Nelson v. Powers

2020 Ohio 1076

• Court: Ohio Court of Appeals
• Decided: March 23, 2020
• Docket: 2019-G-0214
• Status: Published

Opinion

[Cite as Nelson v. Powers, 2020-Ohio-1076.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

INGRID M. NELSON, et al., : OPINION

Plaintiffs-Appellees, : CASE NO. 2019-G-0214 - vs - :

DAN POWERS, et al., :

Defendants-Appellants. :

Civil Appeal from the Chardon Municipal Court, Case No. 2015 CVF 000014.

Judgment: Affirmed.

Matthew W. Rolf, Matt Rolf Attorney LLC, 100 Center Street, Suite 284, Chardon, OH 44024 (For Plaintiffs-Appellees).

Thomas J. Sacerich, 8302 Yellowbrick Road, Mentor, OH 44060 (For Defendants- Appellants).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellants, Dan Powers, et al., appeal from the judgment of the Chardon

Municipal Court, adopting the magistrate’s decision, awarding appellees, Ingrid M.

Nelson, et al., a total of $15,000 in damages on her complaint alleging, inter alia, breach

of contract and unfair and deceptive trade practices in violation of the Ohio Consumer

Sakes Practices Act (“CSPA”); appellants additionally appeal the trial court’s award of

attorney fees in the amount of $12,000. We affirm. {¶2} Ms. Nelson lives in a residence in Novelty, Ohio and runs Royalcrest

Animal Spa Ltd. (“Royalcrest”), a domestic limited liability company for boarding dogs.

The business is operated out of her residence. Mr. Powers is a contractor who owns a

business registered as “Powers Landscaping Company.” Mr. Powers, however, refers

to his business not only as “Powers Landscaping Company,” but also “Powers

Landscaping Co.,” “Powers Landscaping Company Inc.,” “Dan Powers Landscaping,”

“Powers Landscaping,” and “Powers Landscaping Inc.”

{¶3} In late 2013 or early 2014, Royalcrest, via Ms. Nelson, contracted with

Mr. Powers and his company to do certain work for the dog-boarding business. The

work was done by Mr. Powers’ company for Royalcrest and the quality of that work was

never in dispute.

{¶4} Around the same time, Ms. Nelson met with Mr. Powers regarding certain

excavation and construction projects with which she wished to proceed. She wanted to

construct a barn for her two horses, along with an indoor staging arena for the same.

She made it clear, she did not have a business for boarding horses and wanted the

barn to serve as a means of housing and working with her horses, which she cared for

in a personal capacity. As such, the construction was unrelated to her business

activities.

{¶5} After discussing more thoroughly the barn construction project, Ms.

Nelson decided to contract with appellants to “excavate” the land in preparation for the

construction. To this end, appellants agreed to regrade Ms. Nelson’s property to

prevent water from flowing into or near her home and collecting on her driveway and

garage; grind certain stumps; and level an area where the eventual barn would be

2 erected. Appellants quoted Ms. Nelson a price of $4,800 for these services. Prior to

beginning work, however, Mr. Powers suggested that he add fill dirt to various parts of

the land. Ms. Nelson asserted Mr. Powers quoted her a price of $2,000 for the dirt; she

agreed, but no written estimate was submitted by appellants. Ms. Nelson subsequently

contracted with appellants to level the ground and spread base sand for an above-

ground pool near the site for $300. According to Ms. Nelson, she agreed to pay

appellants and his company a total of $7,100 for the work.

{¶6} Between August 2014 and October 2014, appellants were on Ms.

Nelson’s property with heavy equipment, frequently dumping dump-truck loads of dirt to

the site. Ms. Nelson asserted appellants delivered approximately 18 loads of dirt while

appellants contended they delivered 41 loads. No documentation was submitted to Ms.

Nelson regarding the quantity of dirt delivered and Mr. Powers did not provide any

documentary evidence of the amount. Moreover, evidence was adduced that

appellants did not purchase the dirt from a third party; rather, was removed from Mr.

Powers’ private property at no ostensible cost to Powers Landscaping Company.

{¶7} At the beginning of September, Ms. Nelson became concerned about the

progress of the excavation because appellants had done little to grade and/or level the

property. On September 9, 2014, Mr. Powers visited Ms. Nelson’s residence, dropped

off an additional truck load of dirt, explaining he needed to finish other jobs before

continuing with her project. He also represented he needed to make payroll and

requested Ms. Nelson pay $3,850; in an effort to facilitate the completion of the

excavation, Ms. Nelson wrote Mr. Powers a check in that amount. Although no revised,

3 written estimate was ever submitted, Ms. Nelson ultimately paid Mr. Powers and/or his

company a total of $9,250 from her personal, home-equity account listed in her name.

{¶8} On September 23, 2014, Ms. Nelson sent Mr. Powers a letter outlining the

parties’ agreement, as she understood it. She requested an itemization for the work

and requested an explanation for the overcharge. Ms. Nelson did not receive a

response. On October 10, 2014, she contacted police who, in turn, contacted Mr.

Powers. According to the police report, Mr. Powers maintained that the project was

finished; ultimately, however, at trial, Mr. Powers conceded the job was left incomplete.

{¶9} In late October 2014, Mr. Powers brought a small load of gravel to the site

that ostensibly was going to be used to regrade the driveway. According to Ms. Nelson,

he and his workers “dug the driveway out, dumped a load of gravel, moved some dirt

around, started digging at a stump that was there and, after a few hours, said ‘We’re

leaving. The stump’s - - We can’t get the stump out, can’t finish.” As they left, Mr.

Powers submitted an invoice in the amount of $15,350. The invoice was sent by

“Powers Landscaping Inc.” to “Royalcrest Animal Spa Ltd.” The invoice itemized 41

loads of topsoil, for a total of $9,250; $300 for the “pool;” and $4,800 for the excavation.

Appellants did not return to the site.

{¶10} In November 2014, Ms. Nelson filed a pro se, small-claims complaint

seeking damages in the amount of $3,000 against appellants. Appellants filed an

answer and a counterclaim. Subsequently, appellants filed a motion for leave to transfer

the case to the general civil docket. The motion was granted and, after Ms. Nelson

retained counsel, she filed an amended complaint, seeking $15,000 in economic

4 damages and $5,000 in non-economic damages, as well as attorney fees. The

amended complaint was different from the original in nearly all respects.

{¶11} Appellants failed to file an answer within the time allotted by the court and,

Ms. Nelson ultimately filed a motion for default judgment, which was denied, and later

an amended motion for default judgment. Meanwhile, while the amended motion was

pending, appellants filed their answer. The trial court, however, granted Ms. Nelson’s

amended motion and awarded damages. Appellants subsequently moved the trial

court, pursuant to Civ.R. 60(A) and (B) for relief from judgment. The magistrate denied

the motion and the trial court adopted the same. Appellants appealed that judgment

and, in Nelson v. Powers, 11th Dist. Geauga No. 2015-G-0031, 2016-Ohio-1159, this

court reversed the trial court’s judgment and remanded for further proceedings.

{¶12} Ultimately, the matter came for trial before the magistrate. After hearing

evidence, the magistrate concluded appellants violated the CSPA and engaged in

deceptive trade practices. The magistrate determined Ms. Nelson should be awarded

“$9,250 in damages, trebled, plus $5,000 for a total of $15,000.”1 Objections were filed,

which Ms. Nelson opposed. The trial court held the objections in abeyance, pending a

hearing on Ms. Nelson’s request for attorney fees. Ultimately, Ms. Nelson submitted an

itemized attorney fees bill. The total bill was $17,820. Counsel, however, stated he

eliminated fees related to Royalcrest, which are not subject to CSPA. The reduced bill

totaled $12,478, reducing the bill so as not to include court costs, counsel requested

$12,000, which the magistrate awarded. Appellants filed objections and, on May 20,

2019, the trial court adopted the magistrate’s decisions. This appeal followed.

1. Initially, the magistrate did not actually award treble damages. $9,250, “trebled,” would be $27,750 and this would exceed the municipal court’s subject-matter jurisdiction of $15,000, the amount awarded in this matter. See R.C. 1901.17.

5 {¶13} Appellants’ first assignment of error provides:

{¶14} “The trial court committed prejudicial error when it determined that the

contract for the excavation of the land of plaintiff was subject to the Ohio Consumer

Sales Practices Act.”

{¶15} Appellants assert the trial court erred in concluding that the contract for

work was entered with Ms. Nelson personally, rather than her company, Royalcrest.

They maintain they did work for Ms. Nelson’s company and, as a result, the contract

was placed outside the CSPA. We do not agree.

{¶16} R.C. 1345.01(A) provides: “‘Consumer transaction’ means a sale, lease,

assignment, award by chance, or other transfer of an item of goods, a service, a

franchise, or an intangible, to an individual for purposes that are primarily personal,

family, or household, or solicitation to supply any of these things.” A “supplier” is “a

seller, lessor, assignor, franchisor, or other person engaged in the business of effecting

or soliciting consumer transactions, whether or not the person deals directly with the

consumer.” R.C. 1345.01(C). And a “consumer” is “a person who engages in a

consumer transaction with a supplier.” R.C. 1345.01(D).

{¶17} At trial, Ms. Nelson testified that, while she runs Royalcrest out of her

residence, she personally owns the property. She also testified Royalcrest is a dog-

boarding business and she intended to build the barn, the construction of which was the

purpose of the excavation, for her two horses. She stated she does not operate a

horse-boarding facility and wanted the barn for her personal interest in training her

horses. Moreover, she stated she wished to include an arena in the barn so she could

work with her horses indoors during bad weather. Further, she testified she did not

6 intend to use the barn to board dogs for Royalcrest. She testified the floor of the arena

would be soft dirt to suit a horse’s footing and this would not be conducive for boarding

or sheltering her clients’ dogs. Furthermore, appellants’ original estimate was directed

at “Ingrid Nelson,” not Royalcrest; and the money Ms. Nelson paid appellants was

withdrawn from her personal account, not a business account.

{¶18} We recognize appellants’ final invoice was directed at Royalcrest;

nevertheless, the invoice was delivered during appellants’ last visit to the work site and

after Ms. Nelson had expressed her dissatisfaction with the project’s progress. The

greater weight of credible evidence supports the magistrate’s conclusion that appellants

contracted with Ms. Nelson, personally. Pursuant to statute, appellants were suppliers

to a consumer transaction with Ms. Nelson, a consumer. Hence, the trial court did not

err in adopting the magistrate’s decision, applying the CSPA.

{¶19} Appellants’ first assignment of error lacks merit.

{¶20} Appellants’ second assignment of error provides:

{¶21} “The trial court committed prejudicial error when it based damages alleged

on inadmissible hearsay.”

{¶22} Appellants assert the trial court erred in basing its damages finding on

unadmitted hearsay evidence. Appellants point out that Michael Ranney, a contractor

who testified on Ms. Nelson’s behalf, stated he visited the work site, with an unnamed

excavator after appellants abandoned the job. Mr. Ranney testified that, in its condition,

the site could not be remediated and thus would require an excavator to start the job

anew. Ms. Nelson attempted to introduce a letter, penned by the unnamed excavator,

that provided an estimate of $16,000 for the work. The magistrate excluded this letter

7 as hearsay. Appellants assert the trial court inappropriately used this as a basis for its

damages award of $15,000. We do not agree.

{¶23} Evidence established that Ms. Nelson suffered $9,250 in actual damages

(the amount she paid appellants); the magistrate then added $5,000 to this amount.

R.C. 1345.09(A), which addresses, inter alia, “consumer’s relief” under the CSPA

provides, where a violation of the Act is found, “the consumer may * * * recover the

consumer’s actual economic damages plus an amount not exceeding five thousand

dollars in noneconomic damages.” The magistrate found a violation of the Act, awarded

Ms. Nelson her actual economic damages plus the statutorily allowed amount of $5,000

in noneconomic damages. There was no evidence the court relied upon the

inadmissible estimation of the unnamed excavator. This aspect of appellants’ argument

lacks merit.

{¶24} Next, appellants claim the trial court erred in allowing admittedly

inadmissible hearsay evidence to their prejudice. Ms. Nelson submitted an estimate

from “Town-N-Country Pavers, Inc.,” a concrete and sealcoating company, which stated

it would charge $2,750 to, inter alia, “[r]egrade the driveway for the proper drainage.”

No representative from the company was called to testify regarding this estimate or the

nature of the work. Although appellants did not object to the estimate when it was

introduced, they objected when Ms. Nelson sought its admission. After considering the

objection, the magistrate observed:

{¶25} You know, I’m looking at [the exhibit], and it says “regrade the driveway for

proper drainage.” She testified to what she paid. And I realize your objection is, hey,

you can’t question - -Well, I don’t see the reason why you would have to cross-examine

8 this guy. The bill states what it is. That, in itself, is hearsay, okay, but I am going to

allow it in for what it’s worth.”

{¶26} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). “It is axiomatic that hearsay evidence is inadmissible unless

it falls within the specific hearsay exceptions enumerated in the Rules of

Evidence.” State v. DeMarco, 31 Ohio St.3d 191, 195 (1987).

{¶27} While we agree the estimate was hearsay, we fail to see how its

admission harmed appellants. At most, therefore, the evidence was harmless error.

{¶28} Civ.R. 61 provides:

{¶29} No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

{¶30} In analyzing whether a substantial right has been affected, a reviewing

court must determine whether the trier of fact would have reached the same decision,

had the error not occurred. See, e.g., Prakash v. Copley Twp., 9th Dist. Summit No.

21057, 2003-Ohio-642, ¶16.

{¶31} Here, Ms. Nelson testified that she paid $2,750 to have her driveway

regraded and leveled after appellants had ceased work. The evidence of the estimate

was accordingly cumulative of Ms. Nelson’s testimony. We accordingly conclude any

error in admitting the estimate was harmless.

9 {¶32} Appellants’ second assignment of error lacks merit.

{¶33} Appellants’ third and fourth assignments of error provides:

{¶34} “[3.] The trial court committed prejudicial error when it allowed plaintiff’s

attorney’s fee bill to be used when it was never presented to defendant’s [counsel] prior

to the hearing on attorney’s fees.

{¶35} “[4.] The trial court committed prejudicial error and abuse of discretion

[sic] when it held another hearing after plaintiff’s attorney rested solely to admit into

evidence the attorney’s fee bill.”

{¶36} Appellants do not dispute that Ms. Nelson was statutorily eligible for

attorney fees; instead, they first assert the trial court erred when it permitted Ms. Nelson

to use her counsel’s bill to establish the amount of attorney fees because the bill was

not submitted to them prior to the hearing. Appellants support their argument citing

Chardon Municipal Court Rule 33, which requires submission of exhibits to the court at

a pretrial. While the manner in which counsel for Ms. Nelson proceeded may be a

technical violation of the rule, any error was harmless.

{¶37} Two hearings took place on attorney fees. The first, on October 18, 2018,

appellants were represented by a colleague of their trial attorney because trial counsel

had a scheduling conflict. Notwithstanding the failure to present the bill to either the

court or appellants’ counsel prior to the hearing, “stand-in” counsel was able to

effectively take issue with several aspects of the bill; to wit: he argued any fees that

were incurred prior to the remand order of this court should be deducted; he also

argued that counsel for Ms. Nelson served a dual role, as counsel for her and her

company (who was joined as a third-party defendant). As a result, he noted it would be

10 impossible to differentiate between work done for Ms. Nelson and work done for her

business. This is problematic because her business is not entitled to the protections of

the CSPA. In light of these points, we conclude the failure to produce the fee bill prior to

the hearing did not prejudice appellants.

{¶38} Next, appellants claim the trial court erred in remanding the attorney fees

issue to the magistrate for him to formally admit the fee bill, which was not

accomplished at the first hearing. Appellants maintain Ms. Nelson’s failure to seek

admission of the bill at the original hearing precluded the admission and thus, without

evidence of the fees in the form of a bill or formal testimony, she is not entitled to

attorney fees. Again, we do not agree.

{¶39} Appellants objected to the magistrate’s decision to award attorney fees to

the extent Ms. Nelson’s counsel did not seek to admit the fee bill into the evidence. The

trial court sustained this objection, but returned the matter to the magistrate for counsel

to introduce the exhibit and have it admitted.2 Civ.R. 53(D)(4)(a) provides that a

magistrate’s decision is not effective or final unless adopted by the trial court.

Moreover, Civ.R. 53(D)(4)(d) provides: “In ruling on objections, the court shall undertake

an independent review as to the objected matters to ascertain that the magistrate has

properly determined the factual issues and appropriately applied the law. Before so

ruling, the court may hear additional evidence * * *.” (Emphasis added.) By remanding

the magistrate’s decision, which was not final, the court concluded it was incomplete

and “additional evidence,” in the form of the fee bill, was necessary for it to fully review

2. It is worth pointing out that Ms. Nelson’s counsel presented the bill to the magistrate, who accepted the fee bill after the hearing and advised the parties he would review the invoice and determine whether the amount sought matched the itemized work. In this respect, the remand order was perfunctory: The record needed to formally contain what the magistrate had already accepted and reviewed.

11 the decision. The court’s actions are permitted by rule and, as such, we discern no

error.

{¶40} Appellants’ third and fourth assignments of error lack merit.

{¶41} For their fifth assignment of error, appellants contend:

{¶42} “The trial court committed prejudicial error when it found that defendant,

Dan Powers, held himself out as different entities in violation of the Ohio Consumer

{¶43} Appellants contend the magistrate’s conclusion that Mr. Powers held

himself out as different entities in violation of the CSAP was unsupported by the

evidence. Instead, they maintain, Ms. Nelson was aware of who she was working with

and there was not confusion that Mr. Powers was the head of the landscaping company

with whom she contracted to do work.

{¶44} Initially, Ms. Nelson asserts appellants failed to object on the foregoing

basis. This is not exactly accurate. In their objections, appellants observed: “No

evidence was presented that plaintiff was in any way misled by advertisements of

Powers Landscaping Company, Inc. and all dealings were with the president of Powers

Landscaping Company, Inc., Dan Powers.” This was sufficient to preserve the

argument appellants advance on appeal.

{¶45} In his decision, the magistrate made the factual finding that Mr. Powers

held himself out using multiple different permutations of names, all ostensibly referring

to his only company, Powers Landscaping Company. In the magistrate’s conclusions of

law, he determined: “The regulations additionally require the identity of the supplier to

be listed and evidence has been submitted that Mr. Powers submitted names of his

12 company that were not registered as either an entity or a fictitious name. In addition to

violating the Regulations, Defendants violated R.C. 4165.01 et seq. by their failure to

use the proper name of the entity.”

{¶46} The foregoing legal conclusion does not specify which regulation or

statutory subsection appellants violated under the CSPA. Moreover, R.C. 4165.01, et

seq. addresses deceptive trade practices in labor and industry but is separate from

Chapter 1345. As a result, neither the magistrate, nor the trial court made an affirmative

finding that Mr. Powers held himself out as different entities in violation of a specific

provision of the CSPA.

{¶47} Appellants’ final assignment of error lacks merit.

{¶48} For the reasons discussed in this opinion, the judgment of the Chardon

Municipal Court is affirmed.

TIMOTHY P. CANNON, P.J.,

MATT LYNCH, J.,

concur.