Terms and Conditions of Service” before he signed the contract, the terms are not

binding upon him. The failure to read the terms of a contract is not a defense to the

enforcement of the contract. Gartrell v. Gartrell, 181 Ohio App.3d 311, 2009-Ohio-1042,

908 N.E.2d 1019, ¶ 37 (5th Dist.) citing Haller v. Borror, 50 Ohio St.3d 10, 552 N.E.2d

207 (1990). The Tenth District Court of Appeals addressed this issue in the similar case

of Hadden Co., L.P.A. v. Del Spina (Aug. 26, 2003), Franklin App. No. 03AP–37, 2003-

Ohio-4507, 2003 WL 22006842, holding:

One of the most celebrated tenets of the law of contracts is that a document

should be read before being signed, and the corollary to this rule is that a [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

party to the contract is presumed to have read what he signed and cannot

defeat the contract by claiming he did not read it. See, e.g., McAdams v.

McAdams (1909), 80 Ohio St. 232, 241, 88 N.E. 542. Mr. and Mrs. Hadden

are an attorney and a treasurer to a law office. Nothing excuses their failure

to read the purchase contract prior to signing.

Gartrell, supra at ¶ 38. The Eighth District Court of Appeals reached a similar conclusion:

A party entering a contract has a responsibility to learn the terms of the

contract prior to agreeing to its terms. The law does not require that each

aspect of a contract be explained orally to a party prior to signing. [ABM

Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574 (1998).] “It

will not do for a man to enter into a contract, and, when called upon to

respond to its obligations, to say that he did not read it when he signed it,

or did not know what it contained. If this were permitted, contracts would

not be worth the paper on which they are written.” [Id.] citing Upton v.

Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875).

Fry v. FCA US LLC, 2017-Ohio-7005, 143 N.E.3d 1108, ¶ 21 (6th Dist.) quoting Estate of

Brewer v. Dowell & Jones, Inc., 8th Dist. Cuyahoga No. 80563, 2002-Ohio-3440, ¶ 13.

{¶45} Hoague alleged in his amended complaint that COVID-19 restrictions

prevented him from reading the contract before the work commenced. Hoague denied

that he was aware of the “Terms and Conditions of Service,” but he admitted to signing

the “Authorization to Perform Services and Direction of Payment,” which contained a

statement that the signer had read and agreed to the “Terms and Conditions of Service.”

The amended complaint does not detail whether the contract was available to read on the [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

iPad so that Hoague could have read it before affixing his signature (because regardless

of COVID-19 precautions, he would have had to touch the iPad to affix his signature).

Hoague admits, however, that he received a copy of the signed contract documents from

Cottrill Services on July 11, 2020. Hoague admits that he did not read the signed contract

documents until July 2022. Construing all reasonable inferences in favor of Hoague, the

facts establish Hoague knew, or should have known, about the provisions contained

within the “Terms and Conditions of Service” either on July 11, 2020 or within one-year

of July 14, 2020, when Hoague stated he knew the restoration work was not done to his

satisfaction and possibly in breach of the contract.

{¶46} Relating to his argument that he did not bargain for the “Terms and

Conditions of Service” due to his inability to read the contract before signing, Hoague

contends the contested contract provisions were unconscionable, and therefore

enforceable, because there was no voluntary meeting of the minds as to the terms. The

defense that a contract provision is unenforceable on the grounds that it is

unconscionable is premised on a finding that a party did not have any meaningful choice

when entering into the contract or the contract terms are unreasonably favorable to one

party. Fry v. FCA US LLC, 2017-Ohio-7005, 143 N.E.3d 1108, ¶ 29 (6th Dist.) citing Lake

Ridge Academy v. Carney, 66 Ohio St.3d 376, 382, 613 N.E.2d 183 (1993). “The party

asserting unconscionability of a contract bears the burden of proving that the agreement

is both procedurally and substantively unconscionable.” Fry, supra at ¶ 29 quoting Taylor

Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 33.

{¶47} The Sixth District Court of Appeals discussed “procedural

unconscionability:” [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

“ ‘Procedural unconscionability concerns the formation of the agreement

and occurs when no voluntary meeting of the minds is possible.’ ” Brunke

v. Ohio State Home Servs., Inc., 9th Dist. Lorain No. 08CA009320, 2008-

Ohio-5394, 2008 WL 4615578, ¶ 10, quoting Porpora v. Gatliff Bldg. Co.,

160 Ohio App.3d 843, 2005-Ohio-2410, 828 N.E.2d 1081, ¶ 7 (9th Dist.).

To evaluate procedural unconscionability, courts consider factors relating

to the relative bargaining position of the parties, including “age, education,

intelligence, business acumen, experience in similar transactions, whether

the terms were explained to the weaker party, and who drafted the contract.”

Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, 809

N.E.2d 1161, ¶ 31 (9th Dist.). No one factor alone determines whether a

contract is procedurally unconscionable. Hayes v. Oakridge Home, 122

Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 29. Rather, procedural

unconscionability is determined after consideration of the totality of the

circumstances. Id. at ¶ 30.

Fry, supra at ¶ 30.

{¶48} Hoague states in his amended complaint that he is an “attorney with 40

years’ experience as a trial lawyer who has tried or presided over 500 or more jury trials

to a verdict.” (Amended Complaint, Para. 60). As an attorney and former judge, Hoague

had the education, intelligence, business acumen, and experience with similar

transactions. Cottrill Services orally explained some of the terms of the contract, but

Hoague signed the contract. Cottrill Services emailed the contract to Hoague on the

same day he signed the contract, but Hoague did not read the terms of the contract he

signed on July 11, 2020 until July 2022. We do not find the circumstances support [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

Hoague’s claim of unconscionability. See Hadden Co., L.P.A. v. Del Spina, 10th Dist.

Franklin No. 03AP-37, 2003-Ohio-4507, ¶ 15 (“Mr. and Mrs. Hadden are an attorney

and a treasurer to a law office. Nothing excuses their failure to read the purchase

contract prior to signing.”)

{¶49} We find with all reasonable inferences in favor of Hoague, the non-moving

party, the time limit provision was bargained for and not unconscionable; however, this is

not the end of the analysis. In Hoague’s amended complaint, he raises seven causes of

action: civil conspiracy, intentional/negligent misrepresentation, fraud, violation of the

Consumer Sales Practices Act, negligence, breach of contract, and reasonable attorney

fees. Hoague’s claims of negligence and breach of contract state Cottrill Services

negligently completed the contracted work and the work was in breach of the contract.

Because the one-year time limit provision is a valid contractual bargain and the

negligence and breach of contract causes of action indubitably arise from the subject

matter of the contract, those claims are time-barred.

{¶50} We conduct further analysis to determine whether the statute of limitations

can be contractually limited as to the Consumer Sales Practices Act. We also examine

whether some of Hoague’s causes of action are outside of the subject matter of the

contract so that the limited time period is not applicable.

Consumer Sales Practices Act

{¶51} In Hoague’s amended complaint, his fourth cause of action alleges a

violation of the Consumer Sales Practices Act (“CSPA”) where he states that Cottrill

Services engaged in unfair, deceptive, and unconscionable acts and practices in violation

of R.C. 1345.02 and 1345.03. Hoague claims that Cottrill Services required him to enter [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

into a one-sided contract substantially in favor of Cottrill Services and made misleading

statements about the work, which Hoague relied upon to his detriment. We address

Hoague’s claims under the CSPA as to the statute of limitations period.

{¶52} The CSPA prohibits suppliers from committing either unfair or deceptive

consumer sales practices or unconscionable acts or practices. R.C. 1345.02 and

1345.03. Under the CSPA, “ ‘unfair or deceptive consumer sales practices’ [are defined]

as those that mislead consumers about the nature of the product they are receiving, while

‘unconscionable acts or practices’ relate to a supplier manipulating a consumer's

understanding of the nature of the transaction at issue.” Szep v. Gen. Motors LLC, 491

F.Supp.3d 280, 296–97, 2020 WL 5834876 quoting McKinney v. Bayer Corp., 744

F.Supp.2d 733, 743 (N.D. Ohio 2010) (internal citations omitted). It is designed to

compensate for inadequate traditional remedies. Loury v. Westside Automotive Group,

2022-Ohio-3673, 199 N.E.3d 62, ¶ 22 (8th Dist.) citing Einhorn v. Ford Motor Co., 48 Ohio

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

{¶53} The CSPA has a two-year statute of limitations when the party is seeking

damages. R.C. 1345.10(C). The statute of limitations commences to run from the date of

the occurrence of the violation, which is not necessarily the date of any underlying

transaction. Varavvas v. Mullet Cabinets, Inc., 185 Ohio App.3d 321, 2009-Ohio-6962,

923 N.E.2d 1221, ¶ 31 (5th Dist.) citing Montoney v. Lincoln Logs, Ltd., 10th Dist. Franklin

No. 06AP-284, 2007-Ohio-236, 2007 WL 155451, at ¶ 26, citing Luft v. Perry Cty. Lumber

& Supply Co., 10th Dist. Franklin No. 02AP–559, 2003-Ohio-2305, ¶ 27.

{¶54} In its motion to dismiss, Cottrill Services argued the parties contracted for a

one-year limitation period for all claims relating to the subject matter of the contract, which [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

thereby included Hoague’s claim under the CSPA. Hoague contends the parties cannot

contractually limit the CSPA statutory two-year statute of limitations period. The statutory

language of the CSPA does not state that parties are permitted to or prohibited from

contractually reducing the two-year statute of limitations. Neither Hoague nor Cottrill

Services have presented any case law that states the CSPA two-year statute of limitations

may or may not be contractually adjusted. Cottrill Services argues that Ohio courts have

permitted the contractual reduction of the limitation for other remedial statutes, such as

employment discrimination claims pursuant to R.C. 4112 et seq. See Maxwell v. Univ.

Hosps. Health Sys., Inc., Cuyahoga C.P. No. CV-15-840036.

{¶55} It is well-settled that the CSPA is intended to be remedial and should be

construed liberally in favor of consumers. Nicholson v. Davis Auto Performance, 5th Dist.

Richland No. 2023 CA 0022, 2024-Ohio-205, ¶ 19 citing Swoger v. Hogue, 5th Dist.

Tuscarawas No. 2013 AP 011 0045, 2015-Ohio-506, ¶ 36 citing Einhorn v. Ford Motor

Co., 48 Ohio St.3d 27, 29, 548 N.E.2d 933 (1990). “The purpose of the CSPA is to protect

consumers, not assign responsibility to consumers to recognize and avoid a business's

deceptive acts.” Jones v. J. Duran, Inc., 6th Dist. Lucas No. L-19-1074, 2020-Ohio-4606,

¶ 14 quoting Einhorn, supra; Fletcher v. Don Foss of Cleveland Inc., 90 Ohio App.3d 82,

87, 628 N.E.2d 60 (8th Dist.1993). The dearth of case law on the issue of contractually

limiting the CSPA two-year statute of limitations is telling. Making all reasonable inference

in favor of Hoague, the consumer in this case, and based on the remedial nature of the

CSPA, we decline to support Cottrill Services’ argument that the one-year time limitation

period applies to Hoague’s claim under the CSPA. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

Fraud, Misrepresentation, and a Civil Conspiracy

{¶56} In its motion to dismiss, Cottrill Services argued that Hoague failed to state

a claim for fraud and/or intentional misrepresentation and based on that failure, could not

avoid the application of the one-year time limitation period. Hoague asserts in his second

cause of action that Cottrill Services misrepresented material facts in order to induce his

agreement to enter into the contract. Cottrill Services allegedly assured Hoague that the

project would be performed with “strict caution and restraint” to protect Hoague’s property.

Instead, Hoague claimed that Cottrill Services “intentionally and by design demolished

and removed” sections of drywall that were unaffected by water damage. Hoague alleged

in his third cause of action for fraud that Cottrill Services falsely made “material

representations” with knowledge of their falsity and with the intention of misleading

Hoague into justifiably relying upon the false representations.

{¶57} Civ.R. 9(B) requires that “[i]n all averments of fraud or mistake, the

circumstances constituting fraud or mistake shall be stated with particularity.” The

pleading must contain allegations of fact which tend to show each and every element of

a cause of action for fraud. Zoar View Wilkshire, LLC v. Wilkshire Golf, Inc., 5th Dist.

Tuscarawas No. 2022 AP 11 0052, 2023-Ohio-2848, ¶ 31 citing Riieger v. Podeweltz,

2nd Dist. Montgomery No. 23520, 2010-Ohio-2509, ¶9. “Failure to specifically plead the

operative facts constituting an alleged fraud presents a defective claim that may be

dismissed.” Id.

{¶58} The elements of fraudulent misrepresentation are (1) a representation on

or, where there is a duty to disclose, concealment of a fact, (2) which is material to the

transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

disregard and recklessness as to whether it is true or false that knowledge may be

inferred, (4) with the intent of misleading another into relying upon it, (5) followed by

justifiable reliance upon the representation or concealment by the other party, and (6)

resulting injury proximately caused by the reliance. Funk v. Durant, 155 Ohio App.3d 99,

2003-Ohio-5591, 799 N.E.2d 221, ¶ 20 (5th Dist.). The Ohio Supreme Court set forth the

elements of fraud as: (a) a representation or, where there is a duty to disclose,

concealment of a fact; (b) which is material to the transaction at hand; (c) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to whether

it is true or false that knowledge may be inferred; (d) with the intent of misleading another

into relying upon it; (e) justifiable reliance upon the representation or concealment, and

(f) a resulting injury proximately caused by the reliance. Boehnlein-Pratt v. Ventus Corp.,

5th Dist. Holmes No. 14CA011, 2015-Ohio-2795, ¶ 33 citing Cohen v. Lamko, Inc., 10

Ohio St.3d 167, 169, 462 N.E.2d 407 (1984) quoting Friedland v. Lipman, 68 Ohio App.2d

255, 429 N.E.2d 456 (8th DIst.1980), paragraph one of the syllabus.

{¶59} In Ohio, the existence of a contract action generally excludes the

opportunity to present the same case as a tort claim. Textron Fin. Corp. v. Nationwide

Mut. Ins. Co., 115 Ohio App.3d 137, 151, 684 N.E.2d 1261, 1270 (9th Dist.1996). “A tort

claim based upon the same actions as those upon which a claim of contract breach is

based will exist independently of the contract action only if the breaching party also

breaches a duty owed separately from that created by the contract, that is, a duty owed

even if no contract existed.” Id.

{¶60} Hoague contends Cottrill Services engaged in fraud and intentional

misrepresentation when the description of how it would complete the restoration work [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

differed from the resulting work. Hoague utilizes the same facts to support his fraud and

misrepresentation claims as he does his claim for breach of contract. (Amended

Complaint, ¶ 89, ¶ 94, ¶ 111). Considering all reasonable inferences in favor of Hoague,

his claims are not separate from the breach of contract. Thus, Hoague is barred from

presenting a tort claim regarding the subject matter of a breach of contract claim.

{¶61} While not specifically addressed by the trial court, Hoague’s claim for civil

conspiracy fails without the support of the underlying tort claims. A civil conspiracy is “a

malicious combination of two or more persons to injure another person or property, in a

way not competent for one alone, resulting in actual damages.” Bender v. Logan, 2016-

Ohio-5317, 76 N.E.3d 336, ¶ 78 (4th Dist.) quoting Kenty v. Transamerica Premium Ins.

Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995), quoting LeFort v. Century 21–

Maitland Realty Co., 32 Ohio St.3d 121, 126, 512 N.E.2d 640 (1987), citing Minarik v.

Nagy, 8 Ohio App.2d 194, 196, 193 N.E.2d 280 (8th Dist.1963). Ohio law does not

recognize civil conspiracy as an independent cause of action. Id. citing Minarik, 8 Ohio

App.2d at 195–196, 193 N.E.2d 280. To prevail upon a civil conspiracy claim, a plaintiff

must demonstrate the existence of an underlying unlawful act. Id. citing Williams v. Aetna

Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998), citing Gosden v. Louis, 116

Ohio App.3d 195, 219, 687 N.E.2d 481 (1996).

{¶62} Therefore, we find the trial court did not err when it granted Cottrill Services’

motion for judgment on the pleadings as to Hoague’s claims for civil conspiracy,

intentional/negligent misrepresentation, fraud, negligence, and breach of contract.

Hoague’s first Assignment of Error is overruled as to those issues. Upon our de novo [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

review, we sustain in part Hoague’s first Assignment of Error as to his claim under the

CSPA.

II. Xact Drafting

{¶63} In Hoague’s second Assignment of Error, he argues his due process rights

were violated when the trial court granted Cottrill Services’ motion for judgment on the

pleadings and dismissed the entirety of his complaint against all the defendants, not just

Cottrill Services.

{¶64} Hoague named Xact Drafting, LLC as a defendant in its amended

complaint. Hoague described Xact Drafting as a limited liability company engaged in the

business of structure restoration estimation and reconstruction with its principal offices

located in Delaware County, Ohio. Hoague identified Keith Cottrill as the owner and

authorized representative of Xact Drafting. On September 6, 2022, Xact Drafting filed a

suggestion of death that its sole member, Keith Richard Cottrill, died on June 9, 2022.

Xact Drafting filed an answer to the amended complaint on September 7, 2022. In its

answer, Xact Drafting raised the affirmative defense of insufficiency of service of process.

{¶65} On November 27, 2022, Hoague filed a motion for the appointment of a

statutory agent for Xact Drafting. The trial court denied the motion as moot because

Hoague failed to follow the statutory procedures for obtaining service on Xact Drafting.

{¶66} Cottrill Services filed its motion to dismiss Hoague’s amended complaint on

January 17, 2023. Xact Drafting did not join Cottrill Services’ motion to dismiss the

amended complaint. Xact Drafting did not file its own motion to dismiss Hoague’s

amended complaint. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

{¶67} On April 6, 2023, the trial court granted Cottrill Services’ motion to dismiss

the amended complaint as to all claims against Cottrill Services. The judgment entry also

concluded, “Plaintiff’s claims against Defendant Xact Drafting LLC and John Does 1-3 are

subject to the same contractual limitations period, and therefore are dismissed.”

{¶68} On June 6, 2023, Hoague notified the trial court that it received service of

process on Xact Drafting through the Secretary of State on April 11, 2023.

{¶69} Based on this procedural history and the reasonable inferences of Civ.R.

12(C) in favor of Hoague, we find it was premature of the trial court to dismiss Hoague’s

causes of action against Xact Drafting. Xact Drafting did not move to dismiss the amended

complaint pursuant to Civ.R. 12(B) or (C). It did not join in Cottrill Services’ motion to

dismiss the amended complaint. In Cottrill Services’ motion to dismiss the amended

complaint, Cottrill Services raised no argument on behalf of Xact Drafting that it was

likewise protected from liability by the “Terms and Conditions of Service.” Finally, the

record is not clear whether Hoague had proper service on Xact Drafting before the trial

court dismissed it as a party defendant.

{¶70} We sustain Hoague’s second Assignment of Error on the basis that the trial

court’s dismissal of Xact Drafting was premature. Judgment in favor of Xact Drafting is

reversed and the matter remanded to the trial court for further proceedings consistent

with this Opinion and law. [Cite as Hoague v. Cottrill Servs., L.L.C., 2024-Ohio-531.]

CONCLUSION

{¶71} The judgment of the Delaware County Court of Common Pleas is affirmed

in part and reversed and remanded in part.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.