Nye v. White-Rhoades

2015 Ohio 3719

• Court: Ohio Court of Appeals
• Decided: September 14, 2015
• Docket: 9-15-14
• Status: Published

Opinion

[Cite as Nye v. White-Rhoades, 2015-Ohio-3719.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

DENNIS D. NYE, ET AL., PLAINTIFFS-APPELLEES, v. CASE NO. 9-15-04 CYNTHIA K. WHITE-RHOADES, DEFENDANT-APPELLANT, -and- WAYNE RHOADES, DEFENDANT-APPELLEE, OPINION v. CORY NYE, THIRD-PARTY DEFENDANT-APPELLEE.

Appeal from Marion County Common Pleas Court Trial Court No. 08-CV-0582

Judgment Affirmed

Date of Decision: September 14, 2015

APPEARANCES:

Jeff Ratliff for Appellant

Kevin P. Collins for Appellee Case No. 9-15-04

ROGERS, P.J.

{¶1} Defendant-Appellant, Cynthia K. White-Rhoades (“Cynthia”), appeals

the December 21, 2012 and May 8, 2013 judgment entries of the Court of

Common Pleas of Marion County. In its May 8, 2013 judgment entry, following a

bench trial, the trial court awarded Plaintiff-Appellee, Dennis D. Nye (“Dennis”),

judgment in the amount of $20,790.35 against Cynthia. $20,790.35 represented

the amount that the trial court concluded Cynthia owed Dennis ($22,131.67),

offset by the amount Dennis owed Cynthia ($1,341.32). On appeal, Cynthia

argues that the trial court erred in finding that Dennis did not violate the Consumer

Sales Practices Act (“CSPA”); and by failing to award damages Cynthia sought in

her counterclaim. For the reasons that follow, we affirm the trial court’s decision.

{¶2} This case stems from a home-improvement project between relatives

that went awry. Cynthia’s husband, Defendant-Appellee, Wayne Rhoades

(“Wayne”), is the half-brother to Dea Nye (“Dea”), the wife of Dennis’s son,

Third-Party Defendant-Appellee, Cory Nye (“Cory”). (Feb. 6, 2012 Tr. at 134).

Wayne and Cynthia learned at a family get-together that Cory’s father, Dennis,

owned a construction business, so Wayne told Cory that he and Cynthia were

thinking of renovating their house in Marion, Ohio. (Id.); (Feb. 7, 2012 Tr. at

402).

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To get a feel for the project, Cory visited and walked through the house with

Wayne and Cynthia; then, Cory and Dennis visited together. (Id. at 134-140); (Id.

at 405-407). At a family cookout at Cory and Dea’s house, Dennis gave Cynthia

and Wayne a “rough estimate” for the addition onto their home and said he could

either bid for the job or charge them for labor and materials. (Id. at 21-25, 140-

141); (Id. at 411-415). Cynthia and Wayne ultimately decided to hire Dennis for

the job, and Cynthia agreed to be billed at the end of each month for labor and

materials. (Id. at 25-27, 141-142); (Id. at 412).

{¶3} In July 2007, Dennis and Cory commenced work at Cynthia and

Wayne’s house, with Cory serving as the worksite foreman and Dennis frequently

absent from the worksite. (Feb. 6, 2012 Tr. at 33, 93-94). Work on the home

continued until February 19, 2008, including many home improvements not

included in the rough estimate. For example, Dennis and Cory built and installed

a sink in Cynthia and Wayne’s basement (id. at 55, 155); built a new front porch

(id. at 60, 148); purchased and installed a new sump pump (id. at 63, 155); moved

a door in the garage (id. at 64, 156); and installed hardwood floors (id. at 66, 156).

All of these improvements were not included in the rough estimate.

{¶4} Dennis sent invoices to Cynthia and Wayne each month. (Id. at 28).

Cynthia and Wayne paid each invoice that was billed for the work completed in

2007.

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{¶5} In November 2007, in a meeting between Dennis, Cynthia, and

Cynthia’s father, John White (“John”), John requested that Dennis provide an

accounting of the work performed. (Feb. 7, 2012 Tr. at 390-391). In response,

Dennis supplied a document, which Cynthia described as “an estimate for things

that were already done.” (Id. at 391). After getting advice from her father,

Cynthia decided to stop paying the invoices. (Id. at 392). Therefore, Cynthia did

not pay the invoice for January or February of 2008. (Feb. 6, 2012 Tr. at 39, 41).

The amount of the January 2008 invoice totaled $18,791.10 and the February 2008

invoice, which accounted for all the work completed up until February 19, 2008,

totaled $3,340.67. (Id. at 39, 41, 43-44).

{¶6} On July 17, 2008, Dennis “dba Dennis Nye Construction” filed a

“complaint on contract” against Cynthia and Wayne, and the case was assigned

case number 08-CV-0582. (Docket No. 1). Dennis alleged that he entered into

“multiple agreements” with Cynthia and Wayne “to do certain remodeling work”

at Cynthia and Wayne’s residence. (Id.). Dennis alleged that he performed work

under the agreements until Cynthia and Wayne refused to pay for materials and

labor. (Id.).

{¶7} Cynthia and Wayne filed their answer, counterclaim, and third-party

complaint on July 24, 2008. (Docket No. 4). In their answer, Cynthia and Wayne

alleged Dennis’s “claims are barred and must be eliminated by recoupment or set

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off” because they paid Dennis in excess of his estimates and because they incurred

damages as a result of the “negligent construction” of Dennis and Cory. (Id.).

Cynthia and Wayne’s counterclaim contained two counts: slander of title and

violation of CSPA. (Id.). Their third-party complaint against Cory appeared to

allege only a CSPA count. (Id.). Attached to Cynthia and Wayne’s answer,

counterclaim, and third-party complaint were two undated, purported estimates

prepared by Dennis and Cory and delivered to Cynthia. (Id.).

{¶8} Dennis and Cory filed their answers to the counterclaim and third-

party complaint on August 26, 2008 and then, with leave of court, filed amended

answers on January 29, 2009. (Docket Nos. 9, 17).

{¶9} On March 3, 2009, the trial court consolidated case number 08-CV-

0996, Central Mutual Insurance Company (“Central Mutual”), et al. v. Dennis

Nye, et al., with case number 08-CV-0582. (Docket No. 18).

{¶10} On October 15, 2009, Dennis and Cory filed a joint motion for

summary judgment. (Docket No. 33). On November 25, 2009, Cynthia, Wayne,

and Central Mutual filed a joint response to Dennis and Cory’s motion for

summary judgment. (Docket No. 50). Dennis and Cory filed their reply on

December 24, 2009. (Docket No. 53). In an April 7, 2010 entry, the trial court

denied Dennis and Cory’s motion for summary judgment. (Docket No. 67).

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{¶11} On February 22, 2010, Dennis and Cory filed a motion to enforce a

purported settlement agreement between Central Mutual, Cynthia, and Dennis.

(Docket No. 58). Central Mutual filed its response in opposition on March 1,

2010. (Docket No. 62). Dennis and Cory filed their reply the next day. (Docket

No. 64). Central Mutual filed a surreply on March 9, 2010. (Docket No. 66). In

its April 7, 2010 entry, the trial court denied Dennis and Cory’s motion to enforce

the purported settlement agreement. (Docket No. 67).

{¶12} On July 26, 2010, Owners Insurance Company (“Owners Insurance”)

moved to intervene “for the purposes of filing an intervening complaint for

declaratory judgment, pertaining to issues of insurance coverage.” (Docket No.

69). Dennis and Cory filed a response on August 17, 2010, objecting to Owners

Insurance’s intervention. (Docket No. 74). Owners Insurance filed its reply on

August 27, 2010. (Docket No. 75). On February 16, 2011, the trial court granted

Owners Insurance’s motion to intervene and allowed it to file its complaint for a

declaratory judgment stating that it had no duty to indemnify Dennis and Cory.

(Docket Nos. 95-97).

{¶13} After the parties conducted discovery and after multiple continuances

of the trial, a bench trial was held on February 6, 7, 8, and 9, 2012. (See Docket

Nos. 123-126.5).

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{¶14} On September 20, 2012, the trial court ordered that the parties

“submit memorandums in support of their respective positions (closing

arguments).” (Docket No. 127). Cynthia and Wayne filed their “summary of case

and final arguement [sic]” on October 23, 2012. (Docket No. 130). Dennis and

Cory filed their memorandum in support of their positions on November 21, 2012.

(Docket No. 132).

{¶15} On December 21, 2012, the trial court filed an entry awarding

“judgment in favor of the Plaintiff in the amount of $20,790.35 ($22,131.67 less

$1,341.32 off-set).” (Docket No. 133). The trial court also found that “the

Plaintiff, in its memorandum” admitted that Wayne “should be dismissed at [sic] a

party-defendant since the real estate in this case is in the name of [Cynthia].”

(Id.). Finally, the trial court found “that any and all responsibility on behalf of the

Plaintiff [sic], Cory Nye, is not appropriate and he should be dismissed from this

case.” (Id.).

{¶16} On December 28, 2012, Cynthia and Wayne requested that the trial

court state “in writing its findings of fact found separately from its conclusion of

law in support of its judgment in this case.” (Docket No. 134). The trial court

denied Cynthia and Wayne’s request on January 25, 2013, concluding that Civ.R.

52 allows a party to request separate conclusions of fact and law if the trial court

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issues a general verdict [sic] and that the trial court in this case did not issue a

general verdict [sic.]1

{¶17} One week earlier, on January 18, 2013, Cynthia filed a notice of

appeal of the trial court’s December 21, 2012 entry. (Docket No. 135). On

February 19, 2013, we dismissed Cynthia’s appeal because the December 21, 2012

entry was not a final, appealable order for the reason that it entered judgment as to

one but fewer than all of the parties and claims. (See Docket No. 139); Nye, et al.

v. White-Rhoades, et al., Case No. 9-13-03 (JE, Feb. 19, 2013).

{¶18} On May 8, 2013, the trial court filed an entry awarding Dennis

judgment against Cynthia in the amount of $20,790.35, representing $22,131.67

owed to Dennis by Cynthia “less an offset judgment in the amount of $1,341.22

[sic] owed by [Dennis] to [Cynthia] arising out of her counterclaim.” (Docket No.

142). In rendering that judgment, the trial court relied on reasons set forth in its

December 21, 2012 entry. (Id.). The trial court dismissed Wayne as a party

defendant because “the real estate at issue was solely owned by [Cynthia].” (Id.).

The trial court dismissed Cynthia and Wayne’s third-party complaint against Cory.

(Id.). The trial court dismissed Central Mutual and Cynthia’s complaint against

Dennis and John Doe, employee. (Id.). Finally, the trial court dismissed Owners

Insurance’s intervening complaint that because the trial court did not render

1 The trial court used the term verdict. However, a verdict is a jury’s findings on the factual issues in a case. A judgment, by contrast, is a court’s final determination of the rights and obligations in a case. Thus, in a bench trial, such as here, the trial judge’s final determination is made by way of a judgment.

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judgment against Dennis or Cory, the question of whether Owners Insurance owed

a duty to defend or indemnify Dennis and Cory was moot. (Id.).

{¶19} Cynthia appealed the trial court’s May 8, 2013 entry on June 4, 2013.

(Docket No. 143). However, on June 9, 2014, we dismissed Cynthia’s appeal

because the May 8, 2013 entry was still not a final, appealable order. Specifically,

we found that the trial court did not dispose of Cynthia’s slander of title count and

because it appeared that it “awarded Cynthia $1,341.22 on legal theories other

than slander of title and violation of the CSPA.” Nye, et al. v. White-Rhoades, et

al., Case No. 9-13-28 (JE, June 9, 2014).

{¶20} On January 2, 2015, the trial court filed another judgment entry in

this case. In this judgment entry, the court awarded Dennis $20,790.35, which

represented the amount owed to Dennis by Cynthia, less “an offset judgment in the

amount of $1,341.22 owed by Plaintiff Dennis D. Dye [sic] to Defendant Cynthia

K. White-Rhoades arising out of her First Counterclaim for slander of title. The

sum of $1,341.22 represents damage caused by Plaintiff to the value of the

property due to the defective workmanship outlined in this Court’s December 21,

2012 Journal Entry.” (Docket No. 153, p. 2-3).

{¶21} Cynthia timely appealed this judgment, presenting the following

assignments of error.

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Assignment of Error No. I

THE TRIAL COURT FAILED TO FIND THAT PLAINTIFFS- APPELLEES ENGAGED IN A DECEPTIVE SALE PRACTICE AND VIOLATED THE CONSUMER SALES PRACTICE ACT.

Assignment of Error No. II

THE TRIAL COURT FAILED TO PROPERLY AWARD DAMAGES SOUGHT IN DEFENDANTS-APPELLANTS’ COUNTERCLAIM.

{¶3} In her first assignment of error, Cynthia argues that the trial court

erred by suggesting that the home improvements were outside the scope of the

CSPA because the “entire arrangement was, at best, informal” and between family

members. (Docket No. 133). Cynthia argues that the trial court should have

found the CSPA applicable to this transaction and that Dennis “engaged in

deceptive sales practices in various ways.” We disagree.

{¶4} On appeal, Cynthia specifically argues that Dennis committed

deceptive practices by: charging for travel time; failing to divulge the addition of

a one-percent surcharge for “shop materials”; underestimating the estimated cost

of the home improvements; failing to provide Cynthia a written, itemized list of

repairs performed or services rendered; and failing to “oversee[ ] the job site and

provid[e] personal supervision to [Dennis’s] employee when he promised such at

the time he entered into the agreement with [Cynthia and Wayne] to make home

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improvements.” (Appellant’s Brief at 10-16). Finally, Cynthia argues that the

trial court erred by concluding that even assuming Dennis committed a deceptive

practice, Cynthia’s calculation of damages was “too arbitrary and obtuse to give

rise to an appropriate award of damages, much less treble damages.” (Docket No.

133, p. 4).

{¶5} When reviewing a trial court’s judgment following a bench trial, an

appellate court applies a manifest-weight standard of review. Terry v. Kellstone,

Inc., 6th Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 12; Patterson v. Patterson,

3d Dist. Shelby No. 17-04-07, 2005-Ohio-2254, ¶ 26. See also Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 7-23. “The standard of review

for manifest weight is the same in a civil case as in a criminal case.” Terry at ¶ 12,

citing Eastley at ¶ 17.

{¶6} When applying the manifest-weight standard of review, the reviewing

court reviews the entire record, “ ‘weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [finder of fact] clearly lost its way and

created such a manifest miscarriage of justice that the [judgment] must be reversed

and a new trial ordered.’ ” Eastley at ¶ 17, quoting Tewarson v. Simon, 141 Ohio

App.3d 103, 115 (9th Dist.2001). See also Terry at ¶ 12, quoting State v. Lang,

129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 220 and State v. Thompkins, 78 Ohio

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St.3d 380, 387 (1997), superseded by statute on other grounds as stated by State v.

Smith, 80 Ohio St.3d 89 (1997).

{¶7} “Under the manifest weight standard of review, we are ‘guided by a

presumption’ that the fact-finder’s findings are correct.” Id., citing Seasons Coal

Co. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). See also Eastley at ¶ 21;

Patterson at ¶ 26. We must make “ ‘every reasonable intendment and every

reasonable presumption * * * in favor of the judgment and the finding of facts.’ ”

Eastley at ¶ 21, quoting Seasons Coal Co. at 80, fn. 3. “ ‘If the evidence is

susceptible of more than one construction,’ ” we are “ ‘bound to give it that

interpretation which is consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment.’ ” Id., quoting Seasons Coal Co. at 80, fn. 3.

{¶8} “The CSPA states that ‘[n]o supplier shall commit an unfair or

deceptive act or practice in connection with a consumer transaction. Such an

unfair or deceptive act or practice by a supplier violates this section whether it

occurs before, during, or after the transaction.’ ” Eisert v. Kantner Constr., 3d

Dist. Auglaize No. 2-10-13, 2010-Ohio-4815, ¶ 19, quoting R.C. 1345.02(A). See

also Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-

Ohio-1933, ¶ 8.

{¶9} The CSPA defines “consumer transaction” as “a sale, lease,

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

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

personal, family, or household, or solicitation to supply any of these things.” R.C.

1345.01(A). See also Anderson at ¶ 8. A “supplier” under the CSPA 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). See also Anderson at ¶ 29.

{¶10} The CSPA does not define “unfair or deceptive act or practice.”

Hamilton v. Ball, 4th Dist. Scioto No. 13CA3533, 2014-Ohio-1118, ¶ 35.

However, R.C. 1345.02(B) contains a non-exhaustive list of deceptive acts and

practices. Id.; Eisert at ¶ 19, citing R.C. 1345.02(B). In addition to this statutory

list, “two other separate sources can determine what constitutes a violation of

the CSPA: the Ohio Attorney General and the judiciary.” Eisert at ¶ 19, citing

R.C. 1345.09(B) and Frey v. Vin Devers, Inc., 80 Ohio App.3d 1, 6 (6th

Dist.1992). See also Hamilton at ¶ 35, citing R.C. 1345.05.

{¶11} “The CSPA is remedial in nature, having been designed to

compensate for incomplete consumer remedies available at common law. * * *

Thus, we must liberally construe the statute in favor of the consumer.” Anderson,

2013-Ohio-1933 at ¶ 9, citing Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29

(1990), Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 2006-Ohio-5481, ¶

11, and R.C. 1.11. Nevertheless, the burden of proof is on the party bringing the

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CSPA claim to prove by a preponderance of the evidence a violation of the CSPA.

Fikri v. Best Buy, Inc., 12th Dist. Warren No. CA2013-06-051, 2013-Ohio-4869, ¶

19, citing Adaptable Custom Homes, Inc. v. Affordable Luxury Homes, Inc., 12th

Dist. Clinton No. CA91-05-008, 1992 WL 29236, *3 (Feb. 18, 1992).

{¶12} Cynthia first argues that the trial court erred by suggesting that the

home improvements were outside the CSPA’s scope based on the family

relationship between Cynthia, Wayne, and Dennis. Despite this suggestion, the

trial court addressed Cynthia’s arguments concerning how she believed Dennis

committed deceptive acts or practices under the CSPA, and it concluded that

“there was [sic] no deceptive sales practices in this case * * *.” (Docket No. 133).

{¶13} We need not address the trial court’s suggestion that the home

improvements were outside the scope of the CSPA because we conclude that, even

assuming the parties engaged in a “consumer transaction” under the CSPA, the

trial court did not clearly lose its way and create such a manifest miscarriage of

justice that the judgment must be reversed and a new trial ordered when the trial

court concluded that Dennis did not commit a deceptive practice in violation of the

CSPA. See Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. Marion No. 9-08-67,

2009-Ohio-2816, ¶ 46, quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-

26, 2005-Ohio-6173, ¶ 18 (“It is a well settled rule of appellate review that ‘[a]

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judgment by the trial court which is correct, but for a different reason, will be

affirmed on appeal as there is no prejudice to the appellant.’ ”).

{¶14} Cynthia first argues that it was a deceptive practice for Dennis to

charge travel time. She cites Ohio Adm.Code 109:4-3-05(D)(7), which provides:

“In any consumer transaction involving the performance of any repair or service it

shall be a deceptive act or practice for a supplier to * * * [f]ail to disclose upon the

first contact with the consumer that any charge not directly related to the actual

performance of the repair or service will be imposed by the supplier, including but

not limited to * * * charges imposed by the supplier for traveling to the

consumer’s residence * * *.”

{¶15} At trial, Dennis admitted that he did not include travel time in the

“rough estimate” that he gave to Cynthia and Wayne at the cookout at Cory and

Dea’s house. (Feb. 6, 2012 Tr. at 91). Although Dennis could not remember

precisely when he did so, he testified that he informed Cynthia and Wayne, before

commencing work and at the time he discussed things such as whether Cynthia

and Wayne wished him to bid the project or charge on a labor-and-material basis,

that he charged for travel time. (Feb. 9, 2012 Tr. at 274); (Feb. 6, 2012 Tr. at 90-

91). Cory testified that he remembered Cynthia and Wayne saying before

preparation of the rough estimate, “[W]e know we might have to pay travel time *

* *.” (Feb. 6, 2012 Tr. at 203-204). Dennis testified that he charged for his

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workers’ travel time only to Cynthia and Wayne’s house, not from their house,

and that this practice is an industry standard. (Id. at 90-91).

{¶16} Although she does support her arguments with citations to the record,

Cynthia argues that “evidence adduced at trial” illustrates that Dennis violated

Ohio Adm.Code 109:4-3-05(D)(7). She argues that the rough estimate does not

mention travel time. (See Feb. 6, 2012 Tr. at 91). Cynthia also argues that she did

not learn about the travel-time charges until October 2007, when Cory, while

drinking a beer with Wayne, mentioned that Dennis was charging for each

worker’s travel time to and from the worksite. (See Feb. 7, 2012 Tr. at 395). She

points out that the invoices she paid did not include travel time as a separate

itemized charge; rather, travel time was included in each worker’s total labor time.

(Appellant’s Brief at 13). Finally, Cynthia testified that she would not have hired

Dennis had she known Dennis would charge her for travel time. (Feb. 7, 2012 Tr.

at 394).

{¶17} Based on this evidence, we cannot conclude that the trial court

clearly lost its way concerning the travel-time portion of Cynthia’s CSPA claim.

Ohio Adm.Code 109:4-3-05(D)(7) states that it is a deceptive act or practice for a

supplier “[i]n any consumer transaction involving the performance of any repair or

service” not to disclose travel charges “upon the first contact with the consumer.”

By its use of “[i]n any consumer transaction,” this rule applies once a “consumer

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transaction” has commenced by, for example, a supplier’s sale of or solicitation to

supply household services, and “upon the first contact” in that consumer

transaction.

{¶18} Evidence in the record demonstrates that Dennis informed Cynthia

and Wayne of the travel charges before commencing work (i.e. before selling

household services) and at the time he asked Cynthia and Dennis if they wanted

him to bid the project or charge for labor and materials (i.e. before solicitation to

supply household services). (Feb. 9, 2012 Tr. at 274). Moreover, the trial court

may have reasonably concluded that a “consumer transaction” did not commence

when Dennis shared the rough estimate with Cynthia and Wayne because he did

so at a family get-together and later offered to bid the project. (Feb. 6, 2012 Tr. at

90-91); (Feb. 9, 2012 Tr. at 274). Finally, Cory testified that before Dennis

prepared the rough estimate, Cynthia and Wayne said that they knew Dennis may

charge for travel time. (Feb. 6, 2012 Tr. at 203-204). While there is conflicting

evidence in the record susceptible of more than one construction, we must

interpret it consistently with the trial court’s judgment, and we cannot conclude

that the trial court lost its way. See Eastley, 132 Ohio St.3d 328, at ¶ 21.

{¶19} Cynthia next argues that Dennis committed a deceptive sales practice

by not divulging the addition of a one percent surcharge for “shop materials.”

Although she does not say so specifically, Cynthia appears to believe that Dennis

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violated Ohio Adm.Code 109:4-3-05(D)(7), which provides: “In any consumer

transaction involving the performance of any repair or service it shall be a

deceptive act or practice for a supplier to * * * [f]ail to disclose upon the first

contact with the consumer that any charge not directly related to the actual

performance of the repair or service will be imposed by the supplier, including but

not limited to service charges * * *.”

{¶20} Dennis testified that before work commenced, perhaps at Cory and

Dea’s house, he informed Cynthia that he normally marked up his materials four

or five percent, but “she didn’t like that,” so he agreed to charge only a one or two

percent materials surcharge. (Feb. 6, 2012 Tr. at 27-28, 72-73); (Feb. 9, 2012 Tr.

at 275-276). According to Dennis, the standard materials surcharge in the industry

varies but is typically “around ten percent” when a contractor charges for labor

and materials. (Feb. 6, 2012 Tr. at 72). Dennis testified that three months or so

after commencing the work, and in response to “some questioning about this extra

percentage,” he stopped imposing the materials surcharge and “billed what [he]

was getting billed.” (Feb. 9, 2012 Tr. at 275-276). Cynthia testified that Dennis

and Cory never informed her of any materials surcharge or “overcharge.” (Feb. 7,

2012 Tr. at 439-441).

{¶21} For reasons similar to those stated in our analysis above of the travel-

time charge, we conclude that the trial court did not lose its way by concluding

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that Dennis did not violate the CSPA as to the materials surcharge. Evidence in

the record demonstrates that Dennis informed Cynthia and Wayne of the materials

surcharge before commencing work and even agreed, in response to Cynthia’s

objection, to charge a lower percentage than he normally would. (Feb. 6, 2012 Tr.

at 27-28, 72-73); (Feb. 9, 2012 Tr. at 275-276).

{¶22} Cynthia also argues that Dennis violated Ohio Adm.Code 109:4-3-

05(D)(11) and 109:4-3-05(D)(12). Those rules provide:

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

***

(11) Materially understate or misstate the estimated cost of the repair or service;

(12) Fail to provide the consumer with a written itemized list of repairs performed or services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured, or rebuilt, if not new, and the cost thereof to the consumer, the amount charged for labor, and the identity of the individual performing the repair or service * * *.

Ohio Adm.Code 109:4-3-05(D)(11) and 109:4-3-05(D)(12).

{¶23} Specifically as to Ohio Adm.Code 109:4-3-05(D)(11), Cynthia

argues that Dennis estimated the home improvements would cost $126,868,

including $7,500 for heating and air conditioning and that Dennis received

$163,514.12 for seven invoices, and $22,131.77 went unpaid, for a total of

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$185,645.89 invoiced. The difference between the rough estimate and the

invoiced amount is approximately $58,778. However, Dennis testified at trial that

much of the cost overruns were due to Cynthia’s expansion of the scope of the

home improvements and directives to install more expensive options. (Feb. 6,

2012 Tr. at 29-32, 46-71, 80-81, 89-90); (Feb. 9, 2012 Tr. at 280-284).

{¶24} Dennis testified, for example, that Cynthia requested stamped rather

than standard concrete in the basement; a 50-year rather than 30-year roof shingle;

a marbled walk-in shower rather than a standard tub-shower unit; additional and

higher-grade kitchen cabinets; a bar with a sink in the basement; and three

fireplaces rather than one. (Id.). The additional work necessitated material and

labor not included in the estimate—for example, additional cabinets, insulation,

drywall, and trim. (See id. at 53-54). The additional and upgraded kitchen

cabinets alone accounted for approximately $12,500 of the $58,778 discrepancy.

(Feb. 6, 2012 Tr. at 55); (Feb. 7, 2012 Tr. at 420-421). Dennis admitted that he

underestimated the cost of excavation for the basement. (Feb. 6, 2012 Tr. at 46).

{¶25} Cynthia admitted on cross-examination that she directed Dennis and

those working for him to perform additional work at the house, but she said there

“wasn’t a whole lot.” (Feb. 8, 2012 Tr. at 42-46). She agreed that much of the

work performed by Dennis was not included in the rough estimate. (Feb. 7, 2012

Tr. at 415-432).

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{¶26} Once again, while there is conflicting evidence in the record

susceptible of more than one construction, we cannot conclude that the trial court

lost its way concerning whether Dennis materially understated or misstated the

estimated cost of the repair or service under Ohio Adm.Code 109:4-3-05(D)(11).

Dennis’s rough estimate did not encompass, and was not intended to encompass,

the additional work performed at Cynthia’s request. Therefore, contrary to

Cynthia’s argument, Dennis’s invoicing approximately $58,778 more than he

estimated does not demonstrate that he materially understated or misstated the

estimated cost of the repair or service.

{¶27} Cynthia argues that Dennis violated Ohio Adm.Code 109:4-3-

05(D)(12) by failing to provide Cynthia a written, itemized list of repairs

performed or services rendered. Dennis testified that in his invoices to Cynthia

and Wayne, he explained the material cost in addition to supplying them with

copies of his materials receipts, invoices, and copies of the workers’ timecards.

(Feb. 6, 2012 Tr. at 71-72). Dennis identified Plaintiff’s Exhibits L, M, N, O, Q,

R, S, T, and U as his invoices to Cynthia and Wayne. (See Feb. 6, 2012 Tr. at 33-

44). These invoices contained itemized lists of materials and their costs, as well as

the amount charged for labor. (See Plaintiff’s Exs. L, M, N, O, Q, R, S, T, U).

When itemizing many of the materials, Dennis identified the home improvement

to which the materials corresponded. (See id.). For example, in Plaintiff’s Exhibit

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Q, Dennis’s December 7, 2007 invoice to Cynthia and Wayne, Dennis included

“Gordon Lumber venting for fireplaces,” which totaled $1,276.03. (Plaintiff’s Ex.

Q). Attached to the invoices are copies of receipts and invoices for materials and

copies of timecards. (See Plaintiff’s Exs. L, M, N, O, Q, R, S, T, U). Also

attached to Plaintiff’s Exhibit L, Dennis’s first invoice to Cynthia and Wayne

dated August 16, 2007, are Dennis’s handwritten notes and sketches of home

improvements and related materials, measurements, and dimensions, along with

price information. (Plaintiff’s Ex. L). (See also Plaintiff’s Ex. JJJ).

{¶28} Cynthia testified that she, John, and Dennis met in November 2007,

and John asked Dennis to provide an accounting of work performed. (Feb. 7,

2012 Tr. at 390-391). In response, Dennis supplied a document, which Cynthia

identified as Plaintiff’s Exhibit K and described as “an estimate for things that

were already done.” (Id. at 391); (Feb. 8, 2012 Tr. at 40-41). Cynthia testified

that she and John “didn’t get exactly what we wanted in the meeting from

[Dennis] * * *.” (Id. at 40).

{¶29} Based on this evidence, we conclude that the trial court did not lose

its way concerning whether Dennis failed to provide a written, itemized list of

repairs performed or services rendered under Ohio Adm.Code 109:4-3-05(D)(12).

Dennis’s recordkeeping may have been far from ideal, and Cynthia was apparently

not satisfied with the documents Dennis provided. However, the record reflects

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that Dennis provided a rough estimate, detailed invoices listing materials and labor

and their costs, receipts, timecards, and a list of additional services performed.

The trial court did not create a manifest miscarriage of justice by concluding that

Dennis did not violate Ohio Adm.Code 109:4-3-05(D)(12).

{¶30} Finally, in a single sentence, and without citing evidence in the

record or legal authority, Cynthia argues that Dennis violated the CSPA by failing

to “oversee[ ] the job site and provid[e] personal supervision to [Dennis’s]

employee when he promised such at the time he entered into the agreement with

[Cynthia and Wayne] to make home improvements.” (Appellant’s Brief at 16).

At trial, Dennis testified that he told Cynthia “from the beginning” that “Cory

would be running the job.” (Feb. 6, 2012 Tr. at 93). Dennis described Cory as

“the job site foreman,” although Dennis “sometimes” acted as a supervisor, and

Dennis was available if Cory had questions. (Id. at 94). Based on this testimony

and Cynthia’s lack of citations to testimony to the contrary, we conclude that the

trial court did not lose its way concerning whether Dennis violated the CSPA by

not acting as a fulltime jobsite supervisor.

{¶31} In summary, we conclude that the trial court’s judgment concerning

Cynthia’s CSPA counterclaim was not against the manifest weight of the evidence

because the trial court did not clearly lose its way and create a manifest

miscarriage of justice when it concluded that Cynthia failed to demonstrate that

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Dennis violated the CSPA. Based on that conclusion, we need not address

Cynthia’s additional argument that the trial court erred by concluding that

Cynthia’s calculation of damages was “too arbitrary and obtuse to give rise to an

appropriate award of damages, much less treble damages,” even assuming Dennis

violated the CSPA.

{¶32} Accordingly, we overrule Cynthia’s first assignment error.

{¶33} In her second assignment of error, Cynthia argues that the trial court

“failed to properly award damages sought in [Cynthia’s] counterclaim regarding

the kitchen countertop, the surcharge, the ceiling beams, the basement flooding,

the concrete drive, the fireplace and gutters, and the accounting errors.”

(Appellant’s Brief at 17). We disagree.

Standard of Review

{¶34} Since Cynthia is challenging the trial court’s award of damages, we

will review the court’s decision under an abuse of discretion standard. Reinbolt v.

Kern, 183 Ohio App.2d 287, 2009-Ohio-3492 (6th Dist.), citing Roberts v. United

States Fid. & Guar. Co., 75 Ohio St.3d 630, 634 (1996), and Norfolk S. Ry. Co. v.

Toledo Edison Co., 6th Dist. Lucas No. L-06-1268, 2008-Ohio-1572, ¶ 56). A

trial court will be found to have abused its discretion when its decision is contrary

to law, unreasonable, not supported by the evidence, or grossly unsound. State v.

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Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying

the abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

Cynthia’s Counterclaims

{¶35} In this assignment of error, Cynthia specifically argues that the trial

court failed to properly award her damages that she sought in her “counterclaim.”

However, Cynthia does not tell this court from which counterclaim she is seeking

damages. Cynthia and Wayne asserted only two counterclaims: slander of title

and violation of the CSPA. (Docket No. 4). We concluded above that the trial

court’s judgment concerning Cynthia’s CSPA counterclaim was not against the

manifest weight of the evidence. Therefore, the damages Cynthia is seeking must

relate to her first counterclaim for slander of title.

{¶36} “Slander of title to real estate is a tort action against one who falsely

and maliciously defames title to property and causes some special pecuniary

damages or loss.” Prater v. Dashovsky, 10th Dist. Franklin No. 07AP-389, 2007-

Ohio-6785, ¶ 11, citing Hahn’s Elec. Co. v. Cochran, 10th Dist. Franklin No.

01AP-1391, 2002-Ohio-5009, ¶ 24. Typically, slander of title involves “the

wrongful recording of an unfounded claim, such as a mechanic’s lien, to the

property of another.” Prater, citing Green v. Lemarr, 139 Ohio App.3d 414, 433

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(2d Dist.2000). To prevail on a claim of slander of title, the claimant must prove:

“ ‘(1) there was a publication of a slanderous statement disparaging claimant’s

title; (2) the statement was false; (3) the statement was made with malice or made

with a reckless disregard of falsity; and (4) the statement caused actual or special

damages.’ ” Green at 430-431, quoting Colquhoun v. Webber, 684 A.2d 405, 409

(Me.1996).

{¶37} We note that there was no evidence presented at trial concerning the

mechanic’s lien Dennis filed, or that the lien was filed with a malicious intent or

with a reckless disregard of falsity, or that the lien caused actual or special

damages. Since the damages Cynthia seeks in this assignment of error have no

relation to the only remaining counterclaim Cynthia actually pled—slander of

title—we cannot say the trial court erred in failing to award her damages.

Recoupment

{¶38} It appears that the “damages” Cynthia seeks in this assignment of

error relate to the fourth defense she pled in her answer where she claimed that she

is entitled to “recoupment or set/off” for the shoddy manner in which work was

performed on her house. (Docket No. 2, p. 2-3). At this point, we are unsure if

Cynthia and the trial court are under the impression that Cynthia pled a third

counterclaim, or if they are treating her affirmative defense as a counterclaim, or if

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they do not know what the elements for slander of title are.2 However, we note

that recoupment is an affirmative defense, not a counterclaim. Tejeda v. Toledo

Heart Surgeons, Inc., 186 Ohio App.3d 465, 2009-Ohio-3495, ¶ 56 (6th Dist.);

Ignash v. First Service Federal Credit Union, 10th Dist. Franklin No. 01AP-1326

2002-Ohio-4395, ¶ 26; Haddad v. English, 145 Ohio App.3d 598, 603 (9th

Dist.2001).

{¶39} As explained supra, the “damages” Cynthia seeks in this assignment

of error do not arise from any of her two counterclaims. And despite the trial

court’s use of the term “off-set” in its judgment entries, it appears Cynthia is

seeking a reduction of Dennis’ damages under the legal theory of recoupment, not

setoff.

{¶40} The Ohio Supreme Court has defined setoff as “that right which

exists between two parties, each of whom under an independent contract owes a

definite amount to the other, to set off their respective debts by way of mutual

deduction.” Witham v. S. Side Bldg. & Loan Assn. of Lima, 133 Ohio St. 560

(1938). See also Am. Motorists Ins. Co. v. Olin Hunt Specialty Products, Inc.,

10th Dist. Franklin No. 00AP-1313, 2001 WL 1098013, *3, citing Continental

Acceptance Cor. v. Rivera, 50 Ohio App.2d 338, 344 fn. 17 (8th Dist.1976),

2 In its most recent judgment entry, the trial court stated that the amount of “$22,131.67 less an offset judgment in the amount of $1,341.22 owed by Plaintiff Dennis D. Dye [sic] to Defendant Cynthia K. White-Rhoades arising out of her First Counterclaim for slander of title. The sum of $1,341.22 represents damage caused by Plaintiff to the value of the property due to defective workmanship outlined in this court’s December 21, 2012 Judgment Entry.” (Emphasis added.) (Docket No. 153, p. 2-3).

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quoting 3 Moore’s Federal Practice, para. 13.02, note 1 (1978) (Sept. 20, 2001)

(“[A] setoff is * * * ‘a demand asserted to diminish or extinguish a plaintiff’s

demand, which arises out of a transaction different from that sued on, and which

must be liquidated and emerge from a contract or judgment.’ ”).

{¶41} “Recoupment, on the other hand, is, ‘a demand arising from the same

transaction as the plaintiff’s claim.’ ” Tejeda, 2009-Ohio-3495 at ¶ 53. Generally,

recoupment is “[t]he right of a defendant to have the plaintiff’s claim reduced or

eliminated because of the plaintiff’s breach of contract or duty in the same

transaction.” Black’s Law Dictionary 1466 (10th Ed.2014).

“ ‘[Recoupment] does not confess the indebtedness alleged in the complaint, as is understood by a setoff, but its proposition is that the plaintiff’s claim is based on a particular contract or transaction and that to entitle the plaintiff to the sum claimed, he must prove compliance with certain obligations of the contract; that he failed to do so; and therefore that the defendant has been so damaged in the transaction that the plaintiff is not entitled to recover.’ ”

Tejeda at ¶ 54, quoting Cauffiel Mach. Co. v. E. Steel & Metal Co., 59 Ohio

App.2d 1, 6 (6th Dist.1978), quoting 20 American Jurisprudence 2d 235,

Counterclaim, Recoupment and Setoff, Section 11.

{¶42} This matter arose over one transaction, the remodeling contract

between the two parties. Therefore recoupment, not setoff, applies. Further,

because recoupment limits a plaintiff’s damages, we cannot reverse a trial court’s

decision regarding its determination of damages absent a showing that the trial

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court abused its discretion. See Reinbolt, 2009-Ohio-3492 at ¶ 38, citing Roberts,

75 Ohio St.3d at 634 and Norfolk S. Ry. Co., 2008-Ohio-1572 at ¶ 56. However,

in some of her arguments, Cynthia argues that the trial court erred in determining

Dennis’s liability for certain wrongdoings. Thus, we will apply a manifest-weight

standard of review when assessing these arguments. See Kellstone, 2013-Ohio-

4419 at ¶ 12; Patterson, 2005-Ohio-2254 at ¶ 26.

{¶43} Cynthia first argues that the trial court erred in not awarding her

$12,016.18, the cost of replacing her countertop. Dennis testified a subcontractor

for Style Stone installed the countertop. (Feb. 6, 2012 Tr. at 106). Dennis, Cory,

and Cynthia all testified that Nye Construction was not involved with the

installation of the countertop. (Id. at 106-107, 205-207, 257-258, 264-266; Feb. 8

2012 Tr. at 32-33). Cynthia stated that she did not pay Nye Construction for the

countertop, but instead was invoiced by ABC. (Feb. 8, 2012 Tr., at 33).

{¶44} Cynthia argues that her expert witness, John Probst, gave his expert

opinion that the crack in her countertop was caused by the cabinets not being

level. (Id. at 163-164). However, Probst also testified that the person installing

the new countertop had the duty to make sure the countertop was level. (Id. at

169). Since it is undisputed that Nye Construction had no part in installing the

countertop, we cannot find that the trial court erred in finding that Dennis was not

liable for $12,016.18, the amount it would cost to replace the cracked countertop.

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{¶45} In regard to Cynthia’s claim that she is entitled $944.70, which

represents the one percent surcharge the plaintiffs imposed on the materials, we

have already found that such was a normal business practice, not deceptive, and

likewise find that the trial court did not err in refusing to award her the surcharge.

{¶46} Next, Cynthia argues that she is entitled to reduce Dennis’s damages

by the damages she sustained in connection to her basement flooding. All parties

agree that Cory forgot to reconnect a sump pump shortly before a rain storm.

What is at issue is how much damage occurred due to the flooding. Cynthia

argues that she incurred $13,680 in damages, whereas Dennis argues that the

damage was minimal. Cynthia offered Exhibit 201 into evidence, which detailed

each item that was allegedly damaged during the flood and the price of each item.

The most expensive items that were damaged were the pool table, bar, four bar

stools, and poker table with four chairs. She valued that the cost to replace these

items was $9,000-10,000.

{¶47} Cynthia offered many pictures of the basement into evidence and

also the testimony of Mark Gordon, who was with Wayne when they discovered

the flooding. Gordon testified that there was “over an inch” of water in the

basement. (Feb 7, 2012 Tr. at 327). Gordon testified that he was at Cynthia and

Wayne’s residence because they had bought the pool table, bar, and a game table

from his employer, Scioto Valley, and they made a report that these items were

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scratched. (Id. at 326). Gordon testified that Scioto Valley replaced the bar top

and two chairs. (Id. at 333). Cynthia also offered numerous exhibits of pictures

she took after the flooding occurred and when the water subsided. The pictures

depict many boxes and ceiling tiles that were wet. However, Cynthia offered no

pictures of how much water was actually in the basement at the time of the

flooding. She also offered few pictures of the pool table, poker table, bar, or

stools that demonstrated how they were damaged by the flood.

{¶48} In contrast, Dennis offered pictures of the poker table, bar, and chairs

that he took the day after the flooding incident. The pictures show the chairs and

table in good shape and also a layer of dust that was present on the bottom of the

chairs and the table. See (Plaintiff’s Exs. RR, SS, TT, VV, XX, YY, ZZ). Cory

testified that he was at Cynthia and Wayne’s house when they discovered the

flooding. (Feb. 6, 2012 Tr., p. 173). According to Cory, there was “a little bit of

water in the basement.” (Id.). Cory stated that there was a “half inch, maybe an

inch of water” in the lower part of the basement, but that most “of the basement on

the higher parts was all dry.” (Id. at 174). Cory testified that some ceiling tile was

damaged, but not much else. (Id.). Similarly, Nick testified that the water damage

was minimal. Specifically, Nick testified that the basement floors were “stamped

concrete, and the water level was in the cracks * * *. It [sic] may have been a few

places where it was above them, but, if any, not really. It was in the cracks. You

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could walk around with socks and not get your feet wet.” (Feb. 7, 2012 Tr. at

227). Other than a few of the cardboard boxes being wet, Nick could not “recall

stuff being damaged.” (Id.).

{¶49} Dennis also offered Exhibit CCC, which was a letter from Trudy

Bushman, a claims representative from Auto-Owners Insurance, which stated that

she could not see damage to the items Cynthia was claiming were damaged and

advised Cynthia to contact ServePro to dry her basement in order to mitigate her

damages.

{¶50} Again, there was conflicting evidence presented regarding the

damage done to Cynthia’s basement and Cynthia’s failure to mitigate her

damages. We cannot say that the trial court abused its discretion in denying

recoupment for Cynthia in this regard.3

{¶51} Cynthia also argues that the trial court erred when it failed to award

her damages for the cracked driveway. It is undisputed that a portion of Cynthia’s

driveway was cracked and damaged. What was disputed was the cost to repair the

driveway. Cynthia presented the testimony of Rocky Jordan, who testified that it

would cost $3,150.00 to replace the entire driveway. However, Jordan did not

testify what it would cost to replace only the block of driveway that was cracked. 3 In its judgment entry, the trial court repeatedly referred to what he saw at the view of the premises when explaining why it denied Cynthia’s request for damages for her flooded basement. It is well-established that a view is not evidence. See Dept. of Natural Resources v. Ebbing, 28 N.E.2d 682, 2015-Ohio-471, ¶ 63 (3d Dist.), citing City of Akron v. Alexander, 5 Ohio St.2d 75, 77-78 (1966). However, since there was other proper evidence in the record to support the trial court’s decision, we find that any reference to what he observed during the view was harmless.

-32- Case No. 9-15-04

The trial court found that Cynthia was not entitled to replace the entire driveway,

only the portion that was cracked, and since she did not present any evidence on

what it would cost to repair the cracked portion, she was not entitled to

recoupment on this issue.

{¶52} Cynthia argues in her brief that Dennis had the burden of providing

the estimate of what it would cost to repair the affected portion of the driveway.

However, she cites no case law to support this assertion. Moreover, we note that

Dennis never admitted he caused the damage to Cynthia’s driveway. The fact that

Dennis contested his liability makes it more unreasonable to require him to

provide an estimate to repair a driveway that he maintains he did not damage.

Therefore, we cannot find that the trial court abused its discretion in denying

Cynthia’s request for $3,500 to replace her driveway.

{¶53} Finally, Cynthia argues that Dennis committed various accounting

errors, overcharges, and upcharges on invoices. In its judgment entry, the trial

court stated that it “reviewed the explanation advanced by the Plaintiff regarding

these issues at Pages 17-18 of the Defendant’s Memorandum in Support filed

November 21, 2012 and accepts those explanations.” (Docket No. 133, p. 11).

Cynthia argues that the court could not rely on explanations in Dennis’s

memorandum in support. We agree with Cynthia that a court must only rely on

the evidence and testimony presented at trial when reaching its decision.

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However, the arguments advanced in Dennis’s memorandum in support were

based upon testimony and evidence presented at trial. Namely, Dennis explained

that most of the overcharges were due to the one percent surcharge he billed

Cynthia. We have already decided that this was a normal business practice.

Therefore, we cannot say that the trial court erred in this regard.

{¶54} Cynthia also makes the conclusory statement that the trial court

failed to properly award her damages for “the ceiling beams [and] * * * the

fireplace and gutters * * *.” (Appellant’s Br. at 17). However, Cynthia does not

explain why the trial court erred, what amount she is seeking to recoup, or provide

this court with any citations to the record or authorities to support her argument.

Consequently, Cynthia has failed to comply with App.R. 16(A)(7), which requires

her to include in each assignment of error an argument explaining “the reasons in

support of the contentions, with citations to the authorities, statutes, and part of the

record on which appellant relies.” We choose not to address these conclusory

statements pursuant to App.R. 12(A).

{¶55} In conclusion, we find that Cynthia did not plead a counterclaim for

negligence or breach of contract and insofar that she seeks damages under these

unpled theories, the trial court did not err in denying her damages. Even if

Cynthia was seeking to reduce Dennis’s damages under her properly pled

affirmative defense of recoupment, we find that the trial court made no reversible

-34- Case No. 9-15-04

error by refusing to reduce Dennis’s damages for Cynthia’s kitchen countertop, the

surcharge, the basement flooding, the concrete drive, or the accounting errors.

{¶56} Accordingly, Cynthia’s second assignment of error is overruled.

{¶57} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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